Cornell University* Law Library 
 
 The Moak Collection 
 
 PURCHASBD FOR 
 
 The School of Law .of Cornell University 
 
 And Presented February 14, 1893 
 IN nenoRY of 
 I JUDGE DOUGLASS BOARDMAN 
 
 ; FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018852081 
 
A TREATISE 
 
 BILLS OF EXCHANGE 
 
 PROMISSORY NOTES. 
 
A TREATISE 
 
 OF THE LAW OP 
 
 BILLS OF EXCHANGE, 
 
 PROMISSORY IsTOTES, 
 
 BANK-NOTES AND CHECKS. 
 
 BY 
 THE KIGHT HONOURABLE 
 
 SIR JOHN BARNARD JJLES, 
 
 LATE ONE OF THE JUDOES OP HEK MAJESTY'S 
 COUBT OP COMMON PLEAS. 
 
 FEOM THE ELEVENTH LONDON EDITION, 
 
 WITH HOTEB PROM THE FIFTH AMERICAN EDITION, 
 
 ByMAURICB BARK'AED BYLES, ESQ., 
 
 OP THE INNEB TEMPLE, BABUISTBE-AT-LATV. 
 
 WITH ADDITIONAL NOTES, 
 
 II.LUSTEATING THE LAW AND PEACTICE IN THE UNITED STATES, 
 BY 
 
 HON. GEORGE SHARSWOOD. 
 
 ViaiLANTIBUS HON DOBHIENTIBUS JURA SUBTENICNT. 
 
 PHILADELPHIA: 
 
 T. & J. W. JOHNSON" & CO., 
 
 LAW BOOKSELLERS AND PUBLISHERS, 
 No. 535 CHESTNUT STKEET. 
 18T4. 
 
Entered, according to the Act of Congress, in the year ]Sd3, 
 
 BY T. & J. W. JOHNSON, 
 
 In the OeSoo of the Olerk of the District Coimfor the Eastern District of Pennsylvania. 
 
 o./ 
 
 Batered, accord in^^.tfae Act of Congress^ in the year 1856, 
 
 BY T, & J. W. JOHNSON & CO., 
 
 lu the Office of the Olerk of the District Court for the Bastern District of Fennsylvania. 
 
 Entered, according to the Act of Congress, in the year 1867, 
 
 BY T. & J. W. JOHNSON & CO., 
 
 In the Office of the Clerk of the District Court for the Eastern District of PenosyWania. 
 
 Entered, according to Act of Congress, in the year 1874, 
 
 BY T, & J. W. JOHNSON & CO., 
 In the Office of the Libraria-a of Congress at Washington. 
 
 KIKQ & BAIRD, Pbws<bb8, No. 607 Sanbou Stbret. 
 
TO 
 
 THE RIGHT HONOURABLE 
 
 JAMES LORD WENSLEYDALE. 
 
 LATE ONE OF THE 
 
 BARONS OP HER MAJESTY'S COURT OF EXCHEQUER, 
 
 TO WHOM 
 
 THE LAW AND ITS PROFESSORS ARE UNDER OBLIGATIONS AS QREAT AS TO 
 ANY JUDGE WITHIN LEGAL MEMORY, 
 
 H matt 
 
 IS, 
 WITH HIS PERMISSION, APPBCTIONATELY INSCRIBED 
 
 Br 
 
 THE AUTHOR. 
 
NOTE TO THE 
 
 SIXTH AMERICAN EDITIOl^' 
 
 This Edition, from the Elevknth and last English Edition, is 
 now presented to the American Profession. This treatise has 
 won its way so entirely to public confidence, as an accurate 
 and practical compendium of the law of Bills of Exchange 
 and Promissory notes, as evidenced by the demand constantly 
 recurring for new editions, both in England and this country, 
 that nothing further need be said in its favor. Much care has 
 been bestowed upon the Editorial Department. The cases on 
 the subject are so numerous in the American Courts, that the 
 difficulty has been to avoid encumbering the work with crowded 
 references. The Editor's effort has been to select and arrange 
 the more important decisions, illustrative of the principles of 
 the text, avoiding, — except in a few instances, in which it seemed 
 important, for the sake of the Student, — any discussion of the 
 grounds of the cases. In this respect, the character of the 
 notes has been .made, as far as the ability of the Editor per- 
 mitted, to conform to that of the text, which is remarkable 
 for its succinctness and for its judicious selection of leading 
 points and cases. It is evident that an attempt to do more — 
 to make a library of the book — would have destroyed its sym- 
 metry and usefulness. 
 
 G. S. 
 April, 1874. 
 
PREFACE 
 
 TO THE ELEVENTH EDITIOIT. 
 
 The new Judicature Act will not be in force until Michael- 
 mas Term, 1874, and its operation will even theu be dependent 
 on Rules to be made hereafter ; it has therefore been necessary 
 to retain for the present the decisions on the existing Statutes 
 and Rules of Procedure. 
 
 For the additions and alterations in this Edition, the Editor 
 alone is responsible, although every sheet has passed under the 
 eye of the Author. 
 
 Maurice Barnard Btles. 
 
 1st December, 1873. 
 2, Mitre Cotjht Buildings, 
 
 Inner Temple. 
 
PREFACE 
 
 TO THE FIRST EDITIO]^'. 
 
 There is no vestige of the existence of bills of exchange* 
 , among the ancients, and the precise period of their introduc- 
 
 * II n'y a aucun vestige de notve contrat de change, ni des letti'es de 
 change, dans le droit Romain. Ce n'est qu'il n'arrivat quelquefois chez 
 les Remains, que Ton comptat pour quelqu'un une somme d'argent dans 
 un lieu a une personne, qui se chargeoit de lui en faire compter autant 
 dana un autre lieu. Ainsi nous voyons, dans les lettres de Cic6ron a 
 Atticus, que CicSron voulant envoyer son fils faire ses fitudes a Athenes, 
 s'informe si pour 6pargner a son fils de porter lui-meme a Athenes 
 I'argent dont il y auroit besoin, on ne trouveroit pas qjielque occasion 
 de le compter, a Rome, a quelqu'un qui se chargeroit de le lui faire 
 compter 5, Athenes. — Epist. ad Att. xii. 34 ; xv. 25. Mais ccila n'6toit 
 pas la n6gociatlon de lettres de change telle qu'elle a lieu parmi nous ; 
 cela se faisoit par de simples mandats. Cicerou chargeoit quelqu'un 
 de ses amis de Rome qui avoit de I'argent a recevoir a Athenes, de faire 
 tenir de I'argent a son fils a Athenes ; et cet ami, pour ex6cuter le 
 mandat de Cic^ron, 6crivoit a quelqu'un des d^biteurs qu'il avoit a 
 Athenes, et le chargeoit de compter une somme d'argent au fils de 
 Cicfiron. Au reste, on ne voit point qu'il se pratiquat chez les Romains, 
 comme parmi nous, un commerce de lettres de change : et nous trouvons 
 au contraire, en la loi 4, §1, S. de naut. Men., qui est de Papiuien, que 
 ceux qui pretoient de I'argent a la grosse aventure aux marchands qui 
 trafiquoient sur mer, envoyoicnt un de leurs esclaves pour recevoir de 
 leur dfebiteur la somme pretfie lorsqu'il seroit arrive au port ou il devoit 
 vendre ses marchandises ; ce qui certainemeut n'auroit pas ele neces- 
 saire, si le commerce des lettres de cliange eut ete en usage chez les 
 Romains. 
 
 Quelques auteurs ont prfitendu que I'usage du contrat de change et 
 des lettres de change est venu de la Lombardie, et que les Juifs, qui y 
 
XU P K E E A C E . 
 
 tion is somewhat controverted. It is, however, certain that 
 they were in use in the fourteenth century. Indeed, they are 
 mentioned as " letteres d'eschange" in the English Statute 
 Book (3 Eic. 2, c. 3), as early as the year 1379. Though we 
 find in our English reports no decision relating to them earlier 
 than the reign of James the First.* 
 
 It is probable that a bill of exchange was, in its original, 
 nothing more than a letter of credit from a merchant in one 
 country, to his debtor, a merchant in another, requestilig 
 him to pay the debt to a third person, who carried the letter, 
 and happening to be travelling to the place where the debtor 
 resided. It was discovered ^by experience, that this mode of 
 making payments was extremely convenient to all parties : — 
 to the creditor, for he could thus receive his debt without 
 trouble, risk or expense — to the debtor, for the facility of 
 payment was an equal accommodation to him, and perhaps _ 
 drew after it facility of credit — to the bearer of the letter, 
 who found himself in funds in a foreign country, without 
 the danger and incumbrance of carrying specie. At firs'', 
 perhaps, the^ letter contained many other things besides the 
 order to give credit. But it was found that the original 
 bearer might often, with advantage, transfer it to another. 
 The letter was then disencumbered of all other matter ; it was 
 open and not sealed, and the paper on which it was written 
 gradually shrank to the slip now in use. The assignee was, 
 perhaps, desirous to know beforehand, whether the party, to 
 whom it was addressed, would pay it, and sometimes showed 
 it to him for that purpose ; his promise to pay was the origin 
 of acceptances. These letters or bills, the representatives of 
 debts due in a foreign country, were sometimes more, some- 
 
 6loient etablis, en ont i\.& les invcnteui's ; d'autres en attribuent I'inven- 
 tion aux Florentins, loisqu'ayant 6l6 chassis de leur pays par la faction 
 de Gibelins, ils s'etablirent a Lyon et en d'autres villes. II n'y a rien sur 
 eela de certain, si ce n'est que les letlres de change eloieni en usage des le 
 quatorsieme Steele. C'esf ce qui paroit par une loi de Venise de co temps 
 sur cette matifere, rapportfie par Nicholas de Passeribus, en son liyre, 
 De Script. Privat. lib. 3. — Pothier, Traite du Contrat de CJiange, Pariie 
 Prem. ; Chap. 1, s. 1, 
 
 * Martin v. Boure, Cro, Jae. 6. 
 
PREFACE. XIU 
 
 times less, in demand ; they became, by degrees, articles of 
 traffic ; and the present complicated and abstruse practice and 
 theory of exchange was gradually formed. 
 
 Upon their introduction into our own country, other con- 
 veniences, as great as in international transactions, were found 
 to attend them. They offered an easy and most effectual ex- 
 pedient for eluding the stubborn rule of the common law, that 
 a debt is not assignable ; furnishing the assignee with an 
 assignment binding on the original creditor, capable of being 
 ratified by the debtor, perhaps guaranteed by a series of 
 responsible sureties, and assignable still further, ad infinilum. 
 ISot only did these simple instruments transfer value from 
 place to place, at hofne or abroad, and balance the accounts of 
 distant cities without the transmission of money ; not only 
 did they assign debts in the most convenient, extensive and 
 effectual manner ; but the value of a debt was improved by 
 being authenticated in a bill of exchange, for it was thus re- 
 duced to a certain amount, which the debtor, having accepted, 
 could not afterwards unsettle ; evidence of the original de- 
 mand was rendered unnecessary, and the bill afforded a plainer 
 and more indisputable title to the whole debt. A creditor, 
 too, by assigning to a man of property a bill at a long date, 
 given him by his debtor, could obtain, for a trifling discount, 
 his money in advance. Credit to the buyer was thus rendered 
 consistent with ready money to the seller, and the reconcilia- 
 tion of the apparent inconsistency was brought, about by a 
 further benefit to a third person, for it was effected by advan- 
 tageously employing the surplus and idle funds of the bapital- 
 ist. At the first introducticm of bills of exchange, however, 
 the English Courts of Law regarded them with a jealous and 
 evil eye, allowing them only between merchants ; but their 
 obvious advantages soon compelled the Judges to sanction 
 their use by all persons ; and of late years the policy of the 
 Bench has been industriously to remove every impediment, 
 and add all possible facilities to these wheels of the vast com- 
 mercial sjstem. 
 
 The advantages of a bill of exchange in reducing a debt to 
 
XIV PREFACE. 
 
 a certainty, curtailing the evidence necessary to etiforce pay- 
 ment, and affording the means of procuring ready money by 
 discount, often induced creditors to draw a bill' for the sake of 
 acceptance ; though there might be no intention of transferring 
 the debt. Such a transaction pointed out the way to a shorter 
 mode of effecting the same purpose by means of a promissory 
 note. Promissory notes soon circulated like bills of exchange, 
 and became as common as bills themselves, ilfotes for small 
 sums, payable to bearer on demand, were found to answer 
 most purposes of the ordinary circulating medium, and have 
 at length, in all civilized countries, supplanted a great portion 
 of the gold and silver previously in circulation. Great, however, 
 as was the saving, and numerous the advantages arising from 
 the substitution, it was discovered by experience that the dan- 
 gers and inconveniences of an unlimited issue of paper money 
 were at least as great. The Legislature have, therefore', found 
 it necessary, to place the issue of negotiable notes for small 
 sums under the restrictions which will be pointed out in this 
 work; and experience has proved that the only mode of pre- 
 serving paper mo^ey on a level with gold, is to compel the ut- 
 terers to exchange it for gold, at the option of the holder. 
 And peradventure e\^en then, unless the State control the issue 
 of paper, on principles controverted and imperfectly under- 
 stood at present, the value of the whole circulating medium 
 may decline together, as compared with other commodities or 
 the currency of foreign countries, and the consequent tendency 
 of the precious metals to leave the kingdom may, by narrow- 
 ing the basis of the currency, endanger the whole superstruc- 
 ture. « 
 
 During the suspension of cash payments and the circulation 
 of one pound notes, nearly every payment in this country was 
 made in paper. And some idea may be formed of the im- 
 mense amount of property now afloat in bills and notes, when 
 it is considered that all payments for our immense exports and 
 imports, almost every remittance to and from every quarter of 
 the world, nearly every payment of large amount between dis- 
 tant places in the kingdom, and a large proportion of pay- 
 ments in the same place, are made through the intervention of 
 
PREFACE. XV 
 
 bills ; not to mention the amount of common promissory notes, 
 at long and short dates, the notes of the Bank of England and 
 country banks, and the universal and daily increasing use of 
 checks. It will not, perhaps, be an unreasonable inference 
 that the bills and notes of all kinds, issued and circulated in 
 the United Kingdom in the space of a single year, amount to 
 many hundred millions. 
 
 Simple as the form of a bill or note may appear, the rights 
 and liabilities of the different parties to those instruments 
 have given rise to an iniinity of legal questions, and multi- 
 tudes of decisions^ — a striking proof of what the experience 
 of all ages had already made abundantly manifest — that law 
 is, in its own nature, necessarily voluminous ; that its com- 
 plexity and bulk constitute the price that must be paid for 
 the reign of certainty, order, and uniformity ; and that any 
 attempt to regulate multiform combinations of circumstances, 
 by a few general rules, however skilfully constructed, must be 
 abortive. 
 
 In France this subject has been briefly but luminously 
 treated, first by Dupuy de la Serra, in a little book entitled 
 " L'Art des Letires de Change" and afterwards by Pothier, 
 whose work, as well as his other performances, and in par- 
 ticular the Traiti des Obligations, evinces a profound ac- 
 quaintance with the principles of jurisprudence, and extra- 
 ordinary acumen and sagacity in their application ; the result 
 of the laborious exercise of his talents on the Roman law. 
 There cannot be a greater proof of the surpassing rfterit of 
 his works, than that, after the lapse of more than half a 
 century, and a stupendous revolution in all the institutions 
 of his country, many parts of his writings have been incor- 
 porated, word for word, in the new Code of France. The 
 Traits du Contract de Change is often cited in the English 
 Courts of Law. "The authority of Pothier," says the present 
 learned Chief Justice* of the Common Pleas, "is as high as 
 can be had, next to the decision of a Court of Justice in this 
 
 * Lord Chief Justice Best. 
 
XVI P B B P A C E . 
 
 country ; his writings are considered by Sir William Jones as 
 equal in point of luminous method, apposite examples, and a 
 clear manly style, .to the works of Littleton on the Laws of 
 England."* 
 
 In this country, the growth of the law on bills and notes 
 has been almost proportionate to the increase of those instru- 
 ments ; insomuch that within the last sixty years the reported 
 decisions upon them, in law, equity, and bankruptcy, would 
 fill many volumes. Numerous have been the attempts to 
 reduce the mass of authorities to the shape of a regular 
 treatise ; but amongst all these, two only are now in common 
 use in the Profession, the treatise of Mr. Chitty, and the 
 summary of Mr. Justice Bayley.f 
 
 The work of the learned Judge is written with the greatest 
 circumspection; but it is now out of print, and the latest 
 edition some years old.:]: 
 
 Mr. Chitty's treatise is a laborious and full collection of 
 almost all the cases, by an eminent counsel, the extent of 
 whose legal acquirements, and the readiness of their applica- 
 tion, can only be appreciated by those who have been in the 
 habit of personal intercourse with him. But the size of the , 
 book is an objection with many, and a cloud of authorities 
 will sometimes obscure the most luminous af-rangement. 
 
 This little work does not aspire to compete with either the 
 above learned performances, but merely to supply a want 
 felt by many, of a plain and brief summary of the principal 
 practical points relating to bills and notes, supported by a 
 reference to the leading or latest authorities. In many cases 
 the reader will, however, find the law laid down in the very 
 
 * Oox V. Troy, 5 B. & A. 481. There is now also an able modern French 
 •work on the same subject by M. Noguier. In America have recently ap- 
 peared the Commentaries of Mr. Justice Story on the Law of Bills of Ex- 
 change, and his Commentaries on the Law of Promissory Koles. 
 
 t Mr. Roscoe's Digest and Mr. Johnson's book had not appeared when- 
 these observations were written. 
 
 j: A new edition has sioce been published. 
 
PREFACE. XVll 
 
 words of the judgment, a plan which the Author has heen 
 induced to adopt, partly that those who may not have ready 
 access to the authorities may be satisfied that the law is cor- 
 rectly stated ; and partly because he distrusted his own ability 
 to enunciate, on so complicated a subject, a general rule, 
 neither too narrow nor too wide, beset, as almost all such 
 general rules now are, with numerous qualifications and excep- 
 tions. No pains have been spared to render the su'bject intelli- 
 gible. How far the book is likely to be useful in practice, it is 
 for others to determine. 
 
 JoHX Barnard Bylbs. 
 
 Inner Temple, 
 
 16^;* Ap-il, 1839. 
 
KOTE BY THE AMERICAN EDITOR. 
 
 It may be proper to explain, that the referencee in the Eng- 
 lish Ifotes to the Fifth American Edition, were made originally 
 in the English Edition. Of course, all the notes contained in 
 the former American editions, are to be found in the present. 
 
 This apparent incongruity, as well as the occasional repeti- 
 tion in the English Notes of the matter in the American, 
 though without the citation of the cases, it was impossible to 
 remedy without altering the original work, which the Ameri- 
 can publishers did not consider it would -be proper for them 
 to do. 
 
 G. S. 
 
 April, 1874. 
 
CONTENTS 
 
 THE PAGES EBFBKBED TO ABE THOSE BETWEEN [ J. 
 
 CHAPTER I. 
 GE^rERAL OBSERVATIONS ON A BILL OF EXCHANGE. 
 
 Explanation of Terms . . 1 
 Peculiar Qualities of Contracts on 
 
 Bills or Notes .... 3 
 Effect of drawing or indorsing a 
 
 Bill 3 
 
 How far Bills or Notes are con- 
 
 Bidered as Chattels ... 3 
 
 May be taken in Execution . 3 
 
 Where a Bill or Note might have 
 operated as a Will or Testa- 
 mentary Instrument . . 4 
 
 As a Declaration of Trust 
 
 4 
 
 CHAPTER II. 
 
 OP A PROMISSORY NOTE. 
 
 What it is 5 
 
 How considered at Common Law 
 
 and what bv Statute . . 5 
 Promissory Notes made out of 
 
 England 6 
 
 Form of a Note .... 6 
 
 Note by a Man to himself . . 6 
 Note by a Man to himself and 
 
 Another ... . . .7 
 
 Notes payable by Instalments . 7 
 
 Joint and Several Notes . . 7 
 Where there is Principal and 
 
 Surety 8 
 
 Contribution between Joint 
 
 Makers 8 
 
 Bank Notes 9 
 
 Bank of England Notes . . 9 
 When Banii of England Notes 
 
 are a legal Tender . . .10 
 Country Bank Notes . . .10 
 When Country Bank Notes are a 
 
 legid Tender . . . .10 
 When Money had and received 
 
 will lie for them . . .10 
 Of the contracting Words in a 
 
 Promissory Note . . .10 
 
 Other Matters contained in a 
 Note 13 
 
 CHAPTER III. 
 
 OF A CHECK ON A BANKER. 
 
 What Instruments are Checks . 13 
 Requisites to have brought 
 Checks witiiin the exemption 
 of the General Stamp Act . 14 
 
 Effect and Penalty of omitting a 
 Stamp on Check, where necessary 
 
 Alteration of the Law by recent 
 Acts ...... 
 
XX 
 
 CONTENTS. 
 
 Existing Stnmp Duty . 
 
 Amount for which a Check may 
 
 be drawn 
 
 How transferred .... 
 Banker's obligation to pay . 
 Time of Presentment . . . 
 As between Holder and Drawer . 
 As between the Holder and his 
 
 own Banker .... 
 "Where the Parties do hot live in 
 
 the same Place. 
 As between the Holder and a 
 
 Transferor who is not the 
 
 Drawer 
 
 "What amounts to an engagement 
 . to pay a Check 
 Crossed Checks .... 
 Statute relating to crossed Checks 
 "What a Check is evidence of 
 When it amounts to Payment 
 
 21 
 
 31 
 
 21 
 32 
 33 
 34 
 
 When it may be taken in Pay- 
 
 nuent .24 
 
 Whether Holder be Assignee of 
 
 a Chose in Action . . .34 
 Effect of Drawer's Death . . 25 
 Of Fraud in filling up Checks . 25 
 Branch Banks . . . .25 
 When several must join in draw- 
 ing Check. . . ' . .26 
 From what period Customers 
 
 debited . . . . .26 
 Checks not protestable . . 26 
 Formerly referred to Master to 
 
 compute . . . . , . 26 
 liijilit to casli a Check . . .36 
 Overdue Check . . . .36 
 Is within Bills of Exchange Acts 36 
 May be taken in Execution. . 30 
 Checks payable to order . . 37 
 
 CHAPTER IV. 
 OF AN I O U. 
 
 What it is 38 
 
 Requires no Stamp . . .28 
 
 Unless it amounts to a Note or 
 Agreement . . . .39 
 
 Need not be addressed to the 
 Creditor . . . . .29 
 
 Bill in Equity to discover Con- 
 sideration 29 
 
 To restrain an Action . . .39 
 
 CHAPTER V. 
 
 OF THE CAPACITY OF CONTRACTING PARTIES TO A BILL OR 
 
 NOTE. 
 
 Agents 31 
 
 Who may be an Agent . . 31 
 Special Agent and General Agent 31 
 Actual and ostensible Author- 
 ity 31 
 
 How Agent appointed. . . 31 
 
 Procuration 33 
 
 When Authority inferred . . 33 
 To indorse . . . . .33 
 When admitted . . . .33 
 Consequences of an Agent ex- 
 ceeding his authority . . 34 
 Unauthorized Indorsement. , 34 
 
 Delivery 34 
 
 Pledging 34 
 
 Bill Brokers . . . .35 
 
 When the pi eduction of Agent's 
 
 Authority may be required . 35 
 How determined . . .86 
 When it may be delegated . . 36 
 
 Personal Liability of an agent to 
 
 Third Persons . . . ,36 
 Parol Evidence inadmissible to 
 
 discharge the Agent. . . 37 
 No one liable on a Bill unless his 
 
 Name appears . . . .37 
 Signature without Authority . 38 
 Liability how avoided. . . 38 
 Liability, of Agent for Fraud . 38 
 RIglits of an Agent against Third 
 
 Persons 38 
 
 Liability of an Agent to his Prin- 
 cipal 40 
 
 Rights of Principal against Third 
 Persons ..... 40 
 
 Pabtneks 40 
 
 Paktkekship, both actual and 
 
 ostensible . . . .41 
 Agreement, inter se, not to draw 
 Bills 41 
 
CONTENTS. 
 
 XXI 
 
 Cases in which Partners are both 
 entitled and liable in respect of 
 
 a Bill 41 
 
 Kights and Liabilities as between 
 . the Firm and the World . . 43 
 One Partner binding the others 
 
 by Bills . . . . . 43 
 By Promissory Notes . . .44 
 Must observe Style of Firm . .44 
 Farming and Mining Partner- 
 ships 45 
 
 Partnerships not in Trade . . 45 
 Creditors carrying on a Trade . 45 
 Consequences of Partner exceed- 
 ing his Authority . . .46 
 Where there is Notice . . 46 
 Common Partner in Two Fii-ms 
 
 of the same Name . . .48 
 New Partner . , . .48 
 Fresh security . . . .48 
 
 DOBMANT OK SECRET PABTNEK 49 
 
 His Liability . ' . . .49 
 Nominal Partner . . .50 
 DiSSOLOTlON . . . .50 
 Retirement of Secret Partner . 53 
 Occasional Partnerships . 53 
 bxbcdtobs and administra- 
 TORS 53 
 
 Their Rights and Duties . . 54 
 Effect of Probate . ... 54 
 Specialty and Simple Contract 
 Debts 54 
 
 Debtor made Executor . . 54 
 Debtor becoming Administrator . 56 
 When Executors may sue as sucli 5fi 
 Delivery after Indorser's Death . 57 
 Indorsement by one Executor of 
 
 several 57 
 
 Personal Liability on a Bill . 57 
 Joinder of Common Counts in 
 
 Actions against . . .57 
 
 Infants 5S 
 
 Persdns under undue Influence . 61 
 Lunatics . . . • . 62 
 Persons Drunk . . .63 
 Married Women . . .63 
 Miirried Women's Property Act. 67 
 Convicted Felons . . .67 
 
 Aliens 67 
 
 Corporations and Banking 
 
 Companies 68 
 
 Banli of England ... 69 
 Banks of not more than Ten Part- 
 ners 71 
 
 Banks of more than Six Partners 71 
 .Joint Stock Companies . .71 
 At Common Law . . .71 
 Joint Stock Companies under 7 & 
 
 8 Yicf. 0. 110 . . . . 73 
 Joint Stock Companies under 
 
 subsequent Acts . . .73 
 Persons acting in an Official 
 
 Capacity 74 
 
 Loan Societies . . . .75 
 
 CHAPTER VI. 
 
 OF THE FORM OF BILLS OP EXCHANGE AND PROMISSORY 
 
 NOTES. 
 
 On what Substance they may be 
 
 written 76 
 
 In what Language . . .76 
 In Pencil or in Ink . v .76 
 Signature by a Mark . . .77 
 Of the Superscription of the Place 
 
 where made . . . .77 
 Of tliie Date .... 77 
 Of the Superscription of the Sum 
 
 payable. 79 
 
 Of the Time when payable . '. 79 
 
 Of Usance 80 
 
 Of the Request to pay . . . 80 
 Of the Nam,e of the Payee . . 80 
 
 Of the words "Order" or 
 
 "Bearer" .... 83 
 Of the Sum payable . . .83 
 Bills and Notes under 30«. . . 84 
 Bills and Notes under 51. . . 84 
 Of the JVords "Value received " S.^ 
 Other Statements of the Consid- 
 eration 86 
 
 Of the Drawer's Signature . . 87 
 
 Of the Direction of the Drawee . 87 
 Of the Place where made payable 
 
 by the Drawer . ... 88 
 Of the Direction to place to Ac- 
 count . . . . . 89 
 Of the Words "As per Advice " . 89 
 
XXll 
 
 COST TENTS, 
 
 CHAPTER VII. 
 
 OF AMBIGUOUS, CONDITIONAL, AND OTHERWISE IRREGULAR 
 
 INSTRUMENTS. 
 
 Note payable to the Maker , 
 
 Equivocal Instruments 
 
 Bills and Notes must be for Pay- 
 ment of a Sum of Money and 
 for that only .... 
 
 And for Money in Specie . 
 
 And for a Sum certain 
 
 And for Payment of it 
 
 Must not suspend Payment on a 
 Condition .... 
 
 Period of Payment may be un- 
 certain if inevitable . 
 
 90 
 90 
 
 Where several Makers or several 
 Payees are respectively liable 
 or entitled in the alternative . 
 
 Must not be made payable out of 
 a particular Fund . 
 
 Irregular Bill or Note may be an 
 Agreement .... 
 
 Coupons . . , . 
 
 Letters of 
 Notes 
 
 Credit, and Circular 
 
 95 
 
 96 
 
 96 
 96 
 
 CHAPTER VIII. 
 
 OF AGREEMENTS INTENDED TO CONTROL THE OPERATION OF 
 BILLS .OR NOTES. 
 
 Various Sorts of Agreements . 98 
 
 Effect of Contemporaneous 
 Agreement vfritten on the In- 
 strument 98 
 
 Effect of an Agreement subse- 
 quently written on the Insliu- 
 ment 99 
 
 Effect of Agreement written; on a 
 distinct Paper . . . .99 
 
 Agreement contemporaneous but 
 
 collateral 99 
 
 Promissory Note accompanying 
 
 a Mortgage .... 100 
 Effect of an oral Agreement . 100 
 Delivery in the nature of an Es- 
 crow 100 
 
 Agreement to renew . . . 101 
 Agreement on Bill must be read 101 
 Pleading on Agreement . . 101 
 
 CHAPTER IX. 
 
 OF THE STAMP. 
 
 The present Stamp Act . . 102 
 How Instruments are to be writ- 
 ten and stamped . . . 102 
 Separate Duties .... 103 
 Appropriated Stamps . . . 103 
 Stamping after Execution . .104 
 On Instruments made Abroad . 104 
 Instrument not duly stamped in- 
 admissible .... 104 
 Inipressed Stamps . . . 104 
 Adhesive Stamps . . . 105 
 
 Interpretation of Terms 
 
 Bank Note . 
 
 Bill of Exchange 
 
 Proniissory Note . 
 
 Foreign Bills and Notes 
 
 Sets of Bills . 
 
 Foreign Securities 
 
 Receipts .... 
 
 Schedule 
 
 Effect of want of a Stamp 
 
 Presumption as to Stamp 
 
 . 105 
 . 105 
 . 106 
 . 106 
 . 107 
 . 108 
 . 109 
 . 110 
 . liO 
 . 114 
 . 116 
 
CONTENTS'. 
 
 XXIU 
 
 CHAPTER X. 
 
 OF THE CONSIDERATION. 
 
 Presumption as to Considerations 
 
 on Bills and Notes . 
 When it must be proved 
 In tlie case of an Accommodation 
 
 Bill 
 
 Effect of New Rules of Pleading . 
 Ambiguity of the Expression 
 
 '^ bona fide Holder for value" . 
 Distinction between Holder witii- 
 
 out Value and Holder witli 
 
 Notice 
 
 Burthen of Proof in the Case of 
 
 alleged Holder without Valu& . 
 In case of alleged Holder with 
 
 Notice 
 
 Proof of Notice .... 
 
 117 
 
 118 
 
 118 
 120 
 
 120 
 
 130 
 
 121 
 
 121 
 128 
 
 Plaintiff standing on Prior Title 123 
 What amounts to Notice . . 123 
 Explicit Notice . . . .122 
 Implicit Notice .... 122 
 Abstinence from Inquiry . . 133 
 Gross Negligence not equivalent 
 
 to Notice . ' . . . .123 
 Notice to an Agent . . . 123 
 Gift ofa Bill or Note . . .183 
 Nature of the Consideration . 134 
 Pre-existing Debt . . . 124 
 Fluctuating Balance . . . 185 
 Debt of a Third Person , . 125 
 A Judgment Debt . . .186 
 Compromise of a Claim . . 126 
 Moral Obligation . . . .126 
 Cases where ra^re than one Con- 
 sideration comes in Question . 137 
 
 Failure of Consideration . . 138 
 Notice of Absence of Considera- 
 tion 128 
 
 Accommodation Bill . 
 
 Partial Absence, or Failure of 
 Consideration .... 
 
 Fraud 
 
 Bills and Notes in Fraud of Third 
 Persons 
 
 Where a Party who has been de- 
 frauded must pay a Bill or Note, 
 signed by him, without Con- 
 sideration 
 
 Illegal CoNsiDBBATroiss at 
 Common Law .... 
 
 Immoral 
 
 128 
 
 129 
 130 
 
 131 
 
 1.33 
 
 134 
 134 
 
 In Contravention of Public Policy 135 
 Illegal ob void by Statute . 137 
 
 Usury 137 
 
 Qaming , . . ... 137 
 Horse-racing .... 138 
 Innocent Indorsee . . . 138 
 New Security . . . .139 
 Stock-jobbing . . . .139 
 Other Considerations illegal by 
 
 BtaUite 141 
 
 Notice of Fraudulent or Illegal 
 
 Consideration .... 148 
 Illegality of Consideration where 
 
 Judgment recovered . . 143 
 Part Consideration . . . 143 
 Renewal of Bill given on Illegal 
 
 Consideration .... 143 
 
 CHAPTER XI. 
 
 OF THE TRANSFER OF BILLS AND NOTES. 
 
 Division of the Subject . . 146 
 What Bills tbansferablb . 146 
 Effect of Indorsement of a Bill 
 
 not negotiable . . . .146 
 Of a Note not negotiable . . 147 
 Subsequent Insertion of Words 
 
 creating Negotiability . . 147 
 Modes of Transfbb . . . 147 
 Blank Indorsement . . . 148 
 Special Indorsement . . . 148 
 On the Face of Bill . . .149 
 
 An Allonge 149 
 
 Misspelt Indorsement . . .149 
 
 By a Plurality of Holders . . 149 
 Conversion of blank into special 
 
 Indorsement .... W9 
 Delivery necessary . . . 150 
 Liability of Ibdobsek . . 150 
 How declined . . . .151 
 By Indorsement sans recours . 151 
 By Agreement . . . . 151 
 By converting blank into special 
 
 Indorsement . . . .152 
 May be suspended on a Condition. 153 
 What Indorsement admits . . 152 
 Striking out Indorsements . . 153 
 
XXIV 
 
 CONTENTS. 
 
 Rights of Indoesbb . . . 154 
 Of Transferee to compel Indorse- 
 ment ...... 154 
 
 "Where a Bill is re-indorsed to a 
 prior Indorser . . . . 154 
 
 Where the Indorser is a Trustee . 155 
 Restrictive Indorsements . . 156 
 Liability op Pbrbons trans- 
 
 FBKRING BY DbLIVBEY . . 158 
 
 No Liability on the Instrument . 158 
 Nor in general on the Considera- 
 tion 158 
 
 Where the Bill is considered as 
 
 sold . . . . ; . 158 
 Unless Bill or Note given for pre- 
 existing Debt . . . .160 
 Other Exceptions to the General 
 
 Rule . . . . .160 
 
 Sale to an Agent- of a Foreign 
 
 ■Principal 161 
 
 Warrantee of Genuineness . . 161 
 No Liability to subsequent Trans- 
 feree . ' . . . .161 
 Effect of Fraud . . . . 162 
 Rights of Transferee by De- 
 livery . . ... 163 
 Former Effect of Negligence in 
 
 the Transferee . . .163 
 
 Present Effect of Negligence or 
 
 Fraud 163 
 
 title of an Agent . . .163 
 Pledging Bills payable to Bearer 163 
 Other Instruments payable to 
 Bearer . . . . . 168 
 
 Metallic Tokens . , . . 164 
 Transfer under Peculiar 
 
 ClRCUMTSTANCES . , . 164 
 
 Before Bill filled up . . . 164 
 After Refusal to accept . . 165 
 
 Where the Transferee has no No- 
 tice 165 
 
 After due 166 
 
 Transfer of overdue Check . . 168 
 Of Note payable on Demand . 168 
 
 Pleading 169 
 
 Equitable Relief in case of out- 
 standing overdue Bill . . 169 
 Burthen of Proof . . .169 
 Check drawn on Bearer's Banker 169 
 After Abandonment of Right . 169 
 Alter Payment .... 169 
 By other Parties . . . .170 
 After premature Payment . . 171 
 After partial Payment . . 171 
 Where there is a Question 
 whether the Bill was paid or 
 transferred .... 171 
 Transfer to Acceptor . . . 171 
 Transfer for Part of the Sum due 171 
 For Residue unpaid . . . 173 
 After Release . . . .173 
 Alter Action brought . . . 173 
 Transfer Abroad . . . .173 
 Alter Holder's Death . . .173 
 After Bankruptcy . . . 173 
 After Marriage . . . .173 
 By Deposit with a Banker . . 173 
 By Pledging . . . .174 
 By Will ;. • . . . .174 
 Donatio Mortis Causa. . .174 
 How it resembles a Legacy . 176 
 How it differs from a Legacy . 176 
 
 Execution 17S 
 
 Larceny 177 
 
 Embezzlement .... 177 
 Effect of a Transfer in removing 
 
 Technical DiflBculties in suing . 178 
 When a Court of Equity 
 WILL restrain negotiation . 178 
 
 CHAPTER XII. 
 
 OF THE PRESENTMENT FOR ACCEPTANCE. 
 
 Advisable in all Cases 
 
 Necessary where Bill is Drawn 
 at or after Sight 
 
 When to be made 
 
 Bank Hnlidays .... 
 
 At what Hour .... 
 
 Excused by putting Bill into Cir- 
 culation 
 
 Or by other reasonable Cause 
 
 179 
 
 To -whom it should be made 
 What Time may be given to the 
 
 183 
 
 179 
 
 Drawee 
 
 183 
 
 180 
 
 Consequence of Negligence in 
 
 
 181 
 
 Party presenting 
 
 183 
 
 181 
 
 Proper Course for Holder when 
 Drawee cannot be found, or is 
 
 
 181 
 
 Dead 
 
 183 
 
 183 
 
 Pleading 
 
 183 
 
CONTENTS. 
 
 XXV 
 
 CHAPTER XIII. 
 
 OF ACCEPTiNCE. 
 
 Menning of tlie Word . . . 184 
 
 Liabilily of Drawee before Ac- 
 ceptance 184 
 
 A Draft dispeasing with Accept- 
 iince 185 
 
 Li:ibility of a Banker at whose 
 Bank a BUI is made payable by 
 the Acceptor . . . 
 
 Liability to the Customer . 
 
 Liability of the Banker to a 
 Holder 
 
 By whom it may be given . 
 
 Not by a series of Acceptors 
 
 185 
 185 
 
 185 
 
 186 
 
 186 
 
 When . . . . . .187 
 
 187 
 188 
 
 Before Bill filled up 
 
 Not before Bill in existence 
 
 After due, or after prior refusal to 
 accept 
 
 Presumption as to Time of Ac- 
 ceptance 
 
 Acceptance of Inland Bills must 
 be in writing on the Bill . 
 
 What will amount to an Accept- 
 ance in Writing on the Bill 
 
 What would amount to an Ac- 
 ceptance of Foreign Bill . 
 
 A Promise to pay 
 
 To whom it may be made . 
 
 Is Irrevocable . . . . 
 
 189 
 189 
 189 
 189 
 
 190 
 190 
 190 
 191 
 
 What else amounts to Accept- 
 ance of a Foreign Bill . .■ 191 
 What engagement Holder may 
 
 require of Acceptor . . . 193 
 What should be his Conduct in 
 
 case of qualified Acceptance . 193 
 Qiialifled Acceptance . . .193 
 Conditional Acceptance . . 193 
 Partial or Varying Acceptance . 194 
 Payable at Particular Place . 194 
 Presentment for Payment there . 195 
 Effect of Two Acceptances <m 
 
 the same Bill . . . .195 
 Delivery or Notice necessary to 
 
 complete Acceptance . . 195 
 Cancellation of Acceptance by 
 
 Drawee 195 
 
 By Banker 196 
 
 By other Parties . . . .196 
 Liability of Acceptor . . . 196 
 How discharged .... 196 
 
 By Waiver 196 
 
 Cancellation by the Holder . 198 
 Security by Specialty - . ; 198 
 
 Pleading 199 
 
 What Acceptance admits . . 199 
 Where Drawee pijecluded from 
 
 disputing Acceptance . . 200 
 Forged Acceptance . . . 300 
 Obligation to accept . . . 300 
 
 CHAPTEE XIV. 
 
 OF PRESENTMENT FOR PAYMENT. 
 
 How made 301 
 
 In case of Bankruptcy or Insol- 
 vency 303 
 
 Unnecessary to'charge a Guaran- 
 tor ...... 303 
 
 Where Drawee absconds . . 203 , 
 In case of Drawee's Death . . 303 
 Of Holder's Death . . .203 
 When to be made . . .303 
 Time, how computed . . . 203 
 
 Months 304 
 
 Days 204 
 
 Bills and Notes at Sight . . 304 
 
 Usance 204 
 
 Old and New Style . . ,305 
 Days of Grace . . . .205 
 What in different Counlriea . 205 
 How reckoned .... 206 
 
 Sundays and Holidays, how 
 
 reckoned 
 
 Bank Holidays .... 
 Presentment before expiration of 
 
 Days of Grace . 
 On what InstTiraients Days of 
 
 Grace allowed .... 
 Of a Bill payable after Sight 
 Of a Bill of Exchange payable on 
 
 Demand 
 
 General Rule .... 
 Different Sorts of Instruments 
 
 ■payable on Demand 
 Of .a common Bill of Exchange 
 
 payable on Demand . 
 
 Of a Check 
 
 Of a common Promissory Note 
 
 payable on Demand . 
 
 206 
 
 . 207 
 
 207 
 207 
 
 207 
 208 
 
 308 
 
 209 
 309 
 
 309 
 
XXVI 
 
 CONTENTS. 
 
 Of a Bank Note . . . ,310 
 Of other Bankers' Paper . . 310 
 When no time of Payment is 
 
 specified 210 
 
 At what Hour . ... .311 
 Where, -when a Bill is made paya- 
 ble at a particular Place . . 211 
 In an Action against Indorser . 313 
 
 Pleading 213 
 
 When a Note is made so payable 314 
 Supplementary Memorandum . 314 
 Consequence of not duly Pre- 
 senting 215 
 
 Presentment not necessary to 
 charge Acceptor. . . . 215 
 
 When Neglect to Pkesent 
 
 exctjsbd 215 
 
 Of Bill seized under Extent . 215 
 By Circulating . . . .216 
 By the Absconding of the 
 
 Drawee 216 
 
 By Absence of Effects in the 
 
 Drawee's Hands . . . 216 
 Not by Declaration of Acceptor 
 
 that he will not pay . .216 
 TSy returning Notes . . .316 
 Advantage from Neglect, how 
 
 waived 217 
 
 Pleading 217 
 
 Evidence of Presentment . . 217 
 
 CHAPTER XV, 
 
 OF PAYMENT. 
 
 To WHOM IT SHOULD BE MADE . 218 
 
 To a wrojtigful Holder of Instru 
 
 ments payable to Bearer . 
 Of Instruments not payable to 
 
 Bearer . . ' . 
 Effect of Payment by Acceptor . 
 
 By Drawer 
 
 Meaning of the word " Retire" 333 
 By a Stranger . . . .223 
 By one, who is botli Agent for the 
 
 Acceptor and also Indorser 
 When to be made . . , 
 At what time of day . 
 Subsequent Tender 
 Premature payment . 
 After Action brought . 
 Payment by Bankers' Notes or 
 
 Checks 334 
 
 319 
 
 320 
 230 
 220 
 
 232 
 228 
 223 
 233 
 323 
 224 
 
 What amounts to Payment . 334 
 
 Legacy 325 
 
 Appropriation of Payments . 235 
 Rateable Appropriation . . 337 
 PartPnyment . . . .328 
 When Payment will be presumed 228 
 Evidence of Payment . . 238 
 Of delivering up the Bill . . 229 
 Of giving a Receipt . . . 329 
 Effect of Receipt . . . .339 
 Tender of Part Payment . . 330 
 Plea of Payment . . . .230 
 Retractation of Payment . . 330 
 Payment under Mistake of Pact 
 
 or Law . .... 3:^0 
 
 When complete ] . . . 230 
 
 CHAPTER XVI. 
 
 OF SATISFACTION, EXTINGUISHMENT, AND SUSPENSION. 
 
 Satiseaction . • . . . 333 
 Not necessary before Breach . 332 
 Its Requisites .... 233 
 Payment of a smaller Sum by a 
 
 Third Party . . . .333 
 Engagement by Third Parly .234 
 Relinquishing a Suit . . . 234 
 When a Bill operates as Satisfac- 
 tion 834 
 
 Extinguishment . . . 235 
 Effect of Wairant of Attorney . 235 
 (Jf Transfer to an Acceptor , 235 
 
 Op Judgment .... 235 
 Op Execution .... 235 
 Of Discharge from Execution . 235 
 Of waiving a P^ri Facias . . 236 
 Of taking a Deed . . . 236 
 
 Suspension 236 
 
 Effect of Renewal . . .336 
 Of Debtor becoming Administra- 
 tor 337 
 
 Of Covenant not to sue within a 
 limited Time . . . .337 
 
CONTENTS. 
 
 XXVll 
 
 CHAPTER XVII. 
 
 OF RELEASE. 
 
 What it is 238 
 
 Release at Mjiturity . . . 338 
 Premature Release . . . 238 
 By a Party who is nottheHolder 338 
 To Drawee before Acceptance . 239 
 By or to one of several jointly 
 entitled or liable . . . 239 
 
 Restrained by a Recital . . 239 
 Covenant not to sue . . . 239 
 Covenant not to sue for a limited 
 
 Time . . . . .240 
 Appointment of Debtor Executor 340 
 Right to hold Securities for re- 
 leased Debt .... 240 
 
 CHAPTER XVIII. 
 
 OF THE LAW OF PRINCIPAL AND SURETY IN ITS APPLICATION 
 TO BILLS AND NOTES. 
 
 General Principles of the Law . 
 
 Division of the Sul)ject 
 
 What Pabties to a Bill abb 
 Pbincipals, and what Pae- 
 TiES ARE Sureties . 
 
 On Accommodation Bills . 
 
 On Promissory Notes . 
 
 On a Joint and Several Note 
 
 What Condtjct op the Credi- 
 tor DOES OR does not DIS- 
 CHARGE THE Surety 
 
 Receipt of Payment . 
 
 Releas-e 
 
 Covenant not to sx^e . 
 
 Release in Law .... 
 
 Agreement not to sue . 
 
 Renewing a Bill .... 
 
 Misusing Securities 
 
 Inability to recover 
 
 Discharge from Execution . 
 
 Part Payment .... 
 
 Offer to give Time 
 
 Cognovit, or Warrant of At- 
 torney .... 
 
 241 
 343 
 
 348 
 
 244 
 244 
 345 
 
 345 
 347 
 247 
 247 
 848 
 348 
 248 
 348 
 249 
 349 
 249 
 249 
 
 250 
 
 Judgment , 
 
 Bankruptcy . 
 
 Insolvency . 
 
 Compounding 
 
 Collateral Security 
 
 Wairant of Attorney . 
 
 Discharge of prior Parties by 
 
 giving Time to Jirawee who 
 
 has not accepted 
 How the Discharge op the 
 
 Surety may be peevented . 
 How IT IS waived . 
 What Conduct op the Ceedi- 
 
 TOR towards the Surety 
 
 WILL DISCHARGE THE PRINCI- 
 PAL 
 
 Rights op Sureties . 
 
 Sn)-ety's Right to Indemnity 
 
 Of Contribution between Co- 
 Sureties 
 
 Action for Contribution between 
 Co- Sureties . . . . 
 
 Determination of Contract . 
 
 3.':0 
 2S0 
 350 
 250 
 250 
 251 
 
 251 
 
 353 
 353 
 
 253 
 253 
 353 
 
 3.14 
 
 355 
 255 
 
 CHAPTER XIX. 
 
 
 OF PROTEST 
 
 Protest necessary 
 
 on Foreign 
 
 Bills, and why 
 
 
 . 356 
 
 By whom to be mac 
 
 e . 
 
 . 257 
 
 Office of a Notary 
 
 
 . 257 
 
 When to be made 
 
 
 . 257 
 
 Where to be made 
 
 
 . 257 
 
 Foim of Protest . 
 
 
 . 258 
 
 Stamp on Protest 
 
 
 . 258 
 
 Protest for better Security 
 
 . 258 
 
 AND NOTING. 
 
 Noting, what .... 358 
 Ndtice^of Protest . . . 259 
 
 Copy of Protest . . . .359 
 When Protest excused . . 2(i0 
 Protestof Inland Bills and Notes 2G0 
 Protest of Lost Bill . . . 2«1 
 
 Pleading 361 
 
 Evidence !i61 
 
 Eflect of a Promise to pay . . 361 
 
XXVlll 
 
 CONTENTS. 
 
 CHAPTER XX. 
 
 OF ACCEPTANCE SUPRA PROTEST, OR FOR HONOUR. 
 
 Mode of such Acceptance . . 2fi3 
 Who may so accept . . . 263 
 Condtict which Holder should 
 
 pursue 2£3 
 
 Liability of Acceptor supra Pro- 
 test 264 
 
 What Acceptance supra Protest 
 admits 265 
 
 Rights of Acceptor supra Pro- 
 test 266 
 
 CHAPTER XXI. 
 
 OF PAYMENT SUPRA PR:)TBST, OR FOR HONOUR. 
 
 What, and how made . . . 207 
 Right of Party paying siipy-a Pro- 
 test 267 
 
 Notice of Dishonour by . . 2138 
 Cannot revive Lial)illty . . 268 
 Payment without Protest . . 268 
 
 Safest mode of taking up a Bill 
 for Honour . . . .268 
 
 Accommodation Bills . . . 268 
 
 When the Protest should be 
 made 269 
 
 No Payment supra Protest of 
 Promissory Notes . . . 369 
 
 CHAPTER XXII. 
 
 OP NOTICE OF DISHONOUR. 
 
 Division of the Subject 
 
 Form of the Notice 
 
 Description of the Instrument 
 
 Statement of the Party on whose 
 behalf Notice is given 
 
 Notice of Protest .... 
 
 Mode of tkansmitting it 
 
 By Post 
 
 Direction of the Letter 
 
 Evidence of Notice by Post 
 
 Special Msssenger 
 
 How to be sent in case of Foreign 
 Bill 
 
 At what Place 
 
 When to be given . 
 
 If the Parties live in different 
 Places 
 
 In the same Place. 
 
 When a Person receiving Notice 
 should transmit it . 
 
 May be given on the Day of Dis- 
 honour 
 
 When, if the Bill Is deposited 
 with BanUer, Attorney or 
 Agent ...... 
 
 Notice through Branch Banks . 
 
 271 
 271 
 376 
 
 V 
 276 
 
 277 
 277 
 377 
 277 
 378 
 378 
 
 379 
 379 
 280 
 
 2S1 
 283 
 
 383 
 
 383 
 
 383 
 
 384 
 
 Sunday and Bank Holidays, and 
 
 Holidays, how reckoned . 
 Burden of Proof .... 
 
 Bv whom Notice should be 
 given 
 
 By an Agent .... 
 
 By a Pledgee .... 
 
 To WHOM 
 
 To an Agent or Attorney . 
 
 To a Bankrupt .... 
 
 Where the Party is Dead . 
 
 Need not be given to Acceptor . 
 
 To Parties jointly liable 
 
 To a Transferor not indorsing . 
 
 When to a Guarantor . 
 
 To an Indorser giving a Bond . 
 
 Consequences of Neglect . 
 
 What excuses Notice . 
 
 Agreement of the Parties . 
 
 Countermand of Payment . 
 
 No Effects 
 
 Where there is Reasonable Ex- 
 pectations that the Bill will be 
 honoured . . 
 
 Ignorance of Party's Residence . 
 
 Accident 
 
 384 
 284 
 
 285 
 386 
 387 
 387 
 289 
 289 
 289 
 289 
 390 
 390 
 391 
 393 
 292 
 393 
 298 
 3! 3 
 293 
 
 395 
 
 297 
 293 
 
CONTENTS, 
 
 XXIX 
 
 Where a Bill is rlrawn by several 
 on one of themselves 
 
 298 
 
 Death, Bankruptcy or Insolvency 
 
 will not excuse ■ . ' . 298 
 Insufficient Stamp . . .299 
 Note not Negotiable . . ,299 
 
 CONSEQnEKCBS OF NeGLECT, 
 
 HOW WAIVED .... 299 
 
 Laches not imputable to the 
 Crown . . . . . 301 
 
 Pleading where Notice is excused 
 or waived .... 301 
 
 Evidence of Notice , . . 301 
 
 CHAPTER XXIII. 
 
 OF, INTEREST. 
 
 The Nature of Interest 
 
 From what Time it runs when 
 
 Payable by the Terms of the 
 
 Instrument . . . . 
 From what Time it runs when 
 
 not made Payable by the Terms 
 
 of the Instrument . 
 Prom what Time it runs as 
 
 against an Indorser . 
 To what Period it is computed 
 
 303 
 
 304 
 
 304 
 
 305 
 305 
 
 When Money is paid into Court. 305 
 
 In Trover 
 
 Alter a Tender .... 
 
 How Bankers should charge it on 
 Checks ■ . . . . 
 
 Recovery of Interest after Re- 
 ceipt of the Principal 
 
 When Interest is not recover- 
 able . . ' . 
 
 When an Engagement to give a 
 Bill will create a Liability to 
 Interest 
 
 Liability of a Guaranteeing Party 
 to Interest 
 
 How Interest is recovered . 
 
 The Rate of Interest . 
 
 306 
 306 
 
 306 
 
 306 
 
 306 
 
 306 
 
 306 
 306 
 307 
 
 Indebitatus Count . . . 307 
 
 Usury 307 
 
 At Common Law. . . . 308 
 Statutes against it . . . 308 
 Their Construction . . .308 
 Substance of Enactments . . 309 
 Tliere must be a Loan. . . 309 
 Usury on DiscQuuls . . . 3U9 
 Usurious Security for Good Debt 309 
 Where the Charge is not for the 
 
 Loan but for the Labour . . 311 
 There must be a Corrupt Inten- 
 tion 312 
 
 Hazard of the Principal Money . 313 
 Advance of Goods . . . 313 
 Irisli, Colonial or Foreign Inter- 
 est 314 
 
 Substituted Security . . . 314 
 Separate Instruments . . .315 
 Innocent Indorsee . . . 315 
 Statutes exempting certain Bills 
 and Notes from the Usury 
 Laws. . . 
 
 315 
 
 Tolal Repeal of the Usury Laws 317 
 Pleading 317 
 
 CHAPTER XXIY, 
 
 OF THE ALTERATION OF A BILL OR NOTE. 
 
 Effect of Alteration at Common 
 
 Law 318 
 
 Of Deeds 318 
 
 Of Bills and Notes . . .319 
 UuDBJK THE Stamp Acts . . 330 
 Wbere an Alteration will not 
 
 vitiate 320 
 
 Before Bill.issued. . . .321 
 In Correction of a Mistake. . 323 
 
 When the Alteration of the In- 
 strument extinguishes the debt 323 
 Renewal of altered Bill . . 323 
 When Alteration need not be 
 
 pleaded 323 
 
 When it must be pleaded . . 324 
 Requisites of Plea . . . 334 
 Burthen of Pkooi' . . . 324 
 
XXX 
 
 CONTENTS. 
 
 CHAPTER XXV. 
 
 OF THE FORGERY OF BILLS AND NOTES. 
 
 Definition of the Crime . . 326 
 Existing Statutes . . .326 
 Forgery of Void Bills . . 387 
 Of Invalid and Informal Bills . 337 
 Forgerj' by Misapplication of a 
 
 Genuine Signature . . . 327 
 Misapplication of his own Signa- 
 ture by the Party signing. . 828 
 By Siirnature of a fictitious Name 338 
 By Fraudulent Signature of a 
 
 Man's own Name . , . 329 
 Uttering a Genuine Signature, 
 and Personating the Party 
 
 signing 329 
 
 Misrepresentation of Authority . 3H0 
 
 Alteration 330 
 
 Uttering 330 
 
 Procuring to utter . . .331 
 
 Statement of the Instrument in 
 
 the Indictment. . . . 331 
 Where several make distinct 
 
 Parts of the Instrument . . 331 
 The Party whose Name is Forged 
 
 a Competent Witness . . 331 
 Forgery of Foreign Bills . . 388 
 Evidence in Criminal Cases . 333 
 Civil Consequences of Fob- 
 
 ,GERY 332 
 
 When the Payment of a Forged 
 
 iBill is good . . . .383 
 When Money paid in Discharge 
 
 of a Forged Bill may or may 
 
 not be recovered back . . 833 
 Inspection of a Bill supposed to 
 
 be Forged 336 
 
 CHAPTER XXVI. 
 
 OF THE STATUTE OP LIMITATIONS IN ITS APPLICATION 
 BILLS AND NOTES. 
 
 TO 
 
 of a 
 
 Policy of the Law 
 
 When Introduced . . . 
 
 Tlie present Statute 
 
 Divisions of the Subject 
 
 General Operation of the 
 Statute 
 
 Does not destroy the Debt . 
 
 Foreign Statute of Limitations . 
 
 What Legal Pkocbedings it 
 Limits 
 
 Merchants' Accounts . 
 
 Effect of Statute on Title 
 subsequent Transferee 
 
 When it begins to run 
 
 On Bill payable after Date 
 
 Payable on a Contingency 
 
 Payable by Instalments 
 
 Against an Administrator 
 
 On a Bill after Sight . 
 
 Bill payable on Demand 
 
 After Demand 
 
 In case of Fraud . 
 
 In the case of an Accommodation 
 Bill 
 
 When there has been both Non- 
 acceptance and Non-payment . 
 
 Up to what Pekiod the Time 
 OF Limitation is computed . 
 
 Death of Parties after Action 
 
 337 
 338 
 388 
 338 
 
 339 
 339 
 340 
 
 340 
 340 
 
 340 
 341 
 341 
 341 
 341 
 341 
 341 
 343 
 343 
 343 
 
 343 
 
 343 
 
 343 
 344 
 
 How the Operation op the 
 
 h^TATUTE is obviated BY IS- 
 SUING A Writ . . . 344 
 The Saying Clause . . . 345 
 
 Infants 345 
 
 Imprisonment .... 345 
 Plaintifl's Absence beyond Seas . 845 
 Defendant's Absence beyond Seas 346 
 Successive Disabilities . . 346 
 
 What Acknowledgments will 
 TAKE a Debt out op the 
 Statute . . '. . . 347 
 Lord Tenterden's Act . . 347 
 Division of the Subject . . 347 
 Of what sort the Acknowledg- 
 ment must be . . . . 347 
 Evidence of Date . . .349 
 Construction .... 849 
 Mutual running Account . . 349 
 
 Devise 349 
 
 Acknowledgment by Executors . 350 
 Notice in Newspapers . . 350 
 Part Payment .... 350 
 Appropiiation of Payments . 350 
 Payment by Bill . . .351 
 Payment by Goods . . . 351 
 Stamp on Acknowledgment . 351 
 Statement of Account . . 351 
 Payment of Interest . . , 352 
 
CONTENTS. 
 
 XXXI 
 
 When Acknowledgment must be 
 
 • made 352 
 
 Payment of Money into Court . 353 
 By whom Acknowledgment must 
 
 be made 352 
 
 To whom 355 
 
 What Evidence is required of the 
 
 Acknowledgment . . . 356 
 
 How THE Statute is to be 
 
 TAKEN ADVANTAGE OF . 
 
 Form of the Plea 
 
 Replication of the Statute . 
 
 Replication to a Plea of the Stat- 
 ute 
 
 ■When, independently of the 
 Statute, Lapse ov Time is a 
 Bau 
 
 357 
 357 
 358 
 
 358 
 
 358 
 
 CHAPTEE XXVII. 
 
 OF THE LAW OF BET-OFF AND MUTUAL CREDIT IN RELATION 
 TO BILLS AND NOTES. 
 
 Nature of Set-off . . .360 
 Unknown to the Common Law - 361 
 Recognized in Equity . . . 381 
 Introduced by Statute . . 361 
 Division of the Suiiject . . 362 
 The General Statutes of Set- 
 off 363 
 
 The sums to be set off must be 
 
 Debts . . . . . 863 
 Legal Debts . . - . .363 
 Subsisting Debts . . .363 
 Actually due .... 363 
 And at Time of Trial . . 363 
 
 Mutual 3u3 
 
 Statutes Permissive, not Impera- 
 tive 864 
 
 Pleading 365 
 
 Set-off in Bankbuptcy . . 365 
 When the Mutual' Credit must 
 have existed .... 365 
 
 Fraudulent Set-off 
 
 Attempt to deprive of Set-off 
 
 What Mutual Credit is 
 
 Need not be of Monty 
 
 The Debts need not be due 
 
 Mutual Credit need not be in- 
 tended 
 
 Breach of Trust .... 
 
 Effect of Notice .... 
 
 Does not extinguish a Lien 
 
 How mutual Credit is to betaken 
 advantage of . 
 
 Mutual Credit under Companies 
 Act 
 
 Set-off in Equity 
 
 Of Cases where a Stipula- 
 tion, NOT THE SUBJECT OF A 
 
 Set-off, is a Bab to the Ac- 
 tion 
 
 366 
 367 
 367 
 367 
 
 307 
 
 368 
 368 
 368 
 869 
 
 369 
 
 369 
 370 
 
 370 
 
 CHAPTER XXVIII. 
 
 OF A LOST BILL' OR NOTE. 
 
 Title of the Finder . . .373 
 Proper course for the Loser to 
 
 take 373 
 
 Notice of Loss . . . .873 
 Presentment and Notice of Dis- 
 honour of a Lost Bill . . 374 
 Bill in the Hands of an adverse 
 
 Party 374 
 
 Whether an Action lies on a 
 
 Destroyed Bill . . .374 
 Will not lie on a Lost Bill . . 375 
 Unless not Negotiable . . 376 
 
 Pleading .... 
 
 Loss after Action brought . 
 
 Loss of Half Note 
 
 Trover for Lost Bill . 
 
 Remedy for Loser in Equity 
 
 At Law .... 
 
 New Statutable Jurisdiction of 
 Courts of Law 
 
 On whom the Loss of a Bill 
 transmitted by Post, &c., will 
 fall 
 
 Presumption as to Stamp . 
 
 376 
 376 
 377 
 877 
 377 
 378 
 
 379 
 
 879 
 379 
 
XXXll 
 
 CONTENTS. 
 
 CHAPTER XXIX. 
 
 HOW FAR A BILL OR NOTE IS CONSIDERED AS PAYMENT, 
 
 Suspends the Remedy on a Sim- 
 ple Contract .... 
 
 Bill given as Collateral Security . 
 
 Form of Pleading . . . 
 
 But not on a Contract under 
 Seal 
 
 Does not suspend Distress . 
 
 Payment of Attorney 
 
 Consequence of a Creditor taking 
 Bills of a Third Person . 
 
 Of the Creditor's Agent taking 
 the Debtor's Bill . 
 
 380 
 381 
 381 
 
 382 
 383 
 383 
 
 383 
 
 What a Creditor who has been 
 paid by a Dishonoured Bill 
 must prove .... 384 
 Where the Transferor knew the 
 
 Instrument to be of no Value . 384 
 A Lost or Destroyed Bill when 
 
 Payment 384 
 
 Payment by Bank Notes or Bill 
 
 or Notes payable to Bearer . 385 
 Where a Bill is renewed . . 385 
 Taking a Bill determines a Lien 385 
 But not on Land . . . 38(> 
 Is earnest 386 
 
 CHAPTER XXX; 
 
 OF SETS, PARTS, AND COPIES OP BILLS. 
 
 What a Bill drawn hi Parts is . 387 
 The whole Set but one Bill . 388 
 To whom the Bill belongs when 
 the Parts are in differentHands 388 
 
 How many Parts required . 388 
 
 Effect of omitting to refer to the 
 other Parts . . . .388 
 
 Liability of Drawee 
 Liability of Indorser 
 Copies of Bills . 
 Substitutions 
 
 389 
 3b9 
 389 
 390 
 
 CHAPTER XXXI. 
 
 OP FOREIGN BILLS AND NOTES. 
 
 What are Foreign and what In- 
 land Bills . . . .391 
 
 Statute 19 & 20 Vict. . . .391 
 
 Presumption of being an Inland 
 Bill 392 
 
 Stamp on an Inland Bill purport- 
 ing to be a Foreign one . . 393 
 Sets of Bills . . . .392 
 Presentment of Foreign Bills . 393 
 Acceptance of Foreign Bills . 393 
 Pbotest 393 
 
 CHAPTER XXXII. 
 
 OF THE EFFECT OF FOREIGN LAW RELATING TO BILLS OF 
 EXCHANGE AND PROMISSORY NOTES. 
 
 Of the Conflict of the Laws 
 of diffekent cottntkies ke- 
 LATiHG TO Bills . . . 394 
 Elements of the Question . . 395 
 Discrepancy between Foreign 
 Writers 395 
 
 General Principles of the English 
 Law 395 
 
 Five Principal Rules . . .396 
 
 Cases where the Lex Loci 
 Contractus Gotkrks . . 397 
 
 Foreign Acceptance . . . 397 
 
CONTENTS. 
 
 XXXXU 
 
 Foreign Indorsement of Foreign 
 
 Note 397 
 
 Foreign Discharge . . . 897 
 Cases in which Lex Loci So- 
 
 ldtionis govbens . . . 393 
 Foreign Indorsement of Englisji 
 
 Note ■ . . . . • . 398 
 Time of Payment . ■. . 39S 
 Protest and Notice of Dishonour . 398 
 
 Acceptance 399 
 
 Rate of Interest . . . .399 
 Immoral, Illegal, and Ihjubi- 
 
 ous Contracts . . . 399 
 Rbvenoe Laws of other 
 
 Countries disregarded . 400 
 
 Stamps on Foreign Bills . . 400 
 On Colonial Bills . . .400 
 Presumption that Bill was drawn 
 
 Abroad 401 
 
 Application op the Lex Fori 
 
 to Foreign Bills . . . 401 
 Statutes of Limitation . . . 401 
 Set-ofF. . • . . .401 
 Power of Arrest .... 401 
 Statute of Frauds . . .403 
 Protest and Notice of Dishonour 402 
 Pleading . . . . .403 
 Burthen of Proof . . .403 
 
 CHAPTER XXXIII. 
 
 OF THE REMEDY BY ACTION ON A BILL. 
 
 Who may sue on a Bill . . 403 
 In another's Name . . . 404 
 Joining Count on Consideration . 404 
 Against what Parties Actions may 
 
 be brought 
 Judgment against two Parties 
 Where Defendant is liable in two 
 
 capacities on the same Bill 
 Proceedings for Costs . 
 Costs of Actions that haye been 
 
 brought against the Parties 
 
 suing 
 
 404 
 404 
 
 404 
 404 
 
 405 
 
 Trover ob Detinue por a Bill 405 
 Who may sue .... 405 
 Amount of the Verdict . . 406 
 Effect of Judgment in changing 
 
 Property 406 
 
 Relief in Equity . . . .406 
 Abolition of Imprisonment for 
 
 Debt 406 
 
 Statute 18 & 19 Vict. c. 67 . . 406 
 One Writ against several Parties 408 
 
 Venue 408 
 
 Inspection op the Bill . . 409 
 
 Particulars op Demand . 
 
 409 
 
 Tender 
 
 409 
 
 Consolidating Actions 
 
 409 
 
 Staying Proceedings 
 
 410 
 
 In an Action against the Ac- 
 
 
 ceptor 
 
 410 
 
 When without the Costs in other 
 
 
 Actions 
 
 410 
 
 Sumiliary Interposition of the 
 
 
 Court 
 
 410 
 
 Setting aside Pleas 
 
 410 
 
 Re-exchange . . . . 
 
 411 
 
 Other Damages . . . . 
 
 413 
 
 Advantages of suing on the Bill 
 
 
 rather than on the Considera- 
 
 
 tion 
 
 413 
 
 Interposition of Equity 
 
 413 
 
 Bill of Exchange conveys no 
 
 
 •Lien 
 
 413 
 
 When Equity will restrain an 
 
 
 Action ...... 
 
 413 
 
 Discovery in aid of Action or 
 
 
 Defence 
 
 414 
 
 CHAPTER XXXIV. 
 
 PLEADING AND EVIDENCE. 
 
 Declaration . 
 Statement of the Parlies to 
 
 Instrument 
 Of Christian Name by Initials 
 Description of Instrument . 
 Statement of Acceptance . 
 
 the 
 
 415 
 
 415 
 416 
 416 
 417 
 
 Of Presentment for Payment . 417 
 Of Notice of Dishonour . . 417 
 Of excuse for omitting to present 
 
 for Payment, &o. . . . 417 
 Of Notice of Indorsement . . 418 
 Of Maturity of Instrument . . 418 
 
XXXIV 
 
 CONTENTS, 
 
 Assignment of the Breach , . 419 
 
 Damages 419 
 
 Pleas 419 
 
 General Effect of Rules of Court.' 419 
 Non Assumpsit .... 419 
 
 General Issue by Statute . , 420 
 Traverse of Acceptance . . 420 
 Traverseof Indorsement . . 430 
 Absence of Consideration . . 421 
 That Plaintiff is not the Holder . 422 
 Plea of Payment . . .423 
 
 Effect of Pleading over . . 423 
 Fraud ■ . > . . . .423 
 
 Payment. . . . . .423 
 
 Satisfaction ... . . . 423 
 
 Sham and Ensnaring Pleas . . . 433 
 Statutable Jurisdiction . . 424 
 Replication to Plea denying Con- 
 sideration . , , . 424 
 Pleading an Estoppel . . . 434 
 Distributive Replication . . 424 
 Right to BEeiu . . . . 424 
 
 Splitting Plaintiff's Case . . 425 
 Competency of Witnesses . . 435 
 Declaration at the Time of making 
 
 the instrument . . . 435 
 Declaration by prior Parties . 435 
 
 Effect of Admissions on Record'. 436 
 Proof of Signature . . .436 
 Collateral Security, Memorandum 
 of . . . . . .426 
 
 Identity of Defendant. . .436 
 Evidence of Consideration . . 427 
 Production of the Bill . . .437 
 Proof of Mark" . . . .437 
 
 Proof of Name . . . .438 
 
 Proof of Signature by Agent . 428 
 Effectof Admission under Judge's 
 
 Order- 438 
 
 Bill or Note, Evidence under the 
 
 Common Counts . . . 438 
 What a Paid Check is Evidence of 
 
 as between Dra'wer and Payee 429 
 As between Banker and Customer 429 
 Whether an Unpaid Check is Evi- 
 dence ... . . . 429 
 
 Peoofs in various Actions . 429 
 Payee ». Maker or Acceptor . 429 
 Indorsee v. Maker or Acceptor . 480 
 Indorsee v. Indorser or Drawer . 430 
 Payee e. Drawer .... 480 
 
 Receipt 430 
 
 Statements by deceased Persons . 431 
 Amendment at the Tkial . 431 
 
 CHAPTER XXXV. 
 
 OF THE BANKRUPTCY OF PARTIES TO A BILL OR NOTE. 
 
 Vesting of Bankrupt's Property 
 in Trustee . . . .433 
 
 Former relation of Adjudication 
 in Bankruptcy .... 433 
 
 Present relation .... 434 
 
 Protected Transactions under for- 
 mer Statutes .... 434 
 
 Under the recent Act . . . 485 
 
 Wiiat amounts to Notice of Act 
 of Bankruptcy . ■ • . . 485 
 
 Bill to Petitioning Creditor . . 430 
 
 In what Cases the Holder may 
 prove .'.'.. . 436 
 
 Bills and Noles not yet due . 436 
 
 Proof of a Bill or Note payable 
 on Demand . . ... 436 
 
 Bill payable after Notice . . 437 
 \ Irregular Bill or Note . . .487 
 
 Bill cannot be proved against a 
 Man not a party to it . . 437 
 
 Proof of Lost Bill ' . . . .437 
 
 Proof by a Surety or Person liable 
 for the Debt of a Bankrupt . 487 
 
 Debts and Liabilities now prova- 
 ble 489 
 
 Holder to elect between Proof and 
 Action . . ' . . .439 
 
 Mutual Accommodation Bills 440 
 
 Wheie there has been Specific 
 Exchange of Securities . . 440 
 
 What amounts to Specific Ex- 
 change 441 
 
 Party to Mutual Specific Ex- 
 change of Paper must pay his 
 own Paper before he can prove 441 
 
 Mutual Accommodation without 
 Specific Exchange . . . 441 
 
 After Holder has proved, no fur- 
 ther Proof . . . .442 
 
 Cases of Mutual Accommodation 
 without Specific Exchange, Mu- 
 tual Bankruptcy, and Cash 
 Balance 443 
 
 Accommodation Bills in the 
 Hands of an' Indorsee for Value 447 
 
 Proof of Interest .... 447 
 
 Of Expenses, Re-exchange, &c. . 447 
 
 Where there are several Fiats or 
 Adjudications of Bankruptcy, 
 under which, and for how much, 
 the Holder may prove . . 447 
 
 Bankruptcy in more than one 
 Country . . . . . 448 
 
CONTENTS. 
 
 XXXV 
 
 Proof against joint and separate 
 Estate 
 
 Wiifre a Creditor holds a Bill as 
 a Seonvity .... 
 
 Proof where a Transfer after Ac- 
 ceptor's Bankruptcy 
 
 Acts of Bankru[tcy in respect of 
 Bills . 
 
 When a Bill may be a good Peti- 
 tioning Creditor's Debt . 
 
 Evidence of the Date of a Bill . 
 
 What Transactions in respect of 
 Bills will confetitute a Trading 
 within the Bankrupt Laws , 
 
 RBPnTED Ownership 
 
 Debts formerly within it 
 
 Share of Dormant Partner . 
 
 Existing Enactments . 
 
 Bills in the Hands of a Banker, 
 &c., becoming Bankrupt, do 
 not pass to his Assignees . 
 
 448 
 
 449 
 
 449 
 
 449 
 
 450 
 451 
 
 451 
 432 
 453 
 453 
 453 
 
 453 
 
 Deposited Sectjkitibs . . 45 
 Holder's Right to benefit of, in 
 
 event of Bankruptcy . . 454 
 Holder's Riiiht to Securities de- 
 posited with Acceptor . . 455 
 With a third Person . . . 455 
 To Acceptor's Guarantee . . 455 
 Transfer in Case of Bankruptcy 
 
 of Holder 455 
 
 Where the Bankrupt is a Trustee 455 
 When the Transfer of a Bill by a 
 
 Bankrupt is Payment . . 456 
 Ti-ansfer to a Bankrupt . . 457 
 When his Capacity admitted . 457 
 Bill or Note for Debt barred by 
 
 Certificate .... 457 
 Fkaudulbnt Pkbfbeence . 458 
 
 VOLUNTABT TbANSFBR . , 459 
 
 APPEITDIX I. 
 Stamp Laws previous to 1870 461 
 
 APPEJSTDIX II. 
 Notaries' Fees of Oflaqe 472 
 
 APPENDIX III. 
 Statutes . • . . , 474 
 
 Index 533 
 
TABLE OF ENGLISH CASES CITED. 
 
 THE PAGES KEFEKRED TO ABE THOSE BETWEEN [ 
 
 A. 
 
 Abbott V. Aslett, 418 
 V. Douglas, 79 
 . V. Heniiek, 86, 100 
 V. Hicks, 367 
 ^ V. Pomfret, 459 
 Abel V. Sutton, 53 
 Abell V. Daniell, 459 
 Abram v. Cunningham, 56 
 Abiey V. Crux, 100 
 Absolon V. Marks, 6 
 Atcheson v. Fountain, 149, 158 
 Ackerman v. Ehrensperger, 306 
 Ackland v. Pierce, 278 
 Adams V. Bridger, 439 . 
 V. Gregg. 198 
 V. Jones, 150 
 V. Palk, 433 
 V. Wordley, 193 
 Adkins v. Farringdon, 439 
 Aflalo V. Fourdriuier, 438 
 Aggs V. Nicholson, 73 
 Agra and Masterman, Ex parte, 74 
 , In re, 370, 457 
 Agra and Masterman' s Bank, v. 
 
 Asiatic Bank, 97 
 Agra and Masterman's Bank v. Hoff- 
 man, 413 
 Agra and Masterman v. Leighton, 
 
 129, ^31, 
 Alcock V. Alcock, 63 
 Alderson v. Laagdale, 333 
 Aldous V. Cornwall, 79, 210, 331 
 Aldred v. Constable, 459 
 Alexander v. Burchfleld, 30 
 V. M'?;enzie, 33 
 V. Sizer, 36 
 V. Stiong, 329, 330 
 V. Thomas, 94 
 Allan V. Mawson, 88, 91 
 Allen V. Allen, 58 
 Allen V. Dundas, 54 
 
 V. Edmundson, 375, 280, 298, 
 
 301. - 
 Y. Haris, 233 
 
 Allen v. Keeves, 16 
 
 V. Keml)le, 397, 399 
 V. Mawson, 11 
 V. Miller, 376 
 
 V. Sea Life Insurance Co., 72 
 V. Walker, 146, 150, 421 
 Alliance Bank v. Kearsley, 44 
 Alsager v. Close, 406 
 V. Currie, 368 
 
 V. St. Katharine's Dock Co., 
 385 
 Alston V. Andrew, 56 
 Alvarez de la Rosa v. Prieto, 401 
 Alves V. Hodgson, 400 
 Ambrose v. Hopwood, 314 
 Amner v. Clark, 391 
 Amory v. Mei-ryweather, 141, 315 
 Amos V. Sra.th, 351 
 Anchor v. Bank of England, 156 
 Ancona v. Maiks, 2, 32, 403 
 Anderson v. Cleveland, 198 
 V. Heath, 191 
 V. Hick, 191 
 V. Sanderson, 353 
 V. Weston. 77, 452 
 Andrews v. Ellison, 43 
 
 V. Franklin, 95 
 Ankerstein v. Clarke, 417 
 Anon.,1 Atk. 140; 447 
 
 1 Camp. 493, n. ; 435 
 
 3 Camp. 308, n. ; 416 
 
 Comb. 401 ; 190 
 
 3 Freem. 32 ; 340 
 
 12 Mod. 345 ; Rep. temp. Holt. 
 
 297 ; 256, 261 
 12 Mod. 447 ; 88 
 1 Ld. Raym, 743 ; 183, 216 
 1 Ld. Riym. 793 ; Chilly, 9th 
 ed. 343 ; Mar. 110 ; 258 
 
 1 Salk. 278 ; 339 
 
 2 Wils. 135 ; 451 
 V. Adams, 169 
 
 V. Handcock, 58 
 Ansell V. Baker, 198, 234, 336 
 Anson v. Bailey 217 
 
 V. Bayley, 300 
 
TABLE OF ENGLISH CASES CITED. 
 
 XXXVU 
 
 Anioine v. Morshead, 137 
 
 Appleby, v. Biddulpb, 95 
 
 Applegarth v. Colley, 137 
 
 Appleton V. Donaldson, 174 
 
 V. Sweetapple, 207, 208 
 
 Aranguren v. Scbolfield, 376 
 
 Arclier v. Bamford, 131 
 V. Hale, 248 
 V. Hudson, 61 
 
 Arden v. Sharpe, 46 
 
 V. Watkins, 457 
 
 Armani v. Castrique, 261, 392, 424 
 
 Armfield v, Allport, 90, 91 
 V. Ann port, 187 
 
 Annistead v. Philpot, 10 
 
 Armstrong V. Cliristiani, 274, 275 
 
 Arnold v. Buinbridge, 365 
 V. Revoult, 66 
 
 Arthur v. Beales, 423 
 
 Arundel Bar.k v. Goble, 348 
 
 Ashbee v. Pidduck, 845 
 
 Asbby V. Ash by, 57, 58 
 V. James, 351 
 
 Ashley v. Killick, 142 
 
 Ashpitle V. Bryan, 199 
 
 Ashton V. Freeston, 238, 239 
 
 Astley V. Johnson, 46, 127 
 
 Atkins, £x parte, 449 
 V. Owen, 226 
 V. Tredgold, 310, 353, 354 
 
 Atkinson v. Bayntun, 349 
 V. Brindall, 459 
 \. Davies, 431, 423 
 V. Denby, 118, 133 
 V. Elliott, 368 • 
 T. Hawdon, 323 
 
 Attenborough v. McKenzie, 171, 333 
 
 Att.-Gen. v. Gilpin, 470 
 
 V. Stephens, 182 
 V. Valabreque, 416 
 
 Attwood V. Griffla, 83, 323 
 
 V, Munnings, 33, 35 , 
 
 Atwood V. Crowdie, 125, 166, 168 
 
 Aubert v. Walsh, 34, 228 
 
 Auriol V. Thomas, 311 
 
 Austin V, Bunyard, '17, 78 
 
 Austin V. Young, 101 
 
 Awde V. Dixon, fS, 330 
 
 Aylesford (Lord) v. Morris, 308 
 
 AyliflFv. Scrimshire, 370 
 
 Ayliffe v. Archdale, 58 
 
 Ayrey v. Fearnsides, 93, 94 
 
 Ayton V. Bolt, 348 
 
 B. 
 
 Backhouse v. Harrison, 163 
 Bacon v. Searles, 172, 220 
 Badnall v. Samuel, 249 
 Bagnell v. Andrews, 405 
 Baidwell v. Lydall, 237 
 
 Bnildon v. Walton, 356 
 Bailey v. Bidwel], 119, 130, 121 
 V. Bodenbam, 19, 303 
 V. Edwards, 344 
 V. Porter, 813, 375 
 Bailie v. Grant, 451 
 Baillie v. Moore, 383 
 Ballow V. Bishop, 65 
 Baker v. Birch, 286, 294, 300 
 V. Charlton, 48 
 V. TowDshend, 136 
 V. Walker, 136 
 V. White, 185 
 Baldwin, Ex parte, 449 
 
 V. Richardson, 397, 418 
 Balfour v. Ernest, 73 
 
 V. Sea, Fire and Life Insur-i 
 ance Co., 126 
 Ball V. Gordon, 415 
 Ballard v. Randall, 25 
 Balmanno v. Thompson, 424 
 Bamfield v. Tupper, 352 
 Banbury v. Lissett, 96,1 3 
 Bancroft v. Hall, 279, 280 
 Bank of Ireland v. Perry, til ; 
 Barber, Ex parte, 451 
 
 V. Backhouse, 46, 139 
 V. Gingell, 33 
 V. Lemon, 488 
 V. Richards. 150, 163 
 Barclay, Ex-parte, 336, 285, 385, 436 
 V. Bailey, 311 
 Walmsley, 309 
 Barfoot v. Goodhall, 51 
 Baring v. Clark, 265 
 Barker v. Sterne, 87 
 V. Talcot, 56 
 Barksdale v. Morgan, 204 
 Barkworth, Ex parte, 455 
 Barlow v. Bishop, 63 
 
 V. Broadhurst, 93, 468 
 Barnes v. Hedley, 315 
 V. Worlich, 310 
 Barnett v. Brnndao, 8, 163, 178 
 
 V. Skinner, 7 
 Barough v. White, 168, 305, 426 
 Barratt, Ex parte, 449 
 Barrington, In re, 161, 437 
 Bartholomew v. Henley, 4 
 Bartlett v. Benson, 154, 155, 156, 271 
 V. Emery, 60 
 V. Wells, 60 
 Bartley v. Hodges, 398 
 Barton v. Gainer, 184 
 Bartramv. Caddy, 168, 170,324, 373,. 
 , 471 
 
 Basan v. Arnold, 423 
 Baskerville v. Brown, 363, 364 
 Bass V. Clive, 199, 200, 415 
 Bassett v. Dodgin, 118, 438 
 Bastable v. Pool, 40 
 Batard v. Hawes; 255 
 
XXXVUl TABLE OF ENGLISH CASES CITED. 
 
 Batchelor v. Lawrence, 9, 254 
 Bateman v. Joseph, 183, 297, 29S 
 
 V. Finder, 352 
 Bateson v. Goslin, 347 
 Bathe v. Taylor, 320 
 Batley v. Catterall, 434 
 Batson v. King, 254 
 Battley v. Lewis, 49 
 Batty V. Marriott, 189 
 Baxter v. Portsmouth (Lord), 63 
 Bayard v. Shiinls, 158 
 Bayle, Ex parte, 868 
 Bayley v. Ashton, 856 
 V. Homan, 233 
 Baylis V. Dineley, 58 
 Bayly t. Schofleld, 457 
 Baynes v. Fry, 311 
 Beaching v. Gower, 21 
 Beali V. Beals, 175 
 Bealy v. Greenslade, 353 
 Beard v. Webb, 63 
 Beaidsley v. Baldwin, 93 
 Beauchamp v. Gash, 376 
 V. Parry, 426 
 Beaufoy, Ex parte, 436, 441 
 Beaumont v. Greathead, 223, 238, 233, 
 412 
 V. Reeve, 134 
 Beavan v. M'Donnell, 62^ 
 Becherraise v. Lewis, 249 
 Beck V. Robley, 170, 471 
 Beclcwith v. Corral, 373 
 Bedford v. Brution, 43 
 Bedford v. Deakin, 49, 199, 236; 251, 
 
 384 
 Beech v. Jones, 405 
 Beechmau v. Smith, 7, 8, 43 
 Beeching v. Gower, 303, 313 
 
 V. Westbrook, 38 
 Beeley v. Wingfield, 136 
 Beeman'v. Duck, 200 
 Belcher v. Bellamy, 453 
 
 V. Campbell, 453, 454 
 Bell, Ex parte, 437, 453 
 V. Banks, 335, 351 
 V. Buckley, 224, 330 
 V. Coleman, 817 
 V. Frankis, 301 
 V. Gardiner, 323 
 '' V. Gunn, 427 
 
 V. Ingestre (Lord), 150 
 V. Ingestre, 431 
 Bellamy v. Marjorihanks, 22 
 Bellasis v. Hester, 182 
 Bellingham v ' Fiere, 341 
 Belshaw v. Bush, 231, 233, 234, 236, 
 
 381 
 Bengal (Bank of) t. Fagan, 163 
 
 V. M'Cleod, 33 
 Benham v. Mornington (Lord), 403 
 Bennett v. Farnell, P3 
 Bennison v. Thelwell, 433 
 
 Benson v. Whit«, 419 
 
 Bentham v. Chesterfield (Lord), 36 
 
 Bentinck v. Connop, 137 
 
 V. Dorrien, 198, 195, 358 
 Bentley v. Northouse, 6, 438 
 Berrington v. Collis, 316 
 Berry v. Alderman, 120 
 Besiint V. Cross, 100, 193 
 Betts V. Kimptoh, 65 
 Bevan v. Gething, 356 
 
 V. Hill, 875, 376 
 
 V. Nunn, 458, 459 
 Beveridge v. Burgis, 398 
 Bevin v. Chapman, 843 
 Bickerdike v. Bollman, 293 
 Bickerton v. Burrell, 37 
 Biggs V. Lawrence, 135 
 Bignold, Ex parte, 14, 16, 216, 293 
 
 V. Waterhouse, 390, 398 
 Bilbie v. Lumley, 299 
 Billing V. Devaux, 192 
 Bingham v. Stanley, 430, 436 
 Bingley v. Maddison, 451 
 Binnington v. Wiillis, 134 
 Birch V. Jervis, 141 
 
 V. Tebbutt, 336 
 Bird, Ex parte, 437. 
 Bird V. Gammon, 349 
 Birkett, Ex parte, 434 
 Birmingham Bank, Ex parte, 74 
 Bishop V. Chambre, 324 
 
 V Church, 53 
 
 V. Crawshay, 457 
 
 V; Hayward, 154 
 
 V. Eowe, 336, 384, 385, 412 
 
 V. Shillito, 384 
 . V. Young, 86 
 Bittleston v. Timmis, 368, 369 
 Black V. Peel, 198 
 Blackbnrii, Ex parte, 437 ; 
 Blackburne, Ex parte, 159 
 Blackhan v. Doren, 395 
 Blackie y. Pidding, 376 
 Blades v. Free, 38 
 Blake V. Beaumont, 313 
 
 V. White, 348 
 Blakely Ordnance Company, 68 
 Blnkesley v. Smallwood, 864 
 Blanckenhagen v. Blunde.ll, 81, 95 
 Bland v. Haselrig, 353 
 Blaney v. Hendricks, 305V 
 Blaxton v. Pye, 138 
 Bleaden v. Charles, 155 
 Bleasard v. Hirst, 270 
 Bleasby v. Crossley, 449 
 Blisard v. Hurst, 399 
 Block T. Bell, 88, 91 
 Blogg V. Kent, 409 
 Blount V. Barrow, 175, 176 
 Bloxham, Ex parte, 441, 447, 449 
 Boddington v. Schlencker, 20, 23 
 Boden v. Wright, 421 
 
TABLE OF ENGLISH CASES CITED. 
 
 XXXIX 
 
 BodenhTin v. Purchas, S26 
 Bodyer v. Archer. .S51 
 Bolitho, Ex parte, 44, 48 
 BoUand v. Bygrave, 135 
 
 V. Nash, 367, 368 
 Bollard v. Ogden, 336 
 Bologneai's case, 74 
 Bolton, Ex parte, 343, 349 
 V. Dngdale, 93 
 V. Fuller, 156 
 V. Puller, 455 
 Bonar v. Mitchell, 956 
 Bonbonus, Ex parte, 47 
 Bond V. Pittard, 40 
 V. Stockdale, 86 
 v. "Warden, 15, 20, 386 
 Bonsor v. Cox, 346 
 Bontien's case, 332 
 Booth T. Bank of England, 71' 
 V. Grove, 438 
 V. Jacobs, 300, 301 
 V. Payne, 409 
 V. Quin, 51, 52 
 Bopaft v. Hicks, 15 
 Borradaile v. Lowe, 299 
 Bosanquet v. Anderson, 153, 430 
 V. Corser, 101 
 V. Dudman, 125 
 v. Foster, 101 
 V. Wrav, 236 
 Boswell v. Smith, 24 
 Botten, Ex parte, 451 
 Bottomley v. Fisher, 72, 74 
 
 v.- Nuttall, ,<i81 
 Boucher v. Liiwson, 4C0 ■ 
 Boulager v. Talleyrand, 261 
 Boultbee v. Slulibs, 252, 298 
 Boulton V. Coglan, 143 
 V. Welsh, 273 
 Bourdier v. Greenwood, 349 
 Bouts V. Kllis, 175 
 Bowerbank v. Monteiro, 99, 193 
 Bowmaker v. Moore, 348 
 Bowman v. Horsey, 349 
 V Nichol, 320 
 Bowness & Padmore, In re, 441 
 Bowyer v. Bampton, 138 
 Boyd V. Emerson, 21, 169 
 
 V. Enimerson, 335 
 Boydell v. Diummnnd, 51 
 
 V. Harkuess, 213 
 Boys, In re, 125 
 Bradburne v. Whiibread, 470 
 Bradbury v. Emans, 418, 424 
 Brudlaugh v. De Rin, 398 ' 
 Bradley r. Bardsley, 116, 324, 409 
 
 V. James, 357 
 Braithwaite v. Coleman, 363 
 
 V. Gardiner, 199, 458 
 Bramah v. Roberts, 424 
 Brandao V. Barneit, 3, 168, 173, 174 
 Brandon v. Nesbitt, 67 
 
 Brandon v. Scott, 46 
 Brandram v. Wharton, 355 
 Bray v. Hadwen, 283, 288 
 
 V. Hanson, 249 
 Brec V. Holhech, 343 
 Brett, Ex parte, 449 
 
 V. Levett, 100, 293, 399, 450 
 lire win v. Short, 453 
 Brickwood v. Annis, 248 
 Bridges v. Berry, 392, 384 
 V. Garratl, 24, 384 
 Bridget v. Mills, 439 
 Bridgman v. Sheehan, 324 
 Brigstock V. Smith, 348 
 Brill V. Crick, 99 
 Brind v. Hampshire, 150 
 Briscoe v. Hill, 363 
 Bristol (Earl of ) v. Wilsmore, 384 
 Brislow V. Secqueville, 400 
 British Linen Company v. Caledonian 
 
 Insurance Company, 333 
 British Linen Company v. Drum- 
 
 mond, 401 
 Britten v. Huehes, 133 
 
 V. Webb, 154 
 Brix V. Braham, 136 
 Brocklebank v. Moore, 255 
 Bromage v. Lloyd, 57, 173 
 V. Vaughan, 376 
 Bromley v. Bruaton, 20, 175 
 V. Holland, 178, 878 
 Bronwell v. Bonney, 300, 303 
 Brook V. Hook, 300 
 
 V. Middleton, 313 
 Brooks V. Blkins, 11, 39 
 
 V. Mitchell, 168, 209 
 
 V. Smart, 339 
 Brough V. Parkins, 377 
 
 V. Perkins, 356 
 Broughton . v. Manchester Water- 
 works Company, 69, 141 
 Brown, Ex parte, 449 
 
 V. Davies, 166 
 
 V. Gracey, 403 
 
 V. Hancock, 357 
 
 V. Harraden, 6, 307 
 
 V. Joddrell, 63 
 
 V. Kewley, 384, 385 
 
 V. Kidger, 45 
 
 T. Kimpton, 459 
 
 V. Mafitr, 394, 895 
 
 V. Messiter, 376 
 
 V. Philpot, 130 
 
 V. Turner, 141 
 
 V. Saul, 10 
 
 V. Selwin, 56 
 
 V. Wilkinson, 246 
 Browne v. Carr, 250 
 
 V. DcWinton, 6, 90 
 
 V. Howard, 343 
 
 V. Kidger, 43 
 
 V. Lee, 355 
 
xl 
 
 TABLE OP ENGLISH CASES CITED. 
 
 Browne v. M'Dermot, 303 
 V. Murray, 119 
 V. Rivers, 331 
 V. "Ward, 174 
 Brownell v. Bonney, 418 
 Browning v. Keane, 63 
 
 V. Kinnear, 397 
 Bruce v. Bruce, 161, 334 
 
 V. Hurley, 454 
 Brutt V. Picard, 333 
 Bryant t. Christie, 133 
 Brymer, Ex parte, 449 
 Bryson v. Wylie, 454 
 Buchanan, Ex parte, 455 
 T. Findlay, 368 
 V. Kucker, 400 
 Buck V. Hurst, 29 
 Buckland v. Newsame, 450 
 Buckler v. Buttivant, 124, 441 
 Buckley, Ex parte, 7, 44, 48 
 V. Barber, 53 
 V. Campbell, 417 
 V. Guibank, 313 
 V. Jackson, 156 
 Bnckmaster t. Russell, 348 
 Buckworth v. Simpson, 470 
 Bulbeck v. Jones, 8 
 Bull V, O'Sullivan, 17, 78 
 Bullen V. Sharpe, 45 
 Buller V. Cripps, 6, 391 
 Bullock V. Dodds, 3, 67 
 
 V. Richardson, 4, 14 
 Bullpin V. Clarke, 64 
 Bulmer, Ex parte, 4, 36 
 Bult Y. Morrell, 37 
 Bulteel V. Jarrold, 248 
 Bunn V. Martham, 175 
 Bnnney v. Poyntz, 385 
 Burbidge v. Manners, 55, 171, 233, 
 
 323, 239, 283 
 Burchfleld v. Moore, 319, 823, 333 
 Burden v. Benton, 139 
 Burgess, In re, 304, 450 
 
 v. Merrill, 60 
 Burgh V. Legge, 100, 216, 271, 293, 
 
 301, 417 
 Buike's case, 253 
 Burke v. Jones, 349 
 Burkett v. Blanchard, 409 
 Burleigh v. Stott, 353, 354 
 Burmester v. Barron, 378 
 
 V. Hogarth, 146, 147, 429 
 Burn, Ex parte, 449 
 
 V. Boulton, 350 
 Burnard v. Haggis, 60 
 Burnell v. Minot, 9 
 Burrough v. Moss, 66, 167, 364 
 Burrows v. Jeniimo, 397 
 Burt V. Palmer, 352 
 Bush T. Kinnear, 314 
 
 V. Martin, 358 
 Butler V. Cumpston, 64 
 
 Butler V. Malissy, 417 
 
 V. Mountgarret, 78 
 Butts V. Swann, 463 
 Buvelot V. Mills, 133 
 Buxton V. Jones, 313, 314 
 Byrom t. Thompson, 333 
 
 C. 
 
 Callander v. Howard, 334 
 
 Callisher v. Bischotfsheim, 136 
 
 Callow V. Lawrence, 170, 331, 471 
 
 Calvert v. Baker, 333 
 
 V. Gordon, 350 
 
 Calye's case, 3 
 
 Cameron v. Smith, 304, 306, 4r,0 
 
 Camidge v. AUcnby, 158, 159,, 160, 
 
 162, 303, 310, 315, 3S5 
 
 Campbell v. French, 79, 307 
 
 V. Webster, 31 7, 261, 302 
 
 Cannam v. Farmer, 61, 64, 424 
 
 Cannan v. Bryce, 140 
 
 V. Wood, 459 
 
 Capp V. Lancaster, 343 
 
 Carew, In re, 135 390 
 
 V. Duckworth, 3"3 
 
 Carlon v. Ireland, 33, 163, 164 
 
 , V. Kenealey, 7, 307 
 
 Carlos V. Fancourt, 93, 96 
 
 Carr v. Burdiss, 459 
 
 V. Castabrook, 225 
 
 V. Shaw, 6 
 
 V. Stephens, 99, 371 
 
 Carrol v. Bleiacow, 64 
 
 Carruthers v. West, 166 
 
 Carstairs, Ex parte, 253 
 
 T. Bates, 455 
 
 T. Rolleston, 244 
 
 V. Stein, 313 
 
 Carter v. Flower, 393, 394, 418 
 
 V. Ring, 343 
 
 V. Wormald, 380 
 
 Cartwright v. Cooke, 333 
 
 v. Cook, 380 
 
 V. Williams, 169, 198 ' 
 
 Carvick v. Vickery, 53, 149, 200 
 
 Carey v. Gerrish, 24 
 
 Casborne v. r>utton, 11, 23 
 
 Casella v. Dlrton, 407 
 
 Cash V. Taylbr, 33 
 
 Castleman v. Ray, 15 
 
 Oastrique v. Battigieg, 153 
 
 V. Bernabo, 384 
 
 V. Irarie, 390 
 
 Catherwood v. Chabaud, 56 
 
 Catling V. Skoulding, 349 
 
 Catterall v. Hindle, 383 
 
 Catton V. Simpson, 321 
 
 Caunt v. Thompson, 371, 273, 275, 
 297 r , , , , 
 
 Cawley t. Turnell, 348 
 
TABLE 0-F ENGLISH CASES CITED. 
 
 xli 
 
 Cecil V. Pliiistow, 133, 240 
 Cliadwicli V. Allen, 6, 81 
 Challe V. Belshaw, 190 
 Chalmers v. Lanion, 167 
 Chamberlain v. Porter, 470 
 Chaniberlyn v. Delarive, 383 
 Chambers v. Jones, 74 
 
 v. Miller, 231 
 Champion v. Terry, 376 
 Chandler v Parkes, 60 
 V. Vilett, 345 
 Channell v. Dilchburn, 353 
 Chapcott V. Curlewis, 297 
 Chaplin v. Levy, 427 
 Chapman v. Black, 143, 315 
 
 V. Cotterell, 5, 150, 195 
 T. Keane, 285, 386 
 Chappell, Ex parte, 289 
 V. Cooper, 58 
 Chappie V. Durston, 339, 358 
 Chard v. Fox, 273 
 Charles v. Marsden, 128, 166 
 Charnley v. Grundv, 376 
 Chaters v. Bell, 153, 257, 430 
 Chaworth v. Beech, 4 
 Cheap V. Harlev, 389 
 Cheek v. Roper, 182 
 Cheelham v. Butler, 466 
 
 V. Ward, 55, 239 
 Chesmer v. Noyes, 861 
 Chesterfield v. Jansen, 318 
 Chiesly v. Bond, H49 
 Child V. Monius, 57 
 Childers v. Boulnois, 11, 28 
 Chilton 7. Carrington, 413 
 China Steam Co., 68 
 Cholmley v. Darley, 98, 135 
 Chorley, Ex parte, 68 
 Christie v. Fonsick, 343 
 
 V. Peart, 416 
 Church V. Imperial Gas Co., 69 
 City Bank v. Lnckie, 456 
 Clack V. Sainsbury, 315 
 Clanricarde (Lord), Ex parte, 441 
 Claridge v. Dallon, 343, 344, 2a6 
 Clark v. Alexander, 351, 353 
 V. Clement, 336 , 
 V. Cock, 184 
 V. Devlin, 353 
 V. Hooper, 356 
 V. Hougham, 343 
 V. Pigott, 150, 151 
 Clarke, In re, 44—48 
 V. Cock, 190 
 V. Dixon, 131 
 V. Fell, 369 
 V. Holmes, 119 
 V. Laurie, 413 
 V. Lazarus, 139 
 V. Martin, 428 
 V. Perceval, 94 
 V. Powell, 140 
 
 Clarke v. Quince, 376 
 
 V. Sharpe, 377 
 
 v. Wilson, 345 
 Claxlon V. Swift, 385, 250 
 Glay V. Crowe, 376 
 V. Turley, 408 
 Clayton's case, 326 
 Clayton v. Gosling, 86, 95, 342, 437 
 V. Jennings, 138 
 V. Kynaston, 55 
 Cleave v. Jones, 356 
 Clegg V. Levy, 400 
 Clements v. Laugley, 438 
 Clerk V. Blackstock, 744, 333 
 Gierke v. Martin, 6 
 ClifiFord V. Parker, 333 
 Clode V. l^iiley, 35 
 
 V. Baylcy, 384, 390 
 Close V. Phipps, 118 
 Clugas V. Penaluna, .400 
 Cochrane v. Green, 361, 370 
 Cock v. Coxwell, 323 
 Cockell V. Gray, 304 
 Cockerill v. Sparke, 348 
 Cocks, Ex pane, 304 
 
 v. Barradale, 153 
 
 V. Masterman, 336 
 
 V. Nash, 339, 348 
 Cockshott V. Bennett, 133 
 Cole V. Blake, 229, 409 
 
 V. Gowen, 186 
 Colehan v. Cooke, 79, 95 
 Coleman v. Bredman, 404 
 V. Sayer, 204, 207 
 Coles V. Sybsye, 344 
 Colkett V. Freeman, 449 
 Collen V. Wright, 88 
 Collenridge v. Farquharson, 125, 167 
 Collier v. Willock, 353 
 Collinge v. Heywood, 343 
 Collins V. Benning, 343 
 
 V. Butler, 183, 316 
 
 V. Collins, 863 
 
 V. Jones, 368 
 
 V. Martin, 137, 156, 163 
 
 V. Prosser, 355 
 Collinson's case<S37 
 Collinson v. Margesson, 348 
 Col lis V. Emett, «2, 87 
 Collott V. Haigh, 244 
 Oolumbier v. Stein, 173 
 Combe's case, 31, 36 
 Combe V. Wolfe, 248 
 Commercial Bank of India, In re, 370 
 OimSans Company v. Parker, 97 
 Conier and Holland's case, 333 
 Connop v. Mealis, 316 
 Connor v. Martin, 65 
 Conro v. Port Henry Iron Company, 
 
 37 
 Conway v. Nail, 435 
 Cook V. Lister, 321 
 
xlii 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Conk V. Long, 136 
 Cooke V. Claywonh, 63 
 
 V. Colehan, 95 
 
 V. French, 275 
 V. Wiislit, 126, 334 
 Coombe v. Miles, 313 
 Coombes v. Dilible, 138 
 Coombs V. Ingram, 86, 125 
 Cooper V. Amos. 409 
 
 V. Ma chin, 450 
 
 V. Mayer, 300 
 
 V. Morecraft, 423 
 
 V. Parker, 233 
 
 V. Pepys, 448 
 
 V. Shepherd, 406 
 
 V. Turner, 359 
 
 V. Waldegrave (Earl of), 399 
 
 V. Willomatt, 406 
 Coore v. Callaway, 35 
 Copis V. Middleton, 254 
 Coppinv. , 65 
 
 Coppock V. Bower, 1 14, 136 
 Cordery v. Colville, 300, 801, 418 
 Corlett v. Jones, 384 
 Corner v. Shew, 57 
 Comes V. Taylor, 229, 410 
 Corney v. Mendez da Costa, 394 
 Cornfoot v. Fowke, 133 
 Cornforth v. Smithard, 348 
 Comill T. Hudson, 346 
 Cory V. Scott, 293, 394, 301, 417 
 Cotes V. Davies, 65 
 V. Harris, 349 
 Cothay v. Fenneil, 49 
 Cottam V. Partridge, 340 
 Cotton V. Godwin, 230 
 
 V. Horsemanden, 305 
 Coujan V. Banks, 399 
 Court V. Partridge, 56 
 Cowell V. Edwards, 2J5 
 
 V. Watts, 57 
 Cowie V. Halsall, 319 
 
 V. Harris, 77, 452 
 V. Sterling, 5, 80, 94, 96 
 Cowley V. Dnnlop, 134, 441, 449 
 Crwper v. Green, 240 
 Cowper V. Smith, 353 
 Cox V. Coleman, 190 
 V. Hickman, 45 
 V. Troy, 150, 195 
 Coxon V. Lyon, 78 
 Cramlington v. Evans, 85, 148, 156 
 Cramptou v. Wallier, 863 
 Cranch v. Kirkman, 349 
 
 V. White, 60, 405 
 Crank v. Fiith, 436 
 Craven v. Edinondson, 866 
 Crawfoot v. Gurney, 463 
 Crawford v. Stirling, 863 
 Crawthorne v. Swinburne, 345, 354, 
 
 255 
 C*ew V. Petit, 87, 74 ^ 
 
 Crichlow v. Parry, 153 
 Grippe v. Davis, 168, 169, 856 
 
 V. Hartnall, 254 
 Crisp V. Griffiths, 381,433 
 Critcliton v. Parry, 430 
 Crofts V. Beale, 126, 431 
 Cromwell v. Hynson, 359, 377 
 Crook v. Jadis, 163 
 Crookshanks V. Rose, 142, 148, 328 
 Cropper v. Cook, 37 
 Cross, In re, 133 
 
 V. Cheshire, 44 
 
 V. Smith, 280 
 Crosse v. Smith, 289 
 Crossley, Ex parte, 447, 449 
 
 V. Ham, 165 
 Crotty V. Hodges, 323 
 Crouch V. Credit Foncier Company, 
 
 Crowe V. Clay, 375, 384 
 
 Croxon v. Warltem, 317 
 
 Cruchley v. Clarence, 165 
 
 Crutchley v. Clarence, 83 
 V. Mann, 88 
 
 Cnffv. Browne, 130 
 
 CuUen V. Thompson, 38 
 
 Culverhouse v. Alexander, 414 
 
 Cniiiber v. Wane, 333 
 
 Gumming v. Bailey, 3, 866, 450, 459 
 V. French, 299 
 V. Shand, 19, 333 
 
 Cundy v. Marriott, 114, 399, 386 
 
 CunlifFo V. Whitehead, 149 
 
 Cnrlewis v. Garfield, 301 
 
 V. Mnruington (Lord), 344 
 
 Curtis V. Davis, 58 
 
 V. Rickards, 39 
 V. Rush, 883 
 
 Cuthbert v. Haley, 815 
 
 Cyrus, Ex parte, 450 
 
 D. 
 
 Dabbs V. Humphries, 403 
 Da Costa V. Jones, 135 
 Dacy V. Glinch, 344 
 Dagnall v. Wigley, 318 
 Daintree v. Hutchinson, 137 
 Dalrymple v. Frazer, 7 
 Daniels v. Kyle, 30 
 Darbishire v. Parker, 279, 280 
 Darl)yshire v. Parker, 207 
 Darlington Bank, Case of, 46 
 Darnell v. Williams, 139 
 Davey v. Prendergrass, 248 
 David v. Preecb, 234 
 Davidson v. Cooper, 196, 318 
 Davies v. Dodd, 154, 378 
 V. Edwards, 355 
 V. Humphreys, 355 
 V. Lowndes, 78 
 
TABLE OF ENflLISH CASES CITED. 
 
 xliii 
 
 Davies v. Stainbank, 244, 245 
 
 V. Wilkinson, 93 
 Davis V. Barker, 427 
 
 V. Clarke, «8, 186 
 V. Dodd, 37fi, 378 
 V. Gyde, 382 
 V. Hard a eve, 318 
 V. Holdinpr, 141 
 V. Jones, 77, 131 
 . V. Lowndes, 453 
 V. Mason, 135 
 T. Smyth, 304 
 Davison, Ex parte, 437 
 
 V. Franklin, 143 
 V. Robertson, 388 
 Dawe V. Holdsworlh, 236 
 UawUcs V. Lord de Loraine, 96 
 Dawson v. Morgan, 435, 4lO 
 
 V. Prince, 65 
 Day V. Padrone, 65 
 
 V. Stuart, 141 
 Deacon v. Modhart, 222, 367 
 Deacon v. Pennial, 470 
 Dean v. Newhall, 239 
 De Begnis v. Armistead, 143 
 De Bert v. Atlsinson, 216 
 De Bergareclie v. Pillin, 214 
 De Bernales v. Fuller, 181 
 Deering v Winchelsea, Earl of, 254 
 Deey, Ex parte, 449 
 Deeze, Ex parte, 367 
 Dehers v. Harriot, 88, 91, 307, 389 
 De la Chaumette v. England, Bank 
 
 of, 6, 39, 118, 135, 398, 402 . 
 De la Courtier v. Bellamy, 77 
 Delatorre v. Barclay, 198 
 DL-launey v. Mitchell, 119 
 De la Vega v. Vianna, 401 
 De Mantort v. Saunders, 50 
 Dendy v. Powell, 363 
 Dennis v. Morrice, 293, 399 
 Dennistoun v. Stewart, 376 
 Dent V. Dunn, 24, 306 
 Denton v. Peters, 150 
 Derry v. Mazarine, Duchess of, 64 
 Desbrowe v. Weatherby, 319, 324 
 De Tastet, Ex parte, 448 
 V Baring, 412 
 Deuters y. Townshend, 172 
 Dewar v. Span, 314 
 Dewdney, Ex parte, 339, 436 
 Dickenson v. IJickenson, 77 
 
 v. Teague, 91, 344, 358 
 V. Valpy, 50 
 Dickinson, Ex parte, 449 
 
 y. Hatfield, 349, 412 
 y. Valpy, 45 
 Dickson, Ex parte, 383 
 v. Cass, 366 
 . v. Evans, 365 
 v. Thomson, 347 
 V. Vale of Neath Kail. Co., 68 
 
 Dillon v. Rimmer, 336, 385 
 Dingwall v. Dunster, 198 
 Diplock V. Hammond, 463 
 Dilchburn v. Goldsmith, 135 
 Dixon V. Chambers, 466 
 
 y. Clark, 330 
 
 y. Elliott, 399, 301 
 
 y. Hol'royd, 386 
 
 y. Johnson, 398 
 
 y. Nuttal, II, 79,93 
 
 y. Nuttall, 95, 304, 207, 215, 342 
 Dollies v. Larken, 409 
 Dobree v. Eastwood, 277, 279 
 Dobson y. Espie, 196, 197, 383 
 Dod y. Edwards, 55, 173, 338, 338 
 Dodge y. Pringle, 331, 323 
 Doe. d. Duroure v. Jones. 346 
 d. Vine v. Figgins, 404 
 v. Boulcot, 434 
 y. Cataraore, 334 
 y. King, 816 
 y. Palmer, 324 
 y. Somerton, 303 
 y. Whittingham, 470 
 Doman v. Dibdin, 304 
 Don y. Lipman. 399, 401 
 Donaldson y. Thompson, 430 
 Dipne y. Whalley, 355 
 Donovan y. Dufl', 434 
 Dorchester v. Webb, 55, 56 
 Doty V. Smith, 7 
 Douglass V. Holme, 29 
 Douthat, Ex parte, 450 
 Dover v. Maestaer, 114 
 Dowbiggin v. Bourne, 344 
 y. Harrison, 57 
 Dow|ing y. Ford, 3."6 
 Dowu y. Hailing, 79, 168, 377 
 Downes y. Garbutt, 316 
 
 y. Richardson, 381 
 Downman, Ex parte, 437 
 Drage v. Ibberson, 136 
 
 y. Netter, 339 
 Drain y Harvey,. 413 
 Drake v. Mitchell, 383 
 Draper v. Glassop, 339 
 Drayton v. Dale, 60, 199, 458 
 Druiff V. Lord Parker, 413 
 Driiitt V. Lord Parker, 42 
 Drury y. Macauley, 94 
 
 V. Smith, 9, 175 
 Du Beloix v. Lord Warterpark, 338, 
 
 306 
 Dufaur v. Oxenden, 190 
 Dufl3eld V. Creed, 328, 359 
 v. Elwes, 175, 176 
 Dumas, Ex parte, 454 
 Duncan y. Lowndes, 49 
 
 y. Scott, 118 
 Dunn y. O'Keefe, 271 
 Dupays y. Shepherd, 186 
 Dulton V. Marsh, 72 
 
xliv 
 
 TABLE OE ENGLISH CASES CITED, 
 
 B. 
 
 Eagle Bank of Newhaven v. Smith, 
 
 161 
 Bales V. Decker, 428 
 Eames V. Smith, 116- 
 Earles, Ex parte. 443 
 Easley v. Crockford, 374 
 East V. Smith, 271, 372, 286 
 East India Co. v. Paul, 839 
 
 V. Tritton, 153, 230 
 East London Waterworks C!o. v. 
 
 Bailey, 68 
 Eastern Union Rail. Co. v. Symonds, 
 
 431 
 BaSlon V. Prnchet, 123, 431 
 Eastwood V. Baine, 73, 186 
 V. Kenyon, 126 
 V. Savillp, 356 
 Easum v. Cato, 367 
 Eaton V. Bell, 74 
 Eddlson v. Pigram, 420 
 Edgar v. Knapp, 9 
 Edge V. Bumford, 154, 378 
 Edgecombe v. Bodd, 136, 383 
 Edie V. East India Co. 140, 156, 158 
 Edis V. Bury, 91 
 Edmeads v. Newman, 367 
 Edmonds v. Cates, 274 
 Edmunds v. Busliell, 32. 37 
 
 V. Downes, 348, 349 
 V. Groves, 119, 139, 436 
 Edwards, Bxparte, 439, 454 
 V. Baugh, 234 
 V. Cameron Coal Co., 73 
 v. Cooper, 3 
 V. Dick, 91, 138, 290 
 V. Grace, 57 
 V. Jones, 78, 100 
 V. Same, 72 
 Eagan v. Trelfall, 1G2 
 Egg V. Barnett, 24, 328 
 Elford V. Teed, 211 
 Elgar, Ex parte, 437 
 Elliot V. luce, 62 
 Elliot's case, 79, 84 
 Elliot V. Cowper, 87 
 Ellis V. M'Henry, 239 
 V. Mason, 11 
 V. Wild, 161 
 Ellison V. Collingridge, 80 
 
 V. Dezeir, 280 
 Ellston V. Deacon, 47 
 Elsain V, Denny, 233 
 Emanuel v. Randall, 424 
 
 V. Roberts, 17, 78 
 Emblin v. Dartnell, 314 
 Emery v. Day, 341 , 353 
 Emly, Ex. parte, 43 
 
 V. Lye, 43, 159 
 Emmett v. Tottenham, 3, 403 
 
 England (Bank of) v. Anderson, 69, 
 70, 71 
 V. Kewman, 1,59 
 English V. Barley, 236, 348, 349, 350, 
 
 353 
 Enthoven v. Hoyle, 96 
 Ereskine v. Murray, 87 
 Esdaile v. Lanauze, 32, 178, 333 
 V. M'Lean, 416 
 v. Sowerby, 302, 373, 398 
 Bskey v. Lake, 61 
 European Bank, In re, 166 
 Evans v. Bremridge, 418 
 
 V. Cramlington, 148, 156 
 V. Drummond, 48, 53, 199, 383 
 V. Jones, 136 
 V. Kymer, 155, 405 
 V. Lewis, 417 
 V. Phillpotts, 39 
 V. Prosser, 363 
 V. Themridge,' 339 
 V. Underwood, 95 
 V. Whyle, 159 
 V. Williams, 142, 350 
 Evprard v. Watson, 275 
 Everett v. Collins, 24 
 
 V. Robertson, 348 
 Ewer V. Clifton (Lady), 3S2 
 
 V. Jones, 339 
 Exeter Bank v. Gordon, 365 
 Exon V. Russell, 88, 99, 315 
 Eynv. M'Dowell, 123 
 Eyre v. Everest, 246 
 
 V. Waller, 36, 408 
 Eyton V. Littledale, 363 
 
 P. 
 
 Falkney V Reynous, 140 
 
 Pair V. M'lvor, 366 
 
 Pairclough v. Pavia, 153, 167 
 
 Pairlee v. Herring, 191 
 
 Paith V. Richmond, 44 
 
 PaUows V. Taylor, 136 
 
 Palmouth (Earl of) v. Roberts, 334 
 
 Pancourt v. Thome, 13, 93, 99, 115 
 
 Fannhi v. Anderson, 346 
 
 Panshawe v. Peat, 194 
 
 V. Peet, 99 
 Farley v. Turner, 456 
 Farquhar v. Southey, 168. 320 
 Farquharson v. Cave, 175 
 Farr v. Ward, 306 
 Farrar v. Deflinne, 51 
 Farrington v. Lee, 349 
 Favenc v. Bennett, 325, 327 
 Fiiwcett V. Fearne, 435 
 Fayle v. Bird, 88, 213 
 Fearn v, Filica, 33, 34, 120, 436 
 V. Lewis, 848 
 
TABLB OF ENGLISH CASES CITED. 
 
 xlv 
 
 Febart v. Stevens, 407, 408 
 
 Feise v. Randall, 182 
 
 Fenn v. Harrison, 159, 163 
 
 Fenton v. Livington, 396 
 
 Fentum v. Pooocke, 8, 138, 196, 244, 
 
 447 
 Fereday t. Hordern, 40 
 Ferguson v. Douglas, 306 
 Ferrall v. Shaen, 309 
 Ferris v. Bond, 95 
 Fesenmayer v. Adcock, 38, 39, 438 
 Field V. Carr, 319, 22G 
 
 V. Woods, 14, 15, 78, 116, 323, 
 469 
 Fielder v. Marshall, 90 
 Fieldhouse v. Croft, 10, 177 
 Fife V. Round, 88 
 Firbank v. Bell, 463 
 Firth V. Thrush, 283, 298, 418 
 Fisher v. Beasley, 309 
 
 T. Leslie, 11, 38, 39 
 
 V Mowbrav, 58 
 Fitch V. Jones, i)Q', 118, 137, 189 
 
 V. Sutton, 196, 238. 238 
 Fitzgerald v. Williams, 396 
 Fleming v. Brooke, 9 
 V. Burge, 28 
 V. St. John, 414 
 Fletcher v. Braddyl, 378 
 V. Dyte, 8 
 
 ■ V. Froggatt, 300 
 V. Manning, 23, 452 
 V. Sandys, 208 
 Flight V. Brown. 376 
 
 V. Gray, 101, 387 
 
 V. Maclean, 6 
 
 V. Reed, 127, 144, 817 
 Flint, Ex parte, 368 
 Flood V. Patterson, 346 
 Florence v. Jennings, 303 
 Fioyer v. Edwards, SOS 
 Fogg V. Sawyer, 158 
 FoUett V. Hoppe, 435 
 
 V. Moore, 98, 316 
 Forbes v. Marshall, 44 
 
 V. Smith, 346 
 Ford V. Beech, 286, 237 
 V. Dornford, 365 
 V. Olden, 61 
 Fordham v. Wallis, 850, 853 
 Forman v. Wright, 421 
 Forster v. Maekworlh, 17, 45, 78 
 
 V. Wilson, 366,367 
 Foster v. Dawber, 197 
 
 V. Green, 162, 333 
 
 V. Jolly, 100 
 
 V. Mackinnon, 328 
 
 V. Pearson, 35, 39, 135, 163 
 Fowler v. Hendon, 383 
 Fox r. Frith, 42, 72, 86 
 Frampton v. Coulson, 215 
 
 Francis v. Mott, 148 
 
 V. Nash, 9, 177 
 V. Rucker, 447 
 Franks, Ex parte, 64 
 Fraser v. Jordan, 346 
 V. Newton, 420 
 V. Welch, 423 
 Freakly v Pox, 55, 223 
 Free v. Hawkins, 100, 153, 398 
 Freeman v. Lomas, 361 
 Frith V. Forbes, 184 
 Fry V. Hill, 180 
 Fryer v. Brown, 427 
 V. Gildridge, 55 
 V. Roe, 341, 429 
 Fuller V. Smith, 161, 389 
 Furze v. Sharwood, 48, 371, 374 
 Pussel T. Daniel, 316 
 Fydell v. Clark, 159 
 
 G. 
 
 Gadbury, Re, 66 
 
 Gale V. Capern, 856, 858 
 
 V. Walsh, 256, 301, 377 
 Galway (Lord) v. Mathew, 7, 47 
 Garden v. Bruce, 343 
 Gardner V. Baillie, 33 
 
 V. M'Mahon, 848 
 V. Walsh, 8, 319, 820, 321 
 Garland v. Jacomb, 200 
 Garnet v. Clarke, 125 
 Garnett v. M'Kewan, 36 
 Garrard v. Cottrell, 405 
 
 V. Woolner, 380 
 Garrett v. Jull, 8, 345 
 Gaters v. Madeley, 65 
 Gatty V. Field, 416 
 Gay V. Lander, 6, 90, 149 
 Geake v. Jackson, 236 
 ' Geary v. Physic, 76 
 Geill V. Jeremy, 281, 3°3 
 General Estates Co., 68 
 George v. Stanlev, 139, 148 
 
 T. Surrey, 77, 87, 148, 427 
 Geralopulo v. Wieler, 257, 263, 267, 
 
 269 
 Gibb V. Mather, 212, 214, 319 
 Gibbon v. Coggon, 260, 261,301 
 
 V. Scott, 193 
 Gibbs V. Fremont, 399, 402 
 
 V. Mather, 88 
 Giblin V. M'MuIlen, 178, 174 
 Gibson V. Baghott, 353 
 
 V. Bell, 367 
 
 V. Bruce, 133 
 
 V. Dickie, 184 
 
 V. Hunter, 82 
 
 and Johnson, In re, 448 
 Gifford, Ex parte, 43U 
 
xlvi 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Gilbert v. Piatt, 420 
 
 V. Whitmaish, 101 
 Giles V. Bourne, 77 
 V. Perkins, 454 
 Gill V. Cubitt, 163,373 
 
 V. Lord Cliesterfleld, 3, 403 
 Gilinore v. Whitmarsli, 469 
 Gilpin, V. Euderbey, 313 
 
 V. Enderby, 40 
 Girardy v. Ricbardson, 135 
 Gladstone v. Hadweu, 384 
 Gladwell v. Turner, S80, 281 
 Glaister v. Hewer, 431 
 Glasfurd v. Laing, 313, 314 
 Glendinning, Ex parte, 244, 352, 353 
 Glengall v. Edwards, 414 
 Glennie v. Edmonds, 367 
 
 V. Imrie, 130 
 Glover, Ex parte, 439 
 Glynn v. Soares, 413 
 Goate V. Goate, 348 
 Godard v. Benjamin, 404 
 Go^dard v. Cox, 226 
 
 V. Ingram, 353 
 V. White, 354 
 Godfrey v. Coulman, 391 
 V. Turubull, 51 
 Godwin v. CuUey, 848 
 Goggerley v. Cutbbert, 405 
 Goggerly v. Cutbbert. 155 
 Golding V. Grace, 410 
 Goldsmid, Ex parte, 448 
 
 V. Cazenove, 439 
 V. Hampton, 87, 139 
 Goldsmith, Ex parte, 448 
 V. Bland, 380 
 Gompertz v. Bartlett, 161, 393 
 Good V. Cheesman, 333, 380 
 
 V. Harrison, 60 
 Goodall V. DoUey, 370, 299 
 V. Dolly, 317 
 V. Polhill, 268 
 V. Ray, 167, 168 
 Goodbody v. Foster, 26, 306 
 Goodburn v. Marley, 138 
 Goodered v. Armour, 427 
 Goodman v. Harvey, 121, 122, 133, 
 
 156, 163, 165, 259, 271, 277 
 Goodtitle v. Milburn, 451 
 Goodwin v. Coates, 384 
 V. Cremer, 404 
 Gordon v. Calvert, 350 
 
 V. Ellis, 46, 47, 224 
 V. Sea Fire Society, 73 
 Gore V. Gibson, 03, 03 
 Gorgier v. Mieville, 156, 164, 398 
 Gorham v. Thompson, 51 
 Goss V. Nelson, 95 
 Gough V. Davis, 226 
 Gould V. Coombs, 29 
 
 V. Johnson, 357, 358 
 
 Gould V. Robson, 248 
 Gouldney, Ex parte, 47 
 Goupy V. Arden, 181 
 
 V. Harden, 36, 151 
 Gowan v. Forster, 350, 351 
 Graham v. Hope, 51 
 
 V. Pitman, 421 
 Granger v. George, 343 
 Grant v. Da Costa, 85, 86 
 V. Hawkes, 47, 48 
 v. Hunt, 191 
 V. Mills, 386 
 V. Vaughan, 26, 83, 118 147, 
 
 428 
 V. Welchman, 180 
 Graves v. Key, 171, 229, 431, 471 
 Gray v. Johnston, 19 
 V. Mendez, 347 
 v. Milner, 87, 91, 186 
 Green v. Allday, 16 
 
 V. BucUnell, 439 
 V. Croft, 229 
 ' V. Davies, 81 
 V. Deakin, 47 
 V. Parmer, 361 
 V. Price, 185 
 V. Skipwortli, 77 
 V. Steer, 150, 435 
 Greening, Ex parte, 154 
 Green ough v. M'Cal]and,245 
 Greenslade v. Dower, 43 
 Greenway, Ex parte, 378, 437 
 
 V. Hindley, 217, 260, 361 
 Gregory V. Fraser, 115 
 V. Hurrill, 846 
 V. Parker, 353 
 Y. Walcup, 263 
 Grew V. Bevan, 181 
 Grey v. Cooper, fiO 
 
 V. Seek ham, 254 
 Griffin v. Ashby, 354 
 V. GofiF, 307 
 
 V. Weathersby, 107, 393, 469 
 Griffiths V. Owen, 381 
 Grigby v. Oakes, 10 
 Groom v. Mealey, 369 
 Gross, In re, 369 
 Grosvenor, Ex parte, 439 
 Grout V. Enlhoven, 47, 430 
 Grove v. Neville, 60 
 Grugeon v. Smith, 274 
 Grymes v. Blofield, 233 
 Gulliver v. Gulliver, 849 
 Gunson v. Melz, 300 
 Gurney v. Evans, 37, 50 
 
 v: Woraersley,, 101, 334 
 Guy V. Harris, 11 
 Guyard v. Sutton, 66 
 Gwinnel v. Herbert, 420 
 Gwinnell v. Herbert, 146, 147 
 Gwynn v. Burufill, 422 
 
TABLE OE ENGLISH CASES CITED. 
 
 xlrii 
 
 H. 
 
 Haddock v. Bury, 217, 300 ,, 
 Hagedorn v. Reid, 378 y 
 
 Hague V. French, 77 
 Haigh V. Jackson, 438 
 
 V. North Bierley Union, 68 
 Halford v. Cameron Coal Company, 
 
 73, 73 
 Halifax V, Ly]e, 199 
 Hall V. Coates, 407 
 V. Cole, 344 
 V. Fealherslone, 120 
 v. Franklin, 142 
 V. Fuller, 25, 333 
 V. Haffam, 58 
 V. Poller, 135 
 V. Smith, 7, 44 
 V. Wilcox, 8, 345 
 Halliday v. Ward, 355 
 Halstead v. Skelton, 212 
 Hamber V. Roberts, 437 
 Hamelin v. Bruck, 320 
 Hamilton v. Bell, 453 
 
 V. Spottiswood, SO 
 V. Watson, 242 
 Hamniersley v. Knowljs, 236 
 Hammett v. Yea, 311 
 Hammond v. Dufrene, 395 
 Hamson v. Harrison, 453 
 Haukey v. Cobb, 141 
 V. Jones, 453 
 V. Smith, 368 
 V. Trotmap, 208 
 V. Wilson, 430 
 Hanlock v. Blacklowe, 135 
 HansaVd v. Robinson, 239, 375, 376, 
 
 378 
 Hansom, Ex parte, 370 
 Harding v. Edgcun)be, 353 
 Hardman v. BelUiouse, 234 
 Hardy v. Woodroffe, 88 
 
 V. Woodroofe, 213, 314, 216 
 Hare v. Henty, 30, 208 
 Hargreaves v. Mitchell, 349 
 Harley v. Greenwood, 439 
 
 V. Thornton, 158 
 Havmer v. Steele, 55, 73, 333, 431 
 Harphani v. Child, 276 
 Harries, In re, 383 
 Harrington v. M'Morris, 416 
 Harris v. Bensom, 360 
 V. Boston, 312 
 V. Parker, 313, 214 
 V. Quine, 340, 401 
 V. bhipway, 382 
 V. Swinburne, 408 
 V. Wall, 59 
 V. Woolford, 344 , 
 Harrison, Ex parte, 437 
 T. Clifton, 78 \ 
 V. Courtauld, 344, 253 
 
 Harrison v. Pilzlienry, 397 
 V. Hannel, 315 
 V. Jackson, 43 
 V. Richardson, 62 
 V. Ruscoe, 278, 277, 385, 
 
 286, 2 -'8 
 V. Turner, 363 
 Harrop v. Fisher, 154 
 Hart V. King, 378 
 V. Nash, 351 
 V. Prendergast, 348 
 V. Stephens, 65, 66 
 Harthey v. O'Flaherty, 255 
 Hartley v. Case, 323, 273, 378 
 V. Manlon, 239 
 V. Rice, 135 
 T. Wharton, 59 
 V. Wilkinson, 98 
 Harvey, Ex paite, 353 
 
 ■ V. Archbold,.309, 314 
 V. Martin, 191 
 V. Mount, 61 
 . V. Towers, 118, 120, 131 
 Hatch V. Searles, 188 
 
 V. Trays, 86 
 Haussoullier v. Hartsink. 95 
 Hawkes v. Saltei', 378, 383 
 Hawkej' v. Borwiuk, 21B, 214 
 Hawkings v. Billhead, 357 
 Hawkins v. Cardy, 171, 172 
 V. Penfold, 457 
 V. Rutt, 277 
 y. Whitlen, 366 
 Hawley v. Beverley, 133 
 Hawse v. Crowe, 3^*4 
 Hay V. Goldsmid, 32 
 
 V. Hayling, 139, 144 
 Haydock v. Lynch, 94, 96 
 Haydon v. Williams, 347, 358 
 Hayes v. Caulfield, 421 
 Hayling v. Mulhall, 336, 349 
 Haynes v. Birks, 207, 223, 383 
 
 V. Foster, 35 
 Hayward, In re, 187 
 Healing v. Story, 73 
 Heath, Ex parte, 293, 394, 396, 436 
 v. Hanloy, 340 
 V. Key, 245, 248 
 v. Percival, 53 
 V. Sansom, 50, 53, 118, 119 
 Heathcote v. Crookshanks, 333 
 Hebden v. Hartsink, 412 
 Hedger v. Steavenson, 273, 274 
 Hedley v. Bainbridge, 45 
 Heilbut V. Nevill, 46 
 Heiser v. Grout, 470 
 Hemiugs v. Robinson, 430 
 Hemmenway v. Stone, 7 
 Hemming v. Brook, 331 
 
 V. Trenery, 834 , 
 Hemp v. Garland, 341 
 Hendeison v. Applelon, 203, 216 
 
xlviii 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Henderson v. Australian Company, 68 
 V. Bise, 139 
 
 V. Stobart, 333, 334, 339, 
 347 
 Henman v. Dickinson, 334 
 Henniker v. Wigg, 135 
 Henton, Ex parte, 448 
 Hesketh v. Fawcitt, 380 
 Hetherington v. Kemp, 378 
 Hewel V. Goodrick, 849 
 Hewitt V. Kave, 30, 175, 176 
 V. Price, 139, 141 
 V. Thompson, 378, 398 
 Heyhoe v. Barge, 53 
 Heywood v. Watson, 136 
 Hicks V. Beaufort (Duke oO, SCO, 418 
 Higginbotham, Ex parte, 447 
 Higgins V. Senior, 87, 73 
 Higham v. Ridgway, 481 
 Highmore v. Primiose, 86, 351 
 Hill V. Halford, 94, 95 
 
 T. Heap, 183, 316, 293, 393 
 V. Lewis, 83, 146 
 T. Manchester and Salford Water- 
 works Company, 69 
 V. Royds, 456 
 Hilliard v. Lenard, 356 
 Hills V. Hills, 176 
 Hilton T. Fairclough, 283 
 
 V. Shepherd, 387, 398 
 Hindley v. Lacey, 101 
 Hindustan (Bank of) v. Smith, 318 
 Hine v. Allely, 313, 214, 316, 283 
 Hinton v. Duff, 417 
 Hipwell v. Knight, 204 
 Hirschfield v. Budd, 319, 334 
 V. Smith, 820, 399 
 Hitclicock V. Humfrey, 303, 893 
 
 V. Way, 139, 315 
 Hoar V. Da Costa, 208 
 Hoare V. Cazenove, 268, 364, 205 
 V. Dresser, 191 
 V Graham, 100, 193 
 Hobbs V. Christmas, 259 
 Hodge V. Pillis, 88, 217 
 Hodglns V. Hancock, 428 
 Hodgkinson v. Wyatt, 316 
 Hodgson V. Murray, 169, 413 
 V. Shaw, 354 
 V. Temple, 136 
 Hoffman, Ex parte, 447 
 Hogg v. Skeen, 121, 430 
 V. Skene, 47, 48 ■ 
 V. Snailh, 33 
 Hoggarth v. Taylor, 436 
 Holborow V. Jones, 408 
 Holbrow V. Wilkins, 393 
 Holden's case, 330 
 Holding, Ex p;irte, 450 
 Holdsworth v. Hunter, 195, 388, 889 
 Holiday v. Atkinson, 133, 134 ' 
 V. Boas, 56 
 
 Holland v. Jourdine, 404 
 
 V. Russell, 38 
 Holliday v. Atkinson, 61 
 Hollier v. Byre, 344, 245 
 Hollis V. Palmer, 347 
 Holman v. Johnson, 400 
 Holme T. Barry, 160 
 
 V. Hammond, 45 
 Holmer v. Viner, 133 
 Holmes V. Kerrison, 79, 343 
 V. Jiiqups, 74, 96, 
 V. Kidd, 167 
 
 V. Mackrill, 115, 351, 438 
 ■V. Sixsmith, 115 
 V. Williamson, 9 
 V. Wilson, 406 
 Holroyd v. Whitehead, 471 
 Holt V. Meirs, lOO, 316 
 
 V. Ward, 58 
 Holtier v. Eyre, 8 
 Holy V. Lane, 67 
 Homan v. Thompson, 435 
 Honey, Ex parte, 4l->9 
 Hood V. Ashlon, 413 
 Hooper v. Marshall, 354, 417 
 Hooper V. Stevens, 351 
 V. Williams, 6 
 Hopes V. Alder, 399- 
 Hopkins v. Ware, iO 
 Hopley Y. Dufresne, 317, 399, 30O, 
 
 418 
 Hopper v. Richmond, 304 
 Hordern v. Dalton, 373 
 Horford v. Wilson, 399, ?01 
 Horn blower v. Proud, 3, 454 
 Horncastle v. Pan-an, 385 
 Home V. Redfearn, 11, 38 
 Horner v. Keppel, 410, 433, 434 
 Horsfall v. Fauntleroy, 333 
 Hough's case, 333 
 Houlditcb V. Cauty, 274 
 Houles V. Baxter, 449 
 Houriet v. Morris, 6 
 Housego V. Cowne, 375, 376, 379, 380, 
 
 389 
 Hovil Browning, 51 
 Howard v. Baillie, 33 • 
 V. Hodges, 135 
 V. Oakes, 65 
 Howcutt V. Bonser, 348 
 Howden v. Haigh, 133 
 Howe V. Bowes, 303, 314 
 Hubbard v. Jackson, 170, 171 
 Huber v. Steiner, 340, 401 
 Hubner v. Richardson, 143 
 Hudson V. Fossett, 303 
 V. Hudson, 56 
 Huffem V. Ellis, 214 
 Hughes' case, 447 
 
 V. Wynn, 349 
 Hull V. Wyborn, 348 
 Hulme V. Coles, 350 
 
TABLE OF ENGLISH CASES CITED. 
 
 xlix 
 
 Hulme V. Muggleton, 368 
 
 V. Tenant, 64 
 Hulse V. Hulse, 134 
 Humbert v. Ruding, 119 
 Hume V. Druitf, 406 
 
 y. Peploe, 333, 347, 383, 409 
 Humphreys v Jones, 348 
 
 V. Barle of Waldegrave, 
 
 139 
 V. "Willing, 143 
 Hnnlock v. Blacklowe, 135 
 Hunt V. Massey, 59, 60 
 Hunter, Ex parte, 36 
 V. Agnew, 58 
 V. Wilson, 137 
 Huntley v. Sanderson, 37, 393 
 Hustler, Ex parte, 437 
 Hutchinson v. Hayworth, 463 
 Hutchison v. Uowker, 376 
 Button V. Eyre, 9, 339 
 
 V. Ward, 437 
 Hyde v. Johnson, 353 
 
 V. Skinner, 53 
 Hyne v. Dewdney, 11 
 
 I. 
 
 Ibbett V. Leaver, 365 
 
 Imeon, Ex parte, 93 
 
 Immcson, Ex parte, 437 
 
 Imperial Gas Co. v. London Gas Co., 
 
 343 
 Imperial Land Co. of Marseilles, 68 
 India (Bank of) v. Dickson, 310 
 Ingham v Primrose, 187, 196, 333 
 Ingledew v. Douglas, 60 
 Inglis V. Grant, 453 
 
 V. Haigh, 340, 349 
 Ingram v. Foster, 183 
 Innes v. Munro, 101 
 
 V. Stephenson, 319 
 Ireland (Bank of) v. Archer, 188 
 
 V. Beresford, 244, 
 346, 447 
 Ireland v. Beresford, 138 
 Irons V. Smallpiece, 175 
 Irving V. Veitch, 348, 351, 438 
 Isaac V. Daniel, 346 
 Isbister, Ex parte, 160, 437 
 Israel v. Israel, 11, 38 
 
 J. 
 
 Jacand v. French, 46 
 Jackson v. Collins, 301 
 
 V. Ducliaire, 345 
 
 V. Fairbank, 355 
 
 V. Hudson, 187, 195, 258, 263 
 
 V. Pigott, 189 
 
 V. Warwick, 127 
 
 Jackson v. Woolley, 355 
 Jacob V. Hungate, 119 
 Jacobs V. Hart, 319, 333 
 V. Tarleton, 435 
 Jacques v. Withy, 363 
 Jacquet v. Jacquet, 350 
 James v. Calherwood, 400 
 V. Child, 336 
 V. David, 333 
 V. Houlditch, 209, 310 
 V. Isaacs, 331, 333 
 V. Swinton, 311 
 - V. Williams, 381, 423 
 Jameson v. Swinton, 3b3, 385, 287 
 Janson v. Thomas, 307 
 Jardine v.' Payne, 114, 438 
 Jarvis v. Wllkins. 11 
 Jay V. Warren, 350 
 Jetfery v. Walton, 77 
 Jefferys v. Koosey, 396 
 Jeffreys v. Evans, 143 
 Jeffries v. Austen, 127 
 Jenkins v. Blizard, 51 
 
 v. Hutchinson, 186 
 V. Morris, 43, 72 
 V. Robertson, 249 
 Jennings v. Newman, 57 
 
 V. Roberts, 285, 286 - 
 V. Rundall, 60 
 Jenny v. Herle, 96 
 Jenys v. Fawler, 199 
 Jeune v. Ward, 193 
 Jewell V. Parr, 138, 166, 231, 233 
 Jobson V. Forster, 57 
 Jocelyn v. Hawkins, 304 
 
 V. Laserre, 88 
 Johnson, Ex parte, 203, 289 
 V. Bann, 138 
 V. Collings, 188 
 V. Gallagher, 64 
 V. Kennlon, 173, 230 
 V. Marlborough,Dukeof,334 
 V. Medliootte, 63 
 V. Pye, 60 
 I V. Smith, 340, 343 
 
 V. Windle, 332 
 Johnstone's case, 174 
 Joint-Stock Discount Co., In re, 448 
 Jolly V. Toung, 304 
 Jombart, Ex parte, 455 
 
 V. Woollett, 454 
 Jones V. BroadhuKst, 331, 332, 233 
 V. Brooke, 405 
 V. Corbett, 47,^ 430 
 V. Darch, 199 
 V. Fort, 156 
 V. Hibbert, 138, 447 
 V. Hill, 450 
 
 V. Jones, 126, 130, 321, 427 
 V. Lane, 172, 178 
 V. Lewis, 63 
 V. Morgan, 430 
 
1 
 
 TABLE OF ENGLISH OASES CITED. 
 
 Jones V. Peppercorn, ] 64 
 
 V. Ryde, 159, 161, 334 
 
 V. Ryder, 115, 351, 428 
 
 T. Scott, 350 
 
 V. Simpson, 463 
 
 V. Smith, 123 
 
 V. Thomas, 118 
 
 V. Yates, 46 
 
 Joseph V. Orme, 449 
 
 Josselynv. Lacier, 96 
 
 Joy V. Campbell, 453 
 
 Julian V. Shobrooke, 193 
 
 Jungbluthv. Way, 403 
 
 Jury V. Baker, 12, 94 
 
 K. 
 
 Kay V. Pienne, Duchess of, 64 
 
 V. Smith, :59 
 Keable v. Payne, 115 
 Kearney v. King, 399, 416 
 
 V. W. Granada Mining Co., 
 388 
 Kearns v. Diirell, 101, 118 
 Kearslake v. Morgan, 234, 236, 881, 
 
 384 
 Kearsley v. Cole, 352 
 Keates v. Whieldon, 466 
 Keaton v. Lynch, 118 
 Keene V. Beard, 13, 18, 408 
 
 T. Kcene, 304, 307 
 Keir.v. Leman, 136 
 Kell V. Nainby, 49,. 50 
 Kelly V. Solari, 230 
 
 V. Villebois„420 
 Kelner v. Baxter, 38 
 Kemble v. Atkins, 140 
 
 V. Mills, 421 
 Kemp V. Balls, 221, 222, 333 
 V. Pinden, 255 
 v. Watt, 381 
 Kendall v. Wood, 330 
 Kendrick v Lomax, 236, 259, 385, 412 
 Kennard v. Knott, 246, 350 
 Kennerloy v. Nash, 304, 321 
 Kennett v. Milbank, 348, 349 
 Kensington v. Chantler, 459 
 Kent V. Lowen, 278, 425 
 Kernot v. Piltis, 142 
 Kershaw v. Cox, 147, 333 
 Kessebower v. Tims, 429, 430 
 Key Vw Flint, 368 
 Keymer v. Laurie, 19, 195 
 Kidd V. Walker, 305 
 Kidson v. Dilworth, 152, 413 
 Kilby V. Wilson, 384 
 Kilgour V. Finlayson, 52 
 
 V. Finlyson, 33 
 Killby V. Eochussen, 299, 300, 418 
 Kilsly V. Williams, 21, 169, 335 
 Kiue V. Beaumont, ?78 
 
 King, Ex parte, 447, 449 
 , Re, 60 
 V. Bickley, 373 
 V. Braddon, 316 
 V. Gillett, 332 
 V. Hoare, 8, S35 
 V. Milson, 118 
 V. Phillips, 129 
 V. Taylor, 805 
 V. Thorn, 56 
 V. Walker, 345 
 V. Zimmerman, 879 
 Kingston v. Long, 94 
 Kinnersley v. Somers, 39 
 Kirby v. Duke of Marlborough, 226 
 Kirk V. Blurtou, 44 
 
 V. Strickwood, 136 
 Kirkpatrick v. Tatlersall, 458 
 Kitchen v. Hawkins, 230 
 Kitchen man v. Skell, 57 
 Knight V. Cambers, 143 
 
 V. Clements, 323. 324 
 V. Criddle, 10, 177 
 V. Fitch, 143 
 V. Hunt, 132 
 V. Pocdck, 407 
 -Knill V. Stockdale, 416 
 V. Williams, 320 
 Knowles v. Burnard, 410, 424 
 
 V. Mitchell, 351 
 Koch V. Shepherd, 346 
 Kuth V. Weston, 377 
 
 Lacey v. Forrester, 431 
 Lackington v. Combes, 866 
 Lacy V. Kynaston, 239 
 
 V. Woolcot, 53 
 Lade v. Trill, 339 
 Lafiite V. Slatter, 203, 393, 396 
 Lafond v. Ruddock, 846 
 Laing v. Barcl vy, 89 
 
 V. Stone, 306 
 Lake v. Brutton, 349 
 Lambert, Ex parte, 366, 268 
 Y. Oakes, 153 
 V. Pack, 153, 430 
 Lamprell v. Billericay Union, 69 
 Lanau'?e v. Palmer,- 378 
 Lane t. Chapman, 137 
 
 V. Cotton, 372 
 
 V. Horlock, 316 
 Lane v. MuUins, 437 
 
 V. Williams, 43, 53 
 Lang V. Gale, 204 
 
 V. Smyth, 888 
 Langdale v Parry, 250 
 
 V. Trimmer, 283 
 Langden v. Stokes, 232 
 Langdon v. Hullg, 277, 278 
 
TABLE OE BNSLISH CASES CITED. 
 
 11 
 
 Langdon v. Wilson, 38 
 Langston v. Corney, 194 
 Langton v. Haynea, 316 
 V. Lazarus, 323 
 Lara v. Hacon, 101 
 Lavesbn v. Lane, 47 
 Law V. Parnell, 75 
 Lawrence v. Clark, 437 
 
 V. Walinsley, 247 
 Laws V. Rand, 30 
 Lawson v. Lawson, 175 
 V. Sherwood. 384 
 V. Weslon, 84 
 Lawton v. Elmore, 131 
 Laxton'v. Peat, 344' 
 Lazarus v. Cowie, 116, 166, 167, 170, 
 
 331, 233, 471 
 Leach v. Buchanan, 300 
 Leadbitter v. Farrow, 36, 37 
 Lebel v. Tucker, 398 
 Lecaan v. Kirkman, 399 
 Le Cheminant v. Pearson, 400 
 Lechmere v. Fletcher, 126, 349 
 Lee, Ex parte, 447, 449, 451 
 V. Lester, 362 
 V. Levy, 250 
 V. Muggridge, 64 
 V. Rogers, 357 
 V. Wilmot, 348 
 V. Zagury, 34 
 Leeds Bank, Ex parte, 455 
 
 Banking Company, In re, 262, 
 
 383 
 V. Lancashire, 93, 96, 98 
 Leers, Ex parte, 448 
 Leeson v. Holt, 51 
 
 T. Piggotf, 216 
 Lefevre v. Lloyd, 36 
 Leftley v. Bailey, 181 
 
 V. Mills, 333, 359, 383 
 Legge V. Thorpe, 260, 395, 396 
 Leicester v. Rose, 132 
 Leigh V. Baker, 407 
 
 V. Baker (Executrix), 408 
 Lamere v. Elliott, 351 
 Lfconard v. "Wilson, 149, 262 
 Leroux v. Browne, 402 
 Leslie v. Hastings, 87 
 Leveck v. Shafto, 49 , 
 Le Veux v. Berkeley, 346 
 Levy V. Baker, 62 . 
 V. "Webb, 416 
 Lewis V. Cosgrave, 131 
 V. Dairy mple, 410 
 V. Gompertz, 373, 274 
 V. Lee, 63 
 V. Lyster, 338 
 V. Nicholson, 38 
 V. Parker (Lady), 169 
 V. Reilly, 52 
 V. Sapio, 438 
 Leykrieffv. Ashford, 324 
 
 Lichfield "Union (Guardians oO "V. 
 
 Greene, 158, 159, 224, 385 
 Liokbarrow v. Mason, 219 
 Lightbody v. Ontario Bank, 158 
 Lindo v. Unsworth, 284 
 Lindus v. Bradwell, 37, 186 
 
 V. Melrose, 72, 73 
 Linsell v. Bonsor, 348, 353 
 Lisle V. Liddle, 406 
 Lithgow V. Lyan, 304, 305 
 Little V. Btackford, 80 
 ■Littlefleid v. Shee, 64 
 Liverpool Association v. Fairliurst, 64 
 Liverpool Borough Bank v. Walker, 
 
 57 
 Llewellyn v. Llewellyn. 234 
 
 V. "Winck worth, 33 
 Lloyd, Ex parte, 438 
 
 V. Archbowl, 49 
 
 V. Ashby, 49 
 
 V. Howard, 150, 421 
 
 V. Lee, 64 
 
 V. Mauud, 352 
 
 V. Oliver, 91 
 
 V. Saudilands, 24 
 Load V. Green, 453 
 Lobb V. Stanley, 458 
 Lobbon, Ex parte, 439 
 Lockett's case, 328 
 Lockier v. Smith, 56 
 Lockwood V. Ewer, 1'''4 
 Lockyer v. Jones, 10 
 Lomas v. Bradshaw, 48, 130 
 Lomax v. Laudells, 416 
 Long V. Bailie, 376 
 
 V. Grev'ille, 353 
 Longridge v. D'Orville, 334 
 London and Birmingham Bank, In 
 
 re, 336 
 Lord V. Ferrand, 330 
 
 V. Hall, 36 
 Loring, Ex parte, 386 
 Lovell V. Hill, 95 
 
 V. Martin, 330, 377 
 Low V. Burrows,- 434 
 
 V. Copestake, 148 
 Lowe V. Peers, 135 
 
 V. Peskett, 337, 340 
 Lowes V. Mazzaredo, 315 
 Lowndes v. Collins, 304, 305 
 Lowry v. Murrell, 158 
 Ludlow (Mayor of) v. Charlton, 69 
 Lumley v. Hudson, 237 
 
 V. Musgrave, 287, 806, 385 
 V. Palmer, 189 
 Lundie v. Robertson, 217, 800, 301, 
 
 418 
 Lundy v. Robertson, 299 
 Lynn v. Bruce 333 
 Lyon V. Holt, 313, 246 
 
 V. Home, 61 
 Lysaght v. Bryant, 50, 385 
 
lii 
 
 TABLE OF ENSLISH CASES CITED. 
 
 M. 
 
 Maber v. Maber, 353 
 Macartney v» Graham, 378 
 Machell v. Kinnear, 148 
 Macgregor v. Rhodes, 153, 430 
 Mackay v. Judkins, 877 
 Mackintosh v. Haydon, 214 
 Mackworth v. Marshall, 178 
 Maclae v. Sutherland, 7, 8, 73 
 Macleod v. Snee, 96 
 MacNeillage v. Holloway, 65 
 Macreth v. Simmons, 38(5 
 M'Allister v. Haden, 138 
 M'Clae V. Sutherland, 44 
 M'Call V. Taylor, 87, 91 
 M'Donald v. Bell, 341 
 M'Donnell v. Murray, 379 
 M' Do wall V. Boyd, 333, b81 
 
 V. Lyster, 14 
 M'Gae, Ex parte, 455 
 M'Gregor v. Rhodes, 320 
 M'Henry v. Davies, 64 
 M'lntosU V. Haydon, 204, 315, 319, 
 
 342 
 M'Kinnell v. Robinson, 138, 140 
 M'Manus v. Bark, 99 
 M'Nair v. Fleming, 48 
 M'Neilege v. Holloway, 451 
 Maddock's case, 387 
 Mayhee v. O'Neill, 356 
 Magnus, Ex parte, 451 
 Mahoney v. Ashlin, 391 
 Maillard v. Argyle (Duke of), 381 
 Main's case, 303 
 
 Mainwiirinj; v. Newman, .7, 41, 90 
 Man waring v. Harrison, 308 
 Maitland v. Irving, 61 
 Maldow V. Caldwell, 6 
 Mallan v. Miiy, 135 
 Mai pas V. Clements, 436, 452 
 Maltass v. Siddle, 216, 294 
 Maltby v. MuiTells, 406, 408 
 Manby v. Scott, 60 
 Manchester Warehouse Company v. 
 
 Bertie, 22 1 
 Manley v. Boycott, 8, 245 
 Mann V. Lent, 119, 130 
 
 V. Moors, 377 
 Manners, Ex parte, 437 
 March v. The Attorney General, 317 
 
 V. Ward, 7, 44 
 Mardnll v. Thellusson, 364 
 Mare v. Charlfes, 37 
 Margetson v. Aitken, 350, 399 
 Marine Insurance Company v. Heavi- 
 
 side, 116, 379 
 Markham v. Gonaston, 318 
 Markle v. Hatfield, 161 
 Marks v. Feldsman, 460 
 Marlar, Ex parte, 447 
 
 Marriage v. Skiggs, 408 
 Marryatts v. White, 286 
 Marsh v. Chambers, 365 
 V. Houldilch, 336 
 V. Martindale, 310,315 
 V. Maxwell, 383, 387, 288, 801 
 V. Newell, 173 
 V. Pedder, 34, 383, 383 
 Marshall, Ex parte, 405 
 
 V. Broadhnrst, 57 
 V. Poole, 304, 306 
 V. Rulton, 63 
 Marston v. Allen, 3, 150, 431 / 
 
 Martin v. Chauntry, 93 
 V. Morgan; 16 
 V. Pewtress, 458 
 V. Reed, 174 
 Marzetti v. Williams, 18, 332 
 Mason v. Barff, 191 
 
 V. Bradley, 324 
 V. Hunt, 188 
 V. Morgan, 65 
 V. Rumsey, 43, 45 
 Massey's case, 457 
 Master v. Miller, 319, 334 
 Masterman v. Cowrie, 311, 313 
 •Masters v. Barretto, 315 
 V. Ibberson, 143 
 Mather, Ex parte, 436 
 
 V. Maidstone (Lord), 118, 
 
 336 
 V. Marsland, 408 
 Mathews v. Phillips, 343 
 Matthews v. Baxter, 63 
 V. Bloxam, 146 
 V. Griffiths, 311 
 V. Haydon, 303 
 Maude, Ex parte, 449 
 Maugham v. Hubbard, 114, 329 
 Mavor v. Pyne. 339 
 Mawman v. Gillett, 49 
 Maxwell v. Brain, 276 
 May V. Leyler, 424 
 
 V. Woodward, 58 
 Mayer v. Jadis, 153 
 Mayhew v. Crickett, 336, 345, 348, 
 
 349, 353, 354 
 Mayor v. Hammond, 91 
 V. Johnson, 377 
 Mead v. Braham, 488, 439, 449 
 
 V. Young, 81, 162, 329 
 Meggadow v. HoltJ 417 
 Megginson v. Harper, 74, 81, 343 
 
 V. Wharton, 855 
 Meggott V. Mills, 336 
 Meianotte v: Teasdale, 39 
 Mellersh v. Rippen, 376 
 MellisK V. Rawdon, 180, 181 
 
 V. Simeon, 413 
 Mendizabal v. Machado, 190, 193 
 Mercer v. Cheese, 381' 
 
TABLE OB ENGLISH CASES CITED. 
 
 liil 
 
 Mercer V. Jones, 305 
 
 V. Southwell, 183 
 Merchants' Bunk v. Birch, 289 
 Mertens v. Winnington, 268 
 Merlon's case, 327 
 Messenger v. Southej, 273, 276 
 Metcalfe, Bx parte, 445 ' 
 
 V. Richiirdson, 371, 418 
 Michael t. Myers, 236 
 MidcUeton v. Barned, 128 
 
 V Lord Onslow, 246 
 Midford v. Tinden, 424 
 Miers v. Brown. 272, 285 
 Miley v. Walls, 424 
 Millar v. Heinrick, 400 
 Miller V. Attee, 365 
 
 V. Biddle, 307 
 
 V. Hny, 416 
 
 T. Miller, 9, 175 
 
 V. Race, 9, 34, 398 
 
 V. Thompson, 1, 93 
 
 V. Thomson, 18S 
 Mills V. Alderbury Union, 354 
 V. Barber, 119 
 V. Fowkes, 226, 351 
 V. Gibson, 301 
 V. Oddy, 131, 421, 425 
 V. Stafford, 10 
 Milne's case, 331 
 Milne v. Graham, 6 
 
 V. Prest, 188 
 Milnes v. Dawson, 123 
 Minet v. Gibson, 81, 82 
 Mitchel V. Reynolds, 135 
 Mitchell, Ex parte, 348 
 
 V. Baring, 357, 364 
 Mitchinson y. Hewson, 66, 354 
 Mitford V. Finden, 410 
 Moffat V. Van Millingen, 41 
 Moffatt V. Edwards, 11 
 
 V. Van Millingen, 7, 90 
 Mogadara v. Holt, 393 
 Mogg V. Baker, 490 
 Moggeridge v. Jones, 130 
 Moline, Bx parte, 323, 283, 389 
 Molloy V. Delves, 87, 188 
 Molton V. Camroax, 63, 63 
 Mondel v. Steele, 408 
 Monk V. Sharp, 434 
 Montague v. Perkins, 187 
 Moor V. Withy, 190 
 Moore, Ex parte, 447 
 
 V. Barthrop, 34 
 
 V. Busliell, 456 
 
 V. Darton, 176 
 
 V. Manning, 149, 158 
 
 V. Petchell, 349 
 
 V. Strong, 3ni 
 
 V. Vanlute, 92 
 
 V. Warren, 160, 208 
 
 V. Wright, 365 
 Morgan t. Bruudiett, 459 
 
 Morgan v. Davison, 211 
 
 V. Jones, 428 
 
 V. Ricliardson, 130 
 
 V. Rowlands, 353 
 Modce V. Lee, 95 
 Morley v. Culverwell,43, 233, 433, 471 
 
 V. Inglis, 363 
 Morrell v. Frith, 349 
 Morris v. Aylesford, Lord, 61 
 V. Bethell, 300 
 v. Dixon, 351 
 V. Lee, 10, 80, 134 
 V. Norfolk, 354 
 V. Walker, 155 
 Morrison v. Buchanan, 183 
 Morse y. Wilson, 313 
 Mortimer y. M'Callan, 140, 141 
 Moseley y. Hanford, 100 
 Moss v. Hall, 237, 246, 248 
 Mossop y. Eaden, 377, 378 
 Mott v. Hicks, 151 
 Moule y. Brown, 19, 20, 208 
 Mountlbrd y. Harper, 24 
 Mouutstephen y. Brook^ 355, 417 
 Moxou y. Pulling, 154 
 Muilman v. D'Eguino, 180, 181, 279 
 MuUett y. Hutchison, 28 
 MuUick y. Radakisaen, 180 
 Munroe v. liordier, 137 
 Murray v. East India Co., 32, 54, 69, 
 34 L 
 
 V. Glasse, 4, 64 
 
 v. King, 293, 393 
 
 V. Stair, Earl of, 101 
 Mnrrow v. Stuart, 156 
 Musgrace v. Drake, 48, 430 
 Mutford y. Walcot, 189, 263 
 Mutual Loan Fund v. Sudlow, 245 
 
 N. 
 
 Nadin y. Battie, 250 
 
 Naoroji y. Chartered Bank of India, 
 367 
 
 Napier y. Schneider, 413 
 
 Nash y. Brown, 133; 124 
 v. Duncomb, 114, 438 
 y. Hodgson, 336, 327, 351 
 
 Natal Investment Co., In re, 68 
 
 National Savings Bank y. Tranah, 408 
 
 Neale y. Ovington, 417 
 y. Proctor, 420 
 y. Turton, 43, 43 
 
 Nedhain's case, 55 
 
 Needham's (Sir John) case, 56 
 
 Nelson v. Searle, 57, 120 
 V. Stocker, 60 
 
 Nerot y. Wallace, 136 
 
 Nevison y. Whitley, 313 
 
 New V. Swann, 386 
 
 Newen v. Gill, 386 
 
liv 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Newmarch v. Clay, 52 
 Ne^tsome v. Coles, 3, 36, 513 
 NewtoQ V. Chorlton, 354 
 New Zealand BanUing Co., 456 
 Nichols y. Bowes, 214 
 
 V. Diamond, 72, 74, 186 
 T. Non-is, 244, 253 
 Nicholson v. Cooch, 434 
 V. Gouthit, 202 
 V. Revill, 339, 353 
 V. Ricketts, 43, 44, 190 
 Nightingale v. Adams, 345 
 
 V. Withington, 60 
 Nisbett V. Smith, 245 
 Nixon V. Phillips, 315 
 Noble V. Adams, 384 
 Noel V. Boydj 433 
 
 V. Rich, 433 
 Nordenstrom v. Pitt, 307 
 Norman v. Booth, 434 
 Non-is V. Aylett, 235, 351 
 T. Solomon, 93, 468 
 V. Solomonson, 300 
 North V. Wakefield, 253 
 North British Insurance Co. v. Lloyd, 
 
 243 
 Norton v. Ellam, 215 
 
 T. Pickering, 394 
 V. Seymour, 44 
 Norwich Navigation Co. v. Theo- 
 . bald, 51 
 
 Novelli V. Rossi, 153, 196 
 Noyes v. Price, 10 
 Nye V. Mosely, 134 
 
 O. 
 
 Oakeley v. Ooddeen, 131, 133, 123 
 
 Oakley t. Rigby, 139 
 
 Obbard v. Betham,,77, 130, 452 
 
 Ockenden, Ex parte, 367 
 
 Offord v. Dayis, 255 
 
 0'K.eefe v. Dunn, 166, 271 
 
 .Ord V. Fen wick, 56 
 
 V. Portal, 148 
 Oridge v. Sherborne, 207 
 Oriental Bank, Ex parte, 442 
 
 Finance Co. v. Overend, Gur- 
 ney & Co., 245, 248 
 Orme v. Young, 246 
 Orr V. Maginnis, 256, 257, 295 
 
 V. Union Bank of Scotland, 333 
 Orridge v. Sherijorne, 7 
 Osbaldiston v. Simpson, 178 
 Osborn v. Donajd, 155 
 Ougliterlotiy v. Easterby, 365 
 Oulds V. 5[arrison, 139, 167 
 Outhwaite v. Luntley, 193, 330, 322 
 Overend, Gurney & Co. v. Mid Wales 
 
 Rail. Co., 69 
 Owen V. Homan, 343, 352 
 
 Owen v. Pizoy, 198 
 
 V. Von Uster, 186 
 v. Waters, 416, 418 
 v. Wilkinson, 8 
 
 Owens V. Porter, 143 
 
 Owenson v. Morse, 10, 159, 384 
 
 P. 
 
 Pack V. Alexander, 277 
 Padwick v. Turner, 419 
 Page, Ex parte, 450 
 y. Wiple, 404 
 Paine v. Guardians of the Strand 
 
 Union, 69 
 Palethorpe v. Furnish, 353 
 Paley v. Field, 227 
 Palfrey y. Baker, 383 
 Palliser v. Ord, 36 
 Palm, Ex parte, 447 
 Palmer v. Pratt, 94 
 Palmer's case, 330 
 Par, Ex parte, 448 
 Parker y. Boughey, 75 
 
 y. Gordon, 181, 207, 311, 377 
 
 y. Hutchinson, 305 
 
 y; Leigh, 198 
 Parkin y. Moon, 169 
 Parks y. Edge, 313, 313 
 Parmiter y. Parmiter, 351 
 Parnther v..Gaitsl5ell, 345 
 Parr v. Jewell, 170 
 Parry y. Nicholson, 334 
 Parsons y. Alexander, 138 
 Partridge y. Bank of England, 163 
 Passmore y. North, 78, 165 
 Paterson v. Hardacre, 118, 119 
 
 y. Zachariah, 51 
 Patterson y. Beecher, 260, 361 
 Paul y. Joel, 275 
 ■Payler v. Homersham, 133, 339 
 Payne v. Jenkins, 28 
 Peacock's case, 329 
 Peacock v. Jeffrey, 363 
 
 v. Pursell, 287, 381 
 y. Rhodes, 148 
 Pearce v. Davis, 24, 429 
 Pearl y. Deacon, 344, 248 
 Pearse v. Pemberthy, 290 
 Pearson V. Crallan, 379 
 
 y. Garrett, 93 
 Pease, Ex parte, 455 
 
 v. Hirst, 135, 334 
 Peddell v. Gwynn, 73 
 Pellecat y. Angell, 400 
 Pemberton v. Vaughan, 135 
 Penkivilv. Connell, 73 
 Pennell y. Stephens, 435 
 Penny y. Innes, 14€, 150 
 Penrose v. Martyr, 73 
 Pentz y. Stanton, 37 
 
TABLE OP ENGLISH CASE-S CITED. 
 
 Iv 
 
 Perceval v. Framplin, 39 
 Percival v. Frampton, 119, 135 
 Perfect v. Musgrnve, 8, 845 
 Peiham v. Raynal, 353, 855 
 Perreira v. Topp, 195, B«8 
 Perriug v. Hone, 44 
 Perris v. Roiierts, 327 
 Perry v. Atwood, 234 
 V. Jackson, 346 
 Peru Eailway Company, 69, 72 
 Peters v. Anderson, 226 
 
 V Brown, 355 
 Peto V. Beynolds, 6, 87, 00, 93, 188 
 Petre v. Duncombe, 354 
 
 V. Hannay, 140 
 Petty V. Cooke, 247, 459 . 
 Pfiel T. Vanbatenberg, 228, 329 
 Philips, Ex parte, 449 
 
 V. Astling, 392 
 Pliillips T. Allan, 398 
 
 V. Cockayne, 310 
 
 V, Cole, 426 
 
 V. Gould, 271, 273 
 
 V. Im Tlmrn, 82, 83, 199, 
 200, 266 
 
 V. Phillips, 348 
 
 V. Warren, 430 
 Philliskirk v. Pluckwell, 66 
 Philpot V. Bryant, 214, 246, 348 
 Phipps V. Tanner, 84 . 
 Phipson V. Kelner, 100 
 
 V. Kneller, 293 
 Pickard V. Bankes, 10 
 Pickin V. Graham, 286, 300, 802 
 Pidcock V. Bishop, 133, 345 
 Pierce v. Pothergill, 305 
 Pierson v. Dunlop, 188, 221 
 
 v. Hutchinson, 375 
 Pigott V. Cubley, 174 
 Pike V. Stevens, 435 
 
 V. Street, 100, 151 
 Pillans V. Van Mierop, 188, 363 
 Pinard v. Klochmaii, 388 
 Pinkerton v. Marshall, 457 
 Pinkney v. Hall, 43 
 Pinkus v. Peters, 178 
 Pitt V. fhappelow, 199, 458 
 
 V. PurSsoi'd, 254 
 Pittam V. Foster, 354 
 Pliniley v. Westley, 146, 147, 399 
 Plomer v. Long, 336 
 Pocklington v. Sylvester, 19, 308 
 Pocock v. Billing, 435 
 Poirier v. Morris, 135, 127, 161 
 Poland V. Glynn, 459 
 Pole V. Ford, 236, 249 
 Polglass V. Oliver, 10 » 
 
 Polhill V. Walter, 38, 186 
 Pollard V. Bank of England, 331 
 
 V. Ogden, 171, 333, 335 
 Pollock V. Turnock, 408 
 
 Ponlifex v. Jolly, 435 
 
 Poole V. Smilh, 376 
 
 Pooley V. Browne, 160, 161, 384, 469 
 
 V. Harradine, 245 
 Popplewell V. Wilson, 85, 125, 138 
 Porthouse v. Parker, 199, 390, 398 
 Portugal (Queen of) v. Glynn, 413 
 Potez V. Glossop, 78, 452 
 Pott V. Beavan, 447 
 V. Cltgg, 351, 428 
 V. Eyton, 40 
 Potter V. Brown, 397 
 
 V. Rayworth, 300 
 Powell, V. Ford, 438 
 V. Graham, 58 
 V. Hellicar, 175 
 V. Jones, 191 
 V. Monnier, 190, 191,878 
 V. Roach, 229 
 V. Roche, 334 
 Powles V. Hargreaves, 456 
 
 V. Page, 73, 290 
 Prehn v. Liverpool Bank, 413, 447 
 Prescott, Ex parte, 367 
 V. Flinn, 33 
 V. Levi, 424 
 Preston v. Jackson, 143, 315 
 Prestwick v. Marshall, 65 
 Price V. Barker, 239, 341 
 
 V. Edmunds, 8, 344, 345, 248, 
 
 250 
 V. Green, 135 
 V. Hewitt, 60 
 V. Mitchell, 88, 314 
 V. Neal, 199, 334 
 V. Price, 375, 376, 381 
 V. Taylor, 87, 74 
 V. Torrington (Earl oO, 431 
 Priddy v. Henbry, 86 
 Prideaux v. Collier, 216, 293, 800 
 
 V. Webber, 345 
 Prince v. Brunatti, 65, 199 
 
 V. Heylin, 340 
 Pring V. Clarkson, 351 
 Prior V. Henbrow, 9 
 Pritchard v. Hitchcock, 347 
 Prothero v. Phelps, 413 
 Pruessing v. Trig, 114 
 Puckford V. Maxwell, 384 
 J'uckle V. Moor, 357 
 Paget de Bras v. Forbes, 137 
 Purdon v. Purdon, 853 
 Putnam v. Sullivan, 63 
 Pym V. Campbell, 101 
 
 Quantock T. England, 339 
 Quarrier v. Colston, 39, 398 
 
Ivi 
 
 TABLE OP ENGLISH CASES CITED. 
 
 Eabey v. Gilbert, 300, 301 
 Backham v. Marriott, 348 
 Kaikes v. Todd, 227 
 Railton v. Mattliews, 243 
 Ralli V. Dennistoun, 195, 390, 397 
 
 V. Barrel], 194 
 Ramsliottom v. Cator, 156, 457 
 Bamsden, In re, 453 
 Ramsey v. Eatpn, 435 
 
 V. Crowe, 375, 376 
 Randall v. Moon, 231 
 
 V. Trimen, 38 
 Ranelagh (Lord) v. Champante, 314 
 Ranklin v. Weguelin, 176 
 Raper v. Birkbeck, 153, 196 
 Raphael v. Bank of England, 34, 163, 
 
 164 
 Rathbone, Ex parte, 437 
 Rawlings v. Hall, 414 
 Rawlinsou v. Stone, 54 
 Rayner v. Pussey, 245, 246 
 
 V. Grote, 37 
 Read, Ex parte, 441. 446 
 
 V. Gamble, 427 
 J{eader, Ex parte, 449 
 Redmayne v. Burton, 377, 379 
 Reed v. Deere, 115 
 
 T. White, 199, 383 
 Rees V. Abbott, 417 
 
 V. Berrington, 245, 248 
 T. Warwick, 191 
 V. Watts, 364 
 Reeves v. Hearn, 233 
 Reg. V. Bartlett, 93 
 V. Bigge, 149 
 T. Blenkinsop, 338, 380 
 V. Butterwick, 327 
 T. Chawton, 204 
 V. Cook, 331, 333 
 V. Danger, 327 
 y. Gompertz, 115 
 V. Green, 332 
 V. Hill, 3S0 
 V. Ion, 330 
 V. Kinnear, 93, 185 
 V. Morrison, 177 
 V. Oddy, 333 
 
 V. Perry, 16 , 
 
 V. Radlord, S30 
 V. Radley, 459 
 T. Rogers, 328 
 V. Turpiu, 327 
 V. White, 336, 337, 330 
 V. Wilson, 338 
 Reid V. Dickons, 352 
 
 V. Furnival, 173, 221 
 Renew v. Axton, 349 
 Rew V. Pettet, 37, 74, 352 
 Rexv. Bingley, 381 
 V. Birkett, 330, 331 
 
 Rex V. Bontien, 339 
 
 V. Box, 83 
 
 V. Bullock, 434 
 
 V. Burke, 327 
 
 V. Craven, 331 
 
 V. Dade, 331 
 
 V. Davis, 336 
 
 V. Dick, 333 
 
 V. Dunn, 338 
 
 V. Edwards, 327 
 
 V. Elsworlh, 330 
 
 V. Francis, 328 
 
 V. Hales, 328 
 
 V. Hart, 338 
 
 V. Hawkeswood, 337 
 
 V. Hawkswood, 115 
 
 V. Hevey, 330 
 
 V. Holt, 51 
 
 v. Hnnter, 88, 91 
 
 V. Johnson, 378 
 
 V. Jones, 327 
 
 V. Kirkwood, 331 
 
 V. Ilambton, 150 
 
 V. Lee, 327 
 
 V. M'Kay, 332 
 
 V. Millnrd, 332 
 
 V. Moffat, 327 
 
 V. Morris, 330, 331 
 
 V. Parkes, 329 
 
 V. Pateman, 337 
 
 V. Peacock, 333 
 
 V. Phipoe, 327 
 
 V. Plumer, 278 
 
 V. Pooley, 15 
 
 V. Port, 84 
 
 V. Post. 327, 380 
 
 V. Randall, 82, 327 
 
 V. Revett, 134 
 
 V. Richards, 83, 337 
 
 V. Shukard, 330 
 
 V. Teague, 115, 330 
 . V. Treble,. 330 
 
 V. Watson, 378 
 
 V. Watts, 339 
 
 V. Westbeer, 177 
 
 V. Wilcox, 337 
 
 V. Yates, 16 
 Reynolds v. Rowley, 60, 453, 455 
 V. Da vies, 418 
 V. Doyle, 139, 343 
 V. Peto, 6, 191 
 V. Wheeler, 8, 345, 354 
 Rhode V. Proctor, 389 
 Rhodes, Ex parte, 154 
 V. Bate, 61 
 V. Gent, 215 
 ,v. Smethurst. 344, 847 
 Rhymes v. Clarkson, 77 
 Rice v. Stearns, 151 
 Richards v. Frankum, 101, 436 
 V. James, 363 
 V. Macey, 90, 125 
 
TABLE OP ENGLISH CASES CITED. 
 
 Ivii 
 
 Riclmrds v. Richards, 43, 65, 67, 95, 
 304 
 V. Thomas, 100 
 Eicliardson v. Bradshaw, 453 
 V. Jackson, 409 
 V. Mellish, 185, 136 
 Richmnnd v. Heapy, 46, 450 
 Kickforil v. Ridge, 19, 30, 808 
 Ridley v. Bliicltett, 24 
 
 V. Piymoutli Company, 73 
 V. Taylor, 43, 47 
 V. Tiudall, 433 
 Ridout V. Bristow, 57, 87, 100, 135 
 Ritchie v. Van Gelder. 431 
 Roach V. Johnston, 212 
 V. Ostler, 91, 93 
 V. Thompson, 405 
 Robarts v. Tucker, 185, 319, 330 
 Roberts, Ex parte, 437 
 V. Bethell, 189 
 v. Bradshaw, 378 
 V. Eden, 156 
 V. Elsworth, 409 
 V. Peake, 93 
 V. Roberts, 135 
 V. Tremayne, 313, 315 
 Robertson v. Gnss, 436 
 
 V. Kensington, 153 
 V. She-ward, 74, 81 
 Robey v. Oilier, 413 
 Robins V. Gibson, 359, 377 
 V. Maidstone, 130 
 V. Lord Maidstone, 330, 426 
 V. May, 94 
 Robinson, Ex parte, 487 
 
 V. Bland, 88, 91, 143, 305, 
 
 396 
 V. Cotterell, 407 
 V. Hawksford, 30, 310 
 V, Little, 150 
 V. Read, 353, 383, 383 
 V. Reynolds, 127 
 T. Yarrow, 34, 200 
 Robson V. Bennett, 19, 31, 190, SOS, 
 388 
 V. Curlewis, 375 
 V. Oliver, 159, 308, 316 
 V. Rolls, 156 
 Roche V. Campbell, 88 
 Roden v. Ryde, 427 
 Rofey, Ex parte, 436 
 Rnffey v. Green well, 95, 304 
 Rogers, Ex parte, 449 
 V. Chilton, 433 
 V. Flook, 439 
 V. Hadley, 101. 130 
 T. Hunt, 359, 413 
 V. Langlbrd, 158, 159, 160, 161, 
 
 .203, 316 
 V Stephens. 356, 277, 399 
 Rogerson v. Hare, 386 
 Rolie V. Caslow, 440 
 
 Rolin V. Steward,185 
 RoUeston v. Dixon, 419 
 
 V. Hibbert, 154 
 RoUin V. Steward, 19, 233 
 Rolt V. Watson, 376 
 Romberg v. Falkland Islands Co., 405 
 Rooman v. Nash, 489 
 Roscow V. Hardy, 371, 301 
 Rose V. Bowler, 57 
 V. Hart, 367 
 y. Main, 141, 436 
 V. Poulton, 42 
 V. Rowcroft, 77, 451, 453 
 V. Sims, 134, 154, 367 
 Rosewarne v. Billing, 143 
 Rosher v. Kierau, 386 
 Ross, Ex parte, 370 
 Rossiter v. Rossiter, 33 
 Rotch v. Edie, 400 
 Rothery v. Mannings, 349 
 Rothschild v. Barnes, 403 
 Rothschild v. Corney, 168 
 
 V. Currie, 896, 399, 403 
 Rothwell v. Timbrell, 435 
 Rouse V. Redwood, 399 
 Rowe V. Hopwood, 348 
 
 V. Tipper, 286, 387, 288 
 V. Young, 192, 311, 314 
 Rowlands v. Springett, 276 
 Rowley v. Horne, 51 
 Rowning v. Goodchild, 373 
 Rowton, Ex parte, 455 
 Royal Bank of Scotland, Ex parte, 
 
 448 
 Royal British Bank v. Turquand, 73 
 Rucker v, Hannav, 853 
 
 V. Hiller, 296 
 Ruff.v; Webb, 80 
 Rufford, Ex parte, 449 
 Rumball v. Ball, 315, 343 
 Rushton V. Aspinall, 417 
 Rushworr.h, Ex parte, 449 
 Russell V. Bell, 367, 368 
 
 V. Hankey, 34, 334 
 
 T. Langstaffe, 87, 165 
 
 V. LanstaflFe, 188, 303, 398 
 
 V. Lee, 58 
 
 V. Phillips, 184, 194 
 
 V. Pollett, 45 
 
 V. Powell, 80, 96 
 Rust V. Cooper, 459 
 hyall V. Rolle, 3, 453 
 Ryder, Ex parte, 368 
 
 V. In re, 865 
 
 T. Ellis, 404 
 
 S.. 
 
 Sadi and Morris's case, 3 
 Sadler v. Nixon, 8 
 Sainsbury v. Parkinson, 3 
 
Iviii 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Sainter v. Fergason, 135 
 Salmon v. Webb, 101, 237 
 Sampson V. Burton, 387 
 Sanders v. Blane, 57 
 Sanderson v. Collman, 434 
 Sands v. Clarke, 803, S16 
 Sard V. Rhodes, 233, 234 
 Sargeant, Ex parte, 455 . 
 Sarratt v. Austin, 441, 450 
 Saul V. Jones, 313, 216 
 Saunderson v. Bowes, 88, 214 
 V. Griffiths, 32 
 V. Jackson, 87 
 V. Judge, 313, 377 
 Piper, 88, 84 
 Savage v. Aldren, 152, 341 
 Sayer v. Chaytor, 7 
 
 V. Wagstaff, 382 
 Scales V. Jacob, 348 
 Scarpellini v. Atcheson, 65, 66, 340 
 Schotield V. Bayard, 265 
 Scohley v. Ramsbottom, 220 
 V. Walsby, 339, 430 
 V. Walton, 350, 354 
 Schioeder's case, 224 . 
 Schultz V. Astley, 165, 187, 188, 415 
 Scott V. Ebury (Lord), 38 
 V. Gilmore, 143 
 V. Liflbrd, 238, 383 
 V. Seymour (Lord), 401 
 Scruggs V. Qass, 158 
 Searies v. Ladgrove, 830 
 Sehag v. Abitbol, 193 
 Secar v. Atkiiisim, 58 
 Sea, Fire and Life Society, Re, 73 
 Selby V. Eden, 88, 213 
 
 V. Graves, 368 
 Sernple v. Cole, 319, 334 
 V. Cornwall, 316 
 Sentence, v. Poole, 63 
 Serle v. Norton, 20, 78 
 
 V. Waterworth, 57, 136 
 Serrell v. Derbyshire Railway Com- 
 pany, 168 
 Sewell V. Dale, 420 
 v. Evans, 437 
 Sharp V. Bafley, 89, 297 
 Sharpe v. Gibbs, 335 
 
 V. Leth bridge, 409 
 Sharpies v. Ekickards, 107, 469 
 Shai-ratt, Ex parte, 459 
 Shaw V. Broom, 426 
 V. Croft, 386 
 V. Harvey, 401 
 V. Picton, 236 
 Shearm v. Burnard, 437 
 Shelton v. Braithwaite, 314, 375, 280 
 Shenton v. Jameji, 94 
 Shepherd v. Harrison, 200 
 V. Shepherd, 419 
 Sheppard's case, 839 
 Shcppard v. Dry, 44- 
 
 Sherrington v. Yates, 66 
 Shillito V. Tlieed, 138 
 Shirreffv. Wilks, 48 
 Shortland, Ex parte, 459 
 Shrubsole v. Sussams, 434 
 Shute V. Robins, 180, 209, 210 
 Shuttleworth, Ex parte, 159 
 
 V. Stephens, 88, 91 
 Sibley v. Fisher, 334 
 Sibree v. Tripp, 11, 334, 380 
 Sid ford v. Chambers, 153, 480 
 Siffkin V. Walker, 43 
 Sigell v. Jebb, 137 
 Siggers v, Browne, 378, 298 
 
 V. Lewis, 323, 347, 409 
 
 v. Nicjiols, 194 
 Sigourney v. Lloyd, 157 
 SimmondB v. Parminter, 416 
 Simmons v. Taylor, 23 
 Simons v. Johnson, 289 
 Simpson, Ex parte, 459 
 v. Bloss, 134 
 V. Clarke, 118 
 V. Egginton, 332 
 V. Ingham, 336 
 V. Margifson, 204 
 V. Stackbouse, 835 
 Sims V. Simpson, 369 
 Sinclaii' v. Baggaley, 78, 451 
 Siordet v. Kuczynski, 116, 393 
 Skilbeck v. Garbett, 377, 378 _ 
 Skinner v. Stocks, 49 
 Skip V. Hucy, 345 
 Slade's case, 3 
 Slater v. Lawson, 353 
 Sleigh V. Sleigh, 293 . 
 Slipper V. Stidstone, 364 
 Sloman v. Cox, 237, 333 
 Smallwood v. Vernon, 146 
 Smart, Ex parte, 456 
 
 V, Nokes, 114 
 
 V. Rayner, 435 
 Smith, Ex parte, 250. 436, 449 
 
 V. Abbott, 193 
 
 V. Ball, 415 
 
 V. Battens, 77, 357, 451 
 
 V. Bellamy, 314, 216 
 
 V. Boheme, 93 
 
 V. Braine, 130 
 
 V. Bromley, 183 
 
 V. Buchanan, 398 
 
 V. Carew, 176 
 
 V. Chester, 300 
 
 V. Clarke, 149 
 
 V. Craven, 43 
 
 V. Cuff, 183 
 
 v. De Wruitz, 426 
 
 V. Everett, 71 
 
 V. Ferrand, 352, 883 
 
 V. Forty, 351 
 
 V. Hill, 346 
 
 V. Hodson, 368, 369 
 
TABLE OF ENeLISH CASES CITED,. 
 
 lix 
 
 Smith V. Johnson, 61, 151 
 
 V. Jones, 344 
 
 V. Kendall, 83, 438 
 
 V. Knox, 138, 344 
 • V. Lord, 78 
 
 V. M'Clure, 83, 374 
 
 V. Marsack, 155, 199 
 
 V. Martin, 119, ISO, 131, 43fi 
 
 V. Mercer, 35, 158, 330, 333, 884, 
 385, 389 
 
 V. Mingay, 105 
 
 V. Monday, 377 
 
 V. Moneypenny, 437 
 
 V. Mullett, 383. 387, 388 
 
 v. New South "Wales (Bank of), 
 183 
 
 V. Nightingale, 93 
 
 V. Page, 334 
 
 V. Pickery, 154 
 
 V. Saltzman, 141 
 
 V. Sheppard, 319 
 
 V. Smith, 39 ' 
 
 V. Thatcher, 390 
 
 V. Thorne, 348 
 
 V. Vertue, 193 
 
 V. Whiting, 57 
 
 V. Winter, 53, 349, 353, 353 
 
 V. Woodcocli:, 410 
 Smout V. Ilberry, 38 
 iSnaith v. Mingay, 87 
 Snee v. Prescott, 156 
 Snellgrove v. Bailey, 175 
 Snow V. PeHCock, 163, 319, 873 
 
 V. Sadler, 874 
 Soares v. Glyn, 151, 153 
 Solarte, Ex parte, 441 
 
 V. Palmer, 378, 375, 380 
 Sollars, Ex parte, 455 . 
 
 Solly V. ^Foivbes, 339, 347 
 
 V. Hinde, 138 
 Solomon v. Turner, 131 
 Solomons V. Enirland (Bank of), 39, 
 163 
 V. Staveloy, 361 
 South Carolina Bank v. Case, 43 
 South S.ea Company v. Wymondsell, 
 
 343 
 Southall v. Rigg, 144, 431 
 Soutten V. Souiten, 4H9 
 Soward V. Palmer, 383, 347, 393 
 Sowenby v. Butcher, 36, 134, 135 
 \ Sparrow v. Carruthers, 64 
 
 V. Chisman, 46 
 Spears v. Hartley, 340 
 Spencer v. Demmett, 440 
 Spicer v. Burgess, 331 
 Spiller V. Johnson, 416 
 
 V. Westlake, 130, 193 
 Spindler v. Grelletl, 314 
 Spong V. Wright, 348, 850 
 Spooner V. Gardiner, 119, 296 
 Sprattv. Hobhpuse, 10 
 
 Sproat V. Matthews, 193, 358 
 Spronle v. Legg, 88 
 Sprowle V. Legge, 399, 416 
 Spyer v. Thelwell, 416 
 Stables v. Ely, 53 
 
 V. O'Kines, 394 
 Stackwood V. Dunn, 364 
 Stafford (Mayor of) v. Till, 69 
 Stagg V. Elliott, 33 
 Standage v. Creighton, 399, 300 
 Starey v. Barns, 368 
 Starhouse v. Barnston, 340 
 Starke v. Cheeseman, 88, 91, 316 
 State Fire Insurance Company, Re, 
 
 73 
 Steadman v. Duhamel, 393 
 
 V. Gooch, 334, 236 
 Stebhing v. Spicer, 81 
 Stedman v. Gooch, 381 
 
 V. Martinnant, 438 
 Steel V. Bradfleld, 410 
 Steele v. Benham, 198 
 
 V. Harmer, 43, 73, 178, 198, 
 199, 335, 421 
 Steers v. Lashley, 140 
 Stein V. Tglesias, 166, 167, 189 
 Stephens, Ex parte, 457 
 
 V. Reynolds, 48, 44 
 V. Wilkinson, 130 
 Sterndale v. Hankinson, 345 
 Stevens, Ex parte, 370 
 V. Jackson, 59 
 V. Lloyd, 319, 820 
 V. Lynch, 353, .399 
 V. Thacker, 198 
 Stevenson v. Newnham, 434 
 V. Oliver, 416 
 V. Roche, 250 
 Steward v. Dunn, 73 
 Stewart v Kennett, 285 
 v. Kiikwall, 64 
 V. Lee, 23,319 
 Stock V. Mawson, 133 
 Stockbridge v. Sussams, 865 
 Stooken v. Collin, 375, 277, 283 
 Stockman v. Parr, 376 
 Stocssiger v. South Eastern Railway 
 
 Company, 87 
 Stone, Ex parte, 366 
 
 V. Compton, 345 
 V. Marsh, 219 
 V. Metcalf, 99 
 Stones V. Buit, 403 
 Storm V. Stirling, 5, 12, 74, 80, 94, 96 
 Story V. Atkins, 6 
 
 Stoughton V. Kilmorey (Earl oO, 431 
 Sioveld V. Eade, 226 
 Strachah v. Barton, 459 
 Straker v. Graham, 181, 387 
 Strange v. Ellison, 161 
 V. Lee, 236 
 V. Price, '373 
 
Ix 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Strange v. Wigney, 373 
 Stratton v. Matthews, 405 
 Streatfield v. Halliday, 8 
 Strickland v. Mfinsflcld, 15 
 Strithorst v. Graeme, 346 
 Strong V. Foster, 8, 244, 245 
 
 ' V. Hurt, 2,')2, 388 
 Stnart v. Bute, 174 
 Sturdy v. Henderson, 79, 207, 342 
 Sturleyn v. Albany, RS 
 Slurtevant v. Ford, 166, 167 
 Suse V. Pompe, 151, 413 
 Sutton, Ex parte, ?6 
 
 V. Toomer, 79, 323, 342, 428 
 Swain v. Lewis, 302 
 Swaine v. Wallinger,' 339 
 
 V. Ware, 255 
 Swan, Ex parte, 166, 167, 188, 266, 
 268, 333 
 
 T. North British Australian 
 Co., 188 
 
 V. Steel, 49 
 
 V. Steele, 43, 44, 48 
 Swann v. Cox, 194 ' 
 
 Swansea v. Vanderheyden, 60 
 Swayn v. Stephens, 346 
 Swears v. Wills, 115 
 Sweeting v. Fowler, 81 
 
 V. Halse, 115, 198 
 Swift V. Tyson, 39, 135 
 Swinyard v. Bowes, 290, 292, 383 
 Sykes v. Giles, 383 
 
 V. Gyles, 40 
 Symonds v. Atkinson, 405 
 
 Taft's case, 328 
 Tallis V. Tallis, 185 
 Tamvaoo v. Simpson, 385 
 Tanner v. Smart, 348, 352, 358 
 Tapley v. Martins, 24 
 Tarleton v. AUhusen, 335, 881 
 
 V. Shingler, 321 
 Tassell v. Lewis, 206, 284 
 Tate V. Hilliert, 25, 175 
 Tatlock V. Harris, 83 
 Tattersall v. Fearnley, 116 
 
 V. Parkinson, 433 
 Taylor, Ex parte, 448 
 
 v. Booth, 84, 416 
 
 V. Briggs, 383 
 
 V. Burgess, 245 
 
 V. Crocker, 199 
 , V. Croker, 60, 300 
 
 V. Crowland Gas Co., 185 
 
 V. Dobbins, 87 
 
 V. Hipkins, 344 
 
 V. Jones, 399 
 
 v.-Kinloch, 77, 451 
 
 Y. Moseley, 319, 334 
 
 Taylor v. Plumer, 384 
 V. Stott, 304 
 V. Wilson, 141 
 Teague's case, 837 
 
 V. Hubbard, 7, 42, 73, 90 
 Terrell v. Higgs, 418 
 Terry v. Parker, 216. 417 
 Thackray v. Blackclt, 295, 874 
 Thibaut v. Gibson, 816 
 Thicknesse v. Broinilow, 44 
 Tbiedeman v. Goldschmidt, 134 
 
 V. Leighton, 127 
 Thimbleby v. Barron, 387, 240, 248 
 Thomas, Ex parte, 449, 451 
 V. Bishop, 37 
 V, Courtney, 133 
 V. Dunn, 336, 409 
 V. Fenton, 3e6 
 V. Newton, 118, 414 
 V. Taylor, 413 
 Thomason v. Frere, 53, 457 
 Thompson v. Brown, 33P 
 V. Clublcy, 345 
 V. Clubly, 151 
 V. Domi'ny, 3 
 V. Giles, 455 
 V. Hodgson, 176 
 V. Hudson, 237 
 V. Perceval, 48, 199, 234, 
 
 883 
 V. Simpson, 456 
 V. Waithman, 355 
 Y. Wesleyan Newspaper 
 Association, 72 
 Thorne v. Smith, 382, 423 
 Thornton, Ex parte, 448 
 V. Dick, 195 
 V. lllingworlb, 59 
 Thorpe v. Booth, 343 
 Threlfall v. LunI, 178 
 
 V. Webster, 409 
 Thrupp V. Fielder, 59 
 Tickell V. Short, 349 
 Tigar v. Gordon, 41 5 
 Tiley v. Coursier, 10 
 Timmins v. Gibbins, 160, 161 
 
 V. Piatt, 420 
 Tims Y. Williams, 75 
 Tindal v. Bell, 405 
 
 V. Brown, 307, 353, 385, 386 
 Tinson v. Francis, 166 
 Tippetts Y. Heane, 850 
 Titus V. Lady Preston, 204 
 Toleyv. Carlow, 178 
 Tomkins y. Ashby, 13, 438 
 Tompkins y. Ashby, 28 
 Toms Y. Powell, 324, 404 
 Took V. HoUingworth, 454 
 
 Y. Tuck, 183 
 Tootel, Ex parte, 437 
 Toppy V, KeYsell, 434 
 Toulmin y. Price, 378 
 
TABLE OF ENGLISH CASES CITED. 
 
 Ixi 
 
 Towgond, Ex parte, 449 
 Towier v. Cbntterton, 356 
 Townrow v. Benson, 370 
 Towns V. Mead, 346 
 Townsei'd v. Deacon, 346 
 Treiiclier v. Hinton, 390 
 TrecothicU v. Edwin, 88, 215 
 Trent Navigation v. Harley, 346 
 Triittel V. Barandon, 34, 156, 157, 405 
 Tricky v. Larne, 130 
 Trier v Bridgcman, 6 
 Triggs V. Newnham, 211 
 Trimby v. Vignier, 173, 356, 397 
 Trimmer v. Oddie, 191-, 195 
 Trinder v. Smedlej', 431 
 Trueman v. Fenton, 126 
 
 V. Hurst, 60 
 Tucker v. Robarts, 200 
 
 V. Wilson, 174 
 Tuft's case, 83 
 Tullock V. Dunn, 350, 354 
 Turner v. Denman, 419 
 
 V. Fitt, 416 
 
 V. Hoole, 132 
 
 V. Leach, 289, 301 
 
 V. Leech, 298 
 
 V. Mead, 208 
 
 V. Stones, 160, 203, 291 
 
 V. Taylor, 410 
 Turneyv. Doilwell, 351 
 Twopenny v. Young, 198, 251 
 Tye i. Gwynne, IfcO 
 
 U. 
 
 TJdal V. Walton, 435 
 
 Udell V. Atherton, 123 
 
 Usburne, Ex pane, 51 
 
 Usher v. Dauncey, 165 
 
 Uther v. Rich, 130, 156, 163, 423 
 
 Vallance v. Siddell, 135, 315, 316 
 Valpy V. Oakley, 386 
 Vamlerdouckt v. Thelluson, 214 
 Vandewall v. Tyrrell, 357, 262, 265, 
 
 267. 269 
 Van Diemen'sBank v. Victoria Bank, 
 
 40, 182, 195 
 Vandyk v. Hewitt, 135 
 Vansandau v. Corsbie, 439 
 Van Wart v. Woolley, 40, 160, 290, 
 
 291, 293 
 Vanghan v. Fuller, 217, 299 
 V. Matthews, 424 
 Veal V. Veal, 176 
 Vere v. Ashby, 33, 49 
 
 V. Lewis, 83 
 Vernon v. Bouverie, 324 
 
 Vernon v. Boverie, 34 
 Vincent v. Horlock,' 150 
 Vise V. Fleming, 51 
 Vulliamy v. Noble, 52, 53 
 
 W. 
 
 Wackerbath, Ex parte, 358, 265, 266, 
 
 268 
 Wade V. Beasley, 409 
 Wagstaff, Ex parte, 368 
 Wain V. Bailey, 229, 375, 376 
 Wainman v. Kynriiau, 348 
 Wake V. Hiirrop, 37 
 
 V. Tinkler, 362 
 Wakefield Bank, Ex parte, 455 
 Walker, Ex pane, 443 
 V. Atwnod, 194 
 v. Baines, 223, 247, 305, 409 
 V. Butler, S.'iO 
 V. Clements, 343 
 V. CoUick, 345 
 V. Jones, 100 
 V. M'Donald, 149 
 V. Neville, 240 
 y. Pilbeam, 438 
 V. Seaborne, 833 
 Wallace v. Hardacre, 136, 4.54, 457 
 
 V. Kelsall, 46, 234, 363 
 Waller v. Lacy, 327, 349, 351 
 Wallis V. Littell, 101 
 
 V. Swinburne, 439 
 Walmesley v. Child, 378 
 
 V. Cooper, 239 
 Walter v. Cubley, 213, 319 
 V. James, 223 
 V. Haynes, 277 
 Walters v. Biogden, 15 
 Walton V. Hastings, 320, 321 
 
 V. Mascall, 126, 303, 293 
 Walwyn v. St. Quintin, 320, 249, 394, 
 
 396 
 Wankford v. Wankford, 55, 56 
 Ward V. Byrne, 135 
 V. Clarke, 434 
 V. Evans, 10, 24, 159, 160, 208, 
 
 385 
 v.. Johnson, 235 
 (Lord) V, Oxford Railway Com- 
 pany, 15 
 V. Turner, 175 
 Ware v. Lord Egmont, 122 
 Waring, Ex parte, 455, 456 
 Warrington,. Ex parte, 316 
 .V. Early, 320 
 V. Furbor, 202, 303, 293 
 Warwick v. Bruce, 61 
 V. Nairn, 130 
 V. Noakes, 379 
 V. Rogers, 196 
 Washburne v. Barrows, 317 
 
Ixii 
 
 TABLE OF ENGLISH CASES CITED. 
 
 Waters v. Thanes, 339 
 
 V. Thompkins, 856 
 Watkins v. Mnule, 54, 154 
 
 V. Morgan, 303 
 ■Watson V. Alcock, 347, 250 
 V. Evnns, 81 
 V. Kighlly, 86 
 V. Meclex, 439 
 
 V. Mid Wales Railway Com- 
 pany, 68 
 V. Poulson, 115 
 V. Russell, 163 
 Walters v. Smith, IBS 
 Watts V. Jefferies, 26 
 
 V. Shuttleworth, 246 
 Waugh V Carver, 45 
 Way V. Hearne, 78 
 Wayaam v. Bend, 11, 153, 438 
 Webb's case, 829 
 Webb V. Pairmaner, 304 
 
 Yj Heme Bay Commissioners, 
 
 68 
 V. Hewitt, 353 
 V. Inwards, 408 
 V. Spicer, 100, 101, 337 
 V. Weatherby, 433 
 Webster, Ex parte, 437 
 
 V. Kirk, 341, 343 
 V. Spencer, 56 
 Wedlake v. Hurley, 183 
 Weeks v. Argent, 420 
 Wegersloffe v. Keene, 194 
 Welby V. Drake, 228, 333 
 Welch V. Seaborn; 439 
 Wells V. Girling, 133, 813 
 V. Hopkins, 138 
 V. Masterman, 43, 47 
 V. Porter, 139, 141 
 Wennall v. Adney, 136 
 Westcott v.. Hodges, 438 
 Weston V. Tomlinson, 304 
 Whalley v. Pajot, 138 
 Whateley v. Orowten, 414 
 Whalley v. Tricker, 198 
 Wheatley v. Williams, 11, 438 
 Wheeler v. Wheeler, 57 
 Whiley's case, 339 
 Whistler v. Forster, 17 
 V. Fowler, 154 
 Wliitaker v. Bank of England, 185, 
 
 211, 223 
 Whitconib v. Whiting, 353 
 White, Ex parte, 322 
 V. Led wick, 85 
 V. North, 11 
 V. Wright, 315 
 Whitehead v. Walker, 166, 167, 271. 
 
 343 
 Whitelock v. Mus'grove, 427 
 Whitfield V. Hodges, 250 
 
 7. Le liespencer (Lord) 373 
 Whiting V. Burke, 354 
 
 Whitlock V. Underwood, 79, 210 
 Whitmore t. Francis, 414 
 ^ hiltaker v. Edmunds, 119 
 Whitwell V. Bennett, 16- 
 Wiffen V. Roberts, 138, 207 
 Wigan T. Fowler, 70 
 Wiggins V. Read, 138 
 Wilders v. Stevens, 135, 155 
 Wildman, Ex parte, 404, 448 
 Wilkes V. Hopkins; 428 
 Wilkin V. Reed, 431 
 Wilkins v. Casey, 457 
 
 V. Jadis, 211, 301 
 Wilkinson v. Byers, 233 
 V. Godefrey, 36 
 V. Jolmson, 158, 196, 335 
 V. L'Bangier, 29 
 V. Leaugier, 418, 414 
 V. Lutwidge, 199 
 Wilks V. Back, 44 
 
 V. Jacks, 294 
 Williams, Ex parte, 804 
 
 V. Bartholomew, 299 
 V. Bayley, 61 
 V. Biilthore, 143 
 V. Burrell, 53 
 V. Clarke, 155 
 V. Evans, 40, 383 
 V. Everett, 185 
 V. Germaine, 20T, 263, 265 
 V. Griffith, 227, 348 
 V. Griffiths, 349 
 V. Harrison, 59 
 T. James, 231 
 V. Keats, 51, 53 
 V. Moore, 58 
 V. Seagrove, 158 
 V. Smith, 210, 281, 283 
 V. Thomas, 53 
 V. Trye, 139 
 V. Waring,, 88, 214 
 Williamson v. Bennett, 2», 94 
 V. Johnson, 44 
 V. Wafts, 59, «0 
 Willins V. Smith, 353 
 Willis V. Barrett, 81 
 
 V. De Castro, 239 
 V. Bank of England, 163 
 V. Newham, 356 
 Willison V. Patteson, 67, 136 
 
 V. Whitaker, 248 
 Wills V. Noot, 114 
 Wilmot V. Williams, 313 
 Wilson, Ex parte, 350, 436, 448 
 V. Barthrop, 38 
 V. Gabriel, 861 
 V. Justice, 830 
 V. Ray, 133 
 V. Reddall, 417 
 V. Stubs, 81 
 y. Swabey, 385, 387 
 V. Tunimafi, 49 
 
TABLE OF ENGLISH OASES CITED. 
 
 Ixiii 
 
 Wilson V. Turamon, 32 
 
 V. Vysar, 114 
 Wilt V. Amiss, 175 
 Wilton, In re, 388 
 Winch V. Fenn, 311 
 Winchester (Bishop of) v. rournier, 
 
 178 
 Windham v. Wither, 404, 410 
 Wincile v. Andrews, 85, 360, 261 
 Winterbottom's case, 57 
 Wintle V. Ciowther, 48 
 Wise V. Charlton, 12, 99, 116, 470 
 
 V. Prowse, 404 
 Withall V. Masterman, 253 
 Wittersheim v. Lady Carlisle, 341 
 Wodehoiise v. Farebrother, 344, 418 
 Wolpole V. Pultenay, 198 
 Wood V. Braddiek, 353 
 
 v. Brown, 299 
 
 V. Copper Miners' Co., 418 
 
 V. Demattos, 436 
 
 V. Dodgson, 438 
 
 V. MyltOD, 6 
 
 V. Peyton, 424 
 
 V. Smith, 369 
 Woodbridge v. Spooner, 4, 100 
 Woodcock V. Houldsworth, 277, 378 
 Woodford V. Whiteley, 375, 376, H84 
 Woodland v. Fear, 25, 160, 161, 284 
 Woodroffe v. Hayne, 125, 236 
 Woods V. Deau, 300 
 Woodthorpe v. Lawes, 274, 276, 286 
 Woodward v. Lord Dacy, 56 
 
 V. Pell, 56 
 Wookey v. Pole, 156, 163 
 Wolley V. Clark, 54 
 Wo liner v. Devereux, 336 
 
 foolsey V. Crawford, 413 
 oolway V. Rowe, 435 
 Worley v.- Harrison, 94 
 Worrall, Ex parte, 448 
 
 f'orthington v. Grimsditch, 350, 351 
 right V. Lalng, 236, 227 
 V. Lainsou, 77, 453 
 V. Leonard, 00, 64 
 V. Reed, 10 
 
 Wright V. Shawcross, 283 
 
 Wulff V. Jay, 246, 348 
 
 Wyat V. Bulmer, 143 
 
 Wyatt V. Marquis of Hertford, 34 
 
 Wych V. East India Co., 345 
 
 Wyke V. Rogers, 353 
 
 Wylde, Ex parte, 267, 368 
 
 Wylie's case, 333 
 
 Wyllie V. Pollen, 123 
 
 Wynne v. Calendar, 397 
 V. Callender, 143 
 V. Jackson, 397, 400 
 T. Raikes, 189, 190, 191 
 
 X. 
 
 Ximencs v. Jacques, 138 
 
 Y. 
 
 Yallop V. Ebers, 244 
 Yarboroue;h v. Bank of England, 149 
 Yates, Ex parte, 149, 320, 331 
 V. Bell, 185, 186 
 T. Dalton, 45 
 V. Grove, 96 
 V. Hoppe, 139 
 V. Nash, 74, 80, 96 
 V. Sherrington, 66 
 Yea V. Fouraker, 353 
 Yeomans v. Bradshaw, 54 
 Yonge, Ex parte, 438 
 Young V. Adams, 158, 161 
 
 V. Bengal, Bank of, 367, 368 
 V. Cole, 161 
 V. Geiger, 365 
 V. Giote, 35, 833 
 
 Z. 
 
 Zinck V. Waller, 455 
 Zouch V. Clay, 318 
 v. Parsons, 58 
 
BILLS OF EXCHANGE. 
 
 CHAPTER I. 
 
 GENERAL OBSERVATIONS ON A BILL OF EXCHANGE. 
 
 EXPLANATION OF TERMS, . . 1 
 
 PECniJAR QUALITIES OF CON- 
 TRACTS ON BILLS OR NOTES, 2 
 
 EFFECT OP DRAWING OR IN- 
 DORSING A bill; ... 8 
 
 HOW FAR BILLS AND NOTES ARE 
 CONSIDERED AS CHATTELS, . 3 
 
 MAY BE TAKEN IN EXKCTTTION, 
 WHERE A BILL OR NOTE MIGHT 
 HAVE OPERATED AS A WILL 
 OK TESTAMENTARY INSTRU- 
 MENT 
 
 AS A DECLARATION OF TRUST, 
 
 A Bill oe Exchange is an unconditional written order(a) 
 from A. to B., directing B. to pay C. a sum certain of money 
 therein named.(l) 
 
 (a) It is said, that it was formerly essential to the validity of a bill of ex- 
 change, that it should be drawn in one place and payaljle in another ; no such 
 requisite now exists by the English law, although it is in general otherwise, 
 according to the definitions in the codes prevailing on the continent of Europe ; 
 see the note of Mr. Sergeant Manning to Miller v. Thompson, 4 M. & G. 360 
 (43 E. C. L. R.). 
 
 (1) This definition is remarkable for its conciseness and accuracy. The 
 learned author uses the word "direct" instead of the word "request," which 
 i's the more usual. The former word implies a command, and that the drawer 
 has a right to require the payment. The case of Little v. Slackford (t Moody 
 and Malkin, 171 ; 22 Eng. Com. Law, 280) is supposed to support the position 
 that a bill of exchange must purport to be a demand made by a party having 
 a right to call on the other to pay. That was a case, however, in which the 
 paper was offered under a count for money paid, and was objected to for want 
 of a stamp. In Ruff v. Webb, 1 Esp. Rep. 139, the paper was : "Mr. Nelson 
 will much oblige Mr. Webb, by paying J. Ruff or order, twenty guineas on 
 his account." Lord Kenyon held it to be a bill of exchange. Judge Story 
 has remarked that language of mere civility cannot, of itself, change the na- 
 
 1 
 
2 GENERAL OBSERVATIONS 
 
 A. is called the drawer, B, the drawee, and 0. the payee. 
 Sometimes A., the drawer, is himself the payee. 
 
 ture of the instrument ; and in order to displace the construction, that the in- 
 strument is a bill, it would seem to require, that the language necessarily im- 
 ported to ask a favor and not to be words of civility. Story on Bills, § 33, 
 note. It must be admitted that this is attempting a very refined distinction, 
 and frequently of very difficult application in the construction of such instru- 
 ments. It is well settled that it is not necessary, to constitute a bill of ex- 
 change, that the drawer should have funds in the hands of the drawee ; Luff 
 V. Pope, 5 Hill, 413 ; S. C, 7 Hill, 577 ; and even where he has, it is not in all 
 cases that he has a right to draw. To give such right there must be an agree- 
 ment to accept, or a usage of trade, or course of dealing between the parties 
 equivalent thereto. Where the draft is for a part only of the debt due the 
 drawer, the creditor has no right to divide his cause of action without the 
 consent of the debtor. Where the whole of a particular fund or debt by name 
 is drawn for, so as to give the payee or holder a right to sue the drawee with- 
 out acceptance in the name of the drawer, this is an assignment in equity, but 
 not a bill of exchange. Harrison v. Williamson, 2 Edw. Rep. 430 ; Quin v. 
 Hanford, 1 Hill, 83 ; Mandeville v. Welch, 5 Wheal on, 286. 
 
 It seems therefore that Bayley's definition, which has been adopted by 
 Chancellor Kent, is prefeiable to that in the text. "A bill of exchange is a 
 written order or request by one person to anotlier for the payment of money 
 absolutely and at all events." Judge Story objects to this, as well as other 
 definitions, on the ground that it does not include the idea of negotiability, 
 which, he thinks, although not by our law essential to the instrument, yet 
 undoubtedly is that peculiar distinguishable quality, which, practically speak- 
 ing, among merchants constitutes its true character. Story on Bills, §§ 2, 3, 4. 
 He accordingly expresses a preference for Mr. Kyd's definition, Kyd on Bills, 
 p. 3. "An open letter of request, addressed by one person to a second, desiring 
 him to pay a sum of money to a third or any other to whom that third person 
 shall order it to be paid ; or it may be payable to bearer." It is to be observed, 
 however, that this definition expresses merely the idea of assignability, not of 
 negotiability, which is that peculiar commercial quality by which not only the 
 instrument is assignable at law, but the assignee for value bona fide and with- 
 out notice cannot be affected by any equ.ties, as between the original or prior 
 parties. It has been expressly held that a bill not payable to order or bearer 
 is still a bill of exchange. Wills v. Brigham, 6 Gushing, 6. It is not essen- 
 tial to the validity of a bill of exchange that it be in form negotiable, nor that 
 it should contain the words, " for value received." Conrsia v. Tedlie's Adms-, 
 7 Casey, 506 ; Arnold v. Sprague, 34 Vermont, 402. And as to promissory 
 notes, the point is well settled that though not made payable to order or 
 bearer, yet if the payee puts his name upon it and transfers it, he is liable as an 
 indorser, and the instrument may be declared on as a promissory note. Bates 
 V. Butler, 46 Maine, 387. It would be inaccurate therefore to include the idea 
 even of assignability. It is evident that all the qualities of an instrument 
 need nof enter into the definition, but only such as distinguish it on its face 
 from other instruments. 
 
 The essential qualities of a bill are that it must be payable at all events, not 
 
ON A BILL OF EXCHANGE. 6 
 
 And usually the bill is made payable, not to the pnyee alone, 
 but also to his order or to the bearer. 
 
 When B., the drawee, has undertaken to pay the bill, he is 
 called the acceptor. ^ 
 
 If the bill is made payable to C, or hearer, C. may transfer 
 the bill to D., by merely deliverina; it into his hands, and then 
 D. stands in the same situation with regard to B.,the acceptor, 
 as C, the original payee, did. 
 
 If the bill be payable to 0., or order, then C. cannot transfer, 
 except by a written order, usually on the back of the bill, 
 called an indorsement, after which C. is called the *in- 
 dorser, and D., to whom it may be so transferred, the ^ ^ 
 indorsee.(6)(l) 
 
 (J) See Chap. XI. on Trakbfbr. 
 
 dependent on any contingency, nor payable out of a particular fund ; and 
 that it be for the payment of money only, and not for the performance of any 
 other act, or in the alternative. Gillilan v. Myers, 31 Illinois, 525. 
 
 (1) It is worthy of note that the author, by tramfer in this passage, means a 
 transfer to pass a legal title to the holder, so as to enable liim to sue in his own 
 name. Tliere may be an assignment in equity for a valuable consideration of 
 a bill or note, just as there may be of any other chose in action. Jones v. 'Wit- 
 ter, 13 Mass. 304 ; Dunn v. Snell, 15 Ibid. 485 ; Tilcomb v. Thomas, 5 Green- 
 leaf, 283. A deed of assignment of bills of exchange and negotiable notes 
 does not pass the legal but only the equitable title to them. Grand Gulf Bank 
 V. Wood, 18 3medes and Marshall, 482. It is not essential to the validity of a 
 bill or note that it should be negotiable. Arnold v. Sprague, 34 Vermont, 403. 
 
 The rule of the common law forbade the assignment of choses in action as 
 tending to maintenance. The Court of Chancery, however, at an early day 
 took cognizance of such assignments, and gave effect to them by treating the 
 assignor as a trustee for the assignee. Tlicy held that payment to the original 
 creditor after notice of the assignment, did not discharge the debtor, though 
 the assignee took the chose in action subject to all the equities which attached 
 to it in the hands of the assignor at the time of the assignment. 3 Vern. 428, 
 540, 595, 692. 
 
 In courts of law the interest of the equitable assignee soon came to be recog- 
 nized. Still, however, it always was, and unless when modified by express 
 statute still is, necessary that the suit should be carried ou in the name of the 
 assignor. Subject to this technical rule in regard to the form of the action, 
 the equitable assignee is regarded as the real owner, his rights protected, and 
 his remedies preserved, even against the acts and deeds of the legal plaintiff 
 on the record. Thus the bankruptcy of the assignor was decided to be no im- 
 pediment to an action in his iiarae where the debt had been assigned before 
 the bankruptcy. Winch v. Keeley, 1 T. R. 619 ; Carpenter v. Morrell, 8 
 Bos. & Pull. 40. So in other respects. See the learned opinion of BuUer, J., 
 in Master v. Miller, 4 T. R. 340. 
 
4 GEKERAL OBSERVATIONS 
 
 Holder is a general word, applied to any one in actual or con- 
 structive possession of the bill,(c) and entitled, at law to recover 
 
 (c) A man who has no interest in the bill, nor possession of it, but only 
 lends his name for the purpose of suing on it, is not the holder. Emmett v. 
 Tottenhani, 8 Bxch. 884; Gill v. Lord Chesterfield, Ibid. ; Sainsbury v. Park- 
 inson, Ibid. But if before action it be indorsed and delivered to an agent 
 without his principal's knowledge, and Ibe principal after action brought rati- 
 fies the delivery, that ratification will relate back and make the agent holder 
 from the time of delivery. Ancona v. Marks, 31 L. J. 163, Exch. ; 7 H. & 
 N. 686, S'. C. 
 
 The American courts have followed in the track of these decisions with 
 even still gjeater liberality. In Welch v. Mandeville, 1 Wheat. 233, it was 
 determined that a nominal plaintiff, suing for the benefit of his assignee, can- 
 not, by a dismissal of the suit under a collusive agreement with the defendant, 
 create a valid bar against any subsequent suit for the same cause of action. 
 Judge Story said : " Courts of law following in this respect the rules of 
 equity, now take notice of assignments of choses in action, and exert them- 
 selves to afford them every support and protection, not inconsistent with the 
 established principles and modes of proceeding which govern tribunals, acting 
 according to the course of the common law." Thus payment or release, 
 after notice of the assignment, is no defence. Littlefiekl v. Story, 3 Johns. 
 426 ; Raymond v, Squier, 11 Johns. 47; Dix v. Cobb, 4 Mass. 511 ; Wheeler 
 v. Wheeler, 9 Cowen, 34 ; Eastman v. Wright, 6 Pick. 816 ; Laughlin v. Fair- 
 banks, 8 Missouri, 867; Parker v. K^lley, 10 Smedes and Marshall, 184; the 
 Stale V. Jennings, 5 English, 428. The nominal plaintiff will not be allowed 
 to discontinue the action. McCullum v. Coxe, 1 Dall. 139. Nor can the 
 debtor set off any demands against the assignor, which accrued after notice 
 of the assignment. Goodwin v. Cunningham, 12 Mass. 193 ; Jenkins v. 
 Brewster, 14 Ibid. 291 ; Sampson v. Fletcher, 1 Vermont, 168 ; Cummiugs v. 
 FuUum, 13 Vermont, 484 ; Bartlett v. Pearson, 89 Maine, 9. So the assignee 
 is protected against the declarations and acts of tlie assignor, subsequent to 
 the assignment ; they are inadmissible in evidence against him. Kitnball v. 
 Huntington, 10 Wend. 675 ; Lister v. Baker, 6 Blackford, 439. An assign- 
 ment of a particular claim, passes to the assignee all securities and remedies 
 which the assignor had to secure and recover it, though they ai-e not specifi- 
 cally mentioned in the assignment. Miller v. Ord, 2 Binn. 882 ; Mehaffy v. 
 Share, 2 Penna. Rep. 361 ; Waller v Tate, 4 B. Monroe, 529 ; Farmers' and 
 Drovers' Bank v. Fordyce, 1 Penna. State Rep. 445 ; Fox v. Foster, 4 lb. 119 ; 
 Cathcart's Appeal, 13 Ibid. 182. When the assignor is insolvent, and a suit 
 is pending in his name for the assignee's benefit, the court will allow the de- 
 fendant, after verdict, to suggest on the docket for whose use the suit is 
 brought, and will rule the assignee to pay the costs. Canby v. Ridgway, 1 
 Binn. 496. The person for whose use an action -has been brought, is liable in 
 assumpsit, upon an express promise to pay the defendant in such action, the 
 amount of costs incurred. Brewer v. Hays, 2 Watts, 12. Wliere a chose 
 in action is assigned before suit brought, the nominal plaintiff is not liable for 
 costs ; but when the assignment is not made until after suit brought, he is lia- 
 
ONABILLOFEXCHANGfE. 5 
 
 or receive its contenta(rf) from the parties to it. "No one but 
 the holder can maintain an action on a bill of exchange. 
 
 (d) This latter branch of the deflnitiou is equally essential. For if a man 
 find or steal a bill, though his mere possession will give him a title to retain 
 the instrument as against strangers, yet he cannot sue on the bill, for under a 
 traverse of the indorsement or delivery to himself, which he must allege in his 
 declaration, the circumstances attending his acquisition of the bill may be 
 shown. Marston v. Allen, 8 M. & W. 494. 
 
 ble not only for the costs accrued at the time of the assignment, but for gll 
 which may subsequently accrue. Wistar v. Walker, 2 P. A Browne, 171 ;■ 
 Martin v. Stille, 3 Wharton, 337; McLughan v. Bovard, 4 Watts, 308. The 
 death of the assignor does not defeat the assignment, but the assignee may 
 use the name of the executor or administrator of the assignor, to recover the 
 money. Dawes v. Boylston, 9 Mass. 337 ; Cutts v. Perkins, 12 Mass. 206 ; 
 Grover v. Grover, 24 Pick. 261. The assignee will be protected against at- 
 tachments by creditors of the assignor. In Connecticut, indeed, it has been 
 held that, to render an assignment complete as to third persons, notice to the 
 original debtor is necessary. Woodbridge v. Perkms, 3 Day, 364 ; Judah v. 
 Judd, 5 Ibid. 534 ; Warren v. Copelin, 4 Metcalf, 594 ; Vanbuskirk ir. Ins. Co. 
 14 Conn., 141. Even in that State, however, an assignment of a chose in ac- 
 tion, without notice to the debtor, is valid as between the parties ; and no per- 
 son who has knowledge of the assignment can be regarded as a bona fide 
 creditor for the purpose of defeating it. Bishop v. Holcorab, 10 Conn. 444. 
 But the law has not been so held elsewhere. It is sufBcient if notice is given 
 to the debtor, in time to enable him to protect himself, by taking defence 
 against the attachment. Dix v. Cobb, 4 Mass. 512 ; Stevens v. Stevens, 1 
 Ashniead, 190; Stockton v. Hall, Harden, 160 ; Nesmith v. Drum, 8 Walts & 
 Serg. 9 ; Littlefield v. Smith, 5 Shepl. 327. 
 
 An order, draft, or bill, drawn for the whole of a particular fund, is an 
 equitable assignment of such fund to the payee, and binds it after notice to 
 the drawee. Mandeville v. Welch, 5 Wheat. 285 ; Robl)ins v. Bacon, 3 Green- 
 leaf, 346 ; Corser v. Craig, 1 Wash. C. C. 424. But although notice is neces- 
 sary in order to make it available against payment or other discharge of the 
 debtor, it has been held not necessary to render it valid as to third parties. A 
 draft upon a particular fund, in the hands of an attorney, for collection, is ah 
 equitable assignment of it, and, although not accepted by the attorney, yet it 
 is not afterwards subject to be attached for the debt of the drawer. Nesmith 
 V. Drum, 8 Watts & Serg. 9. However, since it is not in the power of a credi- 
 tor to split his cause of action, without the debtor's consent, an order or draft 
 for a part only of the debt due from the drawee to the drawer, does not, against 
 the consent of the drawee, amount to an assignment of such part. . Gibson v. 
 Cook, 20 Pick. 15. " An equitable assignment is an agreement in the nature 
 of a declaration of trust which a chancellor, though deaf to the prayer of a 
 volunteer, never hesitates to execute when it lias been made on valuable or 
 even good consideration." Nesmith v. Drum, 8 Watts & Serg. 10. But see 
 Kennedy v. Ware, 1 Penna. State Rep. 445, in which it is held that such an 
 assignment, in consideration of natural love and affection, is void. See Anon., 
 
6 GENERAL OBSERVATIONS 
 
 By the common law of England no contract or debt is as- 
 signable, our ancestors appearing, in the times of simplicity, to 
 
 2 Hayw. 353 ; Ellis v. Amason, 2 Dev. Cli. 273 ; Braham v. Rutland, B Stew- 
 art, 247 ; Bliti v. Pierce, 20 Vermonl, 25 ; Langley v. Berry, 14 Ke\* Hamp. 
 89; Brown v. Foster, 4 Cushins:, 214. In a valuable note to the case of 
 Welch V. Mancleville, 1 Wheal. 236, the learned reporter shows that, though 
 the civil law considers choses in action, as strictly speaking, not assignable ; 
 yet by the invention of a flclion, the Roman jurisconsults contrived to attain 
 this object. The creditor who wished to transfer his right of action to another 
 person, constituted him .his attorney, or procurator in rem luam, as it was 
 called ; and it was stipulated that the action should be brought in the name of 
 the assignor, but for the benefit, and at the expense of the assignee. Pothier 
 de Vente, No. 550. After notice to the debtor, the assignment operated a 
 complete cession of the debt, and invalidated a payment to any other person 
 than the assignee, or a release from any other person than him. ^Ib. 110, 554, 
 Cod. Napoleon, liv. 8, tit. ; De la Vente, c. 8, s. 1690. 
 
 The holder of a bill of exchange is not the owner of the money, goods or 
 effects which the drawer has remitted to the drawee ; nor has he any lien 
 upon the funds, whether the remittance was made before or after the date of 
 the bill. His bill is payable at all events, and his remedy for non-payment 
 is an action on the bill itself against the parties to it. He has no claiiji on any 
 particular fund, which he can follow into the hands of other parties. This 
 has been so long and so universally regarded as true, that an order to pay 
 money out of a particular fund is not anywhere considered as a bill of ex- 
 change at all. Black, C. J., Hopkins, v. Beebe, 2 Casey, 88 ; New York Bank 
 v. Gibson, 5 Diier, 574 ; Butterworth v. Peck, 5 Bosworth, 341. A bill of 
 exchange does not, until accepted, operate as an assignment of the funds in 
 the hands of the drawee. Sands v. Matthews, 27 Alabama, 399 ; Kiml>all v. 
 Donald, 20 Missouri, 577 ; En.uler v. Rice, Ibid. 583. Where A. draws his 
 draft in favor of C. upon funds in the hands of B., and B. accepts it, this 
 operates as a valid equitable assignment of the fund to C, and entitles him 
 to hold it as against all persons not having a prior or better equity. Wells v. 
 Williams, 39 Barbour, 567. A bill, though not accepted, may amount to an 
 assignment of the whole fund in the hands of the drawee, if the bill be for 
 exactly the amount of it. Wheatley v. Strobe, 12 California, 92. When one 
 accepts a bill on the faith of funds of the drawer in his hands, he acquires an 
 equitable interest in those funds, and is entitled to set off his liability on the 
 acceptances and retain them for his security. Lambert v. Jones, 2 Patton and 
 Heath, 144. A general assignment of assets, after a bill has been accepted, 
 •will not pass the funds in the hands of the acceptor, against which the bill of 
 exchange was drawn. Buckner v. Sayre, 18 B. Monroe, 745. 
 
 A draft drawn by a creditor upon his debtor for the exact amount of the in- 
 debtedness, does not of itself operate as an assignment in equity of the debt, 
 even if negotiated for a good consideration. But it is evidence to show such 
 assignment, and with other circumstances to show that such was the intention 
 of the drawer will vest in tJie holder an exclusive claim to the indebtedness. 
 Bank of Commerce v. Bogy, 44 Missouri, 13. A check drawn upon a bank 
 by a person in extremis, in favor of a person who is with the proceeds to pay 
 
ONABILLOFEXCHANGE. 7 
 
 have apprehended from such transfers much oppression and 
 litigation. But mercantile experience has proved the assign- 
 ment of debts to be indispensable, and bills of exchange to be 
 the most convenient instruments for facilitating, securing, and 
 authenticating the transfer. They have, therefore, come into 
 universal use among all civilized nations, and the common law 
 has recognized them as part of the law merchant.{e) 
 
 The common law again distinguishes contracts into two 
 kinds : contracts under seal or by deed ; and contracts not 
 under seal or simpje contracts. Contracts under seal are valid 
 without consideration ; simple contracts are void unless consid- 
 eration be averred in pleading and established in evidence. 
 
 All the contracts arising on a bill of exchange are simple 
 contracts, but they diifer from other simple contracts in these 
 two particulars : first, that the benefit of the contract *is 
 assignable at law, and its obligation communicable ;(/) L_ -' 
 
 (,e) Usages wUich are part of the law merchant need not be pleaded. Such 
 are the assignable qualities of bills of exchange and bills of lading. Such also 
 is the general lien of bankers on the securities of their customers. " When," 
 says Lord Campbell, " a general usage has been judicially ascertained and 
 recognized, it becomes part of the law merchant, which courts of justice are 
 bound to know and recognize." Brandao v. Barnett, 3 C. B. 530, Dom. 
 Proc. (54 E. C. L. R.) ; Barnett v. Brandao, 6 M. &G. 665 (46 E. C. L. R.). 
 
 (/) In one sense a bill of lading is at common law assignable, that is to say, 
 its indorsement assigns the property,' but does not transfer the contract. 
 Thompson v. Dominy, 14 M. & W. 403. Now, however, by a recent statute, 
 rights of action pass lo the indorsee of a bill of lading. (18 & 19 Vict. c. 111. ) 
 
 his funeral expenses, the balanceito be paid to his heirs, is not an assignment 
 of the fund, and does not render the bank liable to the payee after the drawer's 
 death. Second Bank v. Williams, 13 Mich. 283.. A draft cannot operate as 
 an assignment of funds, deposited with the drawee, when the deposit was not 
 made until after the draft was made and delivered. As to such funds, it is a 
 mereanlhority or direction to the drawee. Hence it is revoked upon the death 
 of the drawer ; and thereafter, his executor or administrator is the proper party 
 to sue for the deposit. Fordred v. Seamens' Savings Bank, 10 Abbott, Pr. C, 
 N. S. 425. Drawing a bill on consignees, which is not accepted because it 
 exceeds the balance in their hands, is not such an appropriation of the fund 
 as will defeat a subsequent attaching creditor of the consignor. Fabers v. 
 Welsh, 1 Clark, 363. An order does not operate as an assignment of a fund, 
 or give the p>iyee a lien upon it, unless there is an acceptance or an obligation 
 to accept. McLoon v. Linguist, 2 Benedict, 9. A bill is presumed, to be 
 drawn on funds, with the understanding between the drawer and drawee 
 that it is an appropriation. Gillilan v. Myers, 31 Illinois, 525. A draft and 
 acceptance is an equitable assignment. Wells v. Williams, 39 Barb. 567. 
 
8 GENERAL OBSBKVATIONS 
 
 secondly, that coneideration will be presumed till the contrary 
 appear .(1) 
 
 (1) Bills and notes, unlike other parol contracts, are prima facie evidence 
 of valuable consideration, not only as between the oiiginal parties, but as 
 against third persons. In all cases where the bill can be used as evidence, 
 either against the parties or against third persons, the same legal presumption 
 arises of its having been given for value received as exists in relation to a deed 
 expressed to be given for a valuable consideration. A bill of exchange, there- 
 fore, although according to the general principles of the common law it is to' 
 be considered in the light of a simple contract, is nevertheless in this respect 
 entitled to the privilege of a specialty, which carrying with it internal evidence 
 of a valuable consideration, supersedes the necessity of averring and proving 
 one. This privilege always belonged to foreign bills, and has at length, though' 
 not without some struggles as it is said, been conceded to inland or domestic 
 bills, and promissory notes. Mandeville v. Welch, 5 Wheaton, 577 ; Murry 
 V. Clay burn, 3 Bibb, 300 ; Lines v. Smith, 4 Florida, 47. Value is implied in 
 every acceptance or indorsement of a bill or note, and the burden of proof is 
 on the other part}', to rebut this presumption. Clark v. Schneider, 17 Mis- 
 souri, 395. The principle is confined, however, to paper strictly negotiable, 
 and does not apply to notes or bills which do not fall within that category. 
 Thus an accepted order payable in merchandise does not import consideration. 
 Jeffries v. Hager, 18 Missouri, 273 ; See Nlckcrson v. Sheldon, 33 Illinois, 
 373 ; Labadie's Exr. v. Chouteau, 37 Mo. 413 ; Bourne v. Ward, 51 Maine, 
 191 ; Sidle v. Anderson, 9 Wright, 464; Gamwell v. Mosely, 11 Gray, 173; 
 Richardson v. Comstock, 21 Ark. 69; Arnold v. Sprague, 34 Verm. 403; 
 Nevins v. Chapman, 15 Louis. Ann. 353 ; Kirchner v. Lewis, 37 Indiana, ?2 ; 
 Ware v. Kelly, 22 Ark. 440 ; Richardson v. Carpenter, 3 Sweeny, 360. 
 
 As between the original parties, however, the bill is only prima facie evi- 
 dence of consideration, and it may be inquired into and rebutted. The people 
 V. Howell, 4 Johns. 396, 303 ; Pearson v. Pearson, 7 Johns. 36, 28 ; Schoon- 
 maker v. Roosa et al., 17 Johns. 301 ; Ryberg et al. v. Snell, 3 Wash. C. C. 
 Rep. 294. And on the same principle, where the consideration is less than the 
 amoimt of the bill or note, no recovery can be had beyond the sum actually 
 paid. Bramin v. Hess, 13 Johns. 52 ; Brown v. Mott, 7 Johns. 361 ; Mann 
 v. Commission Co., 15 Johns. 44. So if the holder claim by indorsement after 
 the note or bill has become due, or has taken it with a knowledge of fraud or 
 other equitable circumstances, entitling the maker to avail himself of the de- 
 fence, this is equally provable as a want or failure of consideration between 
 the oiiginal parties. It is to be carefully noted as a very important and well- 
 settled distinction, however, that the mere knowledge of the holder when he 
 took the note, that it was without consideration as between the original parties, 
 or in other words, an accommodation note or bill, is not available as a defence, 
 and will not be snfBcient to throw upon the holder the burden of proving that 
 he gave value, though if it be shown that the note or bill has been put into 
 circulation fraudulently or feloniously, that will shift the onus. Jarden v. 
 Davis, 5 Wharton, 388; Albrecht v. Strimpler, 7 Barr, 476. But want or 
 failure of consideration may be set up against a holder who takes the instru- 
 ment after it becomes due. Barnet v. Offorman, 7 Watts, 130. If, however, 
 
ONABILLOFBXCHANGE. '9 
 
 The legal effect of drawing a bill, payable, to a third person, 
 is a conditional contract by the drawer to pay the payee, his 
 order, or th.e bearer, as the case may be, if the acceptor do not. 
 The effect of accepting a bill, or making a note, is an absolute 
 contract, on the part of the acceptor of the otie, or maker of 
 the other, to pay the payee, or order, or bearer, as the instru- 
 ment may require. The effect of indorsing is a conditional 
 coutracf, on the part of the indorser, to pay the immediate or 
 any succeeding indorsee or bearer, in case of the acceptor's or 
 maker's default.(l) 
 
 Bonds, bills, notes and other securities are not the subjects 
 of larceny at common law. For the words bona etcotaUa, used in 
 indictments, " don't of their proper nature," says Lord Coke, 
 " extend to charters and evidences concerning freehold or in- 
 heritance, or obligations, or other deeds or specialties, being 
 things in action."(^) And these observations as to obligations 
 and deeds are at common law, applicable also to bills of ex- 
 change and promissory notes.(A) 
 
 In an indictment, bills or notes ought not in strict propriety 
 to be described as chattels. (z) 
 
 (g) Calye's case, 8 Co. Rep. 33 ; 4 Bla. Com. 234 ; 2 East, P. C. 597. But 
 see now 24 & 25 Vict. c. 96, ss. 1 & 27, by which, for the purposes of that act 
 relating to larceny, they are comprehended within the words '' valuable se- 
 eurity" and the worfl ''■property.''^ 
 
 (h) 4 Bla. Com. 234 ; 3 East, P. C. 16, s. 37. ' r j 
 
 (0 Sadi and Morris's case, 2 East, P. C. 16, s. 37. 
 
 an action is brought by the indorsee of a bill or note, who has given value foe- 
 it, before it arrives at maturity, when it is not void in its creation, the consid- 
 eration in general cannot be the subject of inquiry. The diversity is founded 
 in this : that to strengthen and facilitate commercial intercourse, which is 
 carried on through the medium of this species of security, it is necessary that 
 the fair holder of a bill for value paid should not be affected by a want of con- 
 sideration between the pri(U' parties. If, however, the holder of a bill received 
 it without consideration, then, as was justly said by Eyre, C. J., in Collins v. 
 Martin et al., 1 Bos. and Pul. 651, "He is in privity with the first holder, and 
 will be affected by everything which would affect him." Lawrence v. Ston- 
 ington Bank, 6 Conn. 531. 
 
 (1) It should be added, perhaps, and in ease proper and prompt measures 
 he talien to fix the indorser by makitag demand of the acceptor or maker, and 
 giving notice of his default to the indorser. This is that which dis.tinguishes 
 a mercantile indorsement from an ordinary contract of guarantee for the debt 
 or default of another. 
 
19 GENERAL OBSERVATIONS. 
 
 But, for almost ^11 purposes, they are comprehended under 
 the general words goods and chattels, or either of them. Thus, 
 as chattels, they are forfeitable to the Crown, and may he the 
 subject of reputed ownership or fraudulent trausfer.(y)(l) 
 
 At common law, neither money nor securities for money 
 could be taken in execution, at the suit of a subject. But now, 
 by the 1 & 2 Vict. c. 110, s. 12, money, bank notes, *checks, 
 ^ -I bills, promissory notes, and other securities for money, 
 may be taken in execution. The money and bank notes are to 
 be handed over by the sherift" to the execution creditor, and the 
 .sheriff, on receiving a sufficient indemnity, is to sue in his own 
 name.(A) 
 
 Bills and notes may be taken Tinder an extent. 
 
 A bill, check, or note, or an indorsement thereon, made 
 before the late act, 1 Vict. c. 26, might have been a testa- 
 mentary instrument. A testator gave three checks, at dif- 
 ferent times, to a lady, and on the corresponding parts of 
 the check-book were found entries by him to the e^ect 
 that they were given by him to make provision for her in 
 case of his death. The checks were held to be tejtamentKry 
 instruments, giving cumulative legacies.(Z) But parol evi- 
 dence is inadmissible to show that an instrument was onlj'' 
 to be payable in case of .the testator's deat'h.(?n) An in- 
 
 • 
 
 0") Blade's case, 4 Co. Rep. 93; Bullock v. Doflds, 2 B. & Aid. 358; Ryal 
 V. Rolle, 1 Atk. 165; 1 Vfs. Sen. S68 ; Honiblower v. Proud, 2 B. & Aid. 
 327 ; Gumming v. Bailey, 6 Bing. 363 (19 E. C. L. R.) ; 4 Moo. &■ P. 36, S. 
 C. ; Edwards v. Cooper, 11 Q. B. 33 (63 E. C. L. R.). See Chap. XXXVI. 
 on Bankruptct. 
 
 {Ic) See Cliap. XI. on Transfer. ■■ 
 
 (0 Bartholomew v. Henley, 3 Pliil. 317. ' • 
 
 (ot) Woodbridge v. Spooner, 3 B. & Aid. 233 (5 E. C. L. R.) ; 1 Chit. R. 
 661, S. C. 
 
 (1) At common law a chose In action is not the subject of larceny. United 
 States V. Davis, 5 Mason, 3S6 ; Culp v. The State, 1 Porter, 33 ; The State v. 
 Calvin, 3 New Jersey, 207. In most of the States express statutes have been 
 passed, mijking the stealing of bank notes, promissory notes, and other securi- 
 ties, indictable and punishable as larceny. 
 
OF A PROMMISSORT NOTE. 
 
 11 
 
 dorseinent on a note, as "I give this note to C. D.," might 
 have been testamentarj.(?i)(l) 
 
 A bill or promissory note may in some eases be a declaration 
 of triist.(o) 
 
 *C II AFTER II. 
 
 OP A PROMISSORY NOTE. 
 
 [*0] 
 
 ■WHAT IT IS 5 
 
 HOW CONSIDEEBD AT COMMON 
 
 LAW AND WHAT BY STATUTE, 5 
 PKOMISSOUT NOTES MADE OUT 
 
 OF ENGLAND, .... 6 
 
 POEM OF A NOTE, ... 6 
 
 NOTE BY A MAN TO HIMSELF, . 6 
 NOTE BY A MAN TO HIMSELF 
 
 AND ANOTHER, ... 7 
 NOTES PAYABLE BY INSTAL- 
 MENTS, 7 
 
 JOINT AND SEVBKAL NOTES, . ,7 
 
 ■WHERE THEEB IS PEINCIPAL 
 AND SUEBTY, . . . .8 
 
 CONTKIBUTION BETWEEN JOINT 
 
 MAKEES 8 
 
 BANK NOTES, .... 9 
 
 BANK OP ENGLAND NOTES, . 9 
 
 WHEN BANK OP ENGLAND NOTES 
 
 AEE A LEGAL TBNDBB, . . 10 
 
 COUNTRY BANK NOTES; . . 10 
 
 WHEN COUNTEY BANK NOTES 
 
 AEE A LEGAL TENDBE. . . 10 
 
 ■WHEN MONEY HAD AND EE- 
 
 CEIVED "WILL LIE FOR THEM, 10 
 OP THE CONTEACTIKG WOEDS 
 
 IN A PEOMISSOEY NOTE, . 10 
 
 OTHEE MATTBES CONTAINED IN 
 
 A NOTE 13 
 
 A PROMrssoRY note,(ffl) or, as it is frequently called, a note of 
 
 (n) Cliaworth v. Beecl), 4 Ves. 5G5. For the circumstances under which 
 hills iinrl )fotes will pass under a will, or as a donatio mortis causa, see Chap. 
 XI. on Teansfee. 
 . (o) Murray v. Glasse, 23 L. .1., Ch. 136. 
 
 (a) As to notes in an irregular form, see post. Chap. VII. 
 
 (1 ) The payee of a note wrote upon the back of it as follows : " If I am not 
 living at the time this is paid, I order the contents to be paid to A. B." He 
 died before the note was paid. The indorsement was held to be entitled to 
 probate as a will. Hunt v. Hunt, 4 New Hamp. 434. When a promissory 
 note was made in this form : "On demand, aft'r my decease, I promise to pay 
 to B., or order," which was delivered to the payee as evidence of the maker's 
 indebtedness to him, it was held that this instrument was not of a testamen- 
 tary character, to be proved as \ will, but was a promissory note, negotiable 
 and irrevocable. Bristol v. Warner, 19 Conn. 7. A note executed, delivered 
 and accepted in thevlil'etime of flie maker, but made payable at or after his 
 death, is not in any sense a testamentary disposition of the property described 
 in it. The instrument is absolute, and passes the right to the money. Worth 
 V. Case, 43 New York, 383. 
 
12 OFAPROMISSORYNOTE. 
 
 hand, is an absolute(6) promise iu writing, signed but not 
 sealed, to pay a specified sura at a time therein limited, or on 
 demand, or at sight, to a person therein named or designated,(c) 
 or to his order, or to the bearer. (ci)(l) 
 
 (J) As to conditional instmmp.nts, see post, Cliap. VII. 
 (cj See Storm v. Stirling, 3 E. & B. 843 (77 E. C. L. R.) ; Cowie v. Stir- 
 ling, 6 E. & B. 333 (88 E. C. L. E.) ; and Chapters VI. and VII. 
 (,d) 3 Bla. Com. 467. 
 
 (1) Tlie essentials of a negotiable promissory note, are that it must be 
 payable at all events, not dependent on any cr)ntingency, n^r payable out of a 
 particular fund ; and thai it must be for the payment of money only, and not 
 for the performance of any otlier thing or in the alternative. Arnold v. Rock 
 River Co., 5 Duer, 307 ; Gordon v. Rundlett, 8 Foster, 435 ; Salinas v. "Wright, 
 11 Texas, 573. An agreement to pay money ninety days after the happening 
 of two events, one of which may never happen, is not a promissory note. 
 Sachett v. Palmer, 35 Barbour, 179. An instrument promising to pay money 
 01- a contingency is not a negotiable promissory note. Loftus v. Clarke, 1 
 Milton, 310 ; Downer v. Tucker, 81 Vermont, 304 ; Dilley v. Van Wic, 6 Wis- 
 consin, 209. A promissory note, in part for a sum certain, and in part for a. 
 contingent aum, is not negotiable. Palmer v. Ward, 6 Gray, 340. A pre- 
 mium note for a sumceitain, "and such additional premium as may become 
 due," on a policy named and at a time therein specified, is not negotiable. 
 Marrctt v. Equitable Ins. Co., 54 Maine, 537. A conditional note must be 
 declared on as a special agreement, and the plaintiff must prove performance 
 of the condition. Kennedy v. Murdick, 5 Harrington, 363. So a note prom- 
 ising to pay a sum of money for the hire of a negro, "said negro to be fur- 
 nished with the usual quantity of clothing." Barnes v. Gorman, 9 Richard- 
 son (Law), 397. In the case of Ogden v. Bacon, 8 Johns. 685, A. gave B. a 
 promissory note payable to B. or order, and at the same time made aa indorse- 
 ment on the note, that it was to be delivered to B. in consideration of a judg- 
 ment against C, to be assigned to A. by B. ; it was held by the court that this 
 was a promissory note, and might be declared on as such notwithstanding 
 the indorsement. These words in a promissory note, " which when paid will 
 be in full of " a certain judgment, does not change the nature of the undertak- 
 ing. Ellett V. Britton, 6 Texas, 339. The character of a negotiable note is - 
 not taken away by the fact that it is secured by a mortgage, but the latter will 
 pass with it as security, as an incident of its transfer. Croft v. Bunster, 9 
 Wisconsin, 503. A note payable to order, on a day certain without a contin- 
 gency, and purporting to be according to the condition of a mortgage, the 
 terms of the mortgage corresponding with those of the note, is negotiable. 
 Littlefleld v. Hodge, 6 Michigan, 326. A note absolute in form, but having m 
 the margin the words, " this note is secured by real estate for their exclusive 
 payment," may be sued on as a promissory note, and the words are not to be 
 construed as meaning that it should be paid in real estate only. Branning v. 
 Markham, 13 Allen, 454. The recital of the consideration in negotiable piper 
 does not affect it. Ryland v. Brown, 3 Head. 270. So also provisions in a 
 
OFAPEOMISSORYNOTE. 13 
 
 The person who signs the note is called the maker. The in- 
 
 note as to collaterals do not defeat its negotiability. Enipper v. Chase, 7 
 Clarke, 145. 
 
 In general, a note payable otherwise than in money, is not a good note 
 •within the statute. Thus when made payable in "current funds." McCart- 
 ney V. Smalley, 11 Iowa, 85 ; Rindskoff v. Barrett, Ibid. 172; Wright v. 
 Hart's Jidmrs., 8 Wright, 454 ; Conwell v. Pmnplirey, 9 Indiana, 135; PhcE- 
 nlx Ins. Co. v. Allen, 11 Michigan, 501 ; Marine Bank v. Rushmore, 28 Illin- 
 ois 463. A note made payable in current bank notes is not negotiable. 
 Butler V. Paine, 8 Minn. 824; Burton v. Brooks, S5 Ark. 215 ; Simpson v. 
 Moulden, 3 Coldwell, 429; McDowell v. Keller, 4 Ibid. 258 ; Warren v. 
 Brown, 64 N. Car. 381 ; Wright v. Hart, 8 Wright, 454; Shamokin Bank v. 
 Street, 16 Oliio St. i. Notes payable in merchandise or articles other than 
 money are very comijnon, but the current of decisions is against their negotia- 
 bility or having the other qualities of mercantile paper. Tibbets v. Gerrish, 
 5 Foster, 41 ; Gaulden v. Sheeker, 24 Georgia, 438 ; Horton v. Arnold, 17 
 wise. 139 ; Gusker v. Eddy, 11 Gray, 502 ; Corbitt v. Stonemetz, 15 Wise. 
 170 ; Baker v. Stoughton, 1 Oregon, 327 ; Smith v. Greyrick, 36 Mo. 369. 
 Archer v. Claflin, 31 Illinois, 306 ; Farnuiu v. Virgin, 52 Maine, 576. But 
 see Rogers v. Maxwell, 4 Indiana, 343. A promissory note payable to bearer 
 may be transferred by delivery, so that the holder may maintain an action 
 thereon in his own name, though it be not payable in money. Hopkins v. 
 Seymour, 10 Texas, 303. A promise to pay a certain sum at 4 months, " or in 
 goods on demand, " was held a promissory note. Hostatter v. Wilson, 36 Bar- 
 bour, 307. Tlie note of a railroad company witli interest coupons, redeema- 
 able at maturity in money, or at a certain time before maturity in stock, at the 
 holder's election, is a negotiable note. Hodges v. Shuler, 23 New York, 114. 
 An undertaking by a railroad to pay a certain sum to A. or order, at a certain 
 time, with a proviso that upon surrender of the note before that time, the com- 
 pany should issue shares of stoolt for it, held to be a promissory note, and the 
 indorser liable. Hodges v. Shuler, 34 Barbour, 68. 
 
 The current rate of exchange must be proved by extrinsic evidence ; there- 
 fore a promise to pay a sum certain, with the current rate of exchange added, 
 is not a negotiable note, but a special, promise, and requires proof of considera- 
 tion. Lowe V. Bliss, 34 Illinois, 168 ; Contra. Leggett v. Jones, 11 Wiscon- 
 sin, 124 ; See Smith v. Kendall, 9 Michigan, 341 ; Johnson v. Frisbie, 15 
 Mich. 386; Hill v. Todd, 29 Illinois, 101; Clauser v. Stone, Ibid. 114. A 
 promise in writing to pay a certain sum to A. or order at a certain time and 
 place, "with exchange on New Torlf," is not within the statute of Anne. 
 Rea'd v. McNulty, 13 Richardson (Law), 445. A note expressed to be paya- 
 ble, with current rate of exchange, at the place where it is drawn and is to be 
 discharged, is payable in coin, and there is no rate of exchange connected 
 with it ; these words are without significance. Hill v. Todd, 29 Illinois, 101 ; 
 Clauser v. Stone, Ibid. 114. A note cannot be made payable to one of two 
 persons in the alternative. Musselman v. Oakes, 19 Illinois, 81 ; Osgood v. 
 Pearson, 4 Gray, 455 ; Childs v. Davidson, 88 Illinois, 437. An instrument 
 jpayable to the estate of A. B., deceased, is not valid as a promissory note. 
 Tittle y. Thomas, 30 Mississippi, 132. A. promised in writing to B. or bearer 
 
14 OF A PROMISSORY NOTE. 
 
 instrument is not complete, and available until delivery by the 
 niaker.(e)(l) 
 
 (e) Chapman v. Cotterell, 34 L. J. 186, Excli. 
 
 to pay a certain sum per acre for as many acres as a specified tract contained. 
 He afterwards indorsed tlie number of acres— held that it was a promissory 
 note from the time of tlie indorsement. Smith v. Clopton, 4 Texas, 109. A 
 note promising to pay when the maker can make it convenient, with interest 
 till paid, is a valid promise to pay in a reasonable time. Lewis v. Tipton, 10 
 Ohio (N. S.)', 88. 
 
 A written promise to pay a sum certain, absolutely and unconditionally, at 
 a time specified on its face, is a pood promissory note, although a memoran- 
 dum at tli^ foot of it, states a different mode in which it.may be discharged. 
 Pool V. McC(ary, 1 Kelly, 319. A certificate of deposit of a certain sum of 
 money, payable at a future day, with interest till due, for the use of the per- 
 son named, and to his order, is a negotiable promissory note. Miller v. 
 Austin, 13 Howard, S. C. Rep. 315; Carey v. McDougald, 7 Georgia, 84; 
 Lowe V. Murphy, 9 Ibid, 338. There are conflicting cases as to whether cer- 
 tificates of deposit are or are not promissory notes. Patterson v. Poindexter, 
 6 Watts & Serg. 227 ; Lebanon Bank v. Mangan, 4 Casey, 453 ; Wilton v. 
 Adams, 4 California, 87 ; Fells Point Co. v. Woedon, 18 Maryland, 320 ; 
 Bean v. Briggs, 1 Clarke, 488 ; Austin v. Miller, 5 McLean, 153 ; Laughlin v. 
 Marshall, 19 Illinois, 390 ; Howe v. Hartness, 11 Ohio, 449 ; Smilie v. Ste- 
 vens, 39 Vermont, 315 ; Hunt v. Divine, 37 Illinois^ 137 ; Phelps v. Town, 14 
 Mich. 374; Bellows Pall Bank v. Rutland County Bank, 40 Verm. 377; 
 Poorman v. Mills, 35 Cal. 118 ; Easton v. Hyde, 18 Minn. DO ; Blood v. 
 Nortliup, 1 Kansas, 38; Drake v. Markle, 1 Kansas, 38; Ford v. Mitchell, 15 
 Wise. 304; Piatt v. Sauk Co. Bank, 17 Ibid. 323 ; Lindsay v. McClelland, 18 
 Ibid. 481. So as to the question whether coupons and coupon bonds are nego- 
 tiable. See Myers v. York R. R. Co., 43 Maine, 283 ; Moriis Canal v. Fisher, 
 1 Stockton, 607 ; Can- v. Le Pevre, 3 Casey, 418 ; Diamond v. Lawrence Co., 
 1 Wright, 358; Commonwealth v. Commissioners, Ibid. 237. 
 
 (1) It is important to remember this remark. The maker of a note is some- 
 times called the drawer, but inaccurately. It has a tendency to confound the 
 case of the maker of a note with that of the drawer of a bill. The maker of 
 a note stands in the same position as the acceptor of a bill, liable primarily 
 and at all events, while the drawer of a bill is only liable upon non-accept- 
 ance or non-payment and due notice. The indorser of a note is said to be a 
 drawer of a bill upon the maker accepted in advance, in favor of the indorsee, 
 if the indorsement be special, or in favor of the bearer, if the indorsement is 
 in blank. The position of the drawer of a check on a bank or banker is some- 
 what peculiar, as he is held to be primarily liable as principal debtor, unless 
 by the failure to present, he has been injured. 
 
 Delivery is necessary to the complete execution of a note ; if the payee ob- 
 tain possession by fraud, he cannot maintain an action thereon. Carter v. 
 McClintock, 29 Missouri, 464. 
 
 One who signs without authority, the name of another, or a petitioner's 
 name for the use of the firm, in which he had no interest, is not himself litt- 
 ble as maker. Barilett y. Tucker, 104 Mass. 336. 
 
OF A PROMISSORY NOTE. 15 
 
 At common law, no note of hand was transferable ; and be- 
 fore the Stat, of 3 & 4 Anne, c. 9, it was the opinion of Lord 
 Holt and the majority of the Judges, that no action could be 
 maintained, even by the payee, on a promissory note as an in- 
 strument, but that it was only evidence of a *debt.(/')' 
 That statute, however, makes promissory notes assignable '- -* 
 and indorsable, like bills of exchange, and enables the holder 
 to bring his action on the note itself. 
 
 Under the statute of Anne, foreign notes may be declared 
 upon and indorsed. "They are," observes the Court of K. B., 
 " within the words and the spirit of the Act; the words are 
 " 'all notes.' The Act was made for the advancement of trade, 
 " and ought, therefore, to receive a liberal construction. It is 
 " for the advantage of commerce that foreign, as well as inland 
 "bills, should be negotiable."(^) It has been suggested to be 
 a doubtful point, whether this statute makes English notes as- 
 signable abroad, (A) but it is now decided that it doe8.(iJ 
 
 Ko precise form of words is essential to the. validity either of 
 a bill of exchange, or of a promissory note.(;)(l) 
 
 A note cannot be made by a man to himself without more. 
 But if made to himself, or order, and indorsed in blank, it be- 
 
 (/) BuUer v. Cripps, 6' Mod. 29 ; Gierke y. Martin, 2 Ld. Raym. 757 ; 
 Story V. Atkins, 2 Ld. Raym. 1427 ; 2 Stra. 719, S. C. ; Brown v. Harradeu, 
 4. T. R. 148; Trier v. Bridgman, 3 East, 359. 
 
 (ff) Milne v. Graham, 1 B. & C. 193 (8 E. C. L. R.) ; 2 D. & R. 294. S. C; 
 Houriet v. Morris, 3 Camp. 303 ; Bentley v. NortUouse, 1 M. & M. 6li 
 (83 E. C. L. R.). But it was at cue time tliouglit that the act did not ex- 
 tend to notes made abroad. Carr v. Shaw, H. T. 39 Geo. 3 ; Bay. 28. 
 
 (h) De la Cliaumette v. The Bank of England, 9 B. & C. 208 (19 B. C. L. 
 R.). 
 
 (»■) S. C, 3 B. & Ad. 385 (22 E. C. L. R.). As to the transfer abroad of 
 notes made abroad, and Englisli notes, see the Chapter on Foreign Bills 
 AND Foreign Law. 
 
 U) Chadwick v. Allan, Stra. 706 ; Peto v. Reynolds, 9 Exch. 410 ; Rey- 
 nolds v: Peto, 11 Exch. 418. 
 
 (1) An instrument in form of a bond, but without seal, is a note. Wood- 
 ward V. Genet, 2 Hilton, 526. Where by mistake and ignorance a seal had 
 been attached to the firm name, signed to a note given for value — held that 
 equity would allow the plaintiff to recover as if there had been no seal. 
 Lynam v. Califer, 64 North Oar. 572. A note in pencil is valid while legi- 
 ble. Reed v. Rourk, 14 Texas, 329, 
 
16 OFAPKOMISSORTNOTE. 
 
 comes a note payable to bearer •,{k) and if specially indorsed, it 
 becomes a nqte payable to the indorsee or order.(^)(l) 
 
 A note by which the defendant and four other persons prom- 
 ised to pay 750Z. " to our and each of our order," and indorsed 
 by defendant aloue^ was held good.(m) 
 
 (k) Browne v. De Winton, 17 L. J., C. P, 281 ; 6 C. B. 336 (60 E. C, L. 
 E.) ; S. C. 
 
 (0 Gay V. Lander, 17 L. J., C. P. 286 ; 6 C. B. 336 (60 E. C. L. R.). See 
 also Wood V. Mitton, 10 Q. B. 805 (oQ B. C. L. K ) ; and Flight v. Maclean, 
 16 M. & W. 51. So in America it lias been held that an instrument payable 
 to the maker and indorsed by him is a promissory note. Muldrow v. Cald- 
 well, 7 Missouri, 563. And see 55 Geo. 3, c. 184, Sched. pt. I. 
 
 («) Absolon T. Marks, 11 Q. B. 19 (68 E. C. L. R.). 
 
 (1) A note made payable tothe maker or order. Miller v. Weeks, 32 Penna. 
 Stat. Rep. 89, and indorsed by him, is a promissory note, and may be declared 
 on as such by the holder, without averring a consideration. Muldrow t. 
 Caldwell, 7 Missouri, 563. A promissory note made payable to the maker's 
 own order, and by him indorsed and delivered, is in legal effect only an ordi- 
 nary promissory note. The first indorsee does not take a derivative, but a 
 primitive title. Scull v. Edwards, 8 English, 24. When there is any am- 
 biguity or uncertainty in the terms of the instrument, it may, especially against 
 the party negotiating or making it, be so construed as to give effect to it ac- 
 cording to the presumed intention of the parties ; and therefore, where a note 
 was drawn in these terms : " Borrowed of J. S., fifty dollars, which I prom- 
 ise never to pay," it was held the word never might be rejected. So where 
 an instrument was in the form of a note, drawn in favor of the maker, and m- 
 dorsed by him, but addressed to a third person, and the name of that third 
 person written across the face of it, it was held by the Court of King's Bench, 
 to be good as a promissory note. "It is an instrument," said Lord Tenter- 
 den, " of an ambiguous nature, and I think that where a party issues an in- 
 strument of an ambiguous nsiture, the law ought to allow the holder, at his 
 option, to treat it, either as a promissory note, or a bill of exchange." Edis 
 V. Bury, 6 Barn. & Cressw. 483 ; 13 Eng, Com. Law Rep. A promissory 
 note, signed by several persons, and payable to one of their number or 
 his order, cannot, in the name of the payee, be enforced at law, as a joint 
 promise against all the signers. But w-hed' such a note is indorsed to a third 
 person, it immediately becomes operative as a valid contract, from the date of 
 the transfer, and may be enforced by a joint action against all the makers in 
 the name of the indorsee. Heywood v. Wright, 14 New Hamp. 73 ; Rambo 
 V. Metz, 5 Slrobhart, 108. And see Muldrow v. Caldwell, 7 Missouri, 563. 
 A promise in writing by one firm, to pay a sum certain, on a specified day, to 
 another firm, both having a common partner, is not a promissory note until 
 assigned ; when assigned by the latter firm, the assignee must be regarded^ as 
 between himself and the makers, as the real payee, and may maintain an ac- 
 tion in his own name against the makers. Murdock v. Caruthers, 31 Ala- 
 bama, 785. 
 
OEAPROMISSORTNOTE. 17 
 
 A note payable to the maker's order, and afterwards in- 
 dorsed, should be declared on and stamped according to its legal 
 effect.(n) 
 
 Nor can thercf be a note by the maker to himself and 
 *anotherman.(o) Nor a joint note by the maker and others „ 
 to himself. But such a note, if joint and several, may be '- J 
 valid at the suit of the payee, as to the several contracts of his 
 co-makers. (;?) 
 
 A note may be made payable by instalments, and yet be 
 within the statute of 3 & 4 Anne, c. 9.(g') Days of grace are 
 allowed on each instalment.(?")(l) 
 
 It is conceived that presentment and notice of dishonour is 
 required when each instalment falls due ; but that laches as to 
 one instalment in ordinary cases only discharges an indorser as 
 to that one. And that a note payable by instalments cannot 
 be indorsed over for less than the entire sum due upon it. 
 
 A note payable by instalments is within the statute, although 
 it contain a provision that, on failure of payment of one instal- 
 ment, the whole debt is to become payable, (s) 
 
 A note by two or more makers may be either joint, only, 
 or joint and several. A note signed by more than one per- 
 son and beginning, " We promise," &c., is a joint note only. 
 A joint and several note usually expresses that the makers 
 jointly and severally promise. But a note signed by more than 
 
 (?!) Hooper T. Williams, 2 Exch. 13 ; Flight v. Maclean, 16 M. & W. 51. 
 
 (o) See Moffiitt v. Van Millingen, 2 B. & P. 124, n. ; Mainwaring v. New- 
 man, Ibid. 130. See Teague v. Hubbard, 8 B. ^ C. 34j (15 E. C. L. R.). 
 But indorsement may remove the difficulty. Qacere as to the effect of survi- 
 vorship. 
 
 (p) Beecham v. Smith, 27 L. J., Q. B. 257 ; E. B. & E. 443 (96 E. C. L. 
 E.); S. C 
 
 (?) Orridge v. Sherborn, 11 M. & W. 374 ; 12 L. J., Excli. 313, S. C. 
 
 (r) Ibid. 
 
 (s) Carlon v. Kenealy, 12 M. & "W. 139. 
 
 (i) Coffin V. Loring, 5 Allen, 153. A premium note given to an insurance 
 company, promising to pay in such portions and at such times as the direc- 
 tors may require, is a promissory note. Washington Ins. Co. v. Miller, 26 
 Vermont, 77; Van Buskirk v. Day, 82 Illinois, 260; Protection Ins. Co. 
 V. Bell, 31 Conn. 634. 
 
18 OI'APEOMISSOBTNOTE. 
 
 one person, and beginning, " I promise," &c., is several as well 
 as joint.(0 So, a note beginning in the singular, " I promise," 
 and signed by one partner for Ms co-partners, is the joint note 
 of all,(M) and has been held to be also the several note of the 
 signing party.(?;)(l) 
 
 *A joint and several note, though on one piece of paper, 
 ^*^^ comprises, in reality and in legal effect, several notes.(M;) 
 Thus, if A., B. and C. join in making a joint and several 
 
 (0 March v. Ward, Peake's Rep. 130 ; Clerk, v. Blackstock, Holt, N. P. 
 C. 474 (3 E. C. L. R.)- So it has been held in America. Hcmmenway v. 
 Stone, 7 Mass. 58 ; Barnett v. Skinner, 3 Bailey, 88. So a bond in the singu- 
 lar number, executed by several, is several as well as joint. Sayer v. Chay- 
 tor, 1 Lutw. 695 ; Gal way v. Mathew, 1 Camp. 403 ; 10 East, 364, S. C, As 
 to a joint or joint and several warrant of attorney, see Dalrymple v.-Fraser, 
 15 L. J., C. P. 198 ; 3 C. B. 698 (53 E. C. L. R.), S. C. 
 
 (u) Doty V. Smitli, 11 Johnson's American Rep. 543. 
 
 («) Hall V. Smith, 1 B. & C. 407 (8 E. C. L. R.) ; 3 D. & R. 584; Lord 
 Galway v. Mathew, 1 Camp. 403. But Hall v. Smith seems to be overruled 
 in Ex parte Buckley, 14 M. & W. 475 ; 15 L. J., Bkcy. 3, S. C. See also 
 Maclae v. Sutherland, 3 E. & B. 1 (77 E. C. L. R.). 
 
 (m) Fletcher v. Dyte, 3 T. R. 6, Ashurst, J. ; Owen v. Wilkinson, 38 L. 
 J., C. P. 3 ; 5 C. B., N. S. 526 (94 E. C. L. R.) ; S. C. 
 
 (1) A note in the form, "I promise," &c., subscribed by two persons, is 
 a joint and several note. Hcmmenway v. Stone, 7 Mass. 58 ; Barnetv. Skin- 
 ner, 2 Bailey, 88 ; Partridge v. Calby, 19 Barbour, S. C. Rep. 348 ; Ladd 
 V. Baker, 6 Foster, 76 ; Lane v. Salter, 4 Robertson, 239 ; Maiden v. Webster, 
 30 Indiana, 317. Persons who sign their names to a note will be presumed 
 to be joint makers in the absence of anything to the contrary on the face of 
 the note. Johnson v. King, 20 Alabama^ 370 ; Chandler v. Kuddick, 1 Carter 
 (Indiana), 391. If one of two joint debtors, not co-partners, give a note for 
 their debt, signed in their joint names, a ratification by the other renders the 
 note valid against both ; and a subsequent promise by such other debtor to 
 pay the note, made with a full knowledge of the facts, is a suflBcient ratifica- 
 tion. Waite V. Foster, 33 Maine, 424. When a note is made by two per- 
 sons, which in terms is joint only, on the death of one of the makers, the 
 surviving maker is only liable on it, unless it appears by direct proof, or the 
 facts of the case warrant the inference, that it should be joint and several. 
 Then the representatives of the deceased maker are liable. Yorks v. Peck, 
 14 Barbour, 644. We, or either of us, is a joint and several note. Pogue 
 V. Clark, 35 Illinois ; Harvey v. Irvine, 11 Iowa, 82. A note apparently in- 
 tended to be joint and several, binds one promisor who puts it in circulation 
 with only his own signature. Dickerson v. Burke, 35 Georgia, 335. Thougli, 
 a note be made in the singular number, one who signs after the malier, adding 
 the word "surety" after his name, is thereby bound as a joint and several 
 maker. Dart v. Sherwood, 7 Wisconsin, 533. 
 
OPAPROMISSORTNOTE, 19 
 
 promissory note, there ate, in effect, four notes. There is the 
 joint note of the three makers, and there are also the several 
 notes of each of the three.(a;)(l) The joint note may be valid 
 although the several notes are void.(y) Yet, for some purposes, 
 
 (s) See the observations of Parlce, B., iu King t. Hoare, 13 M. & W. 505 ; 
 Bulbeck v. Jones, 5 Jur., N. S. 1317 ; Beechham v. Smith, E. B. & E. 443 
 (96 E. C. L. R.)- In such a case the payee may sue the three, or each singly ; 
 he cannot do both. Streatfieid v. Halliday, 3 T. R. 783. 
 
 {y) Maclae v. Sutherland, 3 E. & B. 1 (7j B. C. L. R.). 
 
 (1) What is thus stated broadly, certainly requires to be received with 
 some modification. A joint and several note by A., B. and C. is not the 
 separate note of each to all intents and purposes. The payee could not in- 
 dorse A.'s note to one, B.'s note to another, and C.'s note to a third person ; 
 nor could lie even make a separate transfer of the proportionate liability of 
 each maker, without the consent of all three. Their consent might make a 
 new special contract on the part of each to pay the assignee of each his pro- 
 portion. In regard to the remedy, there is also an important distinction to 
 be borne in mind. The holder may sue all the makers jointly, or each sev- 
 erally, but he cannot do both. As to remedy, then, there are not four notes, 
 but either one or three, at the election of the holder. A suit against the three 
 jointly would preclude an action against each — severally — and e contra. 
 Buller, J., in Streatfield v. Halliday, 3 Term. Rep. 782. The case of King 
 and another v. Hoare, 13 Meeson & Welsby, 494, which is relied on as the 
 authority for the doctrine of the text, decides merely that a judgment (without 
 satisfaction) recovered against one of two joint debtors is a bar to an action 
 against the other, l^ecus wlien the debt is joint and several. "The distinc- 
 tion," says Baron Parke, "between the case of a joint and several contract 
 is very clear. It is argued that each parly to a joint contract is severally 
 liable ; and so he is in one sense, that if sued separately, ,and he does not 
 plead in abatement, he is liable to pay the entire debt ; but he is not severally 
 liable, in the same sense, as he is on v. joint and several bond, which instru- 
 ment, though on one piece of parchment or paper, in effect comprises the 
 joint bond of all, and the several bonds of each of the obligors, and gives 
 different-remedies to the obligee." This is very true, but can hardly be said 
 to support the position, that such a bond is in legal effect four distinct bonds. 
 It has been decided in Ohio, that, in cases of a joint and several note, the 
 promisors are to be deemed, quoad hoc, as partners, and a demand upon one is 
 a demand upon all. Harris v. Clark, 10 Ohio, 5. Judge Story, indeed,' 
 seems inclined to the opinion that, even in the case of a joint note by several 
 persons not partners, there must be a separate demand or due diligence shown 
 in regard to each maker. Story on Notes, § 389, 355. However this may 
 be, it is plain that it would not be true, as stated in the text, that a joint and 
 several note by three, is in effect four notes. If a demand upon one is suffi- 
 cient, it is because the holder has a right to elect, to consider it a joint note ; 
 or if detfiand on all three is necessary, it is still in legal effect but one note ; 
 otherwise a different result would follow. • 
 
20 OF A PROMISSORY NOTE. 
 
 it is still one contract. Thus, an alteration which affects the 
 liability of one maker, vitiates the entire instrument.(2:) 
 
 Where a note is on its face joint, or joint and several, it, is 
 conceived that evidence to show that one maker is surety for 
 the other(a) is inadmissible at law, if the question arise between 
 the creditor and the surety ; but evidence to that effect has 
 been received. (6)(1) "Where, however, the question arises be- 
 tween the principal debtor aijd the sureties in an action- for in- 
 demnity or contribution, sUch evidence is admissible. 
 
 Joint debtors equally liable, as between themselves (not being 
 
 general partner3),(c) are severally entitled at law to *con- 
 
 L J tribution,(cZ) even against the executor of a coutribu- 
 
 («) Gardner v. Walsh, 5 E. & B. 91 (85 E. C. L. R). 
 
 (a) Price v. Edmunds, 10 B. & 0. 578 .(31 E. C. L. R.) ; Strong v. Foster, 
 17 O. B. 201 (84 E. C. L. R.) ; but see Manley v. Boycott, 3 E. & B. 46 (75 
 E. C. L. R.). 
 
 (J) Garrett v. Jull, S. N. P. 377 ; and see the observations of Williams, 
 J., in Reynolds y. Wheeler, 30 L. J., C. P. 351 ; 10 0. B., N. S. 561 (100 
 E. C. L. R.), S. C. ; Hall v. Wilcox, 1 M. & Rob. 58. The admission of 
 such evidence seems to contravene the general rule of law, that parol evidence 
 is inadmissible to vary or explain a written contract. Where the indorsee 
 sues, another objection interposes, that the indorsee would be affected by a 
 contract of which he had no notice. Besides, from the case of Fentum v. 
 Pococke, 5 Taunt. 193 (1 E. C. L. R.); 1 Marsh. 14, S. C, which has been 
 recognized as law ever since it was decided, this general principle seems to 
 result, that parties to a negotiable security shall be held to the consequences 
 of the characters which they severally assume on the face of the instrument. 
 Indeed, in Strong v. Foster, 17 C. B. 201 (112 E. C. L. R.), the Court of 
 C. P., relying on some expressions of Lord Cottenham in Holtier v. Eyre, 
 9 CI. & F. 45, seemed to think the rule the same in equity as at law. But 
 the case of Strong v. Foster may be considered as overruled, see post, Chap. 
 XVIII. And see Perfect v. Musgrave, 6 Price, 111, and Chap. XVIII. on 
 Principal and Surety. 
 
 (c) Sadler v. Nixon, 5 B. & Ad. 936 (37 E. C. L. R.). 
 
 (d) Burnell v. Minot, 4 Moore, 340 (16 E. C. L. R) ; Hutton v. Eyre, 6 
 Taunt, 289 (1 E. C. L. R) ; Holmes v. Williamson, 6 M; & S. 158 ; Edgar 
 V. Knapp, 6 Scott's N. R. 707 ; 5 M. & G. 753 (44 E. C. L. R); S. C. 
 
 (1) Parol evidence is admissible to show the intention of the parties to a 
 note, at the time the contract was entered into, with regard to their several 
 liabilities among themselves, and the relations which they were to bear to the 
 note. Branch Bank v. Coleman, 20 Alabama, 140 ; Robison v. Lyle, 10 Barb. 
 Sup. Ct. 512 ; Smith v. Doak, 3 Texas, 315. It would clearly be inadmissible 
 as against a bona fide holder without notice. 
 
OF A PROMISSORY NOTE. 21 
 
 tory.(e) Therefore, one of several joiat, or joint aad several 
 makers of a note, who pays the whole, may maintain an action 
 against another for contribution ;(/) and he may now, on giving 
 a proper- indemnity, sue his companion on the instrument in 
 the creditor's name, and his own payment shall not be pleaded 
 in bar.(^) 
 
 A bank note is a promissory note, made by a banker, 
 payable to bearer on demand, and intended to circulate as 
 money. (A) 
 
 The term bank note is sometimes used indiscriminately for 
 the note of a country bank, or the note of the Governor and 
 Company of the Bank of England ; but, in law books, a bank 
 note is commonly taken to mean a Bank of England note. 
 "Bank notes," says Lord Mansfield, "are not goodsj nor se- 
 curities, nor documents for debts, nor are they so esteemed : 
 but are treated as money, as cash, in the ordinary course and 
 transaction of business, by the general consent of mankind 
 which gives them the credit and currency of money, to all in- 
 tents and purposes. They are as much money as guineas them- 
 selves are, or any other current coin that is used in common 
 payments as money or cash. They pass by a will which be- 
 queaths all the testator's money or cash, and are never consid- 
 ered as securities for money, but as money itself. On pay- 
 ment of them, whenever a receipt is required, the receipts are 
 always given as for money, not as for securities or notes. So, 
 on bankruptcies, they cannot be followed as identical, and dis- 
 tinguishable from money, but are always considered as money 
 or cash."(i) Like money, they cannot, at common law, be 
 
 • (e) Prior v. Henbrow, 8 M. & "W. 882. 
 
 (/) A3 to contribution between principal and surety, and between co-»ure- 
 ties, see the Cliapter on Principal and Sttrett. 
 
 (g) 19 & 20 Vict. c. 97, s. 5 ; Batchelor v. Lawrence, 30 L. J., C. P. 89 ; 9 
 C. B., N. S. 543 (99 E. C. L. R ), 8. C. 
 
 (h) As to the power of the Banlc of England and other banks to issue prom- 
 iB^ovy notes, see the Chapter on the Capacity of Parties to a Bill or 
 Note. 
 
 (0 Miller v. Race, 1 Burr. 452 ; Fleming v. Brooke, 1 Sch. & Lefr. 318 ; 11 
 Ves. 662 ; Drury t. Smith, 1 P. Wms. 404 ; Miller v. Miller, 3 P. Wms. 356 ; 
 Ambler, 68. 
 
22 OF A PROMISSORY NOTE. 
 
 takeu in exeeudon,(;') but may now be taken by virtue^of the 
 Stat. 1 & 2 Vict. e. 110, s. 12.(1) 
 
 *Gold coin was formerly the only legal tender above a 
 ^ ] certain amount •,[k) bank notes were, nevertheless, a good 
 tender, unless objected to on that account •,{l) but it is enacted, 
 by 3 & 4 Will. 4, c. 98, s. 6, that Bank of England notes shall 
 
 (j) Francis v. Nash, Rep. Temp. Hardwicke, 53 ; Enieht v. Criddle, 9 East, 
 48 ; Armistead v. Philpot, 1 Dougl. 319 ; Fieldhouse v. Croft, 4 East, 510. 
 (S) 56 Geo. 3, c. 68, s. 11. , 
 
 (I) Wright V. Reed, 3 T. R. 554 ; Giigby v. Oakes, 2 B. & P. 526 ; Brown 
 V. Saul, 4 Esp. 367. 
 
 (1) For every purpose, in the ordinary transaction of business, except that 
 of a legal tender, bank notes are considered as money. Edwards v. Monis, 1 
 Hammond, 534; Bradley v. Hunt, 5 Gill & Johns. 58; Morrill v. Brown, 15 
 Pick. 177 ; Pierson v. Wallace, 3 English, 383. Bank post notes, being in- 
 tended to circulate after they are due, like other bank notes, are not subject 
 to the rules applicable to ordinary promissory notes, but are assimilated to 
 ordinary bank notes. Fulton Bank v. Phoenix Bank, 1 Hall, 577. It seems 
 that a judgment on a negotiable note, passing from hand to hand, as a bank 
 note, prevents any further use of it as such by the holder. Lockhart v. United 
 States Bank, 2 Ashmead, 405. A note issued by a bank, in violation of its 
 charter, or in contravention of the provisions of a public law in force at tiie 
 time of the adoption of its charter, is void ab initio, and no action can be main- 
 tained on such note by the indorsee against the indorser. Root v. Wallace, 
 4 McLean, 8; Davis v. Bank, Ibid. 387. The notes issued by a bank organized 
 under an unconstitutional law are void, and constitute no consideration for a 
 jjromissory note. Skinner v. Bearing, 3' Carter (Ind.), 558. Judgment for 
 the specified number of dollars on a note payable in gold or silver, executed 
 prior to the act of Congress of February 35th, 1863, making treasury notes a 
 legal tender, is all that the holder is entitled to. Smith v. Dilland, 2 Duvall, 
 153 ; Legal Tender Cases, 13 Wall. (S. C.) 457. A note for a certain sum 
 for value received in gold, is payable in United States legal tenders. Hall v. 
 Kohlsaat, 36 Illinois, 130. Note payable on demand in specie— plaintiff can 
 only recover the face of the note and interest, and not the premium on specie 
 when the payment was demanded. Wood v. Bulleus, 6 Allen, 516 ; Gist v. 
 Alexander, 15 Richardson (Law), 50. The words "to be paid in currency, 
 that is at par," in a note, held to mean currency equal to gold. Crim v. Sellars, 
 37 Georgia, 334. 
 
 See further, Buchegger v. Schultz, 13 Mich. 430 ; Hord v. Miller, 3 Diivall, 
 103 ; Ledford v. Smith, 6 Bush, 139 ; Riley's Executors v. Sharp, 1 Bush, 
 348 ; Turner v. Toung, 37 Indiana, 373 ; Cox v. Smith, 1 Nevada, 161 ; 
 Hastings v. Johnson, 3 Ibid. 190. A draft payable in " current funds " cannot 
 be paid in depreciated bank currency. Mare v. Kupper, 84 Illinois, 386. A 
 noie payable.in current funds, is payable in such funds only as are current by 
 law. Phoenix Ins. Co. v. Allen, 11 Michigan, SOl. 
 
OFAPROMISSOKYNOTE. 23 
 
 be a legal tender for all sums above 51., except at the Bank of 
 England, or its branches. 
 
 '-Formerly, money was kept with goldsmiths, who, about the 
 year 1670, introduced, as receipts for deposits, promissory notes 
 payable to bearer, called Goldsmiths' Notes ; the assignable 
 quality of these notes was strenuously denied by Lord Chief 
 Justice Holt, in the reign of Queen Anne. At length the stat. 
 8 & 4 Anne, c. 9, made them assignable, like bills. Checks on 
 bankers have now superseded goldsmiths' notes, in London : 
 but bankers' cash notes, or, as they were formerly called shop 
 notes, and country bank notes, are now what goldsmiths' notes 
 were formerly. (1) 
 
 Country bank notes are also a legal tender, unless objected to, 
 and are considered as ca8h.(m) 
 
 Assumpsit for money had and received will lie for country 
 bank notes and checks which have been treated as money, (n) 
 but not otherwise ;(o) for it has been held, that an action for 
 money had and received will not lie against the finder of lost 
 notes unless they have been turned into money, or treated by 
 the defendant as money. (2) 
 
 (?n) Chitty, 521 ; Owenson v. Morse, 7 T. R. 64 ; "Ward v. Evans, 3 Ld. 
 Eaym. 928 ; Tiley v. Coursier, £. B. 1817 ; overruling Mills v. Stafford, 
 Peake, N. P. 340, n. ; Lockyer v. Jones, Peake, N. P. 240, n. ; Polglass v. 
 Oliver, 3 C. & J. 15 ; 3 Tyr. 89, S. C. 
 
 (n) Pickard v. Bankes, 13 Bast, 20 ; Spratt v. Hobhouse, 4 Bing. 173 (13 
 E. 0. L. R). 13 Moo. 395, S. 0. 
 
 (0) Noyes v. Price, Chitty, 354 (18 E. 0. L. R.). 
 
 (1) "Goldsmiths' or bankers' notes, to which checks have been likened, are 
 seldom now used, but have been superseded by the introduction of checks, 
 which, on account of their being payable on demand, are considered as cash, 
 and, like bankers' checks, are transferable by delivery, and are governed by 
 the same laws and rules as bills of exchange. So long ago as the time of Lord 
 Holt (Ld. Raym. 744, 1 Salk. 133), goldsmiths' bills were held to be governed 
 by the rules of bills of exchange, and if the money be demanded in a reason- 
 able time and not paid, it will charge him who gave the bill." Per Kent, J., 
 in Crugar v. Armstrong, 3 Johns. Cas. 5. 
 
 (2) Bank notes and any other property received as money will support the 
 action, the same as if money itself had been received. Mason v. Waite, 17 
 Mass. 5C0 ; Ainslie v. Wilson, 7 Cowen, 663 ; Arms v. Ashley, 4 Pick. 74 ; 
 
24 OFAPBOMISSORTNOTE. 
 
 IS'o precise words of contract are essential in a proniissorj 
 note, provided they amount in legal eftect to an unconditional 
 promise to pay. Thus, " I promise to account with A. B. or 
 order for 50^., value received hy me," has been held a good 
 note within the statute.(p) So, "I do acknowledge myself to 
 be indebted to A. in lOOL, to be paid on de;3iand, for value, re- 
 ceived," .was, after solemn argument, held to be a good note 
 within the statute, the words " to be paid " *amounting 
 f- J to a promise to jTay ; the Court observing, that the same 
 words in a lease would amount to a covenant to pay rent.(5') 
 And where, for an executed consideration, a note was given, 
 
 (p) Morris v. Lee, 2 Ld. Raym. 1396 ; 1 Stra. 639 ; 8 Mod. 362, S. C. 
 
 (g) Casborne v. Dutton, S. N. P. 401 ; Brooks v. Elkins, 2 M. &. W. 74. 
 But in Home t. Redfeiirn (4 Biiig. N. 0. 488 (83 E. C. L. R.) ; 6 Scott, 360, 
 J. C), the following instrument was held not to be a promissory note :— " I 
 have received the 20?. which I borrowed of you, and I have to be accountable 
 for the sBrme sum with interest." 
 
 In Jarvis v. Wilkins, 7 M. & W. 410, the following instrument was held to 
 be a guarantie, and not a note:— "Sept, 11, 1839. I undertake to pay to 
 Mr. Robert Jarvis the sum of 61. 4s. for a suit of clothes ordered by Daniel 
 Page." The Court observed that the expression " ordered " showed that the 
 consideration was execiitoiy. 
 
 "I, R. J. M., owe Mrs. E. the sum of Gl., which is to be paid by instalments 
 for rent. Signed, R. J. M." Held not to be a promissory note, as no time 
 was stipulated^ for the payment of the instalments. Moffatt v. Edwards/l 
 Car. &M. 16 (41 r. C. L. R.). 
 
 " Memo. Mr. Sibree has this day deposited with ine 5Q0Z. on the sale of 
 10,800J. 31. per cent. Spanish, to be returned on demand." Held not to be a 
 promissory note. Sibree v. Tripp, 15 M. & W. 23. 
 
 j" Borrowed of Mr. J. White the sum of 2001. to account for on behalf of 
 the Alliance Club at two months' notice if required," was held not to be a 
 note. White v. North, 3 Exch. Rep. 689. 
 
 "Borrowed, this day, of Mr. John Hyne, Stonehouse, the sum of 1002. for 
 one or two months ; Cheque 1001. on the Naval Bank," was held to be a 
 
 Murray v. Pate, 6 Dana, 885 ; Kellogg v. Bulding, 7 Howard (Miss.), 340 ; 
 Houx v. Rufull, 10 Missouri, 246 ; Muir v. Rand, 2 Carter (Indiana), 291. 
 Negotiable notes received by defendant are often regarded as money. Floyd 
 v. Day, 8 Mass. 405 ; Heminenway v. Bradford, 14 Mass. 132 ; Willie v. 
 Green, 2 N. Hamp, 833 ; contra, Mercer v. Tolen, Anthon, 119. Positive 
 evidence is not, in all cases, necessary, that the defendant has received money 
 belonging to the plaintiflF; but when, from the facts proved, it is a fair pre- 
 sumption that he has received it, the action is maintainable. Tultle v. Mayo, 
 7 Johns. 132 ; Hatten v. Robinson, 4 Blackford, 479 ; Haskins v. Dunham, 
 Anthon, 81 ; Hutchinson v. Phillips, 6 English, 270 ; Mair v. Rand, 2 Carter 
 (Indiana), 291. 
 
OF A PROMISSORY KOTE. 25 
 
 expressed to be " for 201. borrowed and received," but at the 
 enA were the words, " which I promise never to pay," Lord 
 Macclesfield rejected the word never.{r) For a contract ought 
 to be expounded in that sense in which the party making it 
 apprehended that the other party understood it. 
 
 If there be no wofds amounting to a promise, the instrument 
 is merely evidence of a debt, and may be received as such be- 
 tween the ori^nal partie3.(s) Such is the common memo- 
 randum I U.(0 
 
 *A promissory note is not the less a note, because it 
 contains a recital that the maker has deposited title ■- -' 
 deeds with the payee as a collateral security,(M)(l) or because it 
 refers to an agreement where it does not appear that the agree- 
 
 simple acknowledgment, and not a note or agreement. Hyne v. Dewdney, 
 31 L. J., Q. B. 278. 
 
 The following instrument was held to be a promissory note: — "John 
 Mason, 14th Feb., 1886, borrowed of Mary Ann Mason, his sister, the sum of 
 141 in cash, a loan, in promise of payment of which I am truly thankful for." 
 Ellis V. "Mason, 7 Dowl. P. C. 598. 
 
 A letter in this form is a promissory note : — "Gentlemen, I have received 
 the imperfect books, which, together with the costs overpaid on the settle- 
 ment of your account, amounts to SOI. 7s., which sum I will pay you within 
 two years from this date. I am, Gentlemen, your obedient servant, Thos. 
 Williams." Wheatley v. Williams, 1 M. & W. 533. 
 
 A promise to pay or cause to be paid is a good note. Dixon v. Nuttal, 6 
 C. & P. 32,(J {25 E. 0. L. R.) ; 1 C, M. & R. 307. 
 
 (r) 2 Atkyns, 32 ; Allen v. Mawson, 4 Camp. 115 ; Bayley, 5 Ed. 5. 
 
 (8) Waynam v. Bend, 1 Camp. 175. 
 
 («) Israel V. Israel, 1 Camp. 499 ; Fisher v. Leslie, 1 Esp. 426 ; Cliilders v. 
 Boulnois, D. & R., N. P. 8 (16 E. C. L. R.). But see Guy v. Harris, Chit. 
 526, where Lord Eldon held such an instrument to be a promissory note. 
 But it clearly is not such at this day. See Tomkins v. Ashby, 6 B. & C. 
 541 (13 E. C. L. R.) ; 9 D. & R. 543; 1 M. & M. 33 (22 E. 0. L. R.), S. C. 
 See further on this subject Chap. IV. on an I O U. 
 
 («) Wise v. Charlton, 4 A. & E. 786 (31 E. C. L. R.) ; 6 N. & M. 364 ; 2 
 H. & W. 49, S. C. ; Faucourt v. Thome, 9 Q. B. 313 (58 E. C. L. R.). See, 
 however. Storm v. Stirling, 3 E. & B. 841 (77 B. C. L. R.). But such a note 
 will generally require a mortgage stamp, which may, however, be impressed 
 on the note after it is made. See further Chap. XXIII. on Ihterbst. 
 
 (1) Knipper v. Chase, 7 Clarke, 145. 
 
 A note payable to order " with interest, waiving the right of appeal and all 
 valuation appraisement, stay, and exemption laws," is negotiable. Zimmer- 
 man V. Anderson, 17 P. P. Smith, 81. A clause that in addition to the sum, 
 the maker, if not paid when due, shall pay attorney's and collection fees, does 
 not impair the negotiability of a note. Sperry v. Horr, 33 Iowa, 184 ; Diet- 
 
26 
 
 01' A CHECK ON A B A ]^ K B K . 
 
 ment qualifies the note.(y) But an agreement to give fui'ther 
 security in future would invalidate the instrument as a prom- 
 issory note.(a;) 
 
 [*13] 
 
 *OHAPTEE III. 
 
 OF A CHECK ON A BANKER. 
 
 ■WHAT INSTKUMENTS ARE CHECKS, 13 
 HEQUISITEB TO BEING CHECKS 
 WITHIN THE EXEMPTION OF 
 THE GENERAL STAMP ACT, . 14 
 
 EFFECT AND PENALTY OF OMIT- 
 TING A STAMP ON CHECK 'WHERB 
 NECESSARY, . " . . 16 
 
 ALTERATION OP THE LAW BY 
 
 RECENT ACTS, .... 16 
 EXISTING STAMP DUTY, . . 17 
 
 AMOUNT FOR WHICH A CHECK 
 
 MAY BE DRAWN, . . .17 
 
 HOW TRANSFERRED, . . .18 
 
 banker's OBLIGATION TO PAY, . 18 
 TIME OF PRESENTMENT, . . 19 
 
 AS BETWEEN HOLDER AND 
 
 DRAWER 20 
 
 AS BETWEEN THE HOLDER AND 
 
 HIS OWN BANKER, . . ~. 20 
 
 WHERE THE PARTIES DO NOT 
 
 LIVE IN THE SAME PLACE, . 20 
 
 AS BETWEEN THE HOLDER AND 
 A TRANSFEROR WHO IS NOT A 
 
 DRAWER 21 
 
 WHAT AMOUNTS TO AN ENGAGE- 
 MENT, TO PAY A CHECK, . . 21 
 
 CROSSED CHECKS, 
 
 STATUTE RELATING TO CROSSED 
 
 CHECKS 
 
 WHAT A CHECK IS EVIDENCE OF, 
 WHEN IT AMOUNTS TO PAYMENT, 
 WHEN IT MAY BE TAKEN IN 
 
 PAYMENT, . . . . 
 
 WHETHER HOLDER BE ASSIGNEE 
 
 OF A CHOSE IN ACTION, . 
 EFFECT OF DRAWER'S DEATH, 
 OF FRAUD IN FILLING UP CHECKS, 
 BRANCH BANKS, . . . 
 
 WHEN SEVERAL MUST JOIN IN 
 
 DRAWING CHECK, . 
 FROM WHAT PERIOD CUSTOMERS 
 
 DEBITED, .... 
 CHECKS NOT PROTESTABLB, 
 FORMERLY REFERRED TO MASTER 
 
 TO COMPUTE, . 
 RIGHT TO CASH A CHECK, . . 
 OVERDUE CHECK, 
 IS WITHIN BILLS OF EXCHANGE 
 
 ACTS, .... 
 
 MAY BE TAKEN IN EXECUTION 
 CHECKS PAYABLE TO ORDER, 
 
 21 
 
 23 
 23 
 
 34 
 
 34 
 
 24 
 25 
 25 
 25 
 
 20 
 
 26 
 26 
 
 26 
 26 
 
 36 
 36 
 
 27 
 
 A CHECK on a banker is, in legal eflt'ect, an inland bill of ex- 
 
 (») Jury V. Baker, 38 L. J., Q. B. 355 ; E. B. & E. 459 (96 E. C. L. R), 
 S. C. 
 («) See Chap. VII. on Irregular Instruments. 
 
 trich V. Baylie, 33 Louis. Ann. 767 ; Nickeison v. Sheldon, 33 Illinois, 372. 
 The fact that a promissory note contains a statement that it is given "for a 
 patent right," does not take away from the instrument its negotiiihle char- 
 acter, according to the law merchant ; neither does such statement open up 
 to the maker every defence which he might have had if the note had remained 
 in the bands of the payee. Hereth v. Meyer, 33 Indiana, 511. 
 
OPACHECKONABANKER. 27 
 
 change, drawn on a banker, payable to bearer on demand. (a)(1) 
 A check is consequently subject in general, to the rules which 
 regulate the rights and liabilities of parties to bills of exchange. 
 Checks on bankers, however, have of late years come into use 
 so frequent, as commonly 1o supersede in payments of any con- 
 siderable amount, not only gold and silver coin, but banknotes 
 themselves. With *iheir universal use have grown up 
 certain usages peculiar to checks, which usages are now '- -■ 
 engrafted on the commercial law of the country.(2) Moreover, 
 
 (o) Keene v. Befird, 8 C. B., N. S. 372 (98 B. 0. L. R). The 16 & 17 
 Vict. c. 59, introduces a new sort of draft on a banker, payable to order on 
 demand, exempting the banker from liability if the original or any subsequent 
 endorsement be forged. Sect. 19. See the observations on this new species 
 of check at the end of the present Chapter. 
 
 (1) A check drawn up-n a banker is not of itself an appropriation, unless 
 it plainly appears that the fund claimed was the one designated out of which 
 payment was to be made. Loyd v. McCaffrey, 10 Wright, 410. See Stewart 
 V. Smith, 17 Ohio St. 82 ; Anderton v. Shoup, Ibid, 125. The practical 
 effect of certifying a check "good," is the same whether the drawer is ac- 
 tually charged on the books or not; as in either case that auioiJnt of his funds 
 is withdrawn from his control until the payment of the check is refused. 
 Brown v. Leckis, 48 Illinois, 497. 
 
 (3) A bank check is substantially the same as an inland bill of exchange ; 
 it passes by delivery, when p lyable to bearer, and the rules, as to present- 
 ment, diligence of the holder, &c., which are applicable to the one, are gener- 
 ally applicable to the other. Woods v. Schrader, 4 Hnr. & J. 276 ; Cruger v. 
 Armstrong, 3 Jolins. Gas. 5 ; Conroy v. Warren, lb. 259 ; Merchants' Bank 
 v. Spicer, 6 Wend. 445 ; Murray v. Judah, 6 Cow. 484 ; Glenn v. Noble, 1 
 Blackf. 104 ; Smith v. James, 20 Wend. 193 ; Bowen v. Newell, 4 Selden, 
 190 ; Barnet v. Smith, 10 Foster, 2r>6. 
 
 It is said by Judge Cowen, in Hooker v. Anderson, 31 Wend. 372, that a 
 check is a bill of exchange payable on demand ; and he refers to Brown v. 
 Lush, 4 Yerger, 216, in which a draft payable at a certain day after date was 
 held not to be a check. This case is said to have been determined on the 
 authority of a passage in Chilly on Bills (7 Am. Ed. 322, 10th Am. Ed. 513j: 
 " Checks are not due beforu payment is demanded, in which respect they differ 
 from bills of exchange and promissory notes payable on a particular day." 
 The passage by no means warrants the inference ; but if it did, it would find 
 no support in the authority Cliitty cites. Judge Story entirely repudiates such 
 a distinction. In the matter of Brown, 2 Story Rep. 503, he says : " A check 
 is not less a check because it is post-dated, and thereby becomes, in effect, 
 payable at a future and different time from that in which it is drawn or issued. 
 This is suflSciently apparent from the case of Allen v. Reeves, 1 East Repi 
 435. That it may be declared upon as a bill of exchange is no proof that it 
 mny not also be declared upon as a check. In many cases they are identical 
 
28 OPACHECKONABANKBK. 
 
 the Legislature having at one time exempted them from stamp- 
 duty, questions have arisen as to what instruments were or 
 were not within the exemption, and as to the consequences of 
 attempts to violate the provisions of the Stamp Acts. In this 
 
 in their legal results ; but by no means in all. Mr. Cbitty very properly says, 
 that a check nearly resembles a bill of exchange ; but (he adds) it is uniformly 
 made payable to bearer, and should be drawn upon a banker or a person act- 
 ing as such. Cbitty on Bills, 10 Am. Ed. p. 511. I agree that it nearly re- 
 sembles a bill of exchange ; but nullum simile est idem. It is commonly 
 although not always made payable to the bearer ; but I conceive it to be still 
 a check, if drawn on a bank or banker, althpugh payable to a particular party 
 only by name, or to him or his order. It is usually, also, made payable on 
 demand ; although I am not aware that this is an essential requisite. The 
 distinguishing characteristics of checks, as contradistinguished from bills of 
 exchange are (as it seems to the) that they are always drawn on a bank or 
 banker ; that they are payable immediately on presentment without the al- 
 lowance of any days of grace ; and that they are never presentable for mere 
 acceptance, but only for payment." Although checks are not presentable for 
 acceptance before they are payable, yet they are sometimes pi'esented for ac- 
 ceptance, or what amounts to acceptance. They are marked " good " by the 
 bank officer, and charged to the account of the drawer as paid. Chancellor 
 Kent (3 Kent's Com. 104, n. 7th Ed.) questions Judge Cowen's doctrine in 
 the same case, that a check is, to- all intents and purposes, but a bill of ex- 
 change. He says, " A check differs from a bill of exchange in several par- 
 ticulars. It has no days of grace, and requires no acceptance, distinct from 
 prompt payment. The drawer of a check is not a surety, but the principal 
 debtor, as much as the maker of a promissory note. It is an absolute appro- 
 priation of so much money in the hands of the banker to the holder of the 
 check, and there it ought to remain until called for, and the drawer has no 
 reason to complain of delay, unless upon the intermediate failure of his ban- 
 ker. By unreasonable delay in such a case, the- holder takes the risk of the 
 failure of the person or bank on which the check is drawn. This is quite dis- 
 tinct from the strict rule of diligence applicable to a surety, in which light 
 stands the indorser." This view has been adopted by judicial authority. 
 Daniels v. Kyle, 1 Kelly, 304. A check post-dated is payable on the day of 
 its date without any days of grace. Mohawk Bank v. Broderick, 10 Wendell, 
 405 ; Salter v. Burt, 30 Wendell, 205. The payment of a post-dated check by 
 a bank before the day on which it is dated, leaves the money so paid, notwith- 
 standing the payment, to the credit of the diawer. Godin v. The Bank of the 
 Commonvpealth, 6 Duer, 76. It has since been held in New York, in con- 
 formity to the views of Story and Kent, that a written order on a bank to pay 
 a sum of money on a future day named, is a check, and is not entitled to 
 grace. Bowen v. Newell, 5 Sandford, 336 ; S. C, 3 Duer, 584 ; 4 Selden, 190. 
 To the same effect is Westminster Bank v. Wheaton, 4 Rhode Island, 30 ; 
 Champion v. Gordon, 20 P. F. Smith, 474. Contra, Bradley v. Hamilton, 5 
 Harrington, 305 ; Morrison v. Bailey, 5 Ohio (N. S.), 13 ; Andrew v. Blackly, 
 11 Ibid. 80 ; Ivory y. Bank of Missouri, 36 Mo. 475 ; Henderson v. Pope,. 34 
 Geo. 361. 
 
OF A CHECK ON A BANKER. 29 
 
 i 
 
 Chapter is is intended to point out some of those qualities and 
 incidents, which distinguish checks from other bills of ex- 
 change. The learned reader will perhaps think that such 
 observations are at present premature, but it has been thought 
 conducive to perspicuity, that the rest of the book should be 
 disembarrassed of distinctions solely applicable to checks, and 
 that a summary of the law peculiarly relating to them should 
 be attempted in the same part of the work, where observations 
 relating peculiarly to bills or notes are respectively to be found. 
 It is hoped that any obscurity, caused by anticipating what is 
 to follow, will be removed by turning to subsequent Chapters. 
 
 Cheeks on bankers have been for many years and are now, 
 more than ever, the most powerful instruments for economizing 
 the currency, both metallic and paper. They were, therefore, 
 until recently, exempted from all stamp duty, and are now 
 subject to a duty of one penny only. 
 
 The late General Stamp Act,(6) while it subjected bills in 
 general to stamps, exempted from all stamp duties : — 
 
 All drafts or orders for the payment of any sum of money 
 to the bearer on demand, and drawn upon any banker' or 
 Tjankers or any person or persons acting as a banker, who 
 should reside or transact the business of a banker within ten 
 miles (afterwards fifteen miles, 9 Geo. 4, c. 49, s. 15X(c) of the 
 place where such drafts or orders should have been issued,(rf) 
 provided such place were specified in such drafts or orders, and 
 provided the same should bear date on or before the day on 
 which the same were issued, and provided the same did not 
 direct the payment to be made by bills or promissory notes. 
 
 And the 16 & 17 Vict. c. 59 (Schedule), which subjected 
 
 drafts or orders for the payment of any sum of money to the 
 
 *bearer on demand to a duty of one penny, contained 
 
 the same exemption. . L J 
 
 But, by the 17 & 18 Vict. c. 83, s. 7, it was enacted, that no 
 
 (5) 55 Geo. 3, c. 184, Sched., finally repealed 1870. 
 
 (c) If a defendant wish to avail himself of tbis defence, he should plead that 
 he did not make the check declared on. McDowell v. Lyster, 2 M. & W. 52 ; 
 Field T. Woods, 7 Ad. & E. 114 (34 E. U. L. U.) ; 2 N. «fc P. 117; 6 Dowl. 
 23, 8. C. 
 
 (.d) What not an issuing. Ex parte Bignold, 2 Mout. & Ayr. 663 ; 1 Deac. 
 712, S. C. ; Chitty, 118. 
 
80 OPACHECKONABANKER. 
 
 draft or order so' exempted should, unless the same were duly 
 stamped as a draft or order, be remitted or sent to any place 
 beyond the distance of fifteen miles, in a direct line from the 
 bank or place at which the same was made payable, or be re- 
 ceived in payment or as a security, or be otherwise negotiate^:!' 
 or circulated at any place beyond ihe said distance; and if any 
 person should remit or send any draft or order not duly stamped 
 as aforesaid, to any place beyond the distance aforesaid, or 
 should receive the salne in payment or as a security, or in any 
 manner negotiate or circulate the same at any such last-men- 
 tioned place, he should forfeit the sum of fifty pounds. 
 
 Section 8 enabled any person who should receive any such 
 draft or order at any place within the distance of fifteen miles, 
 from the bank or place at which the same was made payable, 
 which draft or order should have been lawfully issued un- 
 stamped, to affix thereto a proper adhesive stamp, and to 
 cancel such stamp by writing thereon his name or the initial 
 letters of his name, and thereupon such draft or order might 
 lawfully be received and negotiated at any place beyond the 
 distance of fifteen miles. 
 
 Adhesive stamps denoting the duty of one penny might have 
 been used for receipts or drafts, without regard to the special 
 appropriation thereof.(e)' 
 
 In order to bring checks within the exemption, they must 
 have been drawn on a banker,{f) must have specified truly the 
 place where actually drawn, (^) and that place must have been 
 
 (e) Sect. 10. See also 16 & 17 Vict. c. 59, ss. 3 & 4. 
 
 (/) Castleman v. Ray, 2 Bos. & P. 383. 
 
 ig) Walters v. Brogden, 1 Y. & J. 457 ; Bopart v. Hicks, 3 Bxch. t ; 8 Q. 
 B. 674 (53 E. C. h. R.), S. C. Where a person residing in a country Tiouse 
 four miles from Llanelly, actually dated it as if drawn at Llanelly, it was held 
 that the check was void for want of a stamp. Walters v. Brogden, 1 Y. & 
 J. 457 ; Field v. Woods, 7 Ad. & Ell. 114 (33 E. C. L. R.) ; 2 N. & P. 117; 
 6 Dowl. S3, S. C. ; and see Rex v. Pooley, 3 B. & P. 311 ; see also Strickland 
 V. Mansfield, 8 Q. B. 675 (55 E. C. L. R.), where it was held, that the sub- 
 scription " DoKCHESTEROLD Bahk, ESTABLISHED IN 1 786, " priTiied; On a cheek 
 was a sufl3cient designation of the place where drawn, in the absence of proof 
 that it was not drawn there. But a check addressed to Messrs. C. & Co., 
 Bankers, Lutterworth, was held not to desigtiate the place where the check' 
 was drawn ; Bond v. Warden, 1 CoUyer, 583 ; and a check headed " Oxford, 
 Worcester and Wolverhampton Railway," but not superscribed as drawn at' 
 anyplace, was held void. Lord Ward v. Oxford Railway Company ,'3 De 
 G., Mac. & G. 750. 
 
OPACHECKONABANKEE. 31 
 
 within fifteen miles in a direct line froni *the banker's ^^^ -^ 
 place of business ; they must have been payable to '- -" 
 bearer(A) on demand, must not have been post-dated ,(z) nor 
 have directed the payment to be made by bills or notes. (/c) 
 
 The penalties attached to checks made imder colour of this 
 exetnption, but not' falling strictly within it, were extremely 
 severe. For the 55 Geo. 3, c. 184, s. 13, enacted that if any 
 person should make or issue any check(^) or draft on a banker, 
 payable to bearer on demand, not duly stamped, and not falling 
 in every respect within the exemption, the drawer should foi'- 
 feit 1001., any person knowingli/ taking it 20?., the banker know- 
 ingly paying it 100?. ; and the banker should not be allowed it 
 in account against the persons hy whom or for whom it was 
 drawn, or against any person claiming under them respect- 
 ively.(m) And the statute 17 & 18 Vict. e. 83, s. 7 (also re- 
 pealed), imposed, as we have seen, a penalty of 50?. for the 
 circulation of a check beyond the fifteen miles, except in cases 
 where a stamp was duly impressed or afiixed. 
 
 Where the defendants, knowing a check to be post-dated, and 
 therefore void, and that the drawers were insolvent, presented 
 it for payment to the bankers on whom it was drawn, who 
 without knowledge of these facts paid the amount, though 
 they had no funds of the drawers in their hands at the time, 
 but expected some in the course of the day, it was held that 
 the bankers were entitled to recover the money back in an 
 action for money had and received. (n) 
 
 (7i) Rex V. Yates, Moo. C. C. 170 ; Carrington's Crimmal Law, 3d ed. 373, 
 S. C. The t-welve Judges there decided that a check iDayable to D. F. J., and 
 not to bearer, was not within the exception in the Stamp Act in favour of 
 checks, and ought to have been stamped as a bill, and not being so, was not a 
 "valuable security" within the 7 and 8 Geo. 4, c. 29, s. 5, and that an indict- 
 ment for larceny was not sustainable. But a man who steals a void check 
 may be convicted of larceny of a piece of paper. Reg. v. Perry, 1 Car. & K. 
 725 (47E. C. L. R.). 
 
 (0 Allen V. Keeves, 1 Bast, 433; 3 Esp. 281, S. C. ; Whitwell v. Bennett, 
 3 B. & P. 559. 
 
 (A) 55 Geo. 3, c. 184, Sched, Part 1, and 9 Geo. 3, c. 49, s. 15. 
 
 (0 Ex parte Bignold, supra. 
 
 (m) See Green v. Allday, 1 Gale, 318. 
 
 in) Martin v. Morgan, Gow, 133 (5 E. C. L. R.) ; 1 B. & B. 389 (5 E. C. L. 
 R.) ; 3 Moore, 635, S. C. 
 
82 OFACHEOKOXABANKBE. 
 
 Such was the general effect of the- law down to the j-ear 
 1858 ; but after the 24th May, 1858, all drafts or orders for 
 the payment of money to the bearer on demand, which were 
 exempt from stamp duty under these provisions, were, by the 
 ^ 21 & 22 Vict. c. 20, s. 1, made chargeable with the *duty 
 .'- -' of one penny, and the new Stamp Act, 1870, imposes a 
 like duty. 
 
 All bankers' checks are, therefore, now subject to a stamp 
 of one penny wherever made, and wherever the banker may 
 live or carry on business ;(o) they may also be post-dated,(p; 
 and need not specify the place where drawn. 
 
 By sect. 18 of the 23 & 24 Vict. c. Ill (now repealed), 
 bankers or persons acting as such, into whose hands a banker's 
 draft or order came unstamped, might affix thereto the neces- 
 sary adhesive stamp, cancel the same, and charge the drawer 
 with the stamp ; but the drawer was not thereby relieved from 
 the penalty. 
 
 A similar provision is contained in the 83 & 34 Vict. c. 97, s. 
 54, Parts 2 & 3. 
 
 A check may now be drawn or negotiated for any sum of 
 money large or small.(g') 
 
 (o) 33 & 34 Vict. c. 97, s. 48, and Sched. 
 
 (p) The act 55 Geo. 3, c. 184, s. 13, struclj expressly at frauds and evasions 
 of the duties under colour of the exemption in fayonr of checks on bankers, 
 an exemption which checks presently ceased to enjoy. 
 
 Accordingly, even before the repeal of the above act, it has been held that 
 a check payable to order may be post-dated. Emanuel v. Roberts, 9 B. & S. 
 121 ; Whistler v. Forster, 32 L. J., C. P. 161 ; 14 C. B., N. S. 248 (108 E.' C. 
 L. R.), S. C. ; Bull v. O'Sullivan, L. R., 6 Q. B. 209 ; 40 L. J., Q. B. 141. 
 The same point has been decided. as to a check payable to bearer. Austin v. 
 Bunyard, 34 L. J. 217 (Q. B.). But in this case the holder had no notice of 
 the post-dating. Forster v. Mackworth, L. R., 2 Ex. 168 ; 36 L. J. 94, where 
 a post-dated check was held equivalent to a bill of exchange for a like period, 
 and therefore not binding on a partner not in trade. 
 
 (?) Formerly, a check for less than the sum of 20«. was absolutely void, and 
 the uttering or negotiating such an instrument was an offence, subjecting the 
 offender to a penalty of 202., mitigable to 51. 4S, Geo. 3, c. 88, s. 3. So, also, 
 it was an offence to utter a check on which less than 20s. remained due. And 
 while the 17 Geo. 3, c. 30, was in force and not controlled by any other 
 statute, a check could not be drawn for a sum under 51. But the 7 Geo. 4, e. 
 6, s. 9, which repealed the act repealing the 17 Geo. 3, c. 30, and consequently 
 
OF A CHECK ON A BANKER. 33 
 
 By the 23 & 24.Vict.c. Ill, s. 19, it is enacted that, notwith- 
 standing anything in any act of parliament contained to the 
 contrary, it shall be lawful for any person to draw upon his 
 banker who shall lona fide hold money to or for his use any 
 draft of order for the payment to the bearer, or to order on de- 
 mand, of an}"- sum of money less than 20s. Therefore *ii p^, (,-, 
 check for an amount under 20s. is good under this act, '- -^ 
 but nevertheless it may be illegal to utter such a check where a 
 man has no balance at 'his banker's, though the banker may be 
 likely to pay it.(s) 
 
 A cheek being drawn payable to bearer, is transferable by 
 mere delivery, but it maybe indorsed, for indorsement includes ■ 
 delivery.(i)(l) 
 
 Grenerally speaking, the drawee of a bill is not liable till ac- 
 ceptance. But a banker, having in his hands the effects of his , 
 customer, is an exception to this rule ;{u) he is bound within a 
 reasonable time after he has received the money, to pay his 
 customer's checks, and is liable to an action at the suit of the 
 customer if he do not. For there is an implied contract be- 
 tween banker and customer, that the banker shall pay the cus- 
 tomer's checks : and the customer's credit may be seriously im- 
 paired by a refusal. M. kept his account with Williams & Co., 
 bankers. One day in the morning, the balance in their bands 
 due to M. was 69^. 16s. 6d. About one o'clock on the same 
 day a 40^. Bank of England note was paid into M.'s account ; 
 a little after three o'clock, a check drawn by M. for 811. Is. 6d. 
 was presented. The clerk, after having referred to a book, 
 said, there were not sufficient assets, but that the check might, 
 
 I'evivecl that act, enacted that nothing in that lattir act contained should ex- 
 tend to any draft drawn by a man on his own banker for money held by (hat 
 banker to ilm u»e of the drawer. See, too, 33 & 34 Vict. c. 97, s. 48. 
 
 («) See", too, the act 36 & 37 Vict. c. 105, s. 1, which, however, is only tem- 
 porary. See Appendix. 
 
 H) Keene v. Beard, 39 L. J., C. P. 387 ; 8 0. B., N. S. 372 (98 E. C. L. R.). 
 
 (u) Marzetti v. Williams, 1 B. & Ad. 415 (30 E. C L. R.) ; 1 Tyr. 77, n. 
 (6), S. 0. 
 
 (1) A holder who talses a check in good faith and for value received, 
 several days after it is drawn, takes it clear of equities of which he had no 
 notice'. Ames v. Meriam, 98 Mass. 394. 
 
 3 
 
34 OFACHECKONABANKEE. 
 
 probably go through the clearing house. On the following day 
 the check was paid. M. brought a special action on the case 
 against the bankers. No actual damage was proved, but the 
 jury found a verdict for the plaintift' with nominal damages. 
 On a rule for a new trial, " I cannot forbear to observe," says 
 Lord Tenderten, "that it is a discredit to a person, and therefore 
 injurious, in fact, to have a draft refused payment for so small 
 a sum ; for it shows that the banker had very little confidence 
 in the customer. It is an act particularly calculated to be in- 
 jurious to a person in trade. My judgment in this case, how- 
 ever, proceeds on the ground, that the "action is founded on a 
 ■contract between the plaintifl' and the bankers — that the 
 bankers, whenever they should have money in their hands 
 belonging to the plaintiff, or within a reasonable time after 
 they should have received such nioney, would pay his checks : 
 and there having been a breach of such contract, the plaintiff 
 is entitled to recover damages." Although no evidence is 
 given that the plaintiff has sustained any special damage, the 
 jury ought not to limit *their verdict to nominal dam- 
 L J ages, but should give such temperate damages as they 
 may judge to be a reasonable compensation for the injury 
 the plaintiff must have sustained from the dishonour of his 
 check.(M;) 
 
 But if the funds in the banker's hands have been applied to 
 the payment of the customer's acceptance, made payable at the 
 bankers, though without any further authority, that is a de- 
 fence to an action for dishonouring a check.(a;)(l) 
 
 (w) RoIIin V. Steward, 14 C. B. 595 (78 E. C. L. R.. In this case, tried at 
 Norwich, the plaintiff recovered a verdict for 5001. , which was, however, re- 
 duced at the recommendation of the Court. And a haulier having securities 
 in his' hands, though the cash balance in his pass-book was against the cus- 
 tomer, has been held liable, where in a previous course of similar dealing 
 checks had been paid. Gumming v. Shand, 39 L. J., Exch. 129. 
 
 (a;) Keymer v. Laurie, 18 L. J., Q. B. 218. 
 
 (1) As it is the duty of the acceptor of a bill to provide funds to pay it, if 
 funds are deposited in a bank for that purpose, the presumption of law is that 
 they were deposited by the acceptor ; and unless this presumption is contra- 
 dicted by proof, the acceptor is the only person who can maintain an action 
 against the bank for neglect to apply the funds to the purpose for which they 
 were deposited. Thatcher v. Bank, 5 Sandford, 131. 
 
 The holder of a banker's check may maintain an action against the drawee, 
 
OFACHECKONABANKEB. 3> 
 
 • Where a banker refused to cash a cheque, on the ground that 
 a breach of trust was contemplated by the drawer to his the 
 banker's knowledge, he was held to be justified in so doiug.(3/) 
 
 We have already observed, that checks are in legal effect 
 inland bills of exchange, payable to bearer on demand ; and we 
 shall hereafter see, that an ordinary bill of exchange, payable 
 on demand, must be presented for payment, or, if the parties 
 live at a distance, forwarded for presentment within a reasonable 
 time, which is generally held to comprehend the day after it is 
 issued. 
 
 Such also is the general rule as to the presentment of checks. ' 
 " The result of the cases," says Tindal, C. J., " from Eickford v. 
 Ridge to Boddington v. Schlencker, is, that the party receiving 
 a check has till the following day to present it, where there are 
 the ordinary means of doing bo."{z) Formerly, it was held, 
 that the check must be presented on the morning of the next 
 day : it is now, however, firmly established, that the holder has 
 the whole of the banking hours of the next day within which 
 to present it.(a) Government checks are not payable at the 
 Bank of England after three o'cloek.(6Xl) 
 
 (.y) Gray v. Johnston L. R., 3 H. of Lords, 1. 
 
 (2) Moule T. Brown, 4 Bing. N. C. 268 (33 E. C. L. R.) ; 5 Scott, 694, S, 
 C. ; Bailey v. Bodenham, 16 0. B., N. S. 288 (HI E. C. L. R.) ; 38 L. J., C. 
 P. 253, S. C. Presentment to the bankers' London agent is not suflBcient, 
 though named in the printed form of the check fibid.). It is doubtful whether 
 sending a check in a letter to the drawees is a sufficient presentment (ibid.). 
 
 (a) Pocklington v. Sylvester, Chilty, 9th ed. 385; Robson V. Bennett, 3 
 Taunt. 388 ; Rickford v. Ridge, 3 Camp. 537. 
 ■ (6) 4&5'Will. 4, c. 15, s. 21. 
 
 when the refusal of the drawee to pay is wrongful. Roberts v. Corbin, 36 
 Iowa, 315. 
 
 (1) A check on a bank mast be presented on the same or the following day 
 during banking hours. Hazelton v. Colburn, 1 Robertson, 345. If by reason 
 of the negligence of a payee of a check in presenting it, the fund on which it 
 is drawn becomes depreciated in value, he inust suffer the loss. Smith v. Jones, 
 2 Bush, 103. Laches on the part of the assignee of a check will not dis- 
 charge the drawer, if the drawee remain solvent. Stewart v. Smith, 17 Ohio 
 St. 83. A creditor, who has received a check from his debtor, cannot sue on 
 the original cause, without having demanded payment of the check, or showing 
 that no injury has resulted from his neglect. Bradford v. Fox, 89 Barb. 203. 
 The outstanding of a common bank check for two and a half years, as shown 
 
36 OF A CHECK ON A BANKER. 
 
 *But there is one material difference between the lia- 
 ^ "J bility of the drawer of a cheek and the drawer of a bill 
 payable on demand. 
 
 The drawer of a check is not discharged by the holder's 
 failure to present in due time, unless the drawer have sus- 
 tained from the delay actual prejudice, as by the failure of the 
 banker.(c)(l) The check is an absolute appropriation of a sum 
 
 (c) Serle v. Norton, 2 Mood. & Rob. 401 ; Alexander v. Burcliflekl, 3 Scott, 
 N. R. 555 ; 7 M. & G. 1067 (49 E. C. L. R.), S. C. ; Robinson v. Hawksford, 
 9 Q B. 02 (58 E. C. L. R.) ; Laws v. Rand, 87 L. J., C. P. 76 ; 3 C. B., N. 
 S. 442 (91 B. C. L. R.), S. C. 
 
 by the date, together -with the word "mem." on its face, is sufficient notice 
 that it was not given in the usual course df trade. Skillman t. Titus, 3 
 Vroom, 96. 
 
 (1) Daniels v. Kyle, 1 Kelly, 304. In Little v. Phoenix Bank, 2 Hill, 435, 
 C. J. Nelson and J. Bronson held, that as betwein the holder and drawer 
 mere delay in presenting a cheek for payment would not discharge the latter, 
 unless he had been injured thereby ; that it was incumbent upon the holder, 
 liowever, in an action upon the check, to show affirmatively that no loss had 
 happened to the drawer.- ' Cowen, J., adhered to the opinion expressed by 
 him in Hooker v. Anderson, 21 Wend. 327, that irrespective of the question 
 of loss or injury to the drawer, a check must be presented for payment within 
 a reasonable time, or both the drawer and endorser will be discharged; and 
 see Bowen v. Newell, 5 Sandf. 326. As a general rule, however, a check is 
 not due from the drawer until payment has been demanded from the drawee 
 and refused by him. Demand and refusal therefore before suit brought is an 
 essential preliminary to an action against the drawer. Murray v. Judah, 6 
 Cowen, 484 ; Hooker v. Anderson, 21 Wend. 372 ; Sherman v. Comstock, 2 
 McLean, 19 ; Daniels v. Kyle, 5 Georgia, 245 ; Case v. Morris, 7 Casey, 109. 
 As between the holder of a check and an indorser or third person, payment 
 must be demanded within a reasonable time. Murray v. Judah, 6 Cowen, 
 484. When the paities all reside in the same place, the holder should present 
 the check on the day it is received or on the following day, and when payable 
 at a different place from that in which it is negotiated, the check should be 
 forwarded by mail on the same or the next succeeding day for presentment. 
 It has been said that greater diligence is necessary in presenting checks for 
 payment than is required in relation to bills of exchange. Gough v. States, 
 13 Wend. 549. But there seems to be no good reason for making such a dis- 
 tinction. The fact that one instrument is drawn upon a bank, and the other 
 upon an individual, can make no difference in principle concerning the duty 
 of the holder. What will be due diligence in the one case, will be due dili- 
 gence in the other. Mohawk Bank v. Broderick, 13 Wendell, 183 ; Janes v. 
 Smith, 20 Wendell, 192. See O'Brien v. Smith, 1 Black (S. C), 99; Brady 
 V. The Little Miami R. R. Co., 84 Barbour, 249 ; Ritchie v. Bradshaw, 5 
 California, 228. Where a post dated bank check falls due on Sunday, present- 
 
OFACHECKONABANEEB. S7 
 
 of money in the banker's hands to lie till called for; but by 
 delay the holder takes the riskof the bank's failure,(«^) or revo- 
 cation of their authority to pay by death of drawer.(e) 
 
 (d) See the observations of Chancellor Kent, 3 Com. 104. These views 
 have, in America, as well as in England, been confirmed by judicial decision. 
 Daniels v. Kyle, 1 Kelly, 304. Bee Byles on Bills, 5th American edition, p. 93. 
 
 Where the holder neglected to present a check drawn in his favour by his 
 debtor's agent, and the Court found that there was a reasonable probability 
 that it would have been paid if duly presented, it was held that the debtor was 
 discharged. Hopkins v. Ware, L. R., 4 Ex. 268. 
 
 («) See Bromley v. Brunton.-L R., 5 Bq. 275 ; Hewet v. Kaye, 5 Eq. 198 ; 
 and Chap. XI., Donatio mortis causa, and post, p. 25. 
 
 ment must be made on the following Monday, and notice of noa payment 
 given in order to fix the indorser. Salter v. Burt, 20 Wendell, 205. 
 
 If the drawer of a check payable instantly have no funds in the bank at the 
 time, it is a fraud, and the holder can sustain an action upon it without pre- 
 sentment for payment or notice. True v. Thomas, 16 Maine, 36 ; Hoyt v. 
 Seeley, 18 Conn. 353. When the drawer of a check stops the payment, the 
 holder may recover without notice of non-payment. Punhar v. Maltison, 6 
 Duer, 537 ; Jacks v. Darrin, 3 E. D. Smith, 557. But it cannot be inain- 
 tained that the drawer of a bill or check should have in the hands of him on 
 whom he draws, money or cash in order to exact due diligence of the holder 
 of the bill or check. In the absence of all authority on this subject, reason 
 would dictate that the drawer is as much exposed to loss from the want of 
 diligence of the holder when he has property or effects in the hands of the 
 person on whom he draws, as when he has money. St. Johns v. Homans, 8 
 Missouri, 382 ; see Cruger v. Armstrong, 3 Johns. Cas. 5 ; Edwards v. Moses, 
 2 Nott and McCord, 433; Commercial Bank v; Hughes, 17 Wendell, 94; 
 Hooker v. Anderson, 31 Wendell, 372. Tie true doctrine on this point seems 
 to be this, that if the drawer has a right to draw in the belief that he has 
 funds, or in the expectation that he shall have funds at the time of present- 
 ment, by reason of arrangements with the drawee or putting his funds in 
 transitu adequate to meet the check, then he is entitled to insist upon present- 
 ment and notice. In the matter of Brown, 2 Story Rep. 516. 
 
 One who takes a check long overdue, having on its face a time appointed 
 for its payment, takes it exclusively on the credit of the indorser, and subject 
 to the equities between the original parties. Hence the drawer of such a 
 check who has paid the nioney called for by it to the payee before it was 
 payable, is not liable thereon to the bank on which it was drawn, which more 
 than a year after it was due, paid it out of its own funds on the credit of the 
 drawer, the latter not having funds in the bank to pay it when it became due, 
 or when it was paid by the bank, and not having given to the said bank notice 
 of its payment by himself The Lancaster Bank v. Woodward, 18 Penna. 
 State Rep. 357. Woodward, J., " It was attempted to prove a custom to 
 pay overdrafts of solvent dealers with banks, but it failed ; and if it had not 
 failed, such a custom should be abolished. Malua usus abolendva est. Our 
 
38 OF A CHECK ON A BANKER. 
 
 If the payee of the check pay it into his bankers living in 
 the same place that they may present it, the bankers may be, 
 as betweentheir customer and the drawer, still bound to pn^sent 
 it on the day after it was originally issued. But as between 
 their customer and themselves they may be bound to present 
 it earlier, or justified in postponing the presentriient later.(/) 
 
 If the party receiving the check from the drawer, do not live 
 in the same place with the drawee, he should send it to his 
 banker or other agent by the next day's post, and they should 
 present it on the day after they, have received \t.{ff) The 
 banker should send it direct to the drawee, and cannot post- 
 pone the time of presentment by circulating it through agents 
 or branches of the bank.(A) He must not keep it till the third 
 day, and then present it, though by such a *cour8e it 
 L* -1 reach the drawee as soon as it would have done had it 
 been dispatched by post in the regular course, (i) 
 
 But where a check, instead of being presented for payment 
 in due course, is transferred and circulates through several 
 
 (/)Boddington v. Schlencker, 4 B. & Ad. 753 (24 E. C. L. R.) ; 1 N. & 
 M. 540, S. U. ; Alexander v. Burchfield, 1 Car. & M. 75 (41 E. C. L. R.) ; 3 
 Scott, N. R. 5-;5 ; 7 M. & G. 1067 (49 E. C. L. R.), S.-C. ; Hare v. Henly, 30 
 L. J., C. P. 803. 
 
 (g) Rickford v. Ridge, 2 Camp. 537 ; Bond v. Warden, 1 Collyer, 583 ; Hare 
 V. Hetty, 30 L. J., C. P. 303. This rule applies also prima facie between 
 banker and customer (ibid.). 
 
 (h) Moule v. Brown, 4 Bing. N. C. 266 (33 E. C. L. R.) ; 5 Scott, 694, 
 S. C. ' 
 
 (j) Beaching v. Gower, Holt's N. P. C. 315 (3 E. C. L. R.). 
 
 banking institutions are generally conducted by boards of directors, to whom 
 stockholders look for the proper use and management of the capital invested ; 
 whilst the ordinary routine of daily business is intrusted to cashiers and 
 clerks, who are not directors, generally not stockholders, and who have no 
 power to discount paper. If then subordinate officers might pay checks, 
 ■which are properly drafts on funds deposited, when there were no funds of 
 the drawer on deposit, the capital of banks would be liable to perversion' to 
 purposes and in modes that were never contemplated either by the Legislature 
 or the stockholders. That the practice of paying overdrafts was proved to 
 some extent, is quite likely ; and it may be true that boards of directors have 
 in some instances sanctioned it ; but it has no authority in sound usage or in 
 law. The more nearly these institutions keep iii the line of regular business 
 transactions, the more effectually will they accommodate the public and secure 
 their own interest." 
 
OF A CHECK ON A BANKER. 89 
 
 hands, it is conceived that there is a distinction between the 
 time of presentment necessary as against the original drawer, 
 in the event of the banker's insolvency, and the timei necessary 
 to charge the person from whom the check was immediately 
 received. The liability of the drawer cannot, it is appre- 
 hended, be enlarged, by circulating the check, and, therefore, 
 in order to charge him, if the banker fail, the check, in whose 
 hands soever it be, must be presented within the period within 
 which the payee or first holder must have presented it, but as 
 against the party transferring the check to the holder', it is 
 sufficient, whatever be the date of the check, to present it or 
 forward it for presentment on the day next after the transfer. 
 
 As to the consequences of non-presentment, the circumstan- 
 ces which will be evidence of presentment, or which will ex- 
 cuse or waive non presentment, the reader is referred to the 
 Chapter on Presentment for Payment. 
 
 Checks, being intended for immediate payment on being pre- 
 sented, are not usually accepted. It has been said, however, 
 that the custom of London bankers to mark checks as good is 
 equivalent to acceptance, and binds the banker to pay the 
 checks so marked.(_/) And no doubt, before the recent statute, 
 the mark was an acceptance of which any holder of the check 
 might have availed himself, provided the mark amounted to a 
 writing within the 1 & 2 Geo. 4, c. 78, s. 2. But now, by the 
 19 & 20 Vict. c. 97, s. 6, an acceptance must be signed. If it 
 so happen that the drawee of the check is the banker of the 
 holder, as well as of the drawer, no promise by the banker to 
 pay the check will be implied by his receiving the check from 
 the holder without observation, and keeping it till the follow- 
 ing day,(A;) for prima facie he will be taken to have received it 
 as the holder's agent.(i)(l) 
 
 (/) Robson V. Bennett, 2 Taunt. 388 ; and see 3 M. & Rob. 454, note. 
 (&) Boyd V. Bmmerson,3 A. & E. 184 (29 E. C. L. R.). 
 (0 And see Kilaby v Williams, 5 B. & Aid. 810 (7 E. C. L. R.) ; 1 D. & R. 
 476, S. 5. 
 
 (1) It is said that a bill of exchange is in theory an assignment to the payee 
 of a debt due from the drawee to the drawer. This is undoubtedly true 
 Where the bill has been accepted, whether it be drawn on general funds or a 
 
40 OF A CHECK ON A BANKEK. 
 
 It is now and has long been a common practice, not only 
 in the city of London but throughout England, to write 
 r*ooi *^^'"os^ ^^® f^^^ of ^ cheek the name of a banker. The 
 '- -' meaning pi this crossing was to direct the drawees to 
 pay the check only to the banker whose name was written 
 
 specific fund, and whether the bill be in its own nature negotiable or not ; for 
 in such a case, the acceptor, by his assent, binds and appropriates the funds 
 for the use of the payee. In cases also where an order is drawn for the whole 
 of a particular fund, it amounts to an equitable assignment of that fund, and 
 after notice to the drawee it binds the funds in his hands. But where an 
 order is drawn either on a general or a particular fund, for a part only, it 
 does not amount to an assignment of that part, or give a lien as against the 
 drawee, unless he consent to the appropriation by an acceptance of the draft ; 
 or an obligation to accept may be fairly .implied from the custom of trade or 
 the course of business between the parties as a part of their contract. The 
 reason of this principle is plain. A creditor shall not be permitted to split 
 up a single cause of action into many actions, without the assent of his 
 debtor, since it may subject him to many embarrassments and responsibilities 
 not contemplated in his original contract.. He has a right to stand upon the 
 singleness of his original contract, and to decline any legal or equitable as- 
 signments by which it may be broken intd fragments. When he undertakes 
 to pay an integral sum to his creditor, it is no part of this contract that he 
 shall be obliged to pay in fractions to any other person. Per Story, J., in 
 Mandeville v. Welch, 5 Wheat. 277. It is to be observed that it is the tacit 
 if not the express understanding between ban):s and their customers, that 
 they shall have the right to draw for the whole or a part of the funds de- 
 posited with them. A depositor may draw checks up6n his banker at pleas- 
 ure, for the whole or any part of the moneys to his credit in bank, and each 
 holder may sue and recover. Chicago Ins. Co. v. Stanford, 28 Illinois, 168 ; 
 Fogarties v. Slate Bank, 12 Richardson (Law), 518. It might perhaps be 
 inferred that a check duly presented is an appropriation of so much of the 
 drawer's funds in their hands, and that if payment has been stopped, as is 
 sometimes done, they are liable to the holder notwithstandiug the drawer 
 may afterwards withdraw his funds. This point does not seem settled. Chitty 
 on Bills, 281, 10th Ed. See BuUard v. Randall, 1 Gray, 665 ; Corser v. Craig, 
 1 Wash. C. C. Rep. 424. This last case as applicable to a bill of exchange can- 
 not now be considered as law. (See ante, p. 2, n.) A bill of exchange is not 
 an equitable assignment or appropriation, but the cases treat a check on a 
 banker as such ; and if the holder is a holder fur value, as to whom the drawer 
 cannot revoke rightfully the power which he holds, coupled with an interest, 
 why should not the banker upon distinct claim and notice be held bound by 
 the equity? However this may be, such a result would doubtless follow, 
 where the bank upon presentment of a check marks it good. This is'equiva- 
 lent to tlie acceptance of a bill, and operates an appropriation to that check 
 by the assent of the bank. WiUets v. Phoenix Bank, 2 Ducr, 121. See 3 
 Story Rep. 502, In the matter of Brown. Girard Bank v. Bank of Penn 
 Township, 3 Wright, 92 ; Claflin v. Farmers' Bank, 36 Barbour, 540 ; Meads 
 V. The Merchants' Bank, 25 New York, 143 ; Farmers' Bank y. Butchers' 
 
OFACHECKONABANKEE. 41 
 
 across ; and the object was to invalidate the payment to a 
 wrongful holder in case of loss : but it has been held that at 
 common law the effect is to direct the drawees to pay the check 
 not to any particular banker, but only to some banker, and not 
 to restrict its negotiabilitj'. Therefore, as between the banker 
 
 Bank, 4 Kernan, 623. The mere priority however in the drawing of a check 
 gives no preference to the holder over subsequent cliecks ; and it would seem 
 that where several checks are presented at the same time, the bank is not 
 bound to pay one rather than another, where the funds in hand are not suflS- 
 cient to meet all. Dykers v. Leather Manufacturing Company, 11 Paige, 
 611. The insertion of the word " mem.'^ in a bank check does not affect its 
 negotiability, or the right of the holder to present it to the bank and demand 
 payment immediately ; and the bank will be protected in the payment of such 
 checks to the same extent that it would, had not that word been inserted. 
 Ibid. See Story on Prom. Notes, § 499. 
 
 The holder of a check is not bound to receive part payment thereof, even 
 if the bank is willing to pay in part. He has a claim to the entire sum named 
 therein. On the other hand, the bank is not bound to pay, unless it is in full 
 funds ; and it is not obliged to pay or to accept to pay, if it has partial funds 
 pnly ; for it is entitled to the possession of the check on payment ; and indeed; 
 in the ordinary course of business, the only voucher of the bank for any pay- 
 ment is the production and receipt of the check, which the holder cannot 
 safely part with unless he receives full payment, nor the bank exact urtless 
 under the like circumstances. In the matter .of Brown, 3 Story Rep. 519. In 
 a suit against a bank for money deposited with it by the plaintiff, the defend- 
 ant joroduced a check upon the bank, which it had paid, for the amount of 
 the money, signed by the plaintiff and payable to the order of Corlies & Co., 
 and with the name of this firm written upon it ; it was proved that this was 
 not the indorsement of the firm, and that it never owned or had any interest 
 in the check ; held that' the plaintiff was entitled to recover. Morgan v. The 
 Bank of the State of New York, 1 Kernan, 404. A bank is liable to the 
 payees of a check made payable to their order, when the check is paid on a 
 forged endorsement. Vanbibbon v. Bank, 14 Louisiana Annual, 481. 
 
 A check payable to A. B. or bearer, is not evidence of money lent and ad- 
 vanced to A. B. by the drawer of the check. Fleniming's Exrs. v. McClain, 
 13 Penna. State Kep. 177 ; Baker v. Williamson, 4 Ibid. 469. The presump- 
 tion is, that it was given in payment of a debt, or that cash was given for it 
 at the time. A check in the hands of the hank or banker upon which it is 
 drawn, is merely prima facie evidence of the repayment to the amount of the 
 check by the banker to the customer, of money previously lodged by the 
 customer. In the banker's hands. The Lancaster Bank v. Woodward, 18 
 Penna. State Rep. 361. A naked check, payable to A. or bearer,'is not pvr 
 se evidence of payment to A. It must be proved that he received the money 
 at the bank ; and in order to charge him as a debtor, evidence of the con- 
 sideration of the check should be given. Patton v. Ash, 7 Serg. & Rawle, 
 116. See Cromwell v. Lovett, 1 Hall, 56; S. C. 6 Wend. 369; People v. 
 Newell, 4 Johns. 396 ; The People v. Baker, 20 Wend. 603. A bank check, 
 utitil cashed, is no payment. The People v. Baker, 30 Wend. 603. 
 
42 OF A CHBdK ON A BANKER. 
 
 and his customer, the circumstance of the banker paying a 
 ciossed check, otherwise than through another banker, is at 
 common law strong evidence of negligence on the part of the 
 banker, rendering him responsible to his cu8tomer.(m) The 
 holder may at common law erase the name of the banker and 
 either substitute that of another banker, or leave the words 
 and Co. remaining alone.(n) It is also not unusual to write 
 the words and Co., only, in the first instance, leaving the par- 
 ticular banker's name to be filled up afterwards or not, so as to 
 insure the presentment by some banker or other.(o) 
 
 But the 19 & 20 Vict. c. 25; recently enacted, that in every 
 case where a draft on any banker made payable to bearer or to 
 order on demand bears across its face an addition of the name 
 of any banker, or of the words " and Company," in full or ab- 
 breviated, eitlier of such additions shall have the force of a di- 
 rection to the bankers, that it is to be paid only to or through 
 some banker, and the same shall be payable only to, or through, 
 some banker. 
 
 The legal effect of this statute on crossed checks payable to 
 bearer should appear to have been very inconsiderable. Eefore 
 the statute, payment otherwise than through some banker was 
 strong evidence of negligence, and therefore practically an' in- 
 valid payment. Since the statute a payment otherwise than 
 through some banker is invalid as matter of law. The nego- 
 tiability of crossed cheeks, which has been *fOund ex- 
 ■^ -■ tremely convenient in business, seems to have been left 
 as i't was before the act. 
 
 On the construction of this statute, it was held by the Court 
 
 (w) Bellamy v. Mnjoribanks, 7 Exch. 389 ; Carlon v. Ireland, 35 Law J., 
 Q. B. 118; 5 E. & B. 765 (83 E. C. L. R.), S. C. 
 
 (?i) Stewart v. Lee, 1 M. & M. 158 (32 E. C. L. R.) ; Bellamy v. Majori- 
 banks,, supra. But see now 31 & 23 Yict. c. 79, infra. 
 
 (o) Boddington v. Schlencker, 4 B. & Ad. 753 (24 E. C. L. R.) ;. 1 N. & M. 
 540, S. C. ; Carlon v. Ireland, supra. C. drew a check on his banker, payable 
 to A. and B., assignees of C, or bearer, and wrote the name of their banker 
 across it. B , who had another private account with the banker, paid the check 
 in to that account ; it was held, that the bankers were justified in applying it 
 t'o that account, the drawer's writing the name of the bankers of the payees 
 of the cheek across it not being, according to the custom of trade, information 
 t'o the bankers, that the money was the money of the payees. 
 
OFACHBCKOXABANKE'E. 43 
 
 of Common Pleas, though not withiout much, hesitation, that 
 the crossing was no part of the check, that its unauthorized 
 and fraudulent obliteration was no forgery of .the- cheek, and 
 therefore that the payment, without negligence, of a check, 
 the crossing whereof had been fraudulently obliterated, to a 
 holder, not being a banker was, as between the banker, the 
 drawee, and his customer the drawer, a good payment.(7>): 
 
 This decision introduced a further legislative alteration in 
 the law of crossed checks. 
 
 The statute 21 & 22 Vict. c. 79, ss. 1, 3, makes the crossing 
 a part of the check, and the fraudulent obliteration or altera- 
 tion of the crossing, felony. 
 
 But the statute recognizes the right of a lawful holder to 
 cross a cheek, and on a check already crossed with the words 
 " & Coi" to prefix the name of any banker. 
 
 It introduces, however, this alteration of the law, that if a 
 check be once crossed with the name of a particular banker, it 
 is thenceforth payable only through' that banker. 
 
 It recognizes the decision of the Court of Conimon Pleas in 
 favour of the banker, by enacting that where a crossing has 
 been so altered or obliterated as not plainly to appear, there a 
 wrong payment in consequence, if without the fraud or negli- 
 gence of the banker, shall not be questioned. 
 
 The legislation on this subject still seems to leave the result 
 pf the judicial application of the common law to crossed checks 
 much as it stood originally, except that the crossing is made 
 part of the check ; that the payment of a crossed check other- 
 wise than through a banker is not merely strong evidence of 
 negligence, but is a void payment ; and that where a particular- 
 banker is named in the crossing, his name must not be erased, 
 and the payment mu3t be through that banker. 
 
 A check presented and paid is no evidence of money lent or 
 advanced by the banker to the eustomeri(g') On the contrary, 
 it is prima facie evidence of the repayment, to the amount of 
 the check by the banker to the customer, of money previously 
 lodged by the customer in the banker's hands. A check, not 
 
 (j)) Simmons v. Taylor, 37 L. J. 45 ; 4 C. B., N. S. 463 (93 E. C. L. R ). 
 (S) Fletcher v. Manning, 12 M. & W. 571. 
 
44 OFACHBCKONABANKER. 
 
 r*OAi pi^ssented,' is not evidence of money *previou8ly lent 
 L by the drawer to the payee.(r) In other words, the mere 
 
 circumstance of one man drawing a check in favour of another 
 is no evidence of a debt due from the drawer, 
 
 A check, tinless dishonoured, is pa;yment.(s) But upon a 
 question whether a debt have been paid, the mere production 
 of a check drawn by the debtor in favour of the creditor and 
 paid by the banker, is no evidence of payment.(<) It must be 
 further shown that the check passed through the creditor's 
 bauds. For this purpose it is prudent to cause the payee to 
 write his name across the check or to indorse it.(M)' But it is 
 not necessary to go on and show that the debtor paid the check 
 to the creditor.(t)) 
 
 When the acceptor or drawee of a bill proposes to pay by a 
 check, the holder should not in strictness, give up the bill till 
 the check is paid.(w) It has, however, been held that the 
 holder is not guily of neglect in giving up the bill before the 
 check is paid ;(a;) but it is believed not to be usual at this day 
 with Loudon bankers to exchange bills for checks, and it is 
 doubtful whether they would now be protected in so doing. If 
 a creditor, however, in payment of any other debt than a bill 
 or note, take a check, and the banker fail, or the check be dis- 
 honoured, the creditor's remedies remain entire.(y) 
 
 (r) Pearce v. Dnvis, 1 M. & Rob. 365 ; and see Aubert v. Walsh, 4 Taurit. 
 293 ; Cary v. Geriisli, 4 Bsp. 9. 
 
 (s) Peavce v. Davis, 1 M. & Rob. 365 ; see Moore v. Bartbrop, 1 B. & C. 5 
 (8 B. C. L. R.) ; 3 D. & K. 25. Where a check was given by a debtor to a 
 mutual agent for both debtor and creditor, and the agent desired it to be 
 crossed -wilii the name of his own banlser, who stopped the proceeds, it was 
 held by the Court of Error, reversing the decision of the majority of the Court 
 of Common Pleas, to be a good payment. Bridges v. Garratt, L. R., 4 C. P. 
 481 ; 5 C. P., in error, 451 ; 39 L. J. 251. 
 
 (0 Egg V. Barnett, 3 Esp. 196 ; Pearce v. Davis, supra ; Lloyd v. Sandi- 
 lands, 6ow, 15. 
 
 (u) Aubert v. Walsh, 4 Taunt. 293 ; Lloyd, v. Sandilands, Gow, 15 (5 E. 
 C. L. R). 
 
 (») Mountford v. Harper, 16 M. & W. 825; Boswell v. Smith, 6 C. & P. 60 
 (25 B. C. L. R.). 
 
 (w) Marius, 21 ; 'Ward v. Evans, 12 Mod. 521 ; Vernon v. Boverie, 2 Show, 
 296. 
 
 (a!) Russell v. Hankey, 6 T. R. 13 ; Ridley v. Blackett, Peake's Add. C. 62. 
 
 (y) Everett v. Collins, 2 Camp. 515 ; Dent v. Dunn, 3 Camp. 298 ; Marsh 
 
OFACHECKONABANKBR. 45 
 
 It has been said that the holder of an unpaid check, as 
 assignee of a chose in action, has an equitable claim on the 
 drawee, and in the event of his bankruptcy may prove under 
 *the fiat.(2) But in America it has been held that a „„_, 
 check is not an equitable transler by the drawer of L ■' 
 a part of the debt due to him from the banker.(a) 
 
 It seems that the death of the drawer of a check is a coun- 
 termand of the banker's authority to pay it. But that if the 
 banker do pay the check before notice of the death, the pay- 
 ment is good.(6)(l) 
 
 If the sum for which the customer drew the check be 
 fraudulently altered and increased, and the banker pay the 
 larger sum, he cannot charge his customer with the excess, but 
 must bear the loss.(c) But should any act of the drawer him- 
 self have facilitated or given occasion to the forgery, he must 
 bear the loss himself. A customer of a banker on leaving 
 
 V. Pedder, Holt, 72 (3 B. C. L. B.) ; 4 Camp. 257, 8. C. ; Tapley v. Martens, 
 8 T. R. 451 ; Wyatt v. Marquis of Hertford, 3 Bast, 147. 
 
 («) In Fry and Chapman's bankruptcy, in the year 1829, several holders of 
 checks on the bankrupts claimed to prove, alleging that they were equitable 
 assignees of choses in action. The commissioners took time to consider, and 
 afterwards disallowed the claim. 
 
 (a) Ballard v. Randall, 1 Gray, 605. 
 
 (S) Tate V. Hllbert, 2 Ves. jun. 118. 
 
 (c) Hall V. Fuller, 5 B. & C. 750 (U E. C. L. R.) ; 8 D. & R. 464, S. C. ; 
 Smith V. Mercer, 6 Taunt. 76 (1 E. C. L. R.) ; 1 Marsh, 453, S. C. 
 
 (1) In the editions prior to the Eighth, the author had the paragraph : "A 
 check cannot be the subject of a donatio mortis eaum.'^ Tate v. Hilbert, 2 
 Ves., jun.. Ill ; Riddell v. Dobru, 1888, 3 Jurist, 722. But if the payee re- 
 ceive the, money before the donor's death, or before the banker has notice of 
 it, the gift will be good. Ibid. To which the American appended the follow- 
 ing note : That is, a check drawn by the donor himself. A draft is not the 
 subject of a donatio mortis causa by the drawer, when it has not been accepted 
 by the drawee. Harris v. Clark, 2 Barb. Sup. Ct. Rep. 94. The delivery of 
 any instrument which operates as an assignment to the donee of the funds of 
 the donor, in the hands of a third person, would, it seems, constitute a valid 
 gift, causa mortis. But the delivery to the donee of a draft by the donor, 
 upon a third person, who is in possession of his funds, does not so operate as 
 an assignment of a sum mentioned therein, until the draft has been accepted, 
 and therefore does not constitute a valid donatio causa mortis. Harris v. 
 Clark, 3 Comstock, 93. 
 
46 OF A CHECK ON A BANKER. 
 
 home, entrusted to his wife several blank forms of cheeks, 
 signed by himself, and desired her to fill them up according to 
 the exigency of his business. She filled up one with the words 
 fifty-two pounds two shillings, beginning the word fifty with a 
 small letter in the middle of a line. The figures 62: 2 were 
 also placed at a considerable distance to the right of the printed 
 £. She gave the check, thus filled up, to her husband's clerk, 
 to get the money. He,' before presenting it, inserted the words 
 " ^Aree AMwdrcci " before the word /?/?y, and the figure 3 bei 
 -tween the printed £ and the figures 52 : 2, so that it then ap- 
 peared to be a check for 352 : 2. It was presented, and the 
 bankers paid it. Held, that the improper mode of tilling up the 
 check had invited the forgery, and, therefore, that the loss fell 
 on the customer and not on the banker.(c?) 
 
 Branches of the same banking company in different towns 
 are for many purposes distinct. They may give notices of dis- 
 honour to each other, and a check upon one, when cashed by 
 another, may be considered as transferred and not paid.(e) 
 But a balance at one branch maj^ be applied in *reduc- 
 L J tion of an overdrawn account at another, even without 
 notice to the customer.(/") 
 
 When a plurality of persons, not being partners in trade, 
 have money in a bank, they must each sign the check. If one 
 abscond, equity will relieve the others, and assist them to get 
 the mouey.(^) 
 
 It has not been unusual for bankers to enter checks in the 
 pass-book as of the date when they were drawn, and not as of 
 the date when they were actually paid, and to calculate in- 
 terest accordingly. But a banker should debit his customer, 
 not from the date of the check but from the time of payment.(A) 
 
 (d) Young V. Giote, 4 Bing. 353 (13 E. C. L. R.) ; 12 Moore, 484, S. C. 
 See observations on this important ease, post. 
 
 (e) Clode v. Bsiiley, 13 M. & W. 51 ; Woodland v. Fear, 36 L. J., Q. B. 
 203 ; 7 E. & B. 519 (90 E. C. L. R), S. C. 
 
 (/) Garnett v. McKewan, L. R., 8 Ex. 10. 
 
 {g) Ex parte Hunter 3 Rose, 363. See post, Cliap. XV., on Patm^kt. 
 
 ih) Qoodbody v. Foster, Camb. Sum. Ass, 1831, Lyndhurst, C. B. 
 
OFACHECKONABAMKER. 47 
 
 The 9 & 10 Will. 3, c. 17, applies only to bills of exchange 
 payable after date. Checks, therefore, are not protestable.(t) 
 
 A check, like a bill or liote, might formerly, it seems, be 
 referred to the Master to compute principal and interest.(A) 
 But by the 15 & 16 Vict. c. 76, s. 92; this is rendered nnneces'- 
 sary, and in actions where the plaintiff seeks to recover a debt 
 or liquidated demand in money, judgment by default is final.(^) 
 
 A stakeholder who cashes a check deposited with him is 
 not, if the parties agreed to treat the check as money, guilty of 
 a breach of duty.(m) 
 
 As to the title of a man receiving money on an overdue 
 check which had been lost, see the Chapter on Tkansfer. 
 
 A cheque is within the Bills of Exchange Act, 18 & 19 Yict. 
 c. 67.(n) 
 
 A cheque may be taken in execution.(o) 
 
 * The statute 16 & 17 Yict. c. 59, s. 19, introduces a 
 new description of draft on a banker, differing in some '- -' 
 respects from a check, and in others from a bill of exchange, 
 The enactment applies to a draft on a banker payable to order 
 on demand. The statute enacts, that the banker who pays the 
 bearer is not to be responsible for the genuineness of the in- 
 dorsement, as he would be if it were an ordinary bill of ex- 
 change, but, on the other hand, the bearer cannot charge the 
 drawer without making title through the first indorsement as 
 he could on an ordinary check payable to bearer. 
 
 A banker's draft payable to order is now very commonly 
 used for remittances by post or otherwise, l^o innocent trans- 
 feree for value can succeed in an action against the drawer, 
 
 (i) Grant v. Vaughan, 3 Burr. 1516. 
 (Jc) See Bentham v. Lord Chesterfield, 5 Scott, 417. 
 (J,) Sect. 93. 
 
 (»») Wilkinsou v. Godefrey, 9 Ad. & E. 536 (36 E. C. L. R.). 
 (m) Eyre v. Waller, 39 L. J., Ex. 246 ; 5 H. & N. 460, S. C. 
 («) 1 & 2 Vict. c. 110, a. 12 ; Watts v. Jeffcries, 3 Mac. & G. 422 ; 15 Jur, 
 435, S. 0. 
 
48 OF AN I U . 
 
 unless he derive title through the payee's indorsement. The 
 drawer is therefore, in an action against himself on the check, 
 protected by the ordinary consequences of forgery, civil and 
 criminal. While in an action by himself against his own 
 banker for the balance of his account, the banker, when he 
 sets up as an answer the payment of the check, is at all events 
 in no better position than he would have occupied had the 
 check been originally made payable to bearer. Indeed, cases 
 may be imagined in which the forged indorsement may assist 
 the drawer in proving collusion or gross negligence against the 
 banker. 
 
 Checks payable to bearer may be crossed like other cheeks, 
 and, it is conceived, with the same consequences.(p) 
 
 [*28] *CHAPTER IV. 
 
 OF AN I U. 
 
 WHAT IT IS, . . . . 38 
 
 RBQUIBHS NO STAMP, . . 38 
 
 UNLESS IT AMOUNTS TO A NOTE 
 
 OR AGBBKMBNT, ... 28 
 
 NEED NOT BE ADDRESSED TO 
 
 THE CKEDITOR, . . .29 
 
 BILL IN EQUITY TO DISCOVER 
 
 CONSIDERATION, , . . .29 
 
 TO RESTRAIN AN ACTION, . . 29 
 
 A MERE acknowledgment of a debt does not amount to a 
 promissory iiote.(l) 
 
 (p) 19 i& 20 Vict. c. 35 ; 31 & 32 Vict. c. 79. . 
 
 (1) That a due bill is a promissory note, see Cummings v.. Freeman, 3 
 Humph. 143; Finney v. Shirley, 7 Missouri,;: 43; McGowen v. West, Ibid, 
 569 ; Hsirrow v. Dugan, 6 Dana, 341 ; Marrigan v. Page, 4 Humph. 247. A 
 ■written acknowledgment of indebtedness in a certain sum to a certain person, 
 with a statement of the ccfihsideration, is a promissory note. Fleming v. 
 Burge, 6 Alabama, 373. The plaintiff declared on the following instrument, 
 signed by the defendant : — " This is to certify, that I did, in the year 1844, 
 purchase of A. his tan-yard and stock, for which I did promise to pay B., for 
 the benefit of A., four hundred and seventy-five dollars ; which amount I do 
 hereby acknowledge to be unpaid, and yet due ; and one note of hand for 
 fifty-three dollars and fifty cents, which note is said to be lost or mislaid, each 
 amount bearing interest from January 1, 1845;"— held that the foregoing in- 
 
OFANIOU. 4!l 
 
 Suoh an acknowledgment , is frequently made in an abbre- 
 viated form, thus, 
 
 London, 1st January, 1866. 
 Mr. A. B. 
 
 10 U ^100. 
 
 a D. 
 
 '■' An acknowledgment of a debt in this form is called an 
 I U. It is evidence of an account stated but not of money 
 leat.(a) ^ 
 
 I^ot amounting to a. promissory note,(6) and being merely 
 evidence of a debt due by virtue of some antecedent contract, 
 it requires no stamp (c) Nor indeed is a stamp required for 
 any instrument which is merely an acknowledgment of money 
 deposited to be accounted for, and not a receipt for money an- 
 tecedently due.((i) Therefore a paper stating that the party 
 
 (a) Fesenmayer v. Adcock, 16 M. & W. 449. 
 
 (J) But if the consideration be stated, it has been held in America to be a 
 promissory note. Flemming v. Burge, 6 Alabama, 373. 
 . (c) Fisher v. Leslie, 1 Esp. 435 ; Israel v. Israel, 1 Camp. 499 ; Cbilders 
 V. Bonlnois, D. & R, N. P. C. 8 (16 E. C. L. R.) ; Beeching v. Westbrook, 8 
 M. & W. 413. 
 
 (d) Tompkins v. Ashby, 6 B. & C. 541 (18 E. C. L. R.) ; 9 D. & R. 543 ; 1 
 M,,& M. 33 (33 E. C. L. R.), S. C. ; Casbornev. Button, Selwyn'sN. P. 381, 
 9th ed. ; Payne v. Jenkins, 4 C." & P. 334 (19 E. C. L. R.). 
 
 strnment, in legal contemplation, was a due bill, and might be declared on as 
 a promissory note. Lowe v. Murphy, 9 Georgia, 33S. A due bill to bearer— 
 without time — is a promissory note payable immediately and not entitled to 
 grace. Sacbett v. Spencer, 39 Barbour, 180. Due A. B. or order on de- 
 mand is a promissory note. Carow v. Hayes, 47 Maine, 357 ; Brady v. 
 Chandler, 31 Missouri, 38. , 
 
 A writing, "Due H. or order the sum, &c., for value received of him, and 
 on settlement up to date," signed " M.," is a promissory note payable imme- 
 diately. Huyck V. Meador, 34 Ark. 191. "N. O. W. Cr. By labor at $4 per 
 day, $67, good to bearer," held to be a negotiable promissory note. Hulsey 
 T. Winslow, 59 Maine, 170. A paper as follows: "$535. Conger, August 38, 
 1805. Due 6. S. W. on corn five hundred and twenty-five dollars, A. B.," 
 is a negotiable promissory note, and should be stamped as such. Jacquin v. 
 Warren, 40 Illinois, 459. A, note in this form. "Due W. B. D. or order," 
 signed by two persons, i^ a joint note. Bacon v. Bicknell, 17 Wise. 533. 
 
 " I owe the estate of f. W. $190.15, May 13, 1863," held not a promissory 
 note. Bowles v. Lambert, 54 Illinois, 337. A deposit book issued by a 
 
 4 
 
50 OP AN I U . 
 
 signing it had certain bills in his hands, which he held to get 
 discounted or return on demand, requires no stamp.(e) 
 
 But if the I tr contain an agreement that it is to be paid 
 on a given day, it will be a promissory note, and must 
 '- -I *be stamped as such. And if the contracting words be 
 such as to make it not a promissory note, but an agreement, it 
 must be stamped accordingly ,(/) unless it be under 5^. in 
 amoant.(^) 
 
 The following instrument was held to be a mere I U, not 
 to be a promissory note, and to require no stamp : " 1839, Nov. 
 ll, I O U forty-five pounds thirteen shillings, which I borrowed 
 of Mrs. Melanotte, and to pay her five per cent, till paid."(A) 
 An instrument in this form, "10 Mr. John Grouid the sum of 
 200^. for value received," requires no stamp.(i) 
 
 It is conceived that a mere I U, given by a surety for the 
 debt of another man, is void by the Statute of Fraud8.(A) But 
 perhaps the Mercantile Law Amendment Act (19 & 20 Vict. c. 
 97, B. 3), which removes the necessity of the consideration ap- 
 pearing in writing, may obviate the obiection.(Z) 
 
 An I U ought regularly to be addressed to the creditor by 
 name ; but though not addressed to any one it will be evidence 
 
 (6) Mnllett v. Hutchison, 3 C. & P. 93 ; 7 B- & 0. 6^9 (14 E. C. L. R.) ; S. 
 C. ; Langdon v. Wilson, 2 Man. & R. 10 (77 E. C. L. R.) ; Williamson v. 
 Bennett, 2 Damp. 417 ; Home v. Redfearn, 4 Bing. N. C. 433 (83 E. C. L. 
 R.) ; 6 Scott, 360, S; C. 
 
 (/) Brooks V. Elkins, 2 M. & W. 74. 
 
 (ff) Evans v. Phillpotts, 9 C. & P. 370 (38 E. C. L. R.) ; 23 Vict. c. 15 ; 33 
 and 34 Vict. c. 97. 
 
 (h) Melanotte v. Teasdale, 18 M. & W. 216 ; Smith v. Smith, 1 P. & P. 539. 
 
 (^ Gould V. Combs, 14 L. J., C. P. 175; 1 C. B. 543 (50 E. C. L. R.), 
 S. C. 
 
 ( fc) So held by the Court of Exchequer, in 1845. Admitted by counsel to be 
 so. And see Gould v. Coombs, 14 L. J., C. P. 175 ; 1 C. B. 550 (50 E. C. L. 
 R.). 
 
 (0 An I U jointly signed by debtor and surety was held evidence of a 
 joint account stated with creditor. Buck v. Hurst, L. R., 1 C P. 397. 
 
 savings bank is not negotiable, and the assignee cannot maintain an action 
 on it in h^s own name against the bank. Howatd v. Windham County 
 Savings Bank, 40 Vermont, 597. 
 
CAPACITY OF CONTRACTING PAKTIE8. 
 
 51 
 
 for the plaintiff, if produced by him.(TO) This rule was con- 
 venient and safe. For, before the alteration of the lawmaking 
 parties to the action coihpetent witnesses, if the I U were 
 given (as it often is) when no one but the plaintiff and defend- 
 ant were present, it would have been impossible for the plain- 
 tiff to prove how he became possessed of it, but if the I U 
 were given to a third party the defendant had ordinarily the 
 means of proving it. 
 
 It has been held that a bill in equity will lie to discover 
 whether an I U were given for a gaming debt.(n) 
 
 There are cases where the Court will restrain an action on an 
 lOU.(o) 
 
 *CHAPTER V. 
 
 [*30] 
 
 OF THE CAPACITY OF CONTRACTING PARTIES TO A BILL OR 
 
 NOTE.' 
 
 AGENTS, 31 
 
 WHO MAY BE AN AGENT, . . 31 
 SPECIAL AGENT AND GENERAL 
 
 AGENT, 81 
 
 ACTUAL AND OSTENSIBLE ATJ- 
 
 THOHITT, 31 
 
 HOW AGENT APPOINTED, . . 31 
 PROCUBATION, . ■ . . 33 
 WHEN AUTHORITY INFERRED, . . 33 
 TO INDORSE, . . . .33 
 WHEN ADMITTED, . . .33 
 CONSEQUENCES OF AN AGENT EX- 
 CEEDING HIS AUTHORITY, . 34 
 UNAUTHORIZED INDORSEMENT, . 34 
 
 DELIVERY, 34 
 
 PLEDGING, 34 
 
 BILL BROKERS, . . ... 35 
 
 when the production op 
 agent's authority may be 
 required, .... 35 
 how determined, . . .36 
 when it may be delegated, . 36 
 personal liability of an agent 
 
 to third persons, . . .36 
 parol etidencb inadmissible 
 
 to discharge the agent, . 37 
 signature without author- 
 ITY, 38 
 
 LIABILITY, HOW AVOIDED, . . 38 
 
 LIABILITY OP AGENT FOR FRAUD, 38 
 RIGHTS OP AN AGENT AGAINST 
 
 THIRD PERSONS, . . .38 
 
 LIABILITY OF AN AGENT TO HIS 
 
 PRINCIPAL, . . . .40 
 
 (m) Curtis v. Rickards, 1 M. •& 6. 46 (39 B. C. L. R.) ; 1 Scott, N. R. 155 ; 
 Douglas v. Holme, 13 A. & E. 146 (40 E. C. L. R.) ; Fisher v. Leslie, 1 Esp. 
 437 ; Fesenmaypr v. Adcock, 16 M. & W. 449. 
 
 (n) Wilkinson v. L'Eaugier, 3 Y. & Col. 366. 
 
 (o) Quarrier v. Colston, 13 L. J., Ch. 57; 6 Jur. 959. 
 
52 
 
 CAPACITY OF CONTRACTING PABTIiDS. 
 
 RIGHTS OF PRINCIPAL AGAINST 
 
 THIRD PERSONS, . . .40 
 
 PARTNERS, 40 
 
 PARTNERSHIP, BOTH ACTUAL AND 
 
 OSTENSIBLE, . . . .41 
 
 AGREEMENT, INTER SB, NOT TO 
 
 DRAW BILLS, . . . .41 
 
 CASES IN WHICH PARTNERS ARE 
 BOTH ENTITLED AND LIABLE IN 
 RESPECT OF A BILL, . . .41 
 
 EIGHTS AND LIABILITIES AS BE- 
 TWEEN THE FIRM AND THE 
 
 WORLD, 43 
 
 ONE PARTNER BINDING THE 
 
 OTHERS BY BILLS, . . .43 
 BY PROMISSORY NOTES, . . 44 
 MUST OBSERVE STYLE OF FIRM, . 44 
 FARMING AND MINING PARTNER- 
 SHIPS, 45 
 
 PARTNERSHIPS NOT IN TRADE, . 45 
 CREDITORS CARRYING ON A 
 
 TRADE, 45 
 
 CONSEQUENCES OF PARTNER EX- 
 CEEDING HIS AUTHORITY, . 46 
 WHERE THERE IS NOTICE, . . 46 
 COMMON PARTNER IN TWO FIRMS 
 
 OP THE SAME NAME, . , 48 
 
 NEW PARTNER, . . . .48 
 
 FRESH SECURITY, . , .48 
 
 DORMANT OR SECRET PARTNER, . 49 
 HIS LIBAILITY, . . . .49 
 
 NOMINAL PARTNER, . . .50 
 
 DISSOLUTION 50 
 
 RETIREMENT OP SECRET PART- 
 NER, 53 
 
 OCCASIONAL PARTNERSHIPS, . 53 
 EXECUTORS AND ADMINISTRA- 
 TORS 58 
 
 THEIR RIGHTS AND DUTIES, . 54 
 
 EFFECT OF PROBATE, . . .54 
 
 SPECIALTY AND SIMPLE CONTRACT 
 
 DEBTS 54 
 
 DEBTOR MADE EXECUTOR, . . 54 
 DEBTOR BECOMING ADMINISTRA- 
 TOR, 56 
 
 WHEN EXECUTORS MAY SUB AS 
 
 SUCH, 56 
 
 DBLIVJIRY AFTER INDORSER'B 
 
 DEATH 57 
 
 INDORSEMENT BY ONE EXECUTOR 
 
 OF SEVERAL, . . . .57 
 
 PERSONAL LIABILITY ON A BILL, 57 
 JOINDER OF COMMON COUNTS IN 
 ACTIONS AGAINST, . . .59 
 
 INFANTS, 58 
 
 PERSONS UNDER UNDUE INFLU- 
 ENCE 61 
 
 LUNATICS, . -. . . .62 
 
 PERSONS DRUNK, . . . .63 
 
 MARRIED WOMEN, . . .63 
 
 MARRIED women's PROPERTY 
 
 ACT 67 
 
 CONVICTED FELONS, . . .67 
 
 ALIENS 67 
 
 CORPORATIONS AND BANKING 
 
 COMPANIES, . . . .68 
 
 BANK OF ENGLAND, . . .09 
 
 BANKS OF NOT MORE THAN SIX 
 
 PARTNERS, . . . .71 
 BANKS OF MORE THAN TEN PART- 
 NERS, 71 
 
 JOINT STOCK COMPANIES, . . 71 
 
 AT COMMON LAW, . . . .71 
 
 JOINT STOCK COMPANIES UNDER 7 
 
 & 8 VICT. c. 110, ... 73 
 
 JOINT STOCK COMPANIES UNDER 
 SUBSEQUENT ACTS, . . .73 
 
 PERSONS ACTING IN AN OFFICIAL 
 CAPACITY, . . . . 74 
 
 LOAN SOCIETIES, . . . .75 
 
 [*31] 
 
 * Whatever a man may do by himself (except in virtue 
 of a delegated authority), he may do by his agent.(a) 
 
 Disqualifications for contracting on a person's own account 
 are not disqualifications for contracting as an agent for another; 
 for an agent is considered as a mere instrument. Therefore, 
 
 (a) Combe's Case, 9 Rep. 75. 
 
CAPACITY OF CONTRACTING PARTIES. 53 
 
 infants,(6) married women, persons attainted, outlawed, or ex- 
 communicated, aliens, and other persons labouring under disa- 
 bilities, may be agents, (c)(1) 
 
 Loose expressions are to be found in the books as to the dis- 
 tinction between a special and a general agent. But all agents 
 are more or less general, and all are more or less special. 
 
 A more important distinction is between the actual and the 
 dsiensible authority of au agent. If the principal's representa- 
 tions or acts give to the agent the appearance of an authority 
 larger than the agent actually possesses, the principal may be 
 bound by such of the agent's acts as, although beyond the line 
 of the agent's actual authority, are still within the margin of 
 his ostensible or apparent authority. And this, on the estab- 
 lished and elementary principle, that untrue representations, on 
 the faith of which a man induces a third person to act, bind the 
 party making them. 
 
 Ifo particullar form, of appointment is necessary to enable an 
 agent to draw, accept or indorse bills, so as to charge his 
 *principal. He may be specially appointed for this pur- p^„„, 
 pose or may derive his power from some general or im- ■- ^ 
 plied authority. (2) 
 
 Subsequent recognition of an agent's acts is equivalent to 
 previous authority ; provided the agent, when he acted, as- 
 sumed to act as a,gent.{d) 
 
 (J) But an infant, though he may be a private, cannot be a public attor- 
 ney ; that Is, an attorney at law to conduct suits. Mirror, c. 3, s. 31 ; Co. 
 Litt. 128 a. 
 
 (c) Co. Litt. 53 a. 
 
 (rf) Viner's Ab. Balihabition ; SaunderBon v. GriflSths, 5 B. & C. 909 (11 
 E. C. L. R.) ; D. & R. 643 ; Vere v. Ashby, 10 B. & C. 388 (31 E. C. L. R.). 
 See the law of Ratihabition discussed in Wilson v. Tummon, 6 M. & G. 236 
 (46 E. C. L. R.), which is the leading case on the subject. See aiso Ancona 
 V. Marks, 31 L. J , Bxch. 163 ; 7 H. & N. 686. In America it has been held 
 that ratihabition will not relieve the agent from personal liability on a promis- 
 sory note once incurred. Rossiter v. Rossiter, 8 Wendall, 494. 
 
 (1) A slave may be an agent. The Governor v. Daily, 14 Alabama, 469. 
 (3) The authority of an agent to transfer a note by indorsement may be 
 created verbally, whether the principal be an individual or a corporation. 
 
54 CAPACITY OF CONTRACTING PARTIES. 
 
 General authorities to transact business, and to receive and 
 discharge debts, do not confer upon an agent the power of ac- 
 cepting or indorsing bills, so as to charge his principal.(e) And 
 special authorities to accept or indorse are construed strictljr.(l) 
 
 (e) Hogg V. Snaith, 1 Taunt. 347, and Hay v. Golclsmid, there cited ; Mar- 
 ray V. Bast India Company, 5 B. & Aid. 204 (7 E. U. L. R.) ; and see Howard 
 v. Baillie, 3 H. Bla. 618 ; Gardner v. I^aillie, 6 T. R. 591 ; Kilgouv v. Finly- 
 son, 1 ,H. Bla. 155 ; Hay v. Goldsmid, 2 Smith's Rep. 79 ; Esdaile v. Lanauze, 
 1 Y. & Col. 394. But where an agent managed a business and acted ostensi- 
 bly as principal, it was held that he could bind his principal by accepting a 
 bill, even though expressly forbidden so to do. Edmunds v. Bushell, L. R,, 
 1 Q. B. 97 ; 35 L. J. 21. 
 
 And such authority may be inferred from facts and circumstances connected 
 with the transaction. Trundy v. Farrar, 33 Maine, 335. One man may au- 
 thorize another to sign his name or make his mark to a note. Handyside v. 
 Cameron, 21 Illinois, 588 ; Forsyth v. Day, 46 Maine, 176. In the execution 
 of a promissory note, a person may adopt and ratify the signing of his name 
 by another. Dow v. Spenuy, 39 Missouri, 3 <6. 
 
 (1) Verbal authority from the principal to his agent to transact all his busi- 
 ness confers the power to assign and transfer negotiable papers. Bailey t. 
 Eawiey, 1 Swan (Tenn.), 205. Whether an agent has power to draw or in- 
 dorse bills or notes, will depend upon the construction of the words used in 
 nis appointment. When certain special objects are enumerated, subsequent 
 general words will be restrained to these objects. Thus a power of attorney to 
 collect debts, to execute deeds of lands, to accomplish a complete adjustment 
 of all concerns of the constituent in a particular place, and to do all other acts 
 which the constituent could do in person, does not authorize the giving of a 
 note by the attorney in the name of the principal. Rossiter v. Rossiter, 8 
 Wendell, 494. The power will be limited by the general objects and purposes 
 for which it is conferred. The appointment of an attorney by writing " with 
 full power and authority for me, and in my name, to draw or to indorse 
 promissory notes, to accept, draw, or indorse bills of exchange," does not 
 authorize the attorney to draw or indorse notes for the mere accommodation 
 of third persons. The general intention was, that the attorney should transact 
 the business which it particularizes for the constituent and in his name: and 
 this intent can only be upheld by limiting the authority of the attorney to 
 cases in which he acts on account of his principal. Wallace v. The Branch 
 Bank at Mobile, 1 Alabama, 565 ; Kingsley v. The Bank of the State, 3 Ter- 
 ger, 107. A power of attorney to execute promissory notes for discount at a 
 bank to a certain amount, does not authorize the renewal of said notes. Ward 
 V. The Bank of Kentucky, 7 Monroe, 93. A power to B. to sign and indorse 
 notes at a bank, gives B. authority to sign and indorse any note payable at 
 and due to that bank, and no other. Morrison v. Taylor, 6 Monroe, 82. 
 Where the agent of a manufacturing company was authorized, by a vote of 
 the directors, to raise money for his own use upon the credit of the company, 
 and to give therefor a " company note ;" it was held that the terms "com- 
 
CAPACITY OF CONTRACTING PARTIES. 55 
 
 A. B., who carried on- business on his own account, and also in 
 partnership, went abroad, and gave to certain persons in this 
 country two powers of attorney ; by the first of which, authority 
 was given for him, and in his name and to his use, to do certain 
 specific acts (and, amongst others, to indorse bills, &c.), and gen- 
 erally to act for him, as he might do if he were present ; and, 
 by the second, authority was given, " for him, and on his be- 
 half, to accept bills drawn on him by his agents or correspond- 
 ents." C. D., one of A. B/s partners (and who acted as his 
 
 panynote" were not used in the vote to designate a technical promissory 
 note, and that a bill of exchange drawn by the agent in the name of the com- 
 pany, upon the dishonor of which by statute they could not be liable for any 
 (Jamaiges^ was a company note within the meaning of the vote. The law, 
 however, is very clear, that the party giving the authority may limit it pre- 
 cisely, and even arbitrarily ; and it is not enough to say that the security 
 given is not more onerous than the one authorized. Tripp v. Swansey Manuf. 
 Go., 13 Pick. 291.. A supercargo cannot bind his principals as acceptors of a 
 bill drawn by himself, without express authority to that effect communicated 
 to and relied on by the person who receives the bill. Scott v. McLellan, 2 
 Greenleaf, 199. If a party originally authorizing his name to be subscribed 
 to a note or participating in the consideration, ratifies the act of another in 
 putting his name thereto, he becomes liable as the maker of the note. Walter 
 V. Trustees of Schools, 13 Illinois, 63. If one promise to pay a note, to which 
 his name has been signed by one, assuming, without authority, to act as his 
 agent, It is in law equivalent to an antecedent authority to execute the note. 
 Bigelow V. Denison, 23 Verm 564. 
 
 It is to be obsei'ved that, although, as stated in the tejit, ratification is in 
 general equivalent to antecedent authority, yet it has been decided, that where 
 the drawer of a note affixes hjs signature as the agent of another, if in an ac- 
 tion against him personally, he claims to have had authority to sign as he did, 
 he is bound to show such authority existing at the time of the making of the 
 note, and is not permitted to show a subsequent ratification by his principal ; 
 such ratification would avail to render the principal liable, but not to relieve 
 the agent from the personal liability once incurred by giving the note. The 
 note when executed was either the note of the one or the other — if it was not 
 then the note of the principal, it was the note of the attorney. Rossiter v. 
 Eossiter, 8 Wendell, 494. ' 
 
 A note payable to A. B., Treasurer of R. R. Co., is not a note to the com- 
 pany but the individual named. Chadsey v. McCreery, 27 Illinois, 258. 
 
 A bill payable to an individual as cashier, is payable to the bank of which 
 he is the officer. Bank of New York v. Bank of Ohio, 29 New York, 619. 
 
 A note payable to "J. C, Sheriff of St. Louis County," and indorsed "J. 
 C, Sheriff," is no notice of any trust. Powell v. Morrison, 35 Mo. 244. 
 
 A note was made payable to ".I. H., President of the Board ef Trustees," 
 &c. S. H. held the legal title and could assign it. Van Buskirk v. Day, 32 
 Illinois, 260. 
 
56 CAPACITY OF CONTKACTINfl PARTIES. 
 
 agent), in order to raise money for payment of tb^ creditors of 
 the joint concern, dpew a bill which the attorney accepted in 
 A. B.'s name by procuration. In an action against A. B. by the 
 indorsee of the bill, held, first, that the right of the indorsee 
 depended upon the authority given to the attorney ; secondly, 
 that the power applied only to A. B.'s individual, and not to his 
 partnership, affairs; thirdly, that the special power to accept 
 extended only to bills drawn by an agent in that capacity; and 
 that C. D. did not draw the bills in question as agent, but as 
 partner ; and, lastly, that the general words in the power of 
 attorney were not to be construed at large, but as giving gen- 
 eral powers for the carrying into effect the special *pQr- 
 L J poses for which they were given.( /) An authority to 
 indorse .bills remitted to the principal, gives no power to indorse 
 a bill which the principal could not have indorsed without a 
 fraud, although the bill get into the hands of a bona fide holder 
 for value without notice.(^) It would have been otherwise had 
 the principal himself indorsed.(A) 
 
 The words "per procuration" are an express intimation of a 
 special and limited authority. And a person who takes a bill so 
 drawn, accepted or indorsed, is bound to inquire into the extent 
 of the authority.(j) 
 
 An authority is often implied from circumstances ; as if the 
 agent has formerly been in the habit of drawing, accepting or 
 indorsing for his principal, and his prindipal has recognized his 
 acts. Thus, to an action against an acceptor of a bill, the de- 
 fence was, that the drawer had forged the acceptor's signature, 
 in answer to which it was proved that the defendant had pre- 
 
 (/) Atlwood V. Munnings, 7 B. & C. 278 (14 E. C. L. B.) ; 1 M. & R. 78. 
 See Bank of Bengal t. M'Cleod, 7 Moore, P. C. C. 35. 
 
 (ff) Fearn t. Filica, 14 L. J., C. P. 15; 7 M. & G. 513 (49 E. C. L. B.), 
 S. C. 
 
 (A) Ibid. 
 
 (0 Alexander v. M'KenzJe, 6 C. B. 766 (60 E. C. L. R.) ; 18 L. J., C. P. 
 94, S. C. ; Attwood v. Munnings, 7 B. & C. S78 (14 E. C. L. R.) ; Bayley on 
 Bills, 6 Ed. 82; Smith's Mercantile Law, 5 Ed. 184; Staggv. Elliott, 31 L. J., 
 260, C. P. ; 12 C. B., N. S. 873 (104 E. C. L. R.), S. C. But the Court of 
 Exchequer seem to have adcptcd a different rule in the case of a charter-party 
 signed P. P. 
 
CAPACITY OF CONTRACTING PARTIES. 57 
 
 viously paid such acceptances ; and this was held proof of au- 
 ' thority to the drawer.(A;)(l) 
 
 " It may be admitted," says Tindal, C. J., " that an authority 
 to draw does not import in itself an authority to indorse bills ; 
 but still the evidence of such authority to draw is not to be 
 withheld from the jury, where they are to determine on the whole 
 of the evidence, whether an authority to indorse existed or 
 r\ot."{l) And therefore, from the facts that the defendant's con- 
 fidential clerk had been accustomed to draw checks for them, 
 that in one instance they had authorized him to indorse, and in 
 two other instances had received money obtained by his indors- 
 ing in their name, a jury was held warranted in inferring that 
 the clerk had a general authority to indor8e.(m) 
 
 The acceptance of a bill drawn by procuration is an admis- 
 sion* of the agent's authority <o draw, but no admission ^^ ., 
 of his authority to indorse, though the indorsement were ^ -' 
 on the bill at the time of acceptance.(n)(2) 
 
 An agent who exceeds his authority, in negotiating a bill, 
 cannot convey a title to it, if overdue at the time ; and a party, 
 who takes a bill from an agent under such circumstances that 
 his title is affected by the wrongful act of the agent, is liable to 
 refund, to the principal, money which he may receive in dis- 
 charge of the bill from the previous parties ; or, if in lieu, of 
 money he take a substituted bill, such second bill belongs to 
 the principal, and the principal may countermand payment. 
 
 (k) Barber v. Gingell, 3 Esp. 60 ; Llewellyn v. Winckworth, 13 M. & W. 
 598 ; Cash v. Taylor, Lloyd «& Welsby's Mercantile Cases, 178 ; 8 L. J., K. 
 B. 363. 
 
 (0 Prescott V. Flinn, 9 Bing. 19 (23 E. C. L. R.) ; 3 Moo. & Sc. 33, S. C. 
 
 (w) Ibid. . 
 
 in) Robinson v. Yarrow, 7 Taunt. 455 (3 E. C. L. R.) ; 1 Moo. 150. See 
 the Chapter on Acceptance. 
 
 (1) Authority of treasurer of a corporation to accept, may be proved by 
 showing his practice to do so with the assent of the directors. Partridge v. 
 Badger, 35 Barbour, 146. 
 
 (2) Principal is not liable on note of his agent though duly authorized, 
 signed in his own name only, without words of procuration. Brown v. Par- 
 ker, 7 Allen, 337. 
 
58 OAPACITT OF CONTRACTING PARTIES. 
 
 For neither in the first bill, or in the fruit of it, the second bill, 
 or in money received on either, has he any greater interest than 
 his indorser could convey, viz., the interest of an agent, and a 
 principal has a right to countermand payment to his agent.(o) 
 
 If an agent indorse, without authority, a bill payable only 
 to order, such indorsement convej'S no right of action except 
 against the party indorsing.fp) 
 
 But the unauthorized delivery of bills or notes payable to 
 bearer, gives a bona fide holder a claim on the other parties.(5') 
 
 But in any case, if the transferee know that the transferor 
 has no right to pass the bills, he can acquire no property in 
 them. Thus, where the plaintiff' indorsed bills to A. B. specially 
 in this form, " Pay A. B. or order, for account of plaintiffs," 
 and A. B. pledged the bills with defendant for his private debt, 
 it was held, that the defendant took them with sufficient notice 
 that they did not belong to A. B., and that defendant was liable 
 to plaintiffs in an action of trover.(r) 
 
 An agent, who receives a bill for the purpose of getting it dis- 
 counted, has no right to pawn it for a sum smaller thaA the 
 amount of the bill, minus the discount, for his *empl(3yer 
 •- ■' may, by the pawnee's detention of the bill, or by his 
 change of residence, or by its further negotiation, be prevented 
 from raising on the bill its full value, and yet be exposed to pay 
 its full amount to a subsequent bona fide holder. 
 
 An agent or bill broker, intrusted to discount, has no right 
 to pledge the bill as a security for money previously due from 
 himself.(s) And it is very doubtful whether an usage entitling 
 
 (o) Lee V. Zagnry, 8 Taunt. 114 (4 E. C. L. R.) ; 1 Mop. 556." 
 
 (p) See Fearn v. Filica, 7 M. & G. 513 (49 E. C. L. R.) ; 14 L. J., C. P. 
 15, S. C. 
 
 (j) Bayley, 106 ; Miller v. Race, 1 Burr. 453 ; Lawson v. Weston, 4 Esp. 
 50 ; Raphael V. Bank of England, 17 C. B. 161 (84 E. C. L. R.). See Chap. 
 XI. on Tbansfuk. 
 
 (r) Treuttell v. Barandoh, 8 Taunt. 100 (4 E. C. L. R ) ; 1 Moo. 543, S. C. 
 See the subject of restrictive indorsements more fully treated in the Chapter on 
 Tbanbfek. 
 
 (s) Haynes v. Foster, 3 C. & M. 237. 
 
CAPACITY OF CONTEACTING PARTIES. 59 
 
 him to do so woulcl be lcga].(<) Prima facie, a bill broker has 
 no right to pledge the bills of his different customers in one 
 mass, for that might subject a bill to a lien beyond the amount 
 advanced upon it.(s) But the usage of a particular district 
 ■ may enlarge the authority of a bill broker, and give him a 
 right to pledge the bills of different customers in one ma88.(i) 
 Such is the usage of bill brokers in the city of London, and it 
 is not an unreasonable one, for although it may occasionally be 
 attended with inconvenience, yet, on the other hand, the bill 
 broker may often raise money on a large scale on better terms 
 than on a small one, or discount, with, other bills, bills which 
 alone could not be discounted at all.(M) 
 
 If an offer to accept be made by an agent, the holder may 
 and should require the production of his authority, and, if sat- 
 isfactory authority be not produced, may treat the bill as dis- 
 honoured, " A person taking an acceptance importing to be 
 by procnration," says Mr. Justice Bayley, " ought to exercise 
 due caution, for he must take it upon the credit of the party 
 who assumes the authority to accept, and it would be only 
 reasonable prudence to require the production of that au- 
 thority."(x) It has been doubted whether, in any case, a 
 holder is bound to acquiesce in an acceptance by an agent, 
 on the same principle that it has been held that a purchaser is 
 not bound to acce|.pt a conveyance to be executed by a power 
 of attorney, viz., that it will multiply the proofs necessai-y to 
 sustain his title.(y) 
 
 *The authority of an agent will be presumed to con- 
 tinue till due notice of its revocation has been given ; '- -■ 
 and such notice should be, as to strangers, by publication in 
 the Gazette; and, as to customers and correspondents, by ex- 
 press individual communication. (2) 
 
 0) Foster V. Pearson, 1 C ,M. & K. 849 ; 5 Tyr. 255, S. C. 
 
 {u) "A bill broker is not a person known to the law with certain prescribed 
 duties, but his employment is one which depends entirely on the course of 
 dealing." Ibid. Foster v. Pearson, 1 C, M. & R. 849. 
 
 (a) Attwood V. Mannings, 7 B. & C. 278 (14 E. C. L. R.) ; 1 M. & R, 78. 
 
 iy) See Coore v. Callaway, 1 Esp. 115 ; Chitty, 383. 
 
 (z) See Newsome v. Coles, 3 Camp. 617. 
 
60 CAPACITY OP CONTRACTING PARTIES. 
 
 A mere agent cannot delegate his authority, unless specially 
 authorized so to do.(a)(l) 
 
 The effect of notice to an agent of an infirmity in the title to 
 a bill of exchange which he receives for his principal will be 
 discussed in the Chapter on Consideration. 
 
 An agent will be personally liable to third persons on his 
 drawing, indorsing or accepting, unless he either sign his prin- 
 cipal's name only, or expressly state in writing his ministerial 
 character, and that he ^igns only in that character ; "unless," 
 to use the words of Lord Ellenborough,(6) " he states upon the 
 face of the bill that he subscribes it for another; unless he 
 says plainly, ' I am the mere scribe.' " 
 
 Thus, where the defendant, agent of a banker, drew the fol- 
 lowing bill : " Pay to the order of A. B. 50^. value received, 
 which place to the account of the Durham Bank, as advised," 
 and subscribed his own name, it was held that the defendant 
 was personally answerable and he alone, though the plaintiff, 
 the payee, knew that he was only agent.(c) So, if a broker 
 draws upon the buyer of goods which he has sold for. his prin- 
 cipal in favour of the latter, to whom he indorses the bill, he 
 is liable, as drawer, to his principal.(d) A bill for 200^. was 
 drawn upon the defendant by the . description of " Mr. H. 
 Bishop, Cashier of the York Buildings Companj/, at their house 
 in Winchester Street, London ; " and the bill directed him to 
 place the 200?. to the account of the company. The letter of 
 advice from the drawer of the bill was sent to the company, 
 and by their direction the defendant accepted it, in this form, 
 
 (a) Combe's Case, 9 Rep. 75 ; Palliser v. Ord, Bunb. 166. But an au- 
 thority lo indorse may imply an authority to.iudorse by the hand of another 
 in the agent's presence. Lord v. Hall, 9 L. J., C. P. 147 ; 8 C. B. 627 (65 
 B. C. L. R.), S. C. ; see also Ex parte Sutton, 2 Cox, 84. 
 
 (J) Leadbilter v. Farrow, 5 M. & S. 345 ; Sowerby v. Butcher, 2 C. & M, 
 368 i 4 Tyr. 320, S. C. ; Alexander v. Sizer, L. R., 4 Ex. 105 ; 37 L. J. 59. 
 S.C. 
 
 (c) Ibid. ; Goupy v. Harden, 7 Taunt. 160 (2 E. C. L. R.) ; 2 Marsh, 454. 
 
 ((?) Lefevre v. Lloyd, 5 Taunt. 749 (1 E. C. L. R.) ; 1 Marsh. 318. 
 
 (1) An agent with power to give notes cannot delegate that power. Brew- 
 ster V. Hobart, 15 Pick, 303 ; Emerson v. Providence Manufacturing Co., 12 
 Mass. 237. 
 
CAPACITY OF CONTRACTING PARTIES. 
 
 ei 
 
 "Accepted, 13th June, 1732, per H. Bishop." He was held 
 responsible, the Court considering the addition to his name as 
 merely descriptive, *the order to place the sum to the r-^„„-, 
 account of the company as a direction how to reimburse ^ -' 
 himself, and the letter of advice inadmissible to superadd to 
 the terms of the bill, as against the plaintiff", an indor3ee.(e) 
 And a bill directed to W. 0. for value received in machinery 
 supplied to the adventurers in Hayter and Holme Moor Mines, 
 and Accepted as follows : " Accepted tor the companies, payable 
 at the Union Bank, &c., W. C, Purser," was held to create a 
 personal liability. (/j(l) 
 
 The rule Of law as to simple contracts in writing, other than 
 bills and notes, is, that parol evidence is admissible to charge 
 unnamed principals, and so it is to give them the benefit of the 
 
 («) Thomas v. Bishop, 2 Slra. 955 ; Kew v. Pettet, 1 A. & E. 196 (28 B. C. 
 L. E.) ; 3 Nev. & M. 456, S. C, nom. Crew v. Pettet, ante. As to an agent's 
 remedy, see Huntley v. Sanderson, 3 Tyr. 469 ; 1 C. & M. 467, S. C. 
 
 (/) Mare v. Charles, 25 L. J., Q. B. 119 ; 5 B. & B. 978 (85 E. 0. L. R.), 
 S. C. See post, as to otficers of a public corapsmy signing in their own names. 
 
 (1) An oflBcer of a corporation, to whose order, as such, a note executed to 
 it is payable, and who indorses the note, adding to his name his oflScial char- 
 acter, and who indorses it in behalf of the corporation, is not personally 
 responsible as indorser. Babcock v. Beman, 1 Kernan, 200 ; Shaver v. Ocean 
 Co., 21 California, 45. 
 
 That the mere addition of the official style or designation of the party either 
 in making or indorsing negotiable paper, does not prevent personal liability, 
 seems to accord with the general current of ^merican authorities. Morell 
 V. Codding, 4 Allen, 408 ; Chadsey v. McCreery, 27 Illinois, 258 ; Fowler v. 
 Atkinson, 6 Minnesota, 578 ; Drake v. Flewellen, 33 Alabama, 106. One who 
 accepted " as treasurer" is prima facie personally liable, but can show that 
 he accepted as agent duly authorized, and that plaintiflF had notice. Brua v. 
 Lord, 1 Hilton, 247. Indorsement by defendant "as treasurer" of a note 
 given to him in that capacity, and the plaintiff knew the facts, held that 
 defendant was not personally lialjle. Babcock v. Beman, 1 E. D. Smith, 593. 
 There are cases in which sucli words are held prima facie, to show the note to 
 be the note of the corporation and not the officer, who can only be made lia- 
 ble personally, upon its appearing that he was not authorized. A draft paya- 
 ble to "A. B. Cash," and indorsed "A. B. Cash," is ^rMna/aae the indorse- 
 ment of the bank, and not of A. B. Collins v. Johnson, 16 Georgia, 458. A 
 note given by " the undersigned directors of School district," creates no per- 
 sonal liability. Baker v. Chambles, 4 Greene, 438. A note to " A. B. , treasu- 
 rer," indorsed " A. B., treasurer," he being then treasurer of a corporation, 
 creates no personal liability in A. B. Babcock v. Beman, 1 Kernan", 200. 
 
62 CAPACITY OF CONTRACTING PARTIES. 
 
 contract ,;(5r) but it is inadmissible for the purpose of discharging 
 the agent, who signs as if he were principal in his own name.(A) 
 And the rule of law is reasonable, for in the two former cases 
 the evidence is consistent with the instrument, for it admits the 
 agent to be entitled or bound ; but in the latter case such evi^ 
 deuce would be inconsistent with the terms of the instru- 
 ment.(i) 
 
 Yet it is conceived that the law as to negotiable instruments 
 is different in one respect, to wit, that where the principal's 
 name does not appear, he is not liable on a bill or note as a 
 party to the instrument.(A)(l) 
 
 ig) As to the cases in which a man who signs himself agent may come for- 
 ward and sue as principal, see Biclierton v. Burrell, 6 M. & S. 383, and Ray- 
 ner v. Grote, 16 L. J., Exch. 82 ; 15 M. & W. 359, S. C. 
 
 (h) As to cases in which an agent has been held personally liable at law, 
 but not in equity, where he described himself as agent, see further Wake v. 
 Harrop, 30 L. J., Exch. 278 ; Price v. Taylor, 5 H. & N. 540. And for his 
 right to make himself so liable instead of his principal, see Cropper v. Cook, 
 L. R, 3 C. P. 194, where a local custom to that effect was held good and 
 equivalent to authority. 
 
 (J.) Higgins V. Senior, 8 M. & W. 834. 
 
 (&) See an American case, Story on Agency, 125, n. See also, Pentz v. 
 Stanton, 10 Wend. 271 ; Conro v. Port Henry Iron Company, 12 Ban. 551 ; 
 and the observations of Lord EUenborough and Mr. J. Holroyd, in Leadbltter 
 V. Farrow, 5 M. & S. 349 j Bult v. Morrell, 12 A. & B. 750 (40 E. C. L. R.). 
 But see Lindus v. Bradwell, 5 C. B. 583 (57 E. C. L. R.), where a bill drawn 
 on the principal, accepted by the agent (the wife) in the agent's name, was 
 held binding on the principal as acceptor. See also Gurney v. Evans, 27 L. 
 J., Exch. 166 ; 3 H. & N. 122, S. C. ; Edmunds v. Bushell, 35 L. J.,Q. B. 91. 
 
 (1) Deeds by an agent or attorney must be executed in the name of the 
 principal to hind him, but it is otherwise in case of simple contracts. New 
 England Marine Ins. Co. v. De Wolf, 8 Pick, 56. In contracts not under 
 seal, if the agent Intend to bind his principal and not himself, it will be suffl- 
 cient if it appear in such contract that he acts as agent. Andrews v. Estes et 
 al., 2 Fairfield, 267; Sliotwell v. McKown, 2 Southard, 828. It is not suffi- 
 cient, to charge the principal or protect the agent from personal responsibility, 
 merely to describe himself as agent, if the language of the instrument im- 
 ports a personal contract on his part. But when the name of the principal 
 appears on the face of the instrument or contract, and it is evident that the 
 agent did not intend to bind himself personally, but acted merely on behalf 
 of the principal, if he acted by competent authority, the principal and not 
 the agent will be bound. Pents v. Stanton, 10 Wendell, 271. It will, of 
 course, be remembered that the above case respects the liability of the -pvia- 
 c\^a\ on the nil (M iiuih, — for a principal is liable on his agent's contracts for 
 
CAPACITY OP CONTRACTING PARTIES. 63 
 
 *An agent who makes a contract as agent thereby j.^„^-, 
 impliedly undertakes that he has authority, and he and '- -■ 
 
 him whether his name was disclosed or not — unless the principal being known, 
 credit was exclusively given to the agent, — in an actibn founded on the origi- 
 nal consideration. Ibid. A note signed by the authorized agents of a cor- 
 poration, with words annexed to their names intimating their agency, is the 
 note of the corporation and not of the person signing it. Johnson v. Smith, 21 
 Conn. 627. A promissory note was subscribed thus, "Pro W. G., J. S. C. ;" 
 it was holden to be the, note of W. G., if J. S. C. had authority. Long v. Col- 
 burn, 1 1 Mass. 97 ; and see Emerson v. Providence Man. Co. 13 Mass. 237 ; Rice 
 V. Gove, 22 Pick. 158 ; Robertson v. Pope, 1 Richardson, 501 ; Orfult v. Ayers, 
 7 Monroe, 356 ; McBean v. Morrison, 1 A. K. Marshall, 545. When one gives 
 a promissory note as guardian for a minor, although it is so stated in the 
 body of the note, he is personally liable. Foster v. Fuller, 6 Mass. 58. As 
 an administrator cannot by his promise bind the estate of the intestate, so 
 neither can the guardian by his contract bind the person or estate of his ward. 
 Ibid. When individuals subscribe their proper names to a promissory note, 
 prima facie they are personally liable, though they add a description of the 
 character in which the note is given ; but such presumption of liability may 
 be rebutted, as between the original parties, by proof that the note was in 
 fact given by the makers as agents with the payee's knowledge. Rockway v. 
 Allen, 17 Wendell, 40 ; Webb v. Burk, 5 B. Monroe, 51 ; Hovey v. Magili, 2 
 Conn. 680 ; and see Hills v. Bannister, 8 Cowen, 31 ; Fogg v. Virgin, 19 
 Maine, 352.; Pomeroy v. Blade, 16 Vermont, 330; Packard v. Nye, 3 Metoalf, 
 47; Fitch v. Lawton, 6 Howard (Miss.), 371 ; Rupert v. Madder, 1 Chandler, 
 146 ; Collins V. Johnson, 16 Georgia, 458 ; Arndld v. Sprague, 34 Vermont, 
 402 ; May v. Hewitt, 83 Alabama, 161 ; Coiiner v. Clark, 13 California, 168. 
 If agency sufficiently appears on the face of the instrument, there is no per- 
 sonal liability. Marshall v. Cornish, 13 California, 45. A note " we as 
 trustees promise," &c., held to be the note of the trustees and not of the 
 individuals. Sanborn v. Neal, 4 Minnesota, 126. "I promise to pay," 
 signed "A. B. by her trustee C. D.," does not bind the trustee personally. 
 Taylor v. Shelton, 30 Conn. 122. When a note was made payallle to the 
 order of C. D. " as assignee, " and by him indorsed " C. D. assignee ;" held 
 that C. D. was not liable personally. Browne v. Douglass, 38 Barbour, 312. 
 A bill concluding " which place to account of Pompton Iron Works, A. B. 
 agent," is binding on the persons carrying on business under that name, if the 
 agent was duly authorized. Fuller v. Hooper, 8 Gray, 334 However it was 
 subsequently held, that a bill of exchange, drawn by an agenfin his own 
 name, does not bind his principal, though made for his benefit, and contain- 
 ing a direction to th,e drstwee to charge the amount thereof to his account. 
 Bank of British North America v. Hooper, 5 Gray, 567. A bill drawn on 
 "Steamer C. W. D. and owners," and accepted "Steamer C. W- D- by A. 
 B. agent," binds the owners. Alabama Co. v. Brainard, 35 Alabama, 476. 
 If one draws a bill in his own name, without stating that he acts as agent, 
 unless when acting for the government, he is personally liable, although he 
 
64 CAPACITY OF CONTRACTING PARTIES. 
 
 liis executors are liable in an action ex contractu, if he really 
 had no authority.(?) 
 
 Therefore, if an agent, having no authority so to do, write, 
 without a fraudulent intent, another man's name as acceptor 
 of a bill, that is a fraud in law for which such agent is respon- 
 sible, even to a subsequent indorsee ;(m) but no one can be liable 
 as acceptor but the real drawee, unless he be acceptor for honour. 
 And where a man assuming to act as agent is really not so, in 
 consequence of a revocation, by the death of his principal, un- 
 known to the agent, so that there is no fault in the agent, the 
 
 (0 Lewis V. Nicholson, 18 Q. B. E09 (83 B. C. L. R.) ; Randall v. Trimen, 
 18 C. B. 786 (86 E. C. L. R.) ; Collen v. Wright, 7 E. & B. 301 (90 B. C. L. 
 R ); 26 L. J., Q. B. 147 ; 8 E. & B. 647 (93 E. C. L. R.) ; 37 L. J., Q. B. 215, 
 S. C. ; KelneiT. Baxter, 36 L. J., C. P. 94 ; 2 L. R. 174; Scott v. Lord 
 Ebuiy, 36 L. J., 0. P. 151 ; 2 L. R. 255. 
 
 (m) Polhill V. Walter, 3 B. & Ad. 114 (23 E. C. L. R.). If he had sighed 
 the drawer's name without authority, qu(Bre, whether he would not have been 
 personally liable on the bill as drawer. Wilson t. Barlhrop, 2 M. & W. 863. ' 
 
 directs it to be paid out of a particular fund, and although the person in 
 whose favor it is drawn, knows the drawer to be but an agent. NewhaJl v. 
 Dunlap, 14 Maine, 180 ; Snow v. Goodrich, Ibid. 335 ; Arnold v. Sprague, 34 
 Vermont, 402. A puhlicagent is not answerable personally for any contract 
 made by him in his official capacity, unless he specially binds himself to be 
 personally responsible. Tucker v. The Justices, 13 Iredell, 434. The weight 
 of authority is that a factor, who indorses generally the bills which he remits, 
 renders himself personally liable upon his indorsement to his principal as 
 well as to third persons. Kenback Brothers v. MoUman, 2 Duer, 227. 
 
 See cases where the agent has been held personally liable. Sturdivant v. 
 Hull, 59 Maine, 173 ; Gregory v. Leigh, 33 Texas, 813 ; Fowler v. Atkinson, 
 6 Minn. 578 ; Morell v. Codding, 4 Allen, 403 ; Arnold v. Sprague, 34 Ver- 
 mont, 402 ; Whitney v. Sudduth, 4 Met. (Kent.) 396 ; Kendall v. Morton, 21 
 Indiana, 205 ; Sumwalt v. Ridgely, 20 Maryland, 107 ; Bayliss v. Pearson, 15 
 Iowa, 279 ; Fiske v. Eldridge, 13 Gray, 474 ; Sharp v. Bellis, 11 P. F. Smith, 
 69. Cases in which the agent has been held not to be personally liable, but 
 the principal. Browne v. Douglass, 38 Barbour, 313 ; Dow v. Moore, 47 New 
 Hamp. 419 ; Atkins v. Brown, 59 Maine, 90 ; Baker v. Chambles, 4 Greene, 
 438 ; Taylor v. Shelton, 30 Conn. 122 ; Shaver v. Ocean Co., 21 Cal. 45 ; 
 Wheelock v. Winslow, 15 Iowa, 464 ; Lewis v. Harris, 4 Met. (Kent.) 353 ; 
 Roney v. Winter, 1 Ala. Sel. Cases, 234 ; Barlow v. Congregational Society, 
 8 Allen, 460. Parol evidence is not admissible to show that the maker of a 
 note signed "Edward K. Collins, agent," acted only as agent, and that the 
 plaintiff (the payee) knew of the agency, and the name of the principal: 
 Collins V. Buckeye Ins. Co., 17 Ohio St. 215. 
 
CAPACITY OF CONTRACTING PARTIES. 65 
 
 afifeiit is not liable,(K.) nor the executors of the deceased prin- 
 cipal.(o)(l) 
 
 An agent who has received for his principal money which 
 the principal is bound to refund, is not liable to the owner of 
 the money after he has paid it over to his principal in due 
 course and without notice.{j)) 
 
 A safe and proper mode in which an agent may indorse, so 
 as to avoid personal responsibility, is by adding the words, 
 sans recours or without recourse to' me.{q) 
 
 An agent or servant who joins with his principal or master 
 in the commission of a fraud, is liable to an action : even 
 although the principal be an incorporated company. Thus a 
 director, manager or assistant manager of a joint-stock bank 
 may be personally responsible for a fraudulent report. For the 
 relation of agency or service cannot oblige to the commission 
 of a fraud(r) 
 
 If a man hold a bill or note as agent for another, and 
 the circumstances be such that the principal cannot recover, 
 the infirmity of the principal's title infects the agent's title-, 
 and the agent cannot recover. M. & Co., residing at Middle- 
 
 (n) Smout V. Ilbeny, 10 M. & W. 1. 
 
 (0) Blades y. Free, 9 B. & 0. 167 flT B. C. L. R .). 
 
 (p) Holland v. «ussell,.33 L. J., Ex. Ch. 297. 
 
 (?) Vide post, Chapter XI. 
 
 (?•) Gullen V. Thompson, Dora. Proe. 1863. 
 
 (1) If a person assumes to act as the agent of another, and acts withont 
 anthnrity or exceeds his powers, he binds himself. Keenan v. Harrod, 3 
 Maryland Ch. Dec. 63. An agent who exceeds his authority as such, in 
 signing a note which purports to express the promise of his principal, is not 
 personally liable thereon. Jefts v. York, 4 Cushing, 371. In case of a de- 
 fective power to bind the principal, if the agent speaks only in tlie language 
 of the principal, and does not use apt language to bind himself, he will not be 
 liable on the contract, but may be subjected to an action for false assumption 
 of authority. Johnson v. Smith, 31 Conn. 637. A person signing a note as 
 attorney, without authority, is personally liable if it contain apt words to bind 
 him personally. Byars v. Doors, 30 Missouri, 384. If J. W. signs a note ' 
 by the name of A. W. he is bound thereby. Jewett v. Whalen, 11 Wiscon- 
 sin, 124. 
 
 5 
 
,66 CAPACITY OF CONTRACTING PARTIES. 
 
 r*QQ-| burgh,* remitted to the plaintiff, in London, a Bank of 
 England note for 500Z. informing him that they should 
 draw upon him for the amount at some future period. The 
 plaintiff presented it for payment, but the Bank detained it on 
 the ground that it had been obtained by means of a forged 
 draft from a previous holder. In trover by the plaintiff it was 
 held, that the plaintiff was identified with his principals, and . 
 that, as there was no evidence of their having given full value 
 for it, he could not recover. (s) So where 0. & Co., in Paris, 
 being indebted to the plaintiff in London, to the amount of 
 1300/. remitted to him a Bank of England note for 500^., and 
 .the Bank detained it because it had been stolen some time 
 before, it was held in trover by the plaintiff against the Bank, 
 that though the plaintiff had a demand on 0. & Co., for more 
 than the amount of the note at the time when he received it, 
 yet, as no farther advances had been made or credit given by 
 him on account of the note, he must be considered as their 
 agent, and prove that his principals, 0. & Co., gave full value 
 for it.(<) Erom this case, it might seem to follow, as a general 
 rule, that wherever a bill or note payable on demand, is re- 
 mitted to a creditor in liquidation of an existing debt only, and 
 no fresh credit is given or advances made by the creditor on 
 the faith of the instrument, he may be treated by the parties 
 liable on it as the agent of the debtor from whom he received 
 it. A doctrine which, while it cannot injure the creditor,(for 
 if he cannot recover, still he is but where he was before he re- 
 ceived the remittance) would, no doubt, tend to prevent gratu- 
 itous, fraudulent, or felonious holders of paper from obtaining 
 "its Value by paying it away to their creditors.(M) But it is 
 
 (s) Solomons v. The Bank of England, 13 East, 335 ; 1 Rose, 99, S. C. 
 
 (0 De la Chaumette v. The Bank of England, 9 B. & C. 208 (17 E. C. L. 
 R.). 
 
 (m) This doctrine was much discussed in the case of Kinnersley v. Somcrs, 
 Exch. M. T. 1882, in relation to Serjeant Onslow's Act, 58 Geo. 3, c. 93. The 
 Court appeared inclined to support the rule deducible from De la Chaumette 
 V. The Bank of England, but no judgment was given, and the cause was, I 
 believe, afterwards settled. But see Perceval v. Pramplin, 8 Dow, 752 ; Fos- 
 ter V. Pearson, 1 C, M. & R. 849 ; 5 Tyr. 255, S. C. It is to be recollected 
 that a bill or note, payable at a future day, suspends till its maturityUbe 
 remedy for the antecedent debt. There may, therefore, in this respect be a 
 difference between an instrument payable on demand, and one payable-, at a 
 future day. See the Chapter on Consideration. 
 
CAPACITY OF CONTKACTINO PARTIES. 67 
 
 conceived that in general a pre-existing debt due to the trans- 
 feree of a bill entitles him to all the rights of a holder for 
 value.(a:) 
 
 • *An agent who fraudulently negotiates or deposits r^in-, 
 bills is guilty of a misdemeanor, under the 24 & 25 Vict. 
 . c. 95, SB. 75 and 76, and is punishable with seven years' penal 
 servitude. 
 
 If an agent, employed to present a bill, fails to make a due 
 presentment or to give due notice of dishonour, he is liable to 
 an action at the suit of his principal ,(j/) who may recover nomi- 
 nal damages though he have sustained no actual loss.(l) 
 
 (a) It haa been so solemnly held by the Scipreme Court of the United States. 
 Swift V. Tyson, 16 Peters, 97. See the Chapter on Considbkation. 
 
 (,y) Van Wart v. Woolley, R. & Moo. 4 (21 E. C. L. R ) ; 3 B. & C. 439^ 
 (10 E. C. L. R.) ; 5 D. & R. 374; 1 M. & M. 520 (83 E. C. L. R.), S. C. ; Vaq 
 Diemen's Bank v. Victoria Bank, L. R., 3 Pr. C. 526 ; 40 L. J., Pr. C. 28. 
 
 (1) A bank, by failing to demand payment of a bill received for collection, 
 makes the bill its own, and becomes liable to its owner for the amount. Bank 
 of Washington v. Triplelt, 1 Peters, 25 ; McKiuster v. Bank of Utica, 9 
 Wendell, 46, 11 Ibid. 473 ; Slowe v. Bank, 3 Devereux, 408 ; Fabers v. Mer- 
 cantile Bank, 23 Pick. 830; Branch Bank v. Knox, 1 Alabama, 148; Bank 
 of Mobile v. Huggins, 3 Ibid. 206 ; Phipps v. Millbury Bank, 8 Metcalf, 79 ; 
 Tyson v. Stale Bank, 6 Blackford, 225. It has been held in many cases that 
 it is only necessary that an agent, whether a bank or individual, employed to 
 collect a note or bill, should take the usual steps to fix the indorsers ; and 
 when, therefore, a notary public is employed by the agent to make demand, 
 and give notice, and he is guilty of negligence, the agent is not liable. It 
 would seem that the employment of a sub-agent not invested with public 
 authority, as is a notary public, will not discharge the agent from his liability. 
 Bellemire v. The Bank U. 8., 1 Miles, 173 ; S. C, 4 Whart. 105. It may be a 
 question, however, whether the employment of a competent sub-agent is not 
 all the duty that is demanded of the agent in such a case ; the agency being 
 in general purely gratuitous. S. C, 4 Wharl. 113 ; Bank of Utica v. Smith, 18 
 Johns. 239 ; Smedes v. Bank of Utica, 20 Ibid. 393 ; Agricultural Bank v. 
 Commercial Bank, 7 Smedes and Marsh. 593 ; Baldwin v. Bank of Louisiana, 
 1 Louis. Ann. Rep. 13. 
 
 1 In South Carolina, however, it has been determined that the general cus- 
 tom of the bank to use the money so collected, is a sufficient consideration to 
 subject them, in this respect, to the liability of a paid agent. Thompson v. 
 The Bank ol the State, 3 Hill, 77; S. C. Riley, 81 ; and see Downer v. 
 Madison Bank, 6 Hill (N. Y.), 648. In the Mechanics' Bank v. Earp, 4 
 ■Rawle, 384, it was held that when a note is deposited with a bank to be trans- 
 mitted for collection to another place, the bank was not liable for the laches 
 pi its correspondent. It seems that if the transmitting bank had entered into 
 
68 CAPACITY OF CONTKACTING PARTIES. 
 
 As a principal is bound by his agent's contracts, so he may 
 take advantage of them, but he is, if undisclosed at the time 
 of the contract, subject to any defence, partial or complete, on 
 which the defendant could have relied against the agent. A 
 drawer delivered a bill to his agent to be discounted, the agent 
 indorsed the bill as his own to the defendant, a bill broker, who 
 procured it to be discounted, but handed over to the agent only 
 a portion of the proceeds. The drawer being afterwards obli- 
 ged to take up the bill, sued the defendant for money had and 
 received to the drawer's use. It was held, that he was entitled 
 to recover, and that a representation by the agent that the bill 
 was his own, would not preclude the principal from recovering, 
 but only subject him to any defence which the defendant might 
 have set up against the agent.(z) 
 
 An agent who has authority to take cash in payment has 
 thel-eby no authority to take bills.(a) 
 
 A partnership is where several persons are jointly engaged in 
 a common undertaking with a communion of profit and lo8a.(6) . 
 
 But to render a man liable to third persons as a partner it is 
 suflBcient if he merely hold himself out to them as such, though 
 
 fz) Bastable v. Pool, 1 C, M. & R. 410 ; 5 Tyr. Ill, S. C. 
 
 (a) Sykes v. Gyles, 5 M. & W. 045 ; Williams v. Evans, 35 L. J., Q. B. 11 ; 
 1 L. R. 353. Post, Chapter XXIX. 
 
 (J) But a communion of loas is not essential to the existence of a partnership. 
 "Sed nee damni communio ad substantiam socielatis pertinet ; quippe qusB 
 etiara ita constitui potest, ut unus e sociis damni sit expers." Vin. Com. 3 — 
 36. Gilpin v. Bnderby, 5 B. & Aid. 954 (7 E. C. L. R.) ; 1 D. & R. 570, S, 
 C. ; Bond v. Pittard, 3 M. & W. 357; Fereday v. Hordern, Jac. 144;18 Ves. 
 306 ; Smith's Commercial Law, 3d ed. 31. 
 
 a special agreement or received a pecuniary reward for its services in collect- 
 ing the bills, beyond a mere charge to cover expenses, and the bank to which 
 the note was transmitted was its agent for that purpose, it would have been 
 responsible for the neglect of such agent, and an action might havfe been 
 maintained for damages commensurate with the injury sustained in conse- 
 quence of such neglect. And see Lawrence v. The Stonington Bank, 6 
 Conn. 528 ; Bank of New Orleans v. Smith, 3 Hill, 5U0 ; Allen v. Merchants' 
 Bank, 23 Wendell, 315 ; Dorchester and Milton Bank v. New England, 1 
 Gushing, 177 ; The Montgomery County Bank v. Albany Bank, 8 Barbour 
 Sup. Ct. 396 ; Commercial Bank v. Union Bank, 1 Kernan, 303. 
 
CAPACITY OF COXTBACTTSG PARTIES. 69 
 
 he really have no interest whatever ; or if he really have an in 
 terest, though his name do not appear.(e) 
 
 *In treating of partnership, in its relation to bills of 
 Exchange, we shall consider, first, the case of a partner- L J 
 thip'which is both actual and ostensible ; secondly, the case of 
 a secret or dormant partner ; thirdly, the case of a mere nomi- 
 nal or ostensible partner; fourthly, the consequences of a 
 dissolution ; and lastly, the case of an occasional partnership. 
 
 First, as to a partnership both actual and ostensible. 
 
 And herein, first with respect to the rights and liabilities of 
 such partners inter se. 
 
 In many deeds and agreements of partnership there is a 
 stipulation, that one partner shall not draw, indorse or accept 
 bills without l;h"e consent of his co-partner ; the consequence of 
 a violation of this stipulation is, as between the partners, to 
 create a right of action at the suit of the injured partner 
 against the partner violating it, and, as we shall presently see, 
 to protect the former against bills improperly drawn, indorsed 
 or accepted, and in the hands of a holder with notice. 
 
 Where a plaintiff is interested in a bill' or note as plaintift" 
 and yet jointly liable with the defendant, though the objection 
 do not appear on the face of the declaration, he cannot sue on it. 
 Thus, where M. sued on a note, and the defendants pleaded 
 that the note was made by M., the plaintiff, and others jointly 
 with the defendant, the plea was held^ a good plea in bar.((;?) 
 So, where a note was made by E. in' favour of the firm in which 
 he was a member, viz., C, D. and E., and by them indorsed to 
 A., B. and C, who, as indorsees, brought an action against D., 
 and D. pleaded (not in abatementbut in bar) that C, one of the 
 plaintift's, was also liable as an indorser, together with D., the 
 defendant, the plea was held good.(e) So where the plaintiff, 
 the holder of shares in a washing company, drew bills on the 
 directors of the company for goods furnished by him, which 
 bills were accepted for the directprs by their secretary, in an 
 
 (c) Pott y. Byton, 3 0. B. 32 (54 E. C. L. R-)- A-nd see^iosi as to occa- 
 Siional partiicrships. , 
 
 id) Moffat V. Van Millingen, 3 B. & P. 134, tt. 
 («) Maiuwaring v. Newman, 2 B. & P. 130. 
 
70 CAPACITY OF OONTRApTING PARTIES. 
 
 action by the plaintiff against the directors, it was held that 
 he could not recover. " It may be admitted," says Best, C. J., 
 " that if a partner were to draw on other partners by name, 
 and they were individually to accept, he might recover against 
 them, because by such an acceptance a separate right is 
 acknowledged to exist. But that is not the case here, for the 
 bills are drawn on the directors of the company and 
 r*4.21 *^^^^I>^^^ foi" the directors. They are the agents of 
 the company, and accept as agents of the company. 
 The case, therefore, is that of one partner drawing on the 
 whole firm, including, himself. "(/) An agent, and member of 
 a company, employed to sell goods for the company, drew in 
 his own name, and payable to his own order, a bill on a par- 
 chaser of the goods ; he then indorsed it to the actuary of the 
 company, who indorsed it to another member and creditor; of 
 the company. It was helJ that the last indorsee could not sue 
 the drawer on the bill. " Both the defendants," say the court, 
 " were members of the company. If, therefore, the plaintiffs 
 could recover on this bill, it would be a recovery by one joint 
 contractor against another,, and then the defendants would 
 have a right to call on the plaintiffs for contribution. It is 
 clear, therefore, that no action can be maintained upon the 
 bill."(^) But where a married woman, being administratrix,: 
 received a sum of money in that character, and lending the 
 same to her husband took for it the joint and several promis- 
 sory notes of her husband and two other persons, it was held 
 that, after her husband's death, she might maintain an action 
 against the surviving makers.(A) And where' a joint and 
 several note was given to two payees, one of them being also 
 one of the makers, it was held, that an action lay at the suit 
 of the two payees against the other maker.(t) So, where the 
 holder of a bill is also liable upon it, the technical difficulty in 
 
 (/) Neale v. Turton, 4 Biag. 149 (1.3 E. C. L. R.) ; 12 Moore, 365, S. C. 
 
 ig) Teague y. Hubbard, 8 B. & C. 345 (15 E. C. L. R.); 3 M. & R. 369; 
 Dana. & LI. 118, S. C. But the mere holding of scrip only constitutes such an 
 inchoate right of partnership as will not interfere with an action on a noie 
 given by the directors. Fox v. Frith, 10 M. & W. 131. 
 
 (h) Richards v. Richards, 3 B. & Ad. 447 ; see Rose v. Poulton. 3 B. & Ad. 
 833 (22 E. C. L. R.). 
 
 (0 Beecham v. Smith, E., B. & E. 443 (96 E. C. L. R.). 
 
CAPACITY OF CONTRAdTINfl PARTIES. 71 
 
 the way of an action may be removed by indorsement before 
 the bill is due. (A) 
 
 From these cases the following general principles appear to' 
 result. 
 
 That in no case can a man sue, where on the face of the 
 record he is both plaintiff and defendant. 
 
 Nor where he is, on the contract declared on, both entitled 
 and liable on the face of the instrument,(Z) though that ' 
 *do not appear on the declaration, and though the defend- ^^ ,„-. 
 ant omit to plead the non-joinder in abatement. ^ -' 
 
 Nor in certain cases where he is both entitled and liable to 
 contribute, though such liability appear neither on the instru- 
 ment nor on the record. (m) But the giving of a bill or note 
 may be an acknowledgment of a separate right and corre- 
 sponding obligations.(n) 
 
 That the mere technical difficulty, of the same person being 
 both entitled and liable on the face of the instrument, may be : 
 removed by death, survivorship, or transfer, provided there be 
 no liability to contribute. , 
 
 Secondly, as to the rights and liabilities of partners, both 
 actual and ostensible, as between the firm and the world, in 
 respect of bills and notes. 
 
 'The law presumes, that eacb partner in trade is intrusted , 
 by his co-partners with a general authority in all partnership 
 aifairs. 
 Each partner, therefore, by making, drawing, indorsing, or 
 
 (k) Morley v. Culverwell, 7 M. &"W. 174; Steele v. Harmer, 15 L. J., Exch. 
 219; 14 M. & W. 831 ; and 19 L. J., Exch. 34 ; 4 Exch. 1, S. C, in error. 
 
 (0 In the case of a joint and several note, see Beechani v. Smith, supra. 
 Where payee's name accidentally appeared on bill as drawer, a demurrer was 
 overruled in Equity. Druilt v. Lord Parker, 37 L. J., Chan. 241. 
 
 (m) But see as to Joint Stock Companies, 7 & 8 Vict. c. 110, s. 45 ; 20 Vict, 
 c. 47; 21 Vict. c. 14; 21 Vict. c. 80 ; 23 Vict. c. 60. 
 
 (n) See tlie observations of Best, C. J., in Neale v. Turton, 4Bing. 149 (13 
 E. C. L. E.) ; 12 Moore, 365, S. C. ; see also Bedford v. Brutton, 1 Bing, N. 
 0. 399 (27 B. C. L. E.) ; Andrews v. Ellison, 6 B. Moore, 199 (17 E. C. L. 
 R.) ; Lomas v. Bradshaw, 19 L. J., C. B. 273 ; 9 C. B. 620 (67 E. C. L. R.), 
 S. C. 
 
72 CAPACITY OF COUTRACTING PARTIES. 
 
 accepting negotiable instruraents,(o) in the name of the firm, and 
 in the course of the partnership transactions, binds(p) the firm, 
 whether he sign the name of the firm, or sign by procuration, 
 or accept in his own name, a bill drawn on the firm,(g'Xl) But 
 it is a strict rule that the name of the firm must 'be used, oth- 
 erwise an action cannot be maintained against the firm even 
 where a partner has sigiled his own name only, and the pro- 
 ceeds were in reality applied to partnership purposes,(r) unless 
 the name of the signing partner were also the name of the 
 firm ;(s) in which case *it was formerly held that the 
 ■- -^ holder might cjiarge either the signing partner or the 
 
 ' (o) Harrison v. Jackson, 7 T. R. 307 ; Pinkney v. Hall, 1. Salk, 136 ; 1 Ld, 
 Ray m. 175, S, 0. ; Lane v. Williams, S.Vern. 377; Wells v. Masterman, 2 
 Esp. 731 ; Swan v. Steele, 7 East, 310 ; 3 Smith, 199, S. C. ; Ridley v. Taylor, 
 13 East, 175. 
 
 (p) As to bills given for money borrowed for partnership puiposes, see 
 Browne v. Kidger, 28 L. J., Exoh. 66 ; 3. H. & N. 853, S. O. 
 
 (5) Mason v Rumsey, 1 Camp, 384 ; see Jenkins v. Morris, 16 M. &W. 879; 
 Stephens v. Reynolds, 5 H. & N. 513. 
 
 (r) Sitf kin v. Walker, 3 Camp. 308 ; Ex parte Emly, 1 Rose, 61 ; Emly v. 
 Lye, 15 East, 7 ; Nicholson v. Ricketts, 39 L. j;., Q. B. 55. 
 . («) South Carolina Bank v. Case, 8 B. & C. 437 (15 E. C. L. R.) ; 2 Man. 
 & Ry. 459, S. C. ; Smith y. Craven, 1 C. & J. 507 ; Nicholson v. Ricketts, 29 
 L. J., Q. B. 55; and see Ex parte Bolitho, 1 Buck. 100; Swan v. Steele, 7 
 East, 210 ; 3 Smith, 192, S. C. ; and see post. 
 
 <1) Partners are bound by a note given by one partner in the partnership 
 name, although in violation of private instructions from one partner to 
 another. Miller v. Hughes, 1 A. K. Marsh. 181 ; Bascom v. Young, 7 Mis- 
 souri, 1 ; Gano v. Samuel, 14 Ohio, 592. A partner has no right to bind his 
 copartner by a note, except in a pa^-tuership transaction. Wagon v. Clay, 1 
 A. K. Marsh. 257. It is binding nevertheless in the hands of a bona fide 
 holder without notice. Hawes v. Dunton, 1 Bailey, 146. See Foster v. 
 Andrews, 3 Penna. Rep. 160 ; Huntington v. Lyman, 1 Chip. 43.8 ; Munroe 
 V. Cooper, 5 Pick. 413 ; Chazournes v. Edwards, 3 Pick. 5 ; Catskill Bank v. 
 Stall, 15 Wend. 364 ; Baird y. Cochran, 4 S. & R. 397 ; Davenport y. Ranlett, 
 3 N. Hampshire, 386 ; Weed v. Richardson, 2 Dev. & Bat. 535 ; Ralston v. " 
 Click, 1 Stewart, 536; Graeff v. Hitchman, 5 Watts, 454; Livingston v. 
 Roosevelt, 4 Johns. 251 ; Smith v. Lusher, 5 Cowen, 688 ; Williams v. Wal- 
 bridge, 3 Wend. 415 ; Morcein v. Andrus, 10 Wend. 461 ; Holmes v. Burton, 
 9 Verm. 252 ; Plemming v. Prescott, 3 Richardson, 307 ; King v.«Pabei;, ?2 
 Peuna. State Rep. 21 ; Davis v. Richardson, 45 Miss. 499 ; Faber v. Jordan, 
 44 Ibid. 283 ; Silverstein v. Atkinson, 45 Ibid. 81 ; National Bank v. Ingra- 
 ha,m, 58 Barbour, 390 ; Hendrie v. Berkowitz, 37 Cal. 113 ; Crocker v. ColwelV 
 New York, 313 ; Lime Rock Ins. Co. v. Treat, 58 Maine, 415. 
 
C.APACIJPY OF CONTRACTIN& PAKTIBS. 73 
 
 firm, at his election. (<) Where one of the partners indorsed 
 the name of the firm on fictitious bills, the firm was held 
 liable.(M) 
 
 A partner cannot bind his co-partner by the several obliga- 
 tion of a joint and severed note,(?;) but such a note would not 
 be void as a joint note,(a;) for it seems a partner may bind hife 
 co-partner by a joint note(y) for partnership purposes, even 
 though in violation of partnership articles, provided the note 
 be in the hands of a holder for value without notice.(5;) ^ 
 
 The firm is not liable where the signing partner varies the 
 style of the firm, unless there be some evidence of assent by 
 the firm to the variation, or unless the name used, though in- 
 accurately, yet substantially describe the firm.(a) Therefore, 
 where a firm consisted of John Blurton and Charles Haber- 
 shon, who carried on business under the firm Of John Blurton, 
 it was held that the firm was not bound by'an indorsement, by 
 one partner who had written John Blurton & Co.(6) And where 
 defendants never traded under the firm of Dry & Co., but only 
 under the firm of Dry & Everett, it was held that defendant 
 Everett was not bound by a bill accepted by Dry, not for part- 
 nership purposes, in the name of Dry & Co.(c)(l) 
 
 (0 Hall V. Smith, 1 B. & C. 407 (S E. C. L. R.) ; 2 D. & R. 484 ; 3 Clerk v. 
 Blackstock, Holt, 474 (3 E. C. L. R.) ; March v. Ward, Peake, 180 ; Wilks v. 
 Back, S East, 142 : but see now Ex parte Buckley, In re Clarke, 14 M. & "W. 
 469; 15L. J., Bktcy. 3, S. C. 
 
 (m) Thicknesse v. Bromilow, 2 C. & J. 43i5. 
 
 (») Perring v. Hone, 4 Bing. 23 (13 E. C. L. R.) ; 13 Moore, 125 ; 2 0. & P. 
 401 (12 E. C. L. R.), S. C. 
 
 {x) M'Clae v. Sutherland, 3 B. & B. 86 (77 E.G. L. R.). 
 
 iy) Cross v. Cheshire, 21 L. J., Exch. 3. 
 
 (z) See the numerous American authorities on this subject, Byles on Bills, 
 5th American edition, p. 126. 
 
 (0) Williamson v. Johnson, 1 B. & C. 146 (8 E. C. L. R.) ; 2 D. & R. 381 
 Faith V. Richmond, ll'A. & E. 839 (39 E. C. L. R.) ; 3 Per. & D. 187, S. C. 
 Forbes V. Marshall, 11 Exch. 166; Stephens v. Reynolds, 39 L. J., Exch. 278 
 5 H. & N. 513, S. C. 
 
 (6) Kirk v. Blurton, 9 M. & W. 284 ; but see M'Clap v. Sutherland, 3 B. & 
 B. 36 (77 E. 0. L. R.). 
 (c) Sheppard v. Dry, Norwich, 1840, cor. Parke, B., affirmed in Q. B. 
 
 (1) A promissory note given by one of two partners in the business of 
 arming and coopering, signed "A. B. and C. D." is binding qpon both. 
 
74 CAPACITY OF CONTRACTING PARTIES. 
 
 r*4n *^'^* ^^ ^ ^^^^ ^® drawn on a firm, and accepted by one 
 ■■ ^^ partner in hia own name for the partnership purposes, 
 that acceptance will bind the firm.(rf)(l) 
 
 It has been held, that as the drawing or accepting of bills 
 is not in general necessary in a farming or mining concern, bills 
 accepted by one of the partners in such a concern without ex- 
 press authority, do not bind the firm.(e) 
 
 And partners not in trade cannot bind each other by bills. 
 Therefore one attorney, who is partner with another, has not 
 from that relation alone power to bind his co-partner by a bill 
 or note.(/') No more have partners carrying on business as 
 brokers by getting orders on commission and dividing the ex- 
 penses.(^)(2) 
 
 Qucere, whether a partner may not bind his co-partner by signing the true 
 names of the partners, though such names be not the style of the firm. Nor- 
 ton V. Seymour, 3 C. B. 793 (54 E. C. L. R.) ; M'Clae v. Sutherland, supra. 
 One partner has no power to bind firm by opening an account on its behalf in 
 his own name. Alliance Bank v. Kearsley, L. R., 6 C. P. 433 ; 40 L. J. 249. 
 
 ((2) Mason v. Rumsey, 1 Camp. 384. 
 
 (e) Greenslade v. Dower, 7 B. & 0. 635 (14 E. C. L. R.) ; 1 M. & R. 640, 
 S. C ; Dicliinson v. Valpy, 10 B. & C. 138 (31 E. C. L. R.) ; 5 M. &.R. 136 ; 
 Russell V. PoHett, executors, 1840. But see Brown v. Kidger, 8 H. & N. 853.^ 
 Unless it be the ordinary and known cause of such mining concerns as tlie 
 defendant's to draw and accept bills. 
 
 (/) Hedley v. Bain bridge, 3 Q. B. 816 (43 E. C. L. R.) ; Forster v. Mack- 
 worth, L. R., 3 Ex. 163 ; 36 L. J. 94, which was the case of a post-lated 
 check. In America it has been held that the same rule applies to partners iu- 
 the practice of physic, and to partners ia a tavern. See the authorities, Byles 
 on Bills, 5th American edition, p. 136. 
 
 (,g) Yates v. Dalton, 28 L. J., Exch. 69. 
 
 McGregor v. Cleveland, 5 Wend. 47.5. A note made by one partner, in 
 which he says, "I promise to pay," &c., but subscribes the partnership, 
 name, "A. B. & Co.," is binding on the firm, and not on the partner alone 
 who executed it. Boty v. Bates, 11 Johns. 544. A note signed by two 
 partners with their individual names, is sufficient to bind' the firm. Maynard 
 V. Fellows, 43 New Hampshire,- 255. 
 
 An acceptance of a bill upon a firm by a member thereof in his own name, 
 is not sufficieut to bind the firm ; nor does it render him individually liable. 
 Keenan v. Nash, 8 Minn. 407. 
 
 (1) One copartner may bind the firm by a bill of exchange drawn by him 
 in his own name upon the firm for a partnership debt. It may be treated as 
 an accepted bill. Dongal v. Cowles, 5 Day, 511. 
 
 (3) A. and B. entered into a contract with C. for a conveyance from him 
 
CAPACITY OF CONTRACTING PARTIES. 75 
 
 Creditors who are empowered by a deed of arrangement, 
 made between themselves and their debtor, to carry on the 
 trade to satisfy their debts out of the profits, and to pay over 
 the residue to the debtor, are not partners at all, and therefore 
 are not liable on bills accepted by them in the style of their 
 debtor's firm.(A) For a creditor, who stipulates that he will 
 be paid out of the profits onjy, gains nothing beyond what he 
 already had as a creditor: on the contrary, he only abandons 
 some other sources from which he might have obtained satis- 
 faction. As a creditor, he could have satisfied himself out of 
 the whole property of his debtor including profits. 
 
 *Even if a partner exceed the authority conferred by [-*^gi 
 the common law and pledge the partnership credit on a 
 negotiable security for his own private advantage, his co-part- 
 ners are liable to a holder for value without notice. 
 
 And if there be a good defence against one of several part- 
 ners or co-plaintifid suing on a bill, note or other joint contract, 
 it is a good defence against all.(i) Although the co-partner or 
 
 (h) Cox V. Hickman, 8 House of Lords Cases, 268 ; 9 C. B., N. S. 47 (99 
 E. C. L. E.) ; 30 L. J., C. P. 125, S. C. Tliiscase has been supposed to shake 
 the authority of Wansh v. Carver. See BuUen v. Sharpe, L. R., 1 C. P. 86. 
 The law as to the effect of a i)articipation of profits in constituting a partner- 
 ship, as once understood, is now partially altered by slat. 38 & 29 Vict. c. 86. 
 See Appendix. So, too, executors of a deceased partner receiving a share of 
 the profits in accordance with the articles of partnership were not on that ac- 
 count merely held to be partners. Holme v. Hammond, L. R., 7 Ex. 218 ; 41 
 L. J. 1.'57. 
 
 (0 Astley V. .Johnson, 5 H. & N. 137 ; Brandon v. Scott, 7 E. & B. 234 
 (90 E. C. L. R). 
 
 to them of a farm, and agreed to pay a part in good negotiable notes, to be 
 endorsed by them ; held, that this will not constitute them special partners, 
 so that the indorsement of the names of both by one, without the other, vyill 
 bind both. Ballon v. Spencer,. 4 Cowen, 163. A partner in the practice of 
 physio, has no power to bind his copartner by the execution of a note in the 
 name of the firm, for the purpose of raising money for his own accommoda- ' 
 tion. Crosthwait v. Eoss, 1 Hamph. 23. The rule that a note given by one 
 partner in the partnership name, for his individual debt, is good against the 
 firm in the hands of a bona fide holder, applies only to notes of mercantile 
 partnerships, and does not apply to those of partnerships for keeping tavern. 
 Cocke V. Branch Bank, 3 Alabama, 175. The law presumes that the holder, 
 if he inquired at all into the partnership of the makers, must have received 
 information that they were |iot partners in a mercantile trade, but only in the 
 business of tavern-keeping. This ascertained, he took the note at his peril. 
 Ibid. 
 
76 CAPACITY OF CONTRACTING PARTIES. 
 
 co-plaiiitiif to whose right to sue the objection applies have 
 been guilty of a fraud on his co-partners and companions, and 
 they have been innocent of it. " Are they not bound by his 
 acts," says Lord Ellenborough, " when they are to recover by 
 his strength, "(7) The defrauded partner's remedy (at least 
 during his companion's lifetime), must be in equity.(A) Thus 
 if one partner assume to relieve an acceptor of his responsibility, 
 the firm lose their action. Two bills had been drawn by a part- 
 nership, and accepted, and it was proved that the value re- 
 ceived for the acceptance had been employed in taking up other 
 acceptances for the accommodation of the partnership; the 
 promise of one partner, in fraud of his co-partners, to provide 
 for the acceptances, was held to be a sufiicient defence to an ac- 
 tion by them against the acceptor.(?) 
 
 So, where D. drew a bill in his own name, and gave the ac- 
 ceptor a memorandum, in writing, that he would provide for it 
 when due, having indorsed it to tbe firm of A., B., 0. and D., 
 it was held that the firm were bound by his acts,' and could not 
 recover against the acceptor.(m) 
 
 But, if the party taking a bill or note of the firm knew at 
 the time, that it was given without the consent of the other 
 partners, he cannot charge them.(n) And the taking a joint 
 security for a separate debt raises a presumption that the credi- 
 tor who took it knew that it was given without the concurrence 
 r*471 °^ *^^ other partners.(o) If there existed fraud *and 
 collusion between the partner and his creditor, the bill is 
 
 (j) Richmond v. Heapy, 1 Stark, 204 (3 E. C. L. R.). 
 
 (K) See Jones v. Yates, 9 B. & C. 539 (17 E. C. L. R.) ; Gordon v. Ellis, 7 
 M. * &. 607 (49 E. C. L. R.) ; 2 C. B. 821 (52 E. 0. L. R.). 
 
 (0 Richmond v. Heapy, 1 Stark. 203 (2 E. C. L. R.). 
 
 (ffli) Sparrow v. Chisman, 9 B. & C. 241 (17 E. C. L. R.) ; 4 M. & R. 206. 
 • (TO) "The doctrine of the text," says Mr. Sharswood, "is sustained by 
 the whole current of the American authorities." See them digested in the 5th 
 American edition of Byles on Bills, by the Hon. George Sharswood, p. 139. 
 See, too, case of Darlington Bank, 34 L. J., Chanc. 10 ; Heilbut v. Nevill, L. 
 R., 5 0. P.- 478; 39 L. J. 345. 
 
 (0) Richmond v. Heapy, 1 Stark. 202 (3 E. 0. L. R.) ; Arden v. Sharpe, 2 
 Esp. 524 ; Barber v. Bsiokhouse, Peake, 61 ; and see Wallace v. Kelsall, 7 M. 
 & W. 264 ; Jones v. Yates, 9 B. & C. 532 (17 E. C. L. R.) ; Jacaud v. French, 
 12 East, 317 ; Goi-don v. Ellis, 7 M. & G, 607 (49 E. C. L. R.) ; Laveson v. Lane, 
 M. f . 1862 ; 32 L. J., N. S. 33, 0. P. ; 13 C. B., N. S. 273 (106 E. C. L R.), 
 
CAPACITY OF CONTRACTING PARTIES. 77 
 
 void in the hands of the fraudulent holder, not only against the 
 partnership, but against other parties to the bill.(p) But securi- 
 ties which maybe unavailing against the firm, when in the 
 hands of the party privy to the transaction, will nevertheless 
 bind them when in the hands of an innocent indorsee for 
 value.(5') But in such a case it lies on the plaintiff to show that 
 he gave value.(r)(l) 
 
 established this view of the law. But when Ihe bill is in the hands of a transferee 
 for value, the onus of proof may be shifted. In a recent case where the adcept- 
 alice of the firm was given by one partner for an amount including a joint and 
 separate debt, the learned Judge amended the declaration by inserting a com- 
 mon count for the consideration of the joint debt. BUston v. Deacon, L. R., 
 2 C. P. 21. 
 
 (j)) Ex parte Bonbonus, 8 Ves. 540 ; Wells v. Masterman, 2 Esp. 731 ; Green 
 V. DeakiB, 2 Stark. 347 (3 B. C. L. R.) ; Ex pane Gouldney, 2 6. & J. 118 ; 
 8 L. J., Bktcy. 1, S. C. 
 
 (q) Ridley v. Taylor, 13 Bast, 175. 
 
 (r) Hogg V. Skene, 84 L. J., C. P. 153. 
 
 (1) The doctrine of the text is sustained by the whole current of the 
 American authorities. A note made by one partner in the name of the firm 
 will be presumed to have been made in the course of partnership dealings ; 
 and that it was given for the individual debt of one of the partners, is matter 
 of defence which must be proved by the party suggesting it. This is so even 
 though the partnership be limited to a particular branch of business. Doty 
 v. Bates, 11 Johns. 544; Barrett v. Swann, 17 Maine, 180; Bnsminger v. 
 Marvin, 5 Blackford, 210 ; Knapp v. McBride, 7 Alabama, 19 ; Hamilton v. 
 Summers, 12 B. Monroe, 11. Where a person receives a partnership note for 
 the individual debt of a partner, he is chargeable with notice, and cannot 
 enforce payment of the note against the other members of the firm. Miller 
 V. Manice, 6 Hill, 115 ; Maudlin v. Branch Bank, 3 Alabama, 502 ; Stainer v. 
 Tysen, 3 Hill, 279 ; Noble v. McClintock, 2 Watts & Serg. 153 ; Smyth v. 
 Strader, 4 Howard (U. S.) Rep. 404 ; Williams v. Gilchrist, 11 New Hamp. 
 585. Such a note is binding wheil given with the assent of the other partners, 
 and such an assent may be implied from facts and circumstances. Gansevoort 
 V. Williams, 14 Wendell, 133. Assent must be clearly shown and not left to 
 be inferred from vague and slight circumstances. Kenneys v. Richards, 11 
 Barbour, S. C. Rep. 312; McKinney v. Bright, 16 Penna. State Eep. 899. If 
 the firm afterwards should with knowledge reap the fruits of the transaction, 
 they would be liable, as where an administrator gave the note of his firm for a 
 debt of his intestate, and afterwards applied to the partnership money which 
 belonged to the estate. Richardson v. French, 4 Metcalf, 577 ; Wliitaker v. 
 Brown, 11 Wendell, 75. Though the payee of a partnership note believed 
 that the proceeds of the note were to be applied to the individual debts of one 
 of the firm, the note would still be binding on the firm, if the proceeds were 
 in fact used by the firm. Hamilton v. Summers, 13 B. Mon. 11. The admisr 
 
78 CAPACITTOF CONTRACTING PARTIES. 
 
 Articles of agreement between the partners, that no one 
 partner shall draw, accept or negotiate bills of exchange, will 
 
 . sions of the partner -who gave the note are not evidence to show the assent of 
 . the partnership. Hickman v. Reineking, 6 Blackford, 387. The bona fide 
 liolder of such a note, however, is undoulitedly prptected. There must be 
 express notice or such gross negligence in the holder as is equivalent to it. 
 If one of several partners obtain a loan of money for his individual use, ty 
 giving the note or check of the firm, but without their anthoiity, the trans- 
 action will nevertheless bind all the partners, unless there be something in it 
 to induce the lender to suspect that the money is not borrowed for their bene- 
 fit. Miller v. Manice, 6 Hill, 114. See Long v. Carter, 3 Iredell, Law Rep. 
 238 ; Duncan v. Clark, 2 Richardson, 587. An indorsement by a partner of 
 his separate accommodation note with the name of his firm, is a sufiicient 
 indication of the nature of the transaction, to make it the duty of the holder 
 to inquire into his authority to use the firm name forthe occasion, unless there 
 are circumstances from which the authority can be implied. Tanner v. Hall, 
 1 Penna. State Rep. 417. "A partner," says C. J. Hosmer, "strictly speak- 
 ing, has an implied authority by virtue of the partnership connection to per- 
 form acts, and make contracts, only within the limits of the partnership 
 covenant. But as persons dealing with him cannot always know when he is 
 acting within the sphere allotted liim, and when for his own use, those who 
 are not guilty of gross negligence and act bona fide are protected in their con- 
 tracts, whatever may be the concealed obliquity of his conduct. Hence, if 
 he raise money on a bill or note, signed or indorsed in the name of the firm, 
 the partnership is bound, although he performed the act with a view to his 
 own individual use. On the same principle, if the person receiving the bill 
 had knowledge that he was violating his duty to his partners, yet if the bill 
 came bona fide into the hands of a purchaser, he acquires a right to sulject 
 the partnership. Public convenience demands the establishment of these 
 principles. If a secret fraud of the nature above mentioned were to vitiate a 
 note or bill, it would demand inquiries which could not often be made or 
 satisfied, before either of them could safely be received, and thus would 
 operate as a pernicious impediment to their free circulation. But neither jus- 
 tice nor convenience requires, that the person who has knowledge of the fraud, 
 or is ignorant through gross negligence, should have a right to subject a 
 partnership by the contract of one of the partners made for his own benefit. 
 If, therefore, at the time he received the instrument from one of the partners, 
 he knew, or had reason to believe, that it was in payment of the partner's 
 debt, or for his own peculiar advantage, aside of the partnership benefit, he 
 acquires no right by this attempted prostitution of the firm." New York 
 JPiremen Ins. Co. v. Bennett, 5 Conn. 574. 
 
 It is not within the general scope of the authority of a partner to give 
 guarantees, or become surety, or issue paper for the accommodation of third 
 persons, in the name of the firm. Where this appears on thg face of the 
 transaction, or is known to a subsequent holder before taking it, the note is 
 not binding, unless he can show the assent or subsequent ratification of the 
 other partners. Bank of Rochester v. Bowen, 7 Wendell, 158 ; Sweetser v. 
 French, 2 Gushing, 309 ; Andrews v. Planters' Bank, 7 Smedes & Marshall, 
 
.CAPACITY OF CONTEACTIKG PARTIES. 79 
 
 , not protect the firm against bills drawn, accepted, or indorsed, 
 in violation of the agreement, if the holder had, at the time of 
 taking the bill,(s) no notice of the stipulation, and can shew 
 .'that he gave value. But if notice of such agreement can be 
 brought home to the holder, or if, in the absence of such agree- 
 ment between the partners, the other partners have given him 
 notice that they will not be responsible for bills circulated by 
 their co-partners, the firm cannot be charged, though the bill 
 was given in the course of partnership transaction8.(<) 
 
 The proper mode of raising the defence of unauthorized and 
 •fraudulent acceptance by one of several partners and notice to 
 the plaintiff, is by a traverse of the acceptance.(M) 
 
 If the defendants shew that the bill was circulated in viola- 
 tion of partnership articles, they will thereby put the plaintiff 
 to prove that he or some one under whom he claims gave v^lue 
 for \t.{v) Eut it has been held by the Court of Queen's Bpnch, 
 after conference with the Judges of the other Courts, that in 
 order to maintain the action, where it Appears that one .^ g, 
 partner has accepted in fraud of his co-partners, and •- ^ 
 where issue is taken on the acceptance, it is not necessary for the 
 plaintiff to prove that he gave value, but the defendants must 
 
 (s) See Hogg v. Skene, supra. 
 
 (0 Galway v. Mathew, 10 East, 264 ; 1 Gamp. 403. S. C. 
 («) .Jones y. Oorbett, 3 Q. B. 838 (43 E. C. L. R.) ; Grout v. Enthoven, 1 
 Excii. 382. 
 (d) Giant V. Hawkes, Chitty, 43 ; Hogg v. Skene, 34 L. J., C. P. 158. 
 
 192; Langan v. Hewitt, 18 Ibid. 112 ; Eollins v. Stevens, 31 Maine, 454 ; 
 Lang V. Waring, 17 Alabama, 145. Nevertheless a bona fide holder, wilhout 
 notice, of au accommodation note, indorsed with the name of a firm by one 
 of the members without the assent of the other, is entitled to recover from 
 the partnership. Austin v. Vandermark, 4 Hill, 259 ; Maudlin v. Branch 
 Bank, 3 Alabama, 503; Catskill Bank v. Stall, 15 Wendell, 364; S. C, 18 
 Wendell, 466 ; Wells v. Evans, 20 Wendell, 251 ; S. C, S3 Wendell, 324; 
 Emerson v. Harmon, 14 Maine, 371 ; Waldo Bank v. Lambert, 16 Maine, 
 .416 ; Beach v. The State Bank, 2 Carter (Indiana), 488. On proof, however, 
 of the manner in which the note was made or indorsed, in fraud of the part- 
 nership, the holder will be required to show his bona fides, and the value he 
 gave for it. Bank of St! Albau's v. Guilliland, 33 Wendell, 811. 
 
80 CAPACItT OP CONTRACTING PARTIES. 
 
 affect the plaintiff" with notice of the fraud,(w) or otherwise 
 impeach his title. 
 
 If a man be at one and the same time a partner in two dis- 
 tinct firm's, but each firm use the same style, and he draw a bill 
 in the common name of both firms, it has been held, that an 
 indorsee may charge either firm at his election.(a;) 
 
 But where the name of the firm is the same as the name of 
 the individual, and the bill is drawn by the individual for his 
 separate benefit, perhaps the firm is not pledged.(y)(l) 
 
 If a new partner be introduced into a firm, an acceptance by 
 the old partners for an old debt in the name of the new firm will 
 
 (w) Musgrave V. Drake, 5 Q. B. Rep. 185 (47 E. C. L. E.). The case of 
 Grant v. Hawkea^ however, does not appear to have been brought to the no- 
 tice of the Court, though, perhaps, distinguishable. And in a recent case in 
 the Court of Common Pleas, Mr. Justice Willes intimated his dissent from the 
 doctrine laid down in Musgrave V. Drake. Hogg v. Skene, 34 L. J., C. P. 
 153. 
 
 (a) Baker v. Charlton, Peake's N. P. C. 80 ; M'Nair v. Fleming, Mont. 32 ; 
 Swan V. Steel, 7 East, 310 ; 3 Stnith, 109, S. C. ; see, however, Ex parte 
 Buckley, In re Clarke, 14 M. & W. 469 ; 15 L. J., Bktcy. 3, S. C. 
 
 (y) See Ex parte Bolitho, 1 Buck. 100, and the observations of Bayley, B., 
 on that case in WintJe v. Growlher, 1 C. & J. 316 ; 1 Tyr. 310, S. C. ; and see 
 Furze v. Sharwood, 11 L. J., Q. B. 131 ; 3 Q. B. 388 (43 B. C. L. R.), B. C, 
 and Ex parte Buckley, supra. So, in America it has been held that prima facie 
 the firm are not bound. Byles on.Bills, 5th American edition, p. 131. 
 
 (1) A note in common form, signed by an individual in whose name a 
 partnership is carried on, and who at the same time openly transacts business 
 on his own account, does not prima facie bind his copartners. Manufacturers 
 and Mechanics Bank v. "Winship, 5 Pick. 11. A note given in the individual 
 name of one partner, is prima facie deemed his ipdividual obligation, unless 
 his partner be a dormant partner. Scott v. Colmesnil, 7 J. J. Marsh. 416. 
 To render a firm responsible for a note given by one member therisof in his 
 own name. It must appear that the credit was given to the firm, and that the 
 money obtained by the note went to the business of the firm, otherwise it will 
 be treated as an election by the creditor to trust to the responsibility of the 
 maker of the note alone. Foster v. Hall, 4 Humph. 346. In re Warren, 
 Davies, 330 ; Buckner v. Lee, 8 Georgia, 285. Where an individual carried 
 on business in his own name, and with others as partners under the same 
 name, a note drawn to that name is presumed to have been given to liim indi- 
 vidually. Boyle V. Skinner, 19 Missouri, 82. See National Bank v. Ingra- " 
 ham, 58 Barb. 290. 
 
CAPACITY OF CONTRACTING PARTIES. 81 
 
 not, in the hands of the party taking it and cognizant of the 
 facts, .bind the new partner.(^) 
 
 The taking security from one of several partners, joint 
 makers of a note, or acceptors of a bill, will, in general, dis- 
 charge the other co-partners.(a) But where one of three part- 
 ners, after a dissolution of partnership, undertook to pay a 
 particular partnership debt on two bills of exchange, and that 
 was communicated to the holder, who consented to take the 
 separate notes of the one partner for the amount, strictly re- 
 serving his right against all three, and retained possession of 
 the original bills, it was held that, the separate notes having 
 proved unproductive, he might still resort to his remedy a jainst 
 the other partners : and that the taking under these circum- 
 stances the separate notes, and even ^afterwards* renew- ,-„ ,,, 
 ing them several times successively, did not amount to '- -' 
 satisfaction of the joint debt.(6)(l) 
 
 Where the circumstances were such that the partner had no 
 power to bind the firm by a bill, subsequent recognition of the 
 act will be equivalent to previous authority.(c) 
 
 Secondly, as to the case of a secret or dormant partner. A 
 dormant partner, whose name does not appear, is bound by bills 
 drawn, accepted or indorsed by his co-partners in the nam^of 
 the firm, and not only when the biWs are negotiated for the 
 
 (s) Shirreff v. Wilka, 1 East, 48. 
 
 (a) Evans T. Drummond, 4 Eap. 89; Thompson v. Perceval, 5 B. & Ad. 
 925 (37 E. C. L. B.) ; 3 N. & M. ft67, S. C. 
 
 (i) Bedford v. Deakin, 2 B. & Aid. 210 ; 2 Stark. 178 (3 E. C. L. R), S. C. 
 
 («) Duncan v. Lowndes, 3 Camp. 478 ; and see Vere v. Ashby, 10 B & C. 
 288 (31 E. C. L. R.) ; and Wilson v. Tumman, 6 M. & G. 236 (46 E. C. L. 
 R.). As to banking partnerships, see Co/porations and Companies. 
 
 (1) The note of one partner, not under seal, taken for a partnership debt, 
 will not discharge the other partners, unless so understood ; and such note 
 ■will not operate to discharge dormant partners, not known to the creditor. 
 Kichols V. Cheairs, 4 Sneed, 229. The note of one partner in satisfaction dis- 
 charges the others. Stephens v. Thompson, 3 Williams, 77. Whether the 
 iioteof an individual partner was accepted in satisfaction of the partnership 
 debt is a question of fact for the jury. Bonnell v. Chamberlin, 26 Conn. 457 ; 
 Tyner'v. Stoops, 11 Indiana, 22. 
 
 6 
 
82 CAPACITY OF CONTRACTING PARTIES. 
 
 benefit of the firm, but when they are given by one of the 
 partners for his own private debt, provided the holder were not 
 aware of this circumstance ;(ci) for credit is given to the firm 
 generally, of whomsoever it may consist. 
 
 But where a man agreed: to become a dormant partner in a 
 firm, and the secret partnership was to commence from a time 
 past, and after the stipulated time for the commencenxent of 
 the partnership, but before the actual agreement, the members 
 of the firm had negotiated bills in the name of the firm, and 
 applied the proceeds to their own benefit, the incoming partner^' 
 though a partner by relation at the time the bills were nego-' 
 tiated, was held not liable. He could not be charged on the 
 ground of interest, for he derived no benefit from the bills, nor 
 on the ground of credit having been given to him, for he was 
 no member of the firm at the time ; nor on the ground of hav- 
 ing ratified the acts of his co-partners, for there can be no rati- 
 fication where there was no assumed authoTity.(e)(l). 
 
 A dormant partner may join and sue on a bill,(f) or the 
 ostensible partner may sue alone.(^) But the non-joinder 
 *of a dormant partner as defendant cannot be pleaded: 
 L -"in abatement.(A) 
 
 Thirdly, as to a mere nominal or ostensible partner. Though 
 
 ((?) Vere v. Asliby, 10 B. & C. 288 (21 E. C. L. R) ; Lloyd v. Asbby, 2 B. 
 & Ad. 23 (22 E. C. L. R.) ; Swan v. Steel-, 7 East, 210 ; 3 Smith, 199, S. 0. 
 
 («) Vere v. Ashby, 10 B. & C. 288 (21 E. C. L. R. ; see Battley v. Lewis, 
 1 M. & G. 155 (39 E C. L. R.) ; 1 Scott, N. R. 143, S. C, and Wilson v. 
 Tnmman, 6 M. & G. 236 (46 E. C. L. R.). 
 
 (/) Cothay v. Fennell, 10 B. & C. 671 (21 E. C. L. R.) ; Skinner T. 
 Stocks, 4 B. & A. 437 (6 E. C. L. R.). 
 
 (g) Leveck v. Shafto, 2 Esp. 468 ; Lloyd v. Archbowl, 3 Taunt. 324 ; and 
 see Mawman v. Gillett, 2 Taunt. 325, n. ; Kell v. Nainby, 10 B. «& C. 20 (31 E. 
 0. L. R.). 
 
 ih) De Mautort v. Saunders, 1 B. & Ad. 398 (30 E. C. L. R.). The share 
 of a dormant partner does not pass to assignees in bankruptcy under the re- 
 puted ownership clause; see Reynolds v. Bowley, L. R., 2 Q. B. 474 ; 36 L. 
 J. 1, and S. C. 247, in error. 
 
 (1) Taking a renewal note from one who had dormant partners, when the 
 original was given, after the termination of the partnership, and without any: 
 intention to discharge the dormant partners, does not discharge the claim 
 against the copartnership. Parker t. Canfield, 37 Conn.. 250. 
 
CAPACITY OF CONTRACTING PARTIES. 83 
 
 a man really have no interest in a firm, yet if he suffer himself 
 to be held out to the world as a member of it, he hereby au- 
 thorizes those to whom he has been so held out to treat him as a 
 contracting party ; for as they cannot know whether his interest 
 be merely apparent or real, they would be injured and defrauded, 
 if they could not charge him as a partner .(i) 
 
 Fourthly, as to the consequences of a dissolution. After a 
 dissolution, the ex-partners have no longer power to bind each 
 other by bills or notes to persons aware of the dissolution, (A) 
 But notwithstanding a valid dissolution of an ostensible 
 partnership by an agreement between the partners, still as be- 
 tween the firm and the world the authority of the ex-partners 
 to bind each other by bills, notes or other contracts, within the 
 scope of the former partnership, continues till the dissolution 
 be duly notified.(l) 
 
 Such notice may be either express or implied. 
 
 The only safe mode of proceeding is to give express notice 
 to every person who has had dealings with the firm, and as the 
 holders of negotiable securities often cannot be known, the best 
 and usual course is also to advertise the dissolution in the 
 London Gazette. 
 
 The ex-partners are not safe against any of the persons whose 
 names are on a bill of exchange, unless notice be given to each. 
 After a dissolution, one of the ex-partners accepted a bill in 
 the name of the firm ; the payee had no notice of the dissolu- 
 tion, but the indorsee had. It was held, that though the in- 
 
 (i) Where the contract is made with a firm in wliich there is a nominal 
 partner, the real partner may sue alone -without joining the nominal partner 
 as co-plainliflF. Kell v. Nainby, 10 B. & C. xO (31 E. C. L. R.)- To make a 
 man liable as a naminal partner he must have been held out as such to the 
 plaintiff. Per Parke, J., Dickenson v. Valpy, 10 B. & 0. 141 (31 E. C. L. 
 R.) ; 5 M. & Ry. 136, 8. C. ; Gurney v. Evans, 3 H. & N. 138. 
 
 (A) Heath v. Sansom, 4 B. & Ad. 173 (24 E. C. L. R.) ; 1 Nev. & M. 104, 
 8. C. 
 
 (1) A valid title to a negotiable promissory note, payable to a copartner- 
 ship firm, may be transferred by an indorsement made in the name of the firm, 
 by one of the copartners, though after the dissolution of the copartnership, if 
 such dissolution was unknown to the indorsee. Cony v. Wheelock, 33 Maine, 
 
84 CAPACITY OF CONTRACTINa PARTIES. 
 
 dorsee had had notice of the dissolution, he could recover on 
 the bill against the firm, because the payee *had had no 
 ^ i notice and the indorsee had a right to stand on the 
 payee's title.(^) 
 
 When bankers had dissolved partnership, a corresponding 
 change in their printed check was, as against a person who was 
 an old customer, but had drawn a check in the new form, held 
 sufficient notice of the dissolution. Lord Ellenborough^^' I 
 think the change was sufficiently notified by the change in the 
 check. It is the habit of banking houses to intimate in this 
 manner that a partner has been introduced or has retired."(m) 
 
 Where a bill had been accepted by an ex-partner in the name 
 of the firm, in favour of an attorney who had a year before 
 prepared a draft of a deed of dissolution between the partners, 
 M'hich deed it did not appear had ever been executed. Lord 
 Ellenborough held, that if the attorney would insist on the con- 
 tinuance of the partnership, it lay on him to show that the in- 
 tention to dissolve had been abandoned.(n) 
 
 A notice of the dissolution in the Oazetle is not sufficient to 
 . exempt a retiring partner from responsibility to a former dealer 
 with the firm, unless it be shown that such dealer was in the 
 habit of reading the Gazette.{o) But a mere notice in the Gazette- 
 has been held, as against a man who had had no previous deal- 
 ings with the firm, evidence from which a jury might infer 
 notice of dissolution.(p) An advertisement of a dissolution in 
 
 (0 Booth V. Quin, 7 Price, 193. 
 
 (m) Barfoot v. Goodball, 3 Camp. 147 ; and see Vise v. Fleming, 1 Tounge 
 & J. 227. 
 
 (m) Patersoii v. Zachariah, 1 Stark. 71 {2 E. C. h. R.). 
 
 (o) Godfrey v. Turnbull, 1 Esp. 871 ; Leeson v. Holt, 1 Stark. N. P. 0. . 
 186 (3 E. C. L. R.) ; Grabam v. Hope, Peake's N. P. C. 154; Gorham v. 
 Thompson, lb. 42 ; Rex v. Holt,. 5 T. R. 448 ; Williams v. Keats, 2 Stark. N., 
 P. 0. 290 (3 E. C. L. R.) ; see also Ex parte Usburne, 1 Glyn & Jam. 858. 
 A notice of dissolution in the Gazette may be given in evidence -without a 
 stamp. Jenkins v. Blizard, 1 Stark. N. P. C. 418 (2 B. 0. L. R.). 
 
 (p) Godfrey v. Turnbull, 1 Esp. 671 ; Newsome v. Coles, 3 Camp. 617. It. 
 has been established in America that notice in the Oaseite or in any other pub- 
 lic and proper manner is suflacient, as against persons who had no previoiis 
 dealings with the firm. See the authorities, Byles on Bills, 5lh American edi- 
 tion, p. 135, 3 Kent's Com. 66 ; and see Farrar v. Deflinne, 1 0. & K. 560 
 (47 E. C. L. R.). 
 
CAPACITY OP CONTRACTING PARTIES. 85 
 
 a newspaper is not even admissible, without proof that the party 
 sought to be affected with such notice took in the newspaper.(g') 
 But in that *ca8e it is not necessary that the dissolution _^„n, 
 should have been advertised in the GazeUe.(r){V) \ ^ 
 
 A secret partner is not liable after a dissolution, though with- 
 out notice, on a bill or note given by the continuing partners in 
 the name of the firm ; for the contract was not made on his ■ 
 credit, nor had he any interest in it.(s)(2) 
 
 Where the dissolution is by death, notice is not necessary to 
 protect the estate of the decea8ed.(i) 
 
 After a dissolution, and due notice thereof, the ex-partners 
 
 (g) Leeson v. Holt, 1 Staik. 186 (2 E. C. L. E.) ; Boydell v. Drummond, 11 
 East, 143 ; Norwich Navigation Company v. Tlioobold, 1 M. & M , N. P. C. 
 153 (22 E. C. L. E.) ; Jenkins v. Blizard, 1 Stark. 430 (SB. C L. B.) ; Hovil 
 v. Browning,? East, 161 ; Eowley v. Home, 3 Bing. 3 (11 E. C. L. E.) ; 10 
 Mo. 347. 
 
 (r) Bootli V. Quin, 7 Price, 193. 
 
 (s) Evans v. Drummond, 4 Esp. 89 ; Newmarcli y. Clay, 14 East, 339 ; 
 Heath v. Sansom, 4 B. & A.d. 173 (34 E. G. L. B ) ; 1 N. & M. 104, S. C. 
 
 (0 Vulliamy v. Noble, 3 Mer. 619. 
 
 (1) The rules of the mercantile law in regard to notice of dissolution have 
 been fully adopted in this country. The cases are too numerous to cite, but 
 some of the more recent ones, in which the earlier ones are to be found re- 
 ferred to, are, Simonds v. Strong, 34 Vermont, 643 ; Conro v. The Port Henry 
 Iron Co., 12 Barbour, 37 ; Brown v. Clark, 14 Penna. State Eep. 469 ; Davis 
 V.Allen, 3 Comstock, 168 ; Wardwell v. Knight, 3 Barb. S. C. Rep. 549 ; 
 Southwick V. McGovern, 38 Iowa, 533 ; Bank of the Commonwealth v. Mud- 
 gelt, 44 New York, 514. To constitute a person a previous dealer with a firm, 
 and entitled to actual notice of the dissolution of the partnership, he must have 
 dealt directly with the firm ; and it is not sufficient that he may have dealt 
 in paper for which the firm was responsible. HutoTiins v. Bank of Tennessee, 
 8 Huniphreys, 418. 
 
 (3) Scott V. Colmisnil, 7 J. J. Marshall, 416 ; Magill v. Mevric, 5 B. Monroe, 
 168. A partner whose name has not appeared in the firm, will be liable to 
 persons dealing with the partnership after his retirement from it, if he was 
 known to such persons as a member of the firm, either by direct transactions 
 or public authority, and they have not received notice of the dissolution of the 
 connection. But unless be was thus known as a partner, it seems, that he 
 will not be liable to persons so dealing with the partnership after bis retire- 
 ment, even although no notice has been given. Davis v. Allen, 3 Comstock, 
 168. 
 
86 CAPACITY OF CONTRACTING PARTIES. 
 
 hecorae tenants in common of the partnership effects, and their 
 authority as mutual agents is at an end. 
 
 One ex-partner cannot, therefore, indorse in the name of the 
 firm a bill which belonged to the firm, but all must join(M) 
 though the ex partner indorsing have authority to settle the 
 partnership affairs. " I even doubt much," says Lord Kenyon, 
 " if an indorsement were actually made on a bill or note before 
 the dissolution, but the bill or note was not sent into the world 
 till afterwards, whether such indorsement would be valid."(a:)(l) 
 
 But a statement by the ex-partner that he had left the assets 
 and securities in the hands of the continuing partner, and that 
 he had no objection to his using the partnership name, is evi- 
 dence from which a jury may infer an authority to indor8e.(2/) 
 An authority to indorse may be inferred, though the written 
 agreement of dissolution contain ho such authority. But an 
 authority to the continuing partner " to wind up the busi- 
 ness" will not enable him to indorse the securities of the late 
 firm.(e) Both ex-partners ought, therefore, to indorse, for that 
 
 (■M) Abel V. Sutton, 3 Esp. 108 ; Kilgour v. Finlayson, 1 H. Bl. 155 ; but 
 see Lewis v. Reilly, 1 Q. B. 349 (41 E. C. L. R.). 
 (iC) Abel V. Sutton, 3 Esp. 108. 
 (y) Smith V. Winter, 4 M. & W. 454. 
 (?) Ibid. 
 
 (1) After the dissolution of a partriership, a power given to one of the late 
 copartners "to settle all demands in favor or against said firm," does not 
 authorize him to give a note in the name of the firm. Locbwood v. Comstock, 
 4 M'Lean, 383; Lusk v. Smith, 8 Barb. S. C. 570; Hamilton v. Seaman, 1 
 Smith (lad.), 139 ; Humphries v. Chastain, 5 Georgia, 166 ; Long v. Story, 
 10 Missouri, 636 ; Draper v. Bissel, 3 M'Lean, 275 ; Parker v. Cousins, 2 
 Grattan, 372; but see M'Pherson v. Rathbone, 11 Wendell, 96; Myers v. 
 Huggins, 1 StrobUart, 473 ; Hansen v. Irvin, 3 Watts & Scrg. 345 ; Robinson 
 V. Taylor, 4 Penna. State Rep. 243 ; Davis & Desauque, 5 Wharton, 530. A 
 promise made by a partner, after the partnership has been dissolved, to pay a 
 note on which the firm are indorsers, no notice of dishonor having been 
 given, is not binding upon the other members of the firm. Schoneman v. 
 Pegely, 7 Penna. State Rep. 433. After the dissolution of a partnership, notes 
 given by a partner for the purpose of settling the business of the firm, bind bis 
 late partners. Ward v. Tyler, 3 P. F. Smith, 393. 
 
 A renewal note given in the firm name after dissolution, by a partner, 
 without his copartner's assent, may be regarded as divisible, and held valid 
 to the extent that the firm debts constituted the consideration, and invalid as 
 to the residue. Wilson v. Foster, 20 Ohio St. 89. 
 
CAPACITY OF CONTRACTING PARTIES. Wt 
 
 is the proper mode of, indorsing by persons who are not part- 
 ners.(a) But if the outgoing partner suffer his name to appear 
 as partner, new customers, notwithstanding notice in the Ga- 
 zette, may charge him. K. and A. dissolved partnership, and 
 advertised the dissolution in the Gazette. K. accepted a bill in 
 the name of *the firm, ante-dating it, so that it appeared -^^ .,-, 
 to have been drawn before the dissolution. This bill ^ ' -' 
 came into the hands of the indorsee, for value, without actual 
 notice of the dissolution. A. had allowed his riame to remain 
 over the door of a hatter's shop in the Poultry, where the busi- 
 ness had been carried on. Lord Ellenborough held A. liable on 
 the bill, observing, that he had imprudently suffered notice to 
 be given of the continuance of the partnership by permitting 
 his name to remain over the door.(6) 
 
 If one partner die, being liable or entitled on a bill or note, 
 the legal right or liability survives, but the personal represen- 
 tatives of t^ie deceased are entitled or liable in equity.(e) 
 
 Bankruptcy is a dissolution, and therefore it was held before 
 the 2 & 3 Vict. c. 29, that an indorsement by one of the several 
 partners, after a secret act of bankruptcy, is invalid.(<^) But 
 it has been also held, that, as the ex-partners still hold them- 
 selves out to the world as partners, they are liable to third 
 persons.(e) 
 
 Lastly, as to an occasional partnership. 
 
 A partnership may be either a general partnership, or a 
 particular one for a single transaction. 
 
 An interest in the profits of a single transaction makes a 
 man a partner, and liable to third parties.(/) 
 
 (a) Carvick v. Vickery, 2 Doug. 653, n. 
 
 (6) Williams v. Keats, 2 Stark. 290 (3 E. 0. L. B.) ; and see Newsome v. 
 Coles, 2 Camp. 617 ; Stables v. Ely, 1 C. & P. 614 (12 E. C. L. R.). 
 
 (fi) Lane v. Williams, 2 Vein. 277 ; Bishop v. Church, 3 Ves. sen. 100, 
 371 ; Vulliamy v. Noble, 3 Mer. 614 ; Heath v. Percival, 1 P. Wms. 682 ; 
 1 Stra. 403, S. C. But the right of survivorship in partnership chattels of a 
 trading firm does not exist. Buckley v. Barber, 6 Excb. 164. 
 
 (d) Thomason v. Frere, 10 East, 418. 
 
 (e) Lacy v. Woolcot, 2 D. & K. 458 (16 E. C. L. R.). 
 
 (/) Heyhoe v. Burge, 19 L. J., C. P. 243 ; 9 C. B. 431 (67 B. C. L. E.), 
 S. C. 
 
88 CAPACITY OF CONTRACTING PARTIES. 
 
 A joint security given by one partner, in a mere occasional 
 partnership for a private debt, does not charge his co-partner, 
 though in the hands of a bona fide holder for value.(^) 
 
 The executor of a deceased party to a bill or note has, in 
 general, the same rights and liabilities as his testator. "The 
 executors of every person," says Lord Macclesfield, "are 
 implied in himself, and bound without naming. "(A) ■ 
 
 *Therefore, if a bill be indorsed to a man who is dead, 
 L -■ by a person ignorant of his death, that will be an in- 
 dorsement to the personal representative of thei deceased.(0 
 On the death of the holder of a bill or note, his executors or 
 administrators may indorse ;(A) and an indorsement by the 
 executors or administrators is for all purposes as effectual as an 
 indorsement by the deceased.(Z)(l) 
 
 Presentment,(m) notice of dishonour and payment should 
 be made by and to the executor or administrator, in the same 
 manner as by or to the deceased.(2) 
 
 Cjr) Williiims V. Thomas, 6 Esp. 18. 
 
 (A) Hyde t. Skinner, 3 P. Wms. 196. See Williams v. Burrell, 1 C. B. 
 402 (50 K. C. L. R.). 
 (8) Murray v. East India Company, 5 B. & Aid. 304 (7 E. C. L. R.). 
 (k) Rawlinson v. Stone, 3 Wils. 1 ; 8 Stra. 1260, S. C. 
 (0 Watltins v. Maule, 3 Jac. & Wallier, 243. 
 (TO) Molloy, 3, 10. 
 
 (1) A promissory note payable to an intestate, while uncollected, belongs 
 to the administrator, and its payment can only be enforced by>him. Morse v. 
 Clayton, 13 Smedes & Marsh. 378. An administrator may assign a pvomis- 
 sory note payable to his intestate, so as to vest the legal interest in the as- 
 signee. Cahoun v. Moore, 11 Vermont, 604 ; Morse v. Clayton, 13 Smedes 
 & Marshal), 373 ; Makepeace v. Moore, 5 Gilman, 474 ; Cryst v. Cryst, 1 
 Smith (Ind.), 870. The transfer of a note due to an estate by an adminis- 
 trator, in payment of his own debt, gives to the assignee with notice no 
 right of recovery. Scott v. Searles,. 7 Smedes & Marsh. 498. Where a note 
 was made payable to E. R., administrator, and M. B., administratrix of J. B., 
 it was held that E. R. alone could not assign such note. Sanders v. Blain, 6 
 J. J. Marsh, 446. But a note to the intestate may be transferred by one of 
 several administrators. Ibid. An administrator can anywhere indorse nego- 
 tiable paper, so as to give the holder a right to sue in any other State. Graw 
 V. Hannah, 6 Jones (Law), 94. An indorsement of a note to a deceased per- 
 son, for the purpose of vesting it in the legal representative of such deceased 
 person, is void. Valentine v. Halloinan, 63 N. Car. 475. 
 
 (3) Notice of non-payment must be given to the executor of the indorsee 
 Hallett V. Branch Bank, 12 Alabama, 193. 
 
CAPACITY OF CONTRACTIN» PARTIES. 89 
 
 If the holder be dead and the executor have not yet proved 
 the will, still it seems the executor is hound to present the 
 bill when presentable ;{n) for his title to his testator's property 
 is derived exclusively from the will, and vests in hini from the 
 moment of the testator's death.(o) But, as the title of an 
 administrator is derived wholly from the Court of Probate, and 
 he has none till the letters of administration are granted, he 
 would probably be excused by impossibility.(l) 
 
 A probate, being a judicial act of the Court of Probate, is 
 conclusive as to the validity and contents of the will, and the 
 title of the executor; and, as long as it remains unrepealed, 
 cannot be impeached in. the other courts. Therefore, a volun- 
 tary payment to an executor who has obtained probate of a 
 torged will, is a discharge to the debtor, notwithstanding that 
 the probate is afterwards declared null.(p) 
 
 Bills of exchange are to be paid in the course of administra- 
 tion as simple contract debts. They are bona notabilia ; not, as 
 in a case of specialty, where the instrument may happen to be, 
 but where the debtor resides at the time of the creditor's 
 death.(g') 
 
 By 32 & 33 Vict. c. 46, the priority of specialty over simple 
 
 (71) Marius, 135 ; Molloy, 3, 10 ; Poth. 146. 
 
 (o) Com. Dig. Adminis. B. 10 ; Woolley v. Clark, 5 B. & Aid. 745-6 (7 
 E. C. L. R.) ; 1 D. & Ry. 409, S. C. 
 (p) Allen V.' Dundas, 3 T. R. 135. 
 (S) Teomana v. Bradshaw, Oarthew, 373 ; 8 Salk. 70, S. C. 
 
 (1) An executor may commence an action before probate of the will : it ia 
 necessary that he should have taken out letters before filing his declaration. 
 The executor derives his title from the will, and may act with full authority, 
 except when in legal proceedings it becomes incumbent upon him to show his 
 office. Then he cannot prove the will in the common law court ; for the 
 cognizance of testamentary matters is exclusively vested in the ordinary, 
 ecclesiastical, or probate courts. There is, however, no such a thing as an 
 administrator without a legal grant from the proper authority ; the party en- 
 titled by law to letters has no title or authority before the grant. Strong v. 
 Perkins, 3 N. Hamp. 140 ; Call v. Ewing, 1 Blackford, 301. The title of an 
 administrator, however, relates back to the death of his intestate. Miller v. 
 Reigne, 3 Hill (8. C), 593 ; Jewett v. Smith, 13 Mass. 809 ; Lawrence v. 
 Wright, 28 Pick. 138 ; McVaughters v. Elder, 3 Brevard, 407. 
 
90 CAPACITY OF CONTRACTING PAETIES". 
 
 contract debts in the case of persons dying since January 1st, 
 1870, is abolished. 
 
 It is a general rule of law, that if a creditor constitute his 
 debtor executor, the debt is released and exting™bft#; 
 *for the same hand being at once to receive and pay, the 
 '- -' action is suspended ; and a personal action once suspen- 
 ded by act of the parties, is gone for ever.(r)(l) Hence it 
 follows, that if the holder of a bill appoint the acceptor his 
 executor, the acceptor is discharged, and all the other parties 
 also, for a release to the principal discharges the surety. So it 
 has been decided, that if the payee of a note, payable on de- 
 mand, constitute the maker of a note his executor, the maker 
 is discharged, not only from his liability to the estate of the 
 testator, but also from his liability as maker to an indorsee to 
 whom the executor assigned it after the testator's death.(5) 
 But it is conceived that if the note, at the time, of the testa- 
 tor's death, had been in the hands of an indorsee, the maker 
 would still have been liable as maker to the indorsee, and that 
 if the note had been payable at a future time, and indorsed by 
 the executor after the testator's death, but before the note was 
 due, the maker would have been liable as maker to an indor- 
 see without notice; for since a premature secret payment by 
 the maker would not have protected him.(i) no more, it should 
 seem, would a premature secret release to him.(M) ■> 
 
 If one of several joint debtors be appointed executor, it is a 
 
 (r) Year Book, 30 Edw. 4, 17 ; 31 Edw. 4, 36; Dyer, 140; Nedhara's 
 case, 8 Bep. 135 a ; Fryer v. Gildridge, Hobart, 10 ; Sturleyn v. Albany, 
 Cro. Eliz. 150 ; Dorchester v. Webb, Cro. Car. 373 ; Wankford v. Wank- 
 ford, 1 Salk. 399 ; Cheetham v. Ward, 1 Bos. & Pul. 030. But the rule ,as to 
 suspension is not universal. See the Chapter on Suspension. 
 
 (s) Preakly v. Fox, 9 B. & C. 130 (17 E. C. L. R.) ; 4 Man. & R. 18 (43 
 E. C. L. R.), S. C, See also Harmer v. Steele, 4 Exch. 1. Such a release 
 in law might formerly have been made by an infant testator- at the age of 
 seventeen years complete. Co Lilt. 364, b. 
 
 (J,) Burbridge v. Manners, 3 Camp. 193. 
 
 (It) Dod V. Edwards, 3 C. &, P. 103 (14 E. C. L. R.). 
 
 (1) The rule that the appointment of a debtor to be the executor of the 
 creditor, operates as a release of the debt, has been generally reversed by 
 statute in the United States, or modifled upon equitable principles. Mitch«ll 
 V. Rice, 6 J. J. Marshall, 633. 
 
CAPACITY OF CONTRACTING PARTIES. 91 
 
 release to all;(a:) and though they were liable severally as well 
 as jointly, for judgment and execution against one would have 
 been a discharge to all ;{]/) and an express release to one might 
 have been pleaded in bar by all.(^) The debt is also released 
 where one only of several executors is indebted,(a) and though 
 the executor die without having either proved the will or ad- 
 ministered.(6) 
 
 *But if a sole executor refuses to act, the debt is not ^^,„^ 
 discharged. (c) If the creditor makes the executor of '- ' -■ 
 the debtor his executor, that is no discharge.((if) 
 
 Though the appointment of a debtor to be executor releases 
 him from liability to the first or any subsequent representatives 
 of the testator, yet the debt is still assets in his hands in favour 
 both of creditors and legatee8.(e) 
 
 The taking out letters of administration by a debtor to his 
 creditor is merely a suspension of the legal remedies as between 
 the parties ; but being the act of the law and not the act of 
 the intestate, it is no extinguishment of the debt, for the action 
 will revive when the affairs of the intestate and of the admin- 
 istrator are no longer in the hands of the same per8on.(/) 
 
 (x) ■Wentworth, Off. Exois. c. 2 ; Com. Diar. Admin. B. 5. 
 
 (2/) Bio. Ab. Exois. p. 118 ; Fryer v. Gildridge, Hob. 10 ; Cheethatn v. 
 Ward, 1 Bos. & Pul. 630 ; Wankford v. Wankford, 1 Salk. 299. 
 
 (2) 3 Rol. Abr. 412 ; Clayton v. Kynaston, 2 Salk. 574 ; 3 Saund. 47, t. 
 
 (a) Bro. Exors. pi. 114 ; Went. Off. Exors. c. 3, pp. 74, 7.11, 14th ed. ; 
 Com. Dig. Adm. B. 5 ; Wankford v. Wankford, 1 Salk. 299, by Powel, J. ; 
 Cheetliam v. Ward, 1 Bos. & Pnl. 630. 
 
 (J) Wankford v. Wankford, 1 Salk. 329 ; Went, o, 3 ; Com. Dig. Adm. 
 B. 5. 
 
 (c) Wankford v. Wankford, 1 Salk. 299 ; but see Abrara v. Cunningham, 
 1 Vent. 803 ; Butler's Co. Litt. 264, b. 
 
 (d) Bac. Ab. Exors. A. 10 ; Dorchester v. Webb, Cro. Car. 373 ; W. 
 Jones, 345, S. C. ; 1 Salk. 305 ; Alston v. Andrew, Button, 138. 
 
 (c) Bac. Ab. Exors. A. 10 ; Brown v. Selwyn, Cases temp. Talbot, 241, 
 342 ; Holiday v. Boas, 1 Rol. Abr. 930 ; Woodward v. Lord Dacy, Plowd. 
 186 ; Dorchester v. Webb, Cro. Car. 378 ; Shep. Touchstone, 497-8 ; Wank- 
 ford V. Wankford, 1 Salk. 299. See Wentworth, Off. Exors, c. 2. 
 
 (/) Sir John Needham's case, 8* Coke, 135 ; Wankford v. Wankford, 1 
 Salk. 299 ; Wentworth Off. Exors. c. 3 ; Lockier v. Smith, 1 Sid. 79 ; 1 Keb. 
 313, S. C. ; Hudson v. Hudson, 1 Atk. 461. 
 
92 CAPACITY OB' CONTRACTING PARTIES. 
 
 If a note or a bill be made or indorsed to an executor as ex- 
 ecutor, he may sue on it in his representative capacity, and join 
 counts on promises to the testator ;(^) and a note given to the 
 executor for a debt due to the testator will go to the adminis- 
 trator de bonis non.{h) Though a payment of the amount of 
 the instrument to the administrator of the executor would be 
 good in equity, and perhaps at law.(«) After considerable con- 
 flict, the rule of law is now firmly established, that whenever 
 the money sought to be recovered is assets, the executor may 
 sue, as executor, on a contract made with himself in his repre- 
 sentative capacity, and join counts on promises to his tes- 
 tator.(A)(l) Thus, to counts on a bill or note given to hia 
 testator, he may join a count for money paid by himself as 
 r^-n-, executor ;(?) a count for goods *sold by himself,(m) for 
 '- -■ works done by himself ;(n) a count on an account stated 
 with the plaintiff as executor, of monies due to the testator ;(o) 
 or a count on an account stated with the plaintiff as executor, 
 of monies due to himself as executor. (p) 
 
 An executor cannot complete his testator's indorsement by 
 delivering the instrument/^') which has been already signed by 
 the testator. 
 
 Cg) King v. Thorn, 1 T. R. 487. 
 
 ih) Catherwood v. Chiibaud,. 1 B. & C. 150 ; 3 Dowl. & R. 371 ; Court 
 V. Partridge, 7 Price, 591. 
 
 (j) Barker v. Talcot, 1 Vern. 473 ; and see tlie remarks of Lord Tenterden 
 on this case, in Catherwood v. Chabaud, 1 B. & C. 150 (8 B. C. L. R ) ; 3 
 Dowl. & R. 371. 
 
 (h) 3 Wms. Saunders, 117, d. 
 
 (I) Ord. V. Fenwick, 3 East, 104. As to money lent, see Webster y. Spen- 
 cer, 8 B. & Aid. 365 (6 E. C. L. R.). 
 
 (to) Cowell V. Watts, 6 Eist, 405 ; 9 Smith, 410, S. C. 
 
 (ra) Marshall v. Broadhurst, 1 C. & J. 403 ; Edwards v. Grace, 2 M. & 
 Wels. 190 ; 5 Dowl. 302, S. C. 
 
 (o) Jobson V. Forster, 1 B. & Ad. 6 (30 E. C. L. R.). 
 
 (p) Dowbiggin v. Harrison, 9 B. & 0. 666 (17 E. 0. L. R.) ; 4 Man. & E. 
 663, S. C. 
 
 (}) Bromage v. Lloyd, 1 Exch. 33. 
 
 (1) An executor or administrator may join in the same declaration, 'counts 
 or promises to himself, wilh counts or promises to the intestate or testator; the 
 rule being that counts may be joined whenever the money, if recovered, 
 would be assets. Pry v. Evans, 8 Wendell, 580. 
 
CAPACITY OP CONTRACTING PARTIES. 93 
 
 It has been said that an indorsement by one of several co- 
 executors, in his own name alone, will not suffice to transfer 
 the property in a bill of exchange,(l) although it be an indorse- 
 ment in fact, for forgery of which an indictment may be sus- 
 tained.(?') 
 
 An executor, like an agent, is personally liable on making, 
 drawing, indorsing or accepting negotiable instruments, though 
 he describe himself as executor, unless he expressly confine his 
 stipulation to pay out of the estate.(s)(2) 
 
 In an action against an executor, on a bill or note of his tes- 
 tator, a count for money had and received by defendant, as 
 executor, cannot be joined ;(<) nor a count for money lent to the 
 
 (r) Winterbottom's case, 1 Deniiison's C. C. 51 ; 2 Car. & Kir. 37, S. C. 
 It has been so held in America. Smith v. Whiting, 9 Mass. Rep. 320. But 
 it lias also been there held that a note may be transferred by one of several 
 administrators ; Sanders v. Blane, 6 J. J. Marsh, 446 ; and by one of several 
 execntors, as a collateral security for a judgment against the estate. Wheeler 
 V. Wheeler, 9 Cowan, 34. 
 
 (») Child V. Monins, 2 B. & B. 460 (6 E. C. L. R.) ; 5 Moo. 231 ; King v. 
 Thorn, 1 T. R. 489 ; Ridout v. Bristow, 1 Tyrw. 90 ; 1 C. & J. 231, S. C. ; 
 Serle v. Waterworlli, 4 M. & W. 9 ; 6 Dowl. 684, S. C. ; Nelsop v. Serle, 4 
 M. & W. 795 ; Liverpool Borough Bank v. Walker, 4 De G. & J. 24. 
 
 (0 Jennings v. Newman, 4 T. R. 347 ; Ashby v. Ashby, 7 B. & C. 444 
 (14 E. C. L. R.) ; 1 Man. & R. 180, 8. C. 
 
 (1) One of several executors may assign a note belonging to the estate of 
 the testator as collateral security for a judgment obtained against the estate ; 
 andhisact win bind his co-executors. Wheeler v. Wheeler, 9 Cowen, 84. But 
 aliter when the note is made to the executors as such. Smith v. Whiting, 9 
 Mass. 334. 
 
 (2) .Administrators, giving a note for the debt of their intestate, are not per- 
 sonally liable therefor, unless they have assets, or forbearance was the con- 
 sideration of the note. Bank of Troy r. Topping, 9 Wendell, 273. Such a 
 note prima facie, imports a sufiSciency of assets ; the defendant may, however, 
 show that in part there was a deficiency of assets, and the onus probandi rests 
 on him. Bank of Troy v. Topping, 13 Wendell, 557 ; and see Sleighter v. 
 Harrington, 2 Taylor, 249 ; 3 Murphy, 250 ; Sims v. Slillwell, 3 Howard 
 (Miss.) 176 ; Byrd v. Hollaway, 6 Smedes & Marshall, 473 ; Rucker v. Wad- 
 lington„5 J. J. Marshall, 238 ; Steele v. McDowell, 9 Smedes & Marshall, 
 193. When in an order signed " A. B., Administrator," there is nothing to 
 designate the deceased person or his estate, the drawer will be personally lia- 
 ble. Tryon v. Oxley, 3 Iowa, 389. 
 
94 CAPACITY OF CONTRACTING PARTIES. 
 
 executor ;(m) nor a count for goods sold to the executor or work 
 done forNhini.(a;) A count for money paid to the use of the' 
 executor probably may.(y) A count on an ^account stated' 
 ^*^^^ by the executor, of monies due by the testator,(5;) may 
 be joined ; and so may a count on an account stated by the 
 executor, of monies due from him as executor.(a) "Wherever 
 the judgment on a common count is de bonis testatoris, the count 
 may be joined ; but where the judgment is de bonis propriis, it 
 cannot.(J)(l) 
 
 An infant can make a binding contract for necessaries only ; 
 and he may give a single bill (which is a bond without a 
 penalty) for the exact sum due for necessaries, but not a bond 
 with a penalty, or carrying interest.(c) 
 
 What are to be considered neeessaries(d) depends on the rank 
 and circumstances of the infant in the particular case.(2) 
 
 (a) Rose v. Bowler, 1 Hen. Bla. 108. 
 
 (») Corner v. Shew, 3 M. & Wels. 350 ; Kitchenman v. Skell, 3 Exch. 49. 
 (y) Ashby v. Ashby, 7 B. & C. 444 (14 E. C. L. R.) ; 1 Man. & R. 180. 
 (z) Secar v. Atkinson, 1 H. Bla. 103. 
 
 (a) Powell V. Graham, 7 Taunt. 581 (2 E. C. L. R.) ; 1 Moo. 305 ; Ashby 
 ' V. Ashby, 7 B. & C. 444 (14 E. C. L. R.)-; 1 M. & R. 180. 
 
 (J) See 3 Wms. Saund. 117, e ; Hall v. Haffam, 3 Lev. 328 ; Curtis v. Davis, 
 Lev. Pt. II. 110; May v. Woodward, 1 Freem. 247. 
 
 (c) Co. Litt. 172, a., n. 2 ; Russell v. Lee, 1 Lev. 86 ; and, therefore, a 
 bond cannot be set up by a promise to pay made after full age, and the repli- 
 cation of such promise is ill. Baylis v. Dinely, 3 M. & Sel. 477 ; see B. N. P. 
 183 ; Hunter v. Agnew, 1 Fox & Smith, 15 ; 1 Rol. Ab. 739 ; Fisher v. Mow- 
 bray, 8 East, 330. A bond with a penalty given by an infant seems to be ab- 
 solutely void. Ayliffe v. Archdale, Cro. Eliz. 920 ; Vin. Ab. Actions, D. d. 
 
 (d) See the observations of the court in a very singular case. Chappell v. 
 Cooper, 13 M. & W. 253. 
 
 (1) In an action against an executor, a count or a promise made by him as 
 such, and in which he is not charged as personally liable, may be joined with 
 a count on a, promise by the deceased. Howard v. Powers, 6 Hammond, 93; 
 Carter v. Phelps, 8 Johns, 440. An indorsement upon a note by the testator 
 will support an alleged promise by his executors in a special count against 
 them. The law implies a promise on their part. Barnes v. Reynolds, 4 
 Howard (Miss.), 114. In an action against administrators on a not? made by 
 their intestate, if the declaration allege a promise by the deceased and also by 
 the administrators, though informal it is not bad on general demurrer." Curtis 
 V. Bowrie, 3 McLean, 374. 
 
 (3) An infant can never bind himself, even for necessaries, when he has a 
 parent or guardian who supplies hia wants. Guthrie v. Murphy, 4 Walts, 80 ; 
 
CAPACITY OF CONTRACTING PARTIES. 95 
 
 All his other contracts are distinguishable into two sorts, 
 voidable and void. A distinction usually of importance : first, 
 because a voidable contract may be afterwards affirmed, but a 
 contract absolutely void is incapable of confirmation ;(e) and, 
 secondly, because a void contract may be treated by other 
 parties as a nullity, but contracts voidable can only be avoided 
 by the contracting party himself. Yet the precise criterion of 
 this distinction is not in the case of infancy clearly settled. 
 According to some authorities it depends entirely on the mode 
 of the transaction ; and all such gifts, grants or deeds of an 
 infant as take effect by the delivery of his hand, are only void- 
 able; whereas such as do not so take effect are void.(/) Ac- 
 cording to others, if the act be for the advantage of the infant, 
 it is voidable: if for his disadvantage, absolutely void.(^) 
 
 *The acceptance of an infant is at all events in- 
 valid,(A) and cannot be confirmed by a promise to pay V ^ 
 made after he is of age, and after action brought,(i) And all 
 
 («) But see "Williams v. Moore, 11 M. & W. 256. 
 
 (/) Perkins, 13. 
 
 (g) ZoucU V. Parsons, 3 Burr. 1794, recognized as. law by Lord Eldon in 
 V. Handcoclc, 17 Yes. jun. 383 ; aud see Holt v. Ward, 3 Stra. 987 ; Wil- 
 liams V. Moore, 11 M. & W. 356. A voidable contract has b6en defined as a 
 contract valid till disaffirmed. Allen v. Allen, 3 D. & W. 807 ; 1 C. & L. 
 427 (Irish). 
 
 (h) Williamson v. Watts, 1 Camp. 553 ; and see Williams v. Harrison, 
 .Carthew, 160 ; 3 Salk. 197, S. C. 
 
 (0 Thornton v. Illingworth, 2 B. & C. 824 (9 E. C. L. K.) ; 4 Dowl. & R. 
 545, S. C. 
 
 Angel V. McLellan, 16 Mass. 38 ; Kline v. L'Amoureux, 3 Paige, 419 ; Perrin 
 V. Wilson, 10 Missouri, 451. But when he has authority from his guardian, 
 either express or implied, he may purchase necessaries, or when they are 
 supplied to him by a third person under these circumstances, the infant is 
 bound. Rundel v. Eeeler, 7 Watts, 337 ; Watson v. Heasel, 7 Watts, 344 ; 
 see Grace v. Hale, 3 Humph. 37. The question whether articles are neces- 
 sary or not, is one of fact, to be determined by the jury, and not by the court. 
 Bent V. Manning, 10 Vermont, 335. It is a mixed question of law and fact ; 
 but where there has manifestly been an excessive supply, the court may pro- 
 nounce upon it. Johnson v. Lines, 9 Watts & Serg. 80. A collegiate educa- 
 tion is not ranked among those necessaries for which an infant can render 
 himself absolutely liable by contract. Middleburg College v. Chandler, 16 
 Vermont, 683. The board of an infant is included among the necessaries for 
 which he may pledge his credit. Bradly v. Pratt, 28 Vermont, 378. 
 
96 CAPACITY OF CONTRACTING PARTIES. 
 
 his contracts made in the course of trade were formerly consid- 
 ered absolutely void and incapable of confirmation, though 
 the moral obligation to fulfil them would support an express 
 promise" to pay after full age, and before action brought.(A) It 
 has been held that no mere acknowledgment, or part payment, 
 would, under such circumstances, create a liability .(Z) But it 
 now seems that an infant's contract on a bill or note is voidable 
 only,(m) and that his liability may be established by ratifica- 
 tion after full age.(n)(l) 
 
 (ft) Ibid. ; Hunt v. Massey, 5 B. & Ad. 902 (37 E. C. L. R.) ; 3 Nev. 
 & M. 109, S. C. Whether a ratification he in-all cases a new contract, rest- 
 ing on the original obligation as a moral consideration, or whether it merely 
 impart validity to the original promise, has. been considered doubtful. Wil- 
 liams V. Moore, 11 M. & W. 356 ; but see Harris v. Wall, 1 Exch. 133, 
 
 (0 Thrupp V. Fielder, 3 Esp. 628. Such is the law in America. ' Byles on 
 Bills, 5th American edition, p. 146. 
 
 (m) Such also is the result of the American authorities. See Byles on Bills, 
 3d American edition, pp 119, 130. 
 
 in) Harris v. Wall, 1 Exch. 133. 
 
 (1) A negotiable note made by an infant is voidable and not void ; and if 
 he, after 'coming of age, promise the payee that it shall be paid the payee may 
 negotiate it, and the holder may maintain an action in his own name against 
 the maker. Reed v. Batchelder, 1 Mete. 559 ; Everson v. Carpenter, 17 
 Wend. 419 ; Best v. Givens, 3 B. Monroe, 73 ; Goodsell v. Myers, 3 Wend. 
 479 ; StoUes v. Brown, 4 Chandler, 39. 
 
 A promissory negotiable note, executed byan infant, is not void so as to be 
 incapable of ratification after the infant becomes of age ; and a re-promise by 
 him is valid, though not made nhtil after the commencement of the suit 
 against him. After the infant became of age, he wrote a letter to the plain- 
 tiff containing these words, "All that is justly your due shall be paid." 
 Held that this was a sufiScient re-promise, and that the legal presumption that 
 claims are just and also due, after the usual evidence in support of thera, is 
 sufiScient, till rebutted by other evidence of injustice or of payment. Wright 
 V. Steelcj 3 N. Hamp. 51 ; Font v. Cathcart, 8 Alabama, 735. An infant 
 made a note, and after age, on payment being demanded, said, " I will pay 
 it as soon as I can make it ; but I cannot do it this year. I understand the 
 holder is about to sue it, but she had better not." This was held to be an 
 affirmation of the contract, and that an action would presently lie. Babo v. 
 Hansel], 3 Bailey, 114. When an infant on being applied to for the payment 
 of a note made by him during infancy, acknowledged that the money was 
 due, and promised that, on his return to his home, he would endeavor to pro- 
 cure it and send it to his creditor, it was held to be a sufficient ratification of 
 the original promise. Whitney v. Dutch, 14 Mass. 457. The declaration of 
 an infant after he arrives of age, of his intention to pay a note, accompanied 
 with his authorizing an agent to pay it, is a sufficient confirmation of the con- 
 
CAPACITY OF CONTRACTING PARTIES. 97" 
 
 The stat. 9 Geo. 4, c. 14, enacts, that no action shall be 
 maintained whereby to charge any person upon any promise 
 
 tract to bind him, altliougli tlie agent has not clone anything. Orvis v. Kim- 
 ball, 3 N. Hamp. 314. An infant purchased a Isettle and other articles, and 
 ■gave his promissory note for them, it being agreed by the parties that he 
 might try the kettle, and return it if it did not answer. The vendor, after 
 the infant became of age, requested him to return it, if he did not intend to 
 keep it; but he retained and used it, with the other property, a month or two 
 afterwards. Held, that this was a sufficient ratification of the contract, and 
 that an action might be sustained on the note. Aldrich v. Grimes, 10 N. 
 Hamp. 194. In an action on a note of an infant, the evidence of ratifica- 
 tion was that the defendant said that he knew but little about the matter, as 
 the transaction had been mostly managed by another person ; that he thought 
 the note had been paid or partly paid ; and that his uncle would be there next 
 month, and then it should be settled ; it was held sufficient to be submitted to 
 a jury. Bay v. Gunn, 1 Denio, 108. An infant purchased land and gave 
 his note for the price. After he came of age he continued in possession of the 
 land, and promised to pay the note. Held, that this was a confirmation of 
 the contract, binding on him and his representatives. Armfield v. Tate, 7 
 Iredell, 258. 
 
 The retention of the consideration for which the note of an infant was 
 given, after his coming of age, is not a ratification of the note ; neither is a 
 submission to arbitration of the question whether he is liable on the note, 
 after he comes of age, a ratification. Benham v. Bishop, 9 Conn. 330. Where 
 a defendant, in conversation concerning a note made by him during infancy, 
 said that he owed the plaintiff, but was unable to pay him ; and that he 
 would endeavor to procure his brother to be bound with liim ; if was held not 
 to be a renewal of the promise. Ford v. Phillips, 1 Pick. 302. A person who 
 gave a note during his infancy, after he became of age made declarations of 
 an intention of payment, to persons having no interest in or agency as to the 
 note. Held that this was no evidence of a promise of payment or ratification 
 of the contract. Holt v. Underbill, 9 N. Hamp. 436. A new promise, made 
 by ail infant after he comes'of age, that he will pay his promissory note, will 
 .not bind him, if made to one who is attorney for the plaintifif in another suit, 
 but had not then been employed in the present suit against the infant. Bige- 
 low V. Grannis, Si Hill, 120. A plea of infailcy, by one member of a firm, to 
 an action on a note in the name of the firm, is not avoided by a replication 
 that the defendant had continued a partner of the -firm for upwards of a year 
 after his arrival at full age, and had not in that time, nor for years afterwards, 
 indicated a disposition to .disaffirm any note executed in the name and in the 
 business of the firm,, without an averment that he had knowledge of the note 
 declared on, and was looked to for payment. Crabtree v. May, 1 B. Monroe, 
 289. 
 
 A confirmation must be distinct, and with the knowledge that he is not lia- 
 ble on the contract. A mere acknowledgment of a debt, or a payment of part 
 of it, will not support an action on such a contract. Hinely v. Margarilz, 3 
 Barr, 428 ; Norris v. Vance, 3 Richardson, 164 ; Smith v. Mayo, 9 Mass. 62 ; 
 Martin v. Mayo, 10 Mass. 137 ; "Whitney v. Dutch, 14 Mass. 457 ; Ford v. 
 
 7 
 
98 CAPACITY OP CONTRACTING PARTIES. 
 
 made after full age, to pay any debt contracted during infancy, 
 or upon any ratiiic^tiou after full age of any promise or simpte 
 contract made during infancy, unless such promise or ratiiiea- 
 tion shall be made by some writing signed by the party to be 
 charged therewith. Oral evidence may supply defects in the 
 written ratification as to the sum, the date, and the person to 
 whom it is addres8ed.(o) 
 
 A person of full age, who accepts a bill drawn while he was 
 an infant, is liable on the bill.(jt)) 
 
 An infant may after he comes of age ratify an account 
 ,stated.(g') But unless he have complete information, and full 
 knowledge of the transaction, his ratification will not bind in 
 equity.(r) 
 
 It is conceived that a bill drawn, indorsed, or accepted in 
 *blank by an infant, and filled up without his express 
 L J consent after he is of full age, will not bind him.(s) 
 
 Whether a promissory note, given by an infant for neces- 
 saries, be valid, either at the suit of the original payee, or his 
 indorsee, has never been expressly decided ; but, it should seem, 
 it is not, for even if not transferable it carries interest.(i)(l) An 
 
 (0) Hartley v. Wharton, 11 Ad. & Ell. 934 (39 E. C. L. R.). 
 (_p) Stevens v. Jackson, 4 Camp. 164. 
 
 (g) Williams v. Moore, 12 L. J., Ex. 253 ; 11 M. &. W. 256, S. C. 
 
 (r) Kay v. Smith, 21 Beav. 522. 
 
 (8) Hunt V. Massey, 5 B. & Ad. 902 (27 E. C. L. K.) ; 2 Nev. & M. 109, 
 S. C. 
 
 (0 Trueman v. Hiist, 1 T. R. 40 ; Bayley, 19 ; Williamson v. Watts, 
 1 Camp. 552. In the United States it has been decided that a promissory 
 note given by an infant for necessaries is void. Swansea v. Vanderkeydcn, 
 10 Johns. Rep. 33 ; Nightingale v. Withington, 15 Mass. Rep. 272. See 
 further, Byles on Bills, 5th American edition, p. 148. So in the French law, 
 Pardessus, 2, 459. 
 
 Phillips, 1 Pick. 202 ; Barnaby v. Barnaby, 1 Pick, 221 ; Thompson v. Lay, 
 4 Pick. 48 ; Wilcox v. Routh, 12 Conn. 550 ; Curtis v. Patton, 11 Serg. and 
 ■ Rawle, 305 ; Aldrich v. Grimes, 10 N. Hamp. 194 ; Hoit v. Underhill, 9 N. 
 Hamp. 486 ; 10 N. Hamp. 220 ; Bigelow v. Grannis, 2 Hill, 120 ; Alexander 
 V. Hutchinson, 2 Hawks, 535; Millard v. Hewlett, 19 Wendell, 301 ; West v. 
 Penny, 16 Alabama, 186. 
 
 (1) It will be seen by the cases thrown together in the preceding note, that 
 {he general doctrine of the American courts is, that the bill or note of' an in- 
 
OAPACIT-y OP CONTRACTING PARTIES. 99 
 
 infant is not bound by an account stated, ia respect even of 
 uecessarie8.(M) 
 
 If an infant be a party, jointly with an adult, to a negotiable 
 instrument, the owner may sue the adult alone, without taking 
 
 (w) Trueman v. Hirst, 1 T. B. 40 ; Bartlett v. Emery;, Ibid. 43, u. ; Ingle- 
 dew V. Douglns, 3 Starlj. 30 IS B. C. L. R.)- 
 
 fant is not void, but Vjoidable onlj', and therefore capable of ratification after 
 Ills arrival at full age. The decisions, however, are not harmonious upoa the 
 question, whether a neijotiable bill or note for necessaries falls within the 
 same category, or is to be considered as absolutely binding wilhont such rati- 
 fication, as a single bill for necessaries not negotiable undoubtedly is. It 
 seems very clear that, when the security is of such a nature that, by the rules 
 of law, the consideration cannot be inquired into, then the infant is not lia- 
 ble. In the hands of the payee, however, it may be inquired into, and it 
 would seem necessarily in the bands of the indorsee. Infancy is prima facie, 
 a good defence, and as the holder must in answer prove the consideration to 
 be necessaries, that throws open the whole question for the benefit of the in- 
 fant. Upon these grounds it has been determined in South Carolina, that 
 such a note is valid. Dubose v. Whcddon, 4 McCord, 221 ; Haine's Adm. v. 
 Tanant, 3 Hill, 400. See Boucbell v. Clary, 3 Brevard, 194. So also in 
 Massachusetts, in which it has been held, that in a suit upon a note given by 
 an infant, the plaintiff may show that it was given in whole or in part for 
 necessaries ; and may recover thereon as much as the necessaries for which it 
 was given were reasonably worth, and no more. Earle v. Reed, 10 Metcalf, 
 387. The contrary has been held in New York, on the English authorities, 
 which go upon the ground, that in the hands of a bona fide holder, the infant 
 would be preclnded from questioning the consideration. Swazey v. Vander- 
 heyden's Adra., 10 Johns. 33. In Kentucky it has been decided, that the 
 note of an infant has no obligatory force as such, and in an action on the note 
 it is necessary to show that the articles furnished as the consideration of the 
 note were necessaries. Beeler v. Young, 1 Bibb, 519. The reasoning in 
 favor of holding such a note voidable, appears to run in a circle, and there- 
 fore to be Unsound. A note may be valid as such, though riot negotiable — in 
 other words, though it may be so circumstanced as to let in all inquiries as to 
 its consideration in the hands even of a bona fide holder. So here, on proof 
 (hat the maker is an infant, the negotiability of the note is at an end : but it 
 ■does not cease to be, a note. It maybe sued on by the holder in his own 
 name. He stands in the shoes of the original payee, and can recover what- 
 ever he would have been entitled to recover. If the note is voidable, then 
 without ratification it cannot be sued on at all. The holder at most must be 
 subrogated to the rights of the original payee, in an action against the infant 
 in the name of the payee, on a declaration founded on the original considera- 
 tion. It is evident that the Kentucky case can only be supported on this 
 footing, and contrary to its own syllabus, it really affirms that the note is 
 valid as a note, though it is jnot a negotiable note. See McMinn v. Rich- 
 mond's, 6 Yerger, 9. 
 
100 CAPACITY OP CONTRACTINft PARTIES. 
 
 notice of the iufant.(j;) Where an infant is partner in a firm, 
 unless, on coming of age, he notifies the discontinuance of the 
 .partnership, he is liable for contracts made by the firm after 
 his majority .(a;) 
 
 Where an infant is not liable on a contract, he cannot be 
 made liable thereon by suing him in an action in form ex 
 delicto.{i/){l) Thus he is not liable on a bill because he repre- 
 sented himself to be of full age, nor can the plaintiff reply that 
 fact on equitable ground8.(2) 
 
 An infant drawing and indorsing bills may convey a title to 
 the indorsee, so that the indorsee caa sue the acceptor and all 
 other parties, except the infant himself ;(a) but the *in- 
 '- -■ fant may avoid the contract, except where the acceptor 
 has estopped himself by admitting (as we shall see he does) the 
 capacity of an infant drawer to indorse.(i)(2) 
 
 (e) Burgess v. Merrill, 4 Taunt. 468 ; Chandler v. Parkes, 3 Esp. 76, n. 
 
 {x) Good V. Harrison, 5 B. & Aid. 147 (7 E. 0. L. E.). 
 
 (.y) Grove v. Neville, 1 Keb. 778 ; Johnson v. Pye, 1 Keb. 905-913 ; 1 Lev 
 169, S. C. ; Manby v. Scott, 1 Sid. 109 ; Jennings v. Eundall, -8 T. R. 33o ; 
 Price V. Hewitt, 8 Exch. 146; and see Cranch v. White, 1 Bing. N. C. 417 
 (37 E. C. L. R.) ; 1 Scolt, 314, S. C. But in some cases he is liable for fraud 
 Byles on Bills, 5lh Araer. edition, p. 149 ; 'Nelson v. Stocker, 28 L. J., Cha. 
 760 ; Re King, 37 L. J., Btcy. 33 ; see Wright v. Leonard, post, 64. See 
 also Burnard v. Haggis, 83 L. J., 0. P. 191, where an infant who had hired 
 a horse was held liable for its misuse. 
 
 (z) Bartlett v. Wells, 1 Best & Smith, 836 (101 E. 0. L. R.). 
 
 (a) Taylor v. Croker, 4 Esp. 187; Nightingale v. Withington, 15 Mass. 
 American Rep. 273 ; and see Drayton v. Dale, 3 B. & C. 399, 802 (9 E. C. 
 L. R.) ; Grey v. Cooper, 1 Selw. N. P. ; see Smith v. Johnson, 37 L. J., 
 Exch. 368 ; 3 H. & N. 232, S. C. 
 
 (6) See the Chapter on Acceptance. 
 
 (1) Where a contract is the substantive ground of action against an infant, 
 the plaintiff cannot sue in tort. Wilt v. Welsh, 6 Watts, 9. An infant is not 
 liable for a fraud in a contract which he is incapable of making. Brown v. 
 Durham, 1 Root, 273 ; West v. Moore, 14 Vermont, 447 ; Wallace v. Morss, 
 .5 Hill, 391 ; Morrill v^ Aden, 19 Vermont, 505. But trover -will lie against an 
 infant for goods which came into his hands by means of an illegal contract. 
 Vasse V. Smith, 6 Cranch, 326 ; Lewis v. Littlefleld, 3 Shepley, 233 ; Fitts v. 
 Hall, 9 N. Hamp. 441 ; Town v. Wiley, 33 Vermont, 355. 
 
 (3) An infant may, for a valuable consideration, indorse a negotiable 
 promissory note or bill of exchange, so as to transfer the property to an in- 
 
CAPACITY OF CONTBACTING PAR T.I BS. 101 
 
 An infant -may sue on a bill.(c) But payment should be made 
 to his guardian, yet payment to the infant may, under some cir- 
 cumstances, be good.(<i) 
 
 An infant is not in a case of contract estopped by his own 
 representation. (e) 
 
 The exercise of undue influence over persons of full age giv- 
 ing bills, notes or other securities, aflbrds ground for the inter- 
 ference of a Court of Equity, which will either set aside the 
 securities, or by a perpetual injunction restrain all proceedings. (/) 
 This jurisdiction is not confined to the case of guardian and ward, 
 but applies wherever there exists between the parties a relation 
 or connection constituting anything like a trust or guardian- 
 ship, or conterring authority, control or influence. It compre- 
 hends parents and step-parents, and rriay extend to other relatives, 
 according to the circumstances of the case. It reaches not only 
 regular medical men, but quacks and impostors. It compre- 
 hends legal advisers, such as counsel or attorney, and extends 
 to ministers of religion of any persuasion. In these cases the 
 Court will not suffer any such securities to be enforced, unless 
 satisfied that they were given freely and voluntary, and inde- 
 pendently of any influence over the giver.(^) 
 
 The burden of proof lies on the upholder of the instru- 
 ment.(/i) The defendant in an action at law may avail himself 
 of this defence by pleading an equitable plea, wliich however 
 would not, it is conceived, be a good defence against a holder 
 for value without notice. 
 
 («) Chitty, 20 ; Warwick v. Bruce. 2 M. & Sel. 205 ; Holliday v. Atkinson, 
 5 B. & C. 501 (11 B. C. L. R.) ; 8 D. & R. 163, S. C. 
 
 (d) Bayley, 355'. 
 
 («) Cannam v. Farmer, 3 Exch. 698. 
 
 (/) Harvey v. Mount, 14 L. J., Chan. 233 ; Archer v. Hudson, 15 L. J., 
 211 ; Maitland v. Irving, 16 L. J. 95 ; Rhodes v. Bate, 85 L. J. 267, and au- 
 thorities there collected. Lyons v. Home, L. R., 6 Eq. 656, and cases cited. 
 
 ig) Eskey v. Lake, 23 L. J., 836 ; Williams v. Bayley, L. R., 1 H. L. ; Ford 
 V. Olden, L. R., 5 Eq. 461. See also the remarks of Lord Selborne in Morris 
 V. Lord Aylesford, L. R;, 8 Ch. Ap. and see post, Chapter on Intebbst. 
 
 (.h) Lyon v. Home, L. R., 6 Eq. 681. 
 
 dorsee. Nightingale v. Withington, 15 Mass. 272. The indorsement of an 
 infant payee enables his indorsee to sue the maker. Frasier v. Massey, 14 
 Indiana, 353. 
 
102 CAPACITY OF CONTRACTING PARTIES. 
 
 r* ■'oi *I* i^ ^ general rule of universal law, that the contrsicts 
 ^ ' of a lunatic, an idiot, or other person non compos mentis, 
 from age or personal infirmity, are utterly void.(i). And the. 
 old authorities ip the English law, that a man cannot he allowed 
 to stultify himself by alleging his own lunacy, are shaken by 
 the modern decisions.(A;) 
 
 But it had been before held, that if a note be made by a 
 lunatic or person of imbecile mind, known to be so by the payee, 
 it is a fraud in the payee, and the note is void even in the hands 
 of an indorsee, at least if there be anything unusual on the face 
 of the note.(0 So, if the consideration be executory merely, it 
 was said that it might perhaps be void, though the party deal, 
 ing with the lunatic were not cognizant of his infirmity.(m) 
 But it was held that a defendant could not set up his own in- 
 sanity as a defence, unless it were known and taken advantage 
 of by the plaintiff, so that there was a fraud in him.(n) And 
 it still seems that according to the English law, in order to avoid 
 a fair contract on the ground of lunacy, the mental incapacity 
 must be known to the other contracting party.(oXl) 
 
 (0 Furiosus nullum negotium gerere potest, quia non iutelligit quid agit. 
 Inst. Lib. 3, tit. 30, s. 8 ; Dig. Lib. m^ tit. 1. 5, 40, 134. 
 
 (Jc) Kent's Conim. 451 ; and seethe observations of Parke, B., in Gore v. 
 Gibson, 13 M. & W. 633 ; and Alcock v. Alcock, 3 M. & 6. 368 (41 B. C. 
 L. R.>. 
 
 (0 Sentence v. Poole, 3 C. & P. 1 (14 B. C. L. R.) ; Baxter v. Lord Ports- 
 mouth, 3 C._& P. 178 (13 E. C. L. R.) ; 5 B. & C. 170 (11 E. C. L. E.) ; 8 
 Dowl. & R. 614, S, C. 
 
 (m) Ibid. 
 
 in) Brown v. Jofldrell, 1 M. & M. 105 ; 3 C. & P. 30 (14 E. C. L. R), 
 S. C ; Levy V. Baker, 1 M. & M. 106 (32 E. C. L. R.) ; but see Gore v. Gib- 
 son, 13 Mees. & W. 623. In Putnam v. Sullivan, 1 Mass. American Repgits,. 
 it is said by Parsons, C. J., " that perhaps, if a blind man*had a note falsely 
 and fraudulently read to bim, and he indorsed it, supposing it to be the note 
 lead to him, he would not be liable as indorsee, because he is not guilty of- any 
 laches." It is, however, conceived that he must plead the fraud specially. 
 
 (0) Molton V. Camroux, 4 Exch. Rep. 19 ; Beavan .v. M'Donnell, 9 Exch., 
 309 ; Elliot v. Ince, 36 L. J., Chan. 821 ; 7 De G. , M. & G. 475, S. C. But 
 the law of America seems more in accordance with general law, where it ha» 
 been. held that incapacity to contract arising from drunkenness makes a not? 
 void and incapable of confirmation. See Byles on Bills, 5th American edi- 
 tion, p. 152. 
 
 (1) Sanity is to be presumed, and the burden of proof is on the party deny- 
 ing it. But after a general derangement has been show^^u, the burden is upoa 
 
CAPACITY OF CONTEACTINa PARTIES. 103 
 
 Imbecility of mind cannot be proved under a plea that de- 
 fendant did not make a promissory n,pte.{p) 
 
 (p) Harrison v. Richardson, 1 Mood. & Rob. 504. 
 
 the other party to show the sanity at the time of doing a particular act. Jaek^ 
 son V. Van Dusen, 5 Johns. 144. To set aside promissory notes on the ground 
 of mental iacapaciiy, it is not necessary to prove part^l derangement. It is 
 sufficient if there appears such weal^ness of mind ns to incapacitate the party 
 to guard himself against imposition and undue influence. Johnson v. Chad- 
 well, 8 Humph. 145. An inquisition of lunacy is not conclusive against any 
 person not a party to it. Den v. Clark, 5 Halst. 217. It is, however, not 
 only prima facie evidence of lunacy, but amounts to full proof until over- 
 powered. Rogers v. Walker, 6 Penna. State Rep. 371. The acts of a lunatic 
 before ofBce found are not void but voidable. Jackson v. Gumaer, 2 Cowen, 
 552. After office found they are void. Pearl v. McDowell, 3 J. J. Marsh. 
 658. In an action by indorsee against the maker, insanity in the payee and 
 indorser at the time of the indorsement is a good defence. Burke v. Allen, 9 
 Foster, 106. In trover for a promissory note pledged to P. by S. when he 
 was insane, it is no defence that P. did not know of, nor have any reason to 
 suspect, the insanity, and acted bona fide. Beaver v. Phelps, 11 Pick. 304: 
 
 An executed contract by a merchant for the purchase of goods, before the 
 day from which the inquest find him to have been non compos, cannot be 
 avoided by proof of insanity at tlie time of the purchase, unless there has been 
 a fraud committed on him by the vendor, or he has knowledge of his condi- 
 tion. - Beals V. See, 10 Barr, 56. The executed contract of a non compos 
 mentis for necessaries bona flde supplied, stand on the fooling of an infant's 
 contract for necessaries. Theietore the executor of a lunatic is liable for 
 necessaries furnished to his testator, while non compos mentis before a com- 
 mission issued, and after tl)e issuing of the commissi<m and before the ap- 
 pointment of a committee. La Rue v. Gilkyson, 4 Barr, 375. So a lunatic 
 is bound for medical or surgical services administered to his wife. Pearl v. 
 McDowell, 3 J. J. Marshall, 658 ; Fitzgerald v. Reed, 9 Smedes & Marshall, 
 94. Contracts with lunatics are not all absolutely voidj but such as are fairly 
 made with them for necessaries, or things suitable to tlieir condition and habits 
 gf life, will be sustained. Richardson v. Strong, 13 Iredell, 106. When a 
 person apparently of sound mind and not known to be otlierwise, and who 
 has not been found a lunatic, fairly and bona flde purchases property, and re- 
 ceives and uses the same, whei-eby the contract becomes so far executed that 
 tlie parties cannot be plficed in statu quo, such contract cannot afterwards 
 be set aside, or payment for the goods be refused either by the alleged lunatic 
 or his representative. Wilder v. Weakley, 34 Maryland, 181. Where habitjual 
 unsoundness of mind is once shown to exist, it is presunied to continue 'until 
 something js shown to rebut the presumption. State v. Reddick, 7 Kansas, 
 143; Carpenter v. Carpenter, 8 Bush, 383. Where, however, the paroxysms 
 of insanity are periodical, and tlie party generally recovers from them in a 
 few days, the presumption of incapacity does not apply. Carpenter v. Car- 
 penter, 8 Bushj 283 ; Staples v. Wellington, 58 Maine, 453 ; People v. Francis, 
 
104 CAPACITY OF CONTRACTING PARTIES. 
 
 It was formerly held, that a man could not protect himself 
 from any deed or agreement by pleading drunkenness, unless 
 *he also showed that the drunkenness was brought about 
 ^ -' by the management and contrivance of him who procured 
 the deed or eontract.(g') And this may still be the law in a case 
 of partial drunkenness.(l) 
 
 But where there is total drunkenness the modern decisions 
 have qualified the old doctrine. Total drunkenness producing 
 a complete and manifest though temporary suspension of rea- 
 son, is of itself a defence to an action on a bill or note.(r-) " It 
 is just the same," says Alderson, B., " as if the defendant had 
 written his name on the bill in his sleep in a state of somnam- 
 bulism."(s) 
 
 But as an answer to an action on a bill or note, drunkenness 
 must be specially pleaded.(i!) 
 
 The contracts of a married woman are void at the common 
 law. 
 
 Without authority from her husband, therefore, she cannot 
 
 (g) Johnson v. Medlicotte, 3 P. Wms. 130 ; Cooke v. Clayworth, 18 Vesey, 
 13. 
 
 (r) At lease by a person who had notice. Molton v. Camroux, 2 Exch. 
 487 ; 4 Exch. 17, S. C. In Matthews v, Baxter a replication of a ratifloatio n 
 when sober, was held good on demurrer ; L. R. ; 8 Ex. 133. 
 
 (s) Gore v. Gibson, 13 M. & W.- ^3. Marriages have been set aside on this 
 ground. Browning v. Reane, 3 Phil. 69. 
 
 (0 Gord V. Gibson, supra. 
 
 38 California, 183. Evidence that the payee of a negotiable instrument; pay- 
 able to order, was insane during all the time from the issuing of the paper 
 until his death, is admissible to disprove the validity of the transfer. Hannahs 
 V. Sheldon, 30 Mich. 378. 
 
 (1) Mental incapacity at the time of contracting, produced by dninkenness 
 or any other cause, is a good defence against a contract, whether by deed or 
 parql. Jenners v. Howard, 6 Blackf. 340. Whenever a man loses his 
 memory and understanding, he is entitled to legal protection, whether such 
 loss is occasioned by his own imprudence or misconduct, or by the act of 
 Providence. Bliss v. The Railroad, 34 Vermont, 434. A note given by one 
 incapable to contract from drunkenness, is not merely voidable but void, and 
 is incapable of confirmation by the subsequent conduct of the maker. Baike- 
 ley V. Canon, 4 Richardson, 136. 
 
CAPACITY OF CONTRACTING PARTIKS, 105 
 
 at the common law charge either him or herself, hy making, 
 drawing, accepting or indorsing negotiable, instruments ;(m) not 
 even if she live apart from him, and have a separate mainte- 
 nance secured by deed.(?;) Nor after a valid divorce, d mensa 
 el ihoro;{w) though it is otherwise after a complete divorce, d 
 vinculo matrimonii, which annuls the marriage to all purposes. 
 And even if she be a sole trader in London by the custom of 
 the city, she is not liable at all in the superior Courts, and in 
 the city Courts her husband must be joined for conformity, 
 though execution will be against the wife alone.(a;)(l) 
 
 « 
 
 And it is conceived, that though husband and wife are 
 
 in general liable for the wrongs and frauds perpetrated by 
 
 *the wife, yet they are not liable for a fraudulent repre- p^- .., 
 
 sentation by her which is parcel of a contract.(2/) L J 
 
 («) She cannot, like an in flint, convey a title to third persons. Barlow v. 
 Bishop, 1 East, ,432; 3 Esp. K. 26B, 8. C. 
 
 (s) Marshall v. liutton, 8 T. R. 545. In one case the Court of C. P. ro- 
 faaed to discharge out of custody a married woman, who had been arrested as 
 the drawer of a bill of exchange. Jones v. Lewis, 7 Taunt. 54 (2 E. C. L. 
 R); 2 Marsh. 385, 8. C. 
 
 (m) Lewis V. Lee, 3 B. & C. 391 (10 E. C. L. R.) ; 5 D. & R. 90, S. C. 
 
 ix) Beard v. "Webli, 2 B. & P. ti3. 
 
 (.y) Liverpool Association v. Fairhurst, 9 Exch. 422 ; Wright v. Leonard, 
 11 C. B., N. S. 258 (103 E. C. L. R.). 
 
 ! . 
 
 (1) A promissory note made by a married woman during coveture is void, 
 and a promise to pay the same made by her after her husband's death, with- 
 out any new consideration moving her thereto, will not support an action 
 against her. Vance v. Wells, 6 Alabama, 787 ; Hetherington v. Nixon, 46 
 Alabama, 297. Where the wife purchased goods without the knowledge of 
 her husband, and gave her note for them, the husband was held not to be 
 liable. Moses v. Fogartle, 3 Hill (South Carolina), Rep. 835. A wife may 
 be agent for her husband, though they keep separate stores, and bind him by 
 notes signed in her own name. Abbott v. Mackinley, 3 Miles, 220. If a. 
 husband give his wife authority to give notes, the notes, to be binding on the 
 husband, must purport on their face to have been given by the wife, as agent 
 or on the behalf of the husband. Minard v. Mead, 7 Wend. 68. A feme 
 covert is not liable on a note executed by herself, even though her husband 
 has been absent in another State for many years. Chouteau v. Merry, 8 Mis- 
 souri, 254, 2d ed. 183. Husband and wife executed a joint note for a debt of 
 the wife, contracted before marriage. The husband died, and the wife promised 
 to pay the note, held that the note did not extinguish the original debt, and 
 was capable of ratification. Parker v. Cowan, 1 Heiskell, 518. 
 
106 CAPACITY OF CONTRACTING PARTIES. 
 
 Nor can a married woman be estopped by her own represen-, 
 tation that she is discovert.(2) But an acceptor may be esr 
 topped from disputing her competency .(a) 
 
 But if a married woman have a separate estate, and make a 
 promissory no,te, or accept a bill of exchange, she is liable in 
 equity .(6)(1) And if, while she has a separate estate, she gives 
 a security for money lent, and after her husband's death prom- 
 ise to repay it, such promise is binding at, law on herself and 
 her executors.(c) But if at the time the note was given she 
 had not a separate estate, no such promise, after the death of 
 her husband, will be valid.(rf) A promissory note given by a 
 husband to his wife for money advanced by her to him out of 
 her separate estate, constitutes a declaration of trust in favour 
 of the wife.(e) 
 
 And if the husband has been transported, and is not 
 returned to this kingdom, whether or no the term of his 
 transportation be expired ;(/) or if he be an alien, and never 
 was within the kingdom •,{g) or if the husband has been abroa4 
 and not heard of for seven years, after which period the legal 
 presumption of his death arises : — in any one of these three 
 cases she is liable in law for her contracts, as a single woman. 
 Where the husband was transported for fourteen years, but in- 
 
 (z) Cannam v. Farmer, 3 Excli. 698. 
 
 («) Seethe Chapter on Acceptabcb. 
 
 (6) Bullpin V. Clarke, 17 Ves. 366 ; Hulme v. Tenant, 1 Bro. C. C. 16 ; 
 Stewart v. Kirkwall, 3 Madd. 387 ; Johnson v. Gallasher, 30 L. J., Cha. 298 ; 
 McHenry v. Davies, L. R., 10 Eq. 88; 39 L. J., Chan. 866. Query, -where 
 there is a restraint on anticipation. See Butler v. Cumpston, 38 L. J., Chan. 
 35. 
 
 (c) Lee V. Muggridge, 5 Taunt. 36 (1 E. C. L. E.)- 
 
 (d) Lloyd y. Lee; 1 Stra. 94 ; Littlefield v. Shee, 3 B. & Ad. 811 "(33 E. C. 
 L. R.). 
 
 (e) Murray y. Glasse, 33 L. J., Cha. 136. 
 
 (/) Carroll v. Blencow, 4 Esp. 37 ; Sparrow v. Carruthers, cited 2 W. 
 Bla. 1197, and more fully 1 T. R. 7. See Derry v. Duchess of Mazarine, 1 
 Ld. Rayra. 147. 
 
 (g) Kay v. Duchess de Pienne, 3 Camp. 133. 
 
 (1) A. married woman is liable upon a promissory note given for the price 
 of stock on a farm, of which she was seized, to her separate use. Batchelder 
 v. Sargent, 47 New Hamp. 363. 
 
qAPACITY OF eONTRAOTINa PARTIES. 107 
 
 stead of going abroad was confined in tbe hnlks at Portsmouth, 
 it was held that his wife carrying on business in her own name, 
 for the benefit of the family, might be made bankrupt, and 
 that a bill, accepted by, her under such circumstances, consti- 
 tuted a good petitioning creditor's debt.(/i) 
 
 *Where a bill or note is given to a single woman, p^„.-, 
 and she marries, the property vests in her husband, and '- -' 
 he alone can indorse it [{iXl) and husband and wife must join in 
 the action upon ijt [(k) but if payable to order, marriage may 
 operate as an indorsement, so as to enable the husband to sue 
 alone.(^) If not recovered upon, or reduced into possession 
 
 ' (h) Ex parte Franks, 7 B,ing. 763 (20 B C. L. R). 
 
 (i) Connor v. Mariin, 3 Wilson, 5 ; 1 Stra. 516, S. C. 
 
 (k) Com. Dig. Baron and Feme, N. 
 
 (0 MiicNeillage v. HoUoway, 1 B. & Aid. 218. As to some observations 
 of Lord Ellenborouc;!!, in this case, see the judement of the Court of Queen's 
 Be,noh, in Hart v. Stephens, 14 L. J., Q B. 149 ; 6 Q. B. 943 (51 E. C. L. R), 
 S. C. 
 
 (1) A note made payable to a married woman, is in law a note to the hus- 
 band, and becomes instantly his property ; and her indorsement transfers no 
 property in the note. Savage v. King, 17 Maine, 301 ; Shnttleworth v. Moyes, 
 8 Mass 339 ; Jones v. Wanen, 4 Dana, 333 ; Tryon v. Sutton, 13 California, 
 490; Holland v. Moody, 12 Indiana, 170. A wife,- with the consent of her 
 husband, may indorse in her own name a promissory note made payable to 
 her during coveture, and pass a good title to the indorsee. Stevens v. Beals, 
 10 Cushing, 391 ; Slawson v. Loring, 5 Allen, 340. Notes payable to bearer 
 may be passed by delivery by a/«m.e covert who owned them. Cobb v. Duke, 
 8fi Mississippi, 60. A feme covert raav indorse in her maiden name, a notei 
 which was left her before marriage, provided her husband's assent be given. 
 Miller v. Delamater, 13 Wend. 433. A note given to an unmarried woman, 
 and by her subsequently delivered in free gift to her husband, may be sued 
 on by him in his own name. White v. Callinan, 19 Indiana, 43. A second 
 indorser cannot, in an action against him on the bill, dispute the legal capac- 
 ity of the payee to indorse it, on the grounds that she was a married woman. 
 Prescott Bank v. Caverly, 7 Grtiy, 317. When a man transmitted a note to 
 his wife drawn to her order which she indorsed in her own name and sold by 
 his authority, he was held liable as indorser. Hancock Bank v. Joy, 41 
 Maine, 568. Where a husband procures promissory notes to be made to his 
 wife by a third person, on a consideration paid by himself, the wife may 
 maintain an action against tlie maker in her own name. RynderS v. Crane, 
 8 Daly, 889. A promissory note taken in the name of husband and wife 
 survives to the wife on the decease of the husband. Sanford v. Sanford, 5 
 Lansing, 486 ; 61 Barbour, 298. If a man indorses a note payable to himself 
 and gives it to his wife, the legal title will remi^in in him, and pass to his as- 
 signee in insolvency. Gay v. Kingsley, 11 Allen, 845. 
 
108 CAPACITY OP CONTRACTING PARTIES. 
 
 during their joint lives, it reverts to the woman, if she survive, 
 or goes to the husband as her administrator, if he 8urvive.(m) 
 
 If after marriage the bill or note be made to the wife alone, 
 the interest vests in the husband ; he alone can indorse it.(n) 
 And his indorsement is eftectual, though the instrument be 
 part of her separate estate, and be indorsed by her husband in 
 fraud of her, to an innocent holder for value;(o) But if the 
 husband die without a recovery on it, or reducing it into pos- 
 session, the note belongs, at law, to the wife, and not to the 
 husba'nd's executors, and she must briug the action.(p) If the 
 consideration for the note were *the husband's money, 
 *- -' it is conceived that the wife would be a trustee for tlie 
 husband's executors.(5') The wife may join in an action on 
 
 (m) Co. Litt. 351, J ; Coppin v. , 3 P. Wma. 497 ; Day v. Padrone, 2 
 
 M. & S. 396. 
 
 (w) Connov v. Martin, 1 Stra. 516; 3 Wills. 5 8. C. ; Barlow v. Bishop, 1 
 East, 433 ; Mason v. Morgan, 2 Ad. & Ellis, 30 (29 E. C. L. R.) ; 4 Nev. & 
 M. 46, S. C. ; but the wife may convey a title by indorsing in her husband's 
 name, by his authority. Ibid. And under her husband's authority, she may 
 indorse in her own name. Prestwick v. Marshall, 7 Bing. 565 (20 E. C. L. B.) ; 
 5 M. & P. 513 ; 4 C. & P. 594 (19. E. C. L. E.). And if, after an indorsement 
 in her own name, the acceptor, seeing the bill with the indorsement upon it, 
 promises to pay, that amounts to an admission by the acceptor that the in- 
 dorsement was by the husband's authority. Cotes v. Davis, 1 Camp. 485. 
 Where, in an action by the indorsee of a bill against the acceptor, the decla- 
 ration alleged the bill to have been drawn and indorsed to the plaintiffs by a 
 woman, to which the defendant pleaded that she was married, a replication 
 that she drew and indorsed as the agent of her husband was held no departure 
 and good. Prince v. Brunatte, 1 Bing. N. 0. 435 (27 E. C. L. R.) ; 1 Scott, 
 342 ; 3 Dowl. 382, S. C. 
 
 , (o) Dawson v. Prince, 27 L. J., Chanc. 169. Query, whether the fact of a 
 bill being drawn in favor of a married woman be notice actual or construc- 
 tive, that it is part of her separate estate ; this presumption is perhaps stronger 
 since the passing of the Married Women's Property Act, 1870. 
 
 {p) Belts V. Kimpton, 2 B. & Ad. 373 (22 B. C. L. R.) ; Richards v. Rich- 
 ards, 3 B. & Ad. 447 (22 E. C. L. R.) ; Gaters v. Madely, 6 M. & W. 423 ; 
 Hart V. Stephens, 14 L. J., Q. B. 148 ; 6 Q. B. 937, S. C. ; Scarpellini v. 
 Atcheson,14 L. J., Q. B. 333; Howard v. Oakes, 18 L. J., Exch. 485; 3 
 Exch. 136, S. C. See this last case as to the form of pleading. Coverture of 
 the plaintiff is only pleadable in abatement. Guyard v. Sutton, 3 C. B. 153 
 (54 E. C. L. R.). 
 
 (?) Philliskirk v. Pluckwell, 2 M. & Sel. 396. 
 
CAPACITY OF CONTRACTING PAETIES. 109 
 
 the instrument ;(?•) but the husband may sue alone.(s) If he 
 sue alone, he lets in, by way of set-ofi, debts due from himself; 
 if he joins his wife in the action, perhaps he lets in, as a set-oft", 
 debts due by her dum sola.{t) 
 
 If a note be given after marriage to husband and wife 
 jointly as payees, it is conceived that the legal interest in the 
 note survives to the survivor ; so held as to an investment in 
 stock.(M) 
 
 What amounts to a reduction of the wife's chose in action 
 into possession is a question of considerable nicety. It is con- 
 ceived that indorsing a note over is such a reduction.(i;) But 
 the bankruptcy of the husband is not a reduction of the wife's 
 choses in action into poFsession ; and therefore the assignees of 
 a bankrupt cannot maintain an action in their own names 
 alone, on a promissory note made to the wile of the bankrupt 
 before her marriage.(M;) B"or is the receipt of interest by the 
 husband(a;) a reduction into possession. (1) 
 
 (r) Philliskirk et Uxor v. Pluckwell, 3 M. & Sel. 393 ; Arnould v. Revoult, 
 1 B. & B. 443 (6 E. C. L. R.) ; 4 Moore, 70, S. C. 
 
 (s) Burrough v. Moss, 10 B. &' C. 858 (31 E. C. L. R.) ; 5 M. & R. 396, 
 8. C. 
 
 (0 Ibid. 
 
 (u) Re Gadbnry, 33 L. J. 380. 
 
 («)-ScarpeIllni v. Atcheson, 14 L. J., Q. B. 333 ; 7 Q. B. Rep. 864 (53 E. 
 C. L. R.), S. 0. 
 
 (w) Sherriugton v. Yates^ in error, 13 M. & "W. 855, reversing Yates v. 
 Slierrington, 11 M. & W. 43. 
 
 (a!) Hart v. Stephens, 6 Q. B. 937 (51 E. C. L. R.). 
 
 (1) Legg V. Legg, 8 Mass. 99 ; Howes v. Bigelow, 13 Mass. 384 ; Stanwood 
 V. Stanwood, 17 Mass. 57 ; Tucker v. Gordon, 5 N. Hamp. 564 ; Hayward v. 
 Hayward, 20 Pick. 517 ; Strong v. Smith, 1 Metcalf, 476 ; Miller's Estate, 1 
 Ashmead, 333 ; Kitzinger's Estate, 3 Ashmead, 455 ; Killcrease v. Killcrease, 
 7 Howard (Miss.), 311 ; Taliaferro v. Taliaferro, 4 Call. 83 ; Bell v. Bell, 1 
 Kelly, 637; Clark v. M'Creary, 12 Smedes & Marshall, 347. An assignment 
 hy a husband of a present interest of his wife in personal property is a suffi- 
 cient reduction to possession, and passes the property to the assignee. Brown- 
 ing V. Headley, 3 Robinson, 340 ; Forrest v. Warrington, 3 Dessausure, 354 ; 
 Mattheney v. Guess, 3 Hill. Ch. (S. C.) 63 ; Thomas v. Kelso, 7 B. Monroe, 
 521 ; Rogers v. Bumpass, 4 Iredell Ev. 385 ; Barnes v. Pearson, 6 Iredell Eq. 
 483 ; Swoyers' Appeal, 5 Barr, 377 ; Siters' Case, 4 Rawle, 468. 
 
 An assignment under an insolvent law, being a voluntary act by the hus- 
 band, in order to entitle himself to the benefit of the law, defeats the wife's 
 
110 CAPACITY OF COilTa ACTING PARTIES. 
 
 Before the passing of the Married Women's Property Act 
 if a single woman, being a party liable on a I ill or note, mar- 
 ried, her hn^^band became responsible, and they must have 
 been sued jointly.(y) If (the debt being still unsatisfied) he 
 dies, she is liable, and not his executors ; if she dies, her repre- 
 sentatives are liable, if there be assets, but not her husband, 
 ■except in his representative capacity .(0) And now by Sect. 12, 
 a husband married since the 9th of August, 1870, is not liable 
 for his wife's pievious debts, but she remains so, and her 
 separate estate, if she have one. 
 
 Where a joint and several promissoi^y HOte was, during 
 marriage, given to a feme executrix, by her husband and 
 *two other persons, it was held that after her husband's 
 L ■' death she might sue the other makers.(a) Andthougk 
 a note given by a wife to her husband is void, yet, if indorsed 
 over by the husband, it is valid as between the husband and 
 the indorsee.(6) 
 
 Payment of a sum due on a bill or note to a married woman 
 'will not discharge the party making it, unless she had au- 
 thority, express or implied, to receive payment. It should be 
 made to her husband.(c)(l) 
 
 (2/) Mitchinson v. Hewson, 7 T. E. 348. 
 
 (z) Ibid. 
 
 (a) Richards v. Richards, 8 B. & Ad. 447 (33 E. C. L. R.). 
 
 (6) Holy V. Lane, 3 A.tk. 183. 
 
 (c) Bayley, 3o6. 
 
 right of survivorship. Richwine v. Heim, 1 Penna. Rep. 373 ; Glasgow v. 
 Sands, 3 Gill. & Johns. 96. As to assignment in bankruptcy, see Poor v. 
 Hazleton, 15 N. Hamp. 564. An assignment by the husband of the -wife's 
 choses in action as collateral security does not deprive her of the right of 
 survivorship if he die before they are reduced to possession. Hartman v. 
 Dowdel, 1 Rawle, 279; Latourelte v. Williams, !■ Barbour, 9. A husband's 
 disclaimer of fconversion to his own use, at the time of reducing his wife's 
 chose in action to possession, maybe establislied by his subsequent admissions, 
 but they must be deliberate, positive, precise, clear, and consistent. Gray's 
 Estate, 1 Barr, 337 ; Timbers v. Katz, 6 Watts & Serg. 390 ; Hind's Estate, 
 '5 Wharton, 135. A husband who survives his wife, is entitled to all her 
 'choses in action, whether reduced into his possession in his lifetime or not ; 
 and in case of his death they go to his personal representatives. Whitaker v. 
 Whitaker, 6 Johns. 113 ; Revel v. Revel, 3 Dlev. & Bat. 373 ; Peyer v. Kar- 
 wen, 3 Dessaus. 419 ; Lee v. Wheeler, 4 Georgia, 541, 
 (3) Thrasher v. Tuttle, 9 Shepley, 885. 
 
.CAPAClTYOF CONTKACTINH PARtlES. Ill 
 
 By the 33 & 34 Vict. c. 93, s. 1, coming iuto operation on 
 the 9th day of August, 1870, the wages and earnings of mar- 
 ried womt-n gained independently of their husbands, and 
 money or property acquired by any literary, artistic or scien- 
 tific skill, and all investments of the same, are deemed to be 
 for their separate use independently of their husbands, and 
 they alone can give good receipts. 
 
 By sect. 7, Any woman married since the above date, and 
 succeeding to any personalty as next of kin, or taking a sum 
 of money not exceeding 2l 0^. under any deed or will shall have 
 it to her separate use. 
 
 By sec. 11, A married woman may maintain an action in 
 her own name to recover separate property, her's under this 
 act, or before marriage, if her husband have agreed in writing, 
 and the remedies, both civil and criminal, are to be taken in 
 her name and as if she were still unmarried. 
 
 By sect. 12, A husband married after passing of act is not to 
 be liable for the debts of his wife contracted before marriage, 
 but she and her separate estate, if any, shall remain so. 
 
 By attainder the felon's personal property and ehoses in 
 action vest in the crown, without office found. The felon, till 
 he has undergone his punishment, is incapable of taking. 
 Therefore, if a bill be indorsed to him, he acquires no title 
 to it.(c^) 
 
 A contract in favour of an alien enemy, not residing in this 
 country by the king's license, is void at law and in equity. 
 Hence a bill drawn by an alien enemy on a British subject in 
 England, and indorsed to a British subject abroad, cannot be 
 enforced even after the restoration of peace.(e) 
 
 *In general, a corporation can only contract by writing j-^„q-. 
 under their common seal.(/)(l) L J 
 
 id) Bullock V. Dodds, 3 B. & Aid. 258. 
 
 («) Willison V. Piitteson, 7 Taunt. 439 (3 E. C. L. R.) ; 1 Moore, 333, 
 S. C. ; Brandon v. Nesbitt, 6 T. R. 33. 
 (J) At common law bills of exchange and promissory notes, being simple 
 
 (1) An instrument in the form of an. ordinary bond, isued by a corporation, 
 payable to A. or .bearer at a certain place with interest coupons attached, is a 
 promissory note. Aurora v. West, 33 Indiana, 88. 
 
112 CAPACITY OF CONTRACTING PARTIES. 
 
 Bat to this rule there are exception8.(.^) And among 
 them is the power of issuing bills or notes enjoyed by a 
 company incorporated for the purposes of trade, the very 
 
 contracts, canuot be under seal, at least so as to retain their negotiable quali- 
 ties. Bac. Ab. tit. Merch. L. ; Black. Com. book 3, part 3, c. 5 ; Story on 
 Bills of Exchange, c. Iv. s. 61 ; Story on Promissory Notes, c. iv. s. 55. 
 Whence it follows that corporations cannot, in the absence of power to that 
 effect, either express or implied, accept, draw or indorse negotiable instru- 
 ments ; their bonds therefore or securities under seal, even though professing 
 to be negotiable, are in the hands of a transferee liable to all the equities that 
 may subsist between the original parties. In re Natal Investment Company, 
 L. R., 3 Chan. Ap. 355 ; China Steam Company, 38 L. J., Chan. 199 ; L. R., 
 
 4 Chan. Ap. 240, S. C. Tliis rule, making assignments of choses in action 
 subject to all equities subsisting between the original parties, must however 
 yield whenever a contrary intention appears from the nature or terms of the 
 contract ; thus, where a company had issued bonds or securities under seal, 
 professing to be negotiable, with the express intention that such instruments 
 should be available in the hands of others besides the obligee, it was held that 
 the title of a transferee or subsequent holder was not in equity affected by stt- 
 off or other equity existing between the original parties. See Blakely Ord- 
 nance Company, L. R., 3 Chan. Ap. 154, where such was the manifest inten- 
 tion of the agreement ; see, too, Watson v. Mid Wales Railway Company, 
 L. R., 3 C. P. 593, being a case of a Lloyd's bond transferred before the set- 
 off accrued ; Ex Parte Chorley, L. R., 11 Eq. 157 ; 40 L. J. 153, where, 
 though the bond was void as between the original parties, the company had 
 registered a transfer to an innocent holder ; Dickson v. Vale of _Neath Rail- 
 way Company, L. R., 4 Q. B. 44; 39 L. J. 17, S. C, where an agreement 
 had been suppressed ; General Estates Company, L. R., 3 Chan. Ap. 758 ; 
 Imperial Land Company of Marseilles, L. R., 11 Eq. 478 ; 40 L. J. 93. These 
 decisions, however, seem to have proceeded on the ground that the company 
 ought to be estopped from taking advantage of their own wrong in professing 
 to be able to issue negiitiable instruments under seal. See the case of the 
 Blakely Ordnance Company, L. R., 8 Chan. Ap. 154, where the legal effect 
 of such a document is discussed, and its negotiability and indeed its validity 
 at law questioned. See, too, Webb v. Heme Bay Commissioners, L. R., 
 
 5 Q. B. 643 ; 39 L. J. 331. A decisive case has at length arisen ; one of these 
 instrviments was stolen, and ultimately came into the hands of a holder for 
 value without notice, who, however, it was held, could not recover against 
 the company, on the ground that such an instrument not being at law nego- 
 tiable, his title must be deduced through the thief, a person incapable of ac- 
 quiring or transmitting title. Crouch v. Credit Foncier Company, L. R. 
 8 Q. B. 374. 
 
 (jf) The reader will find them enumerated in the case of East London 
 Waterworks Company v. Bailey, 4 Bing. 283 (13 E. 0. L. R.) ; and see 
 Hendersim v. Australian Company, 5 E. & B. 409 (85 B. 0. L. R.) ; Haigh 
 V. North Bierley Union, 1 E., B. & E. 873 (96 B. C. L. R.). 
 
.CAPACITY OF CONTRACTING PAETIBS. lliJ 
 
 *object of whose . institntion requires that they should „,„, 
 exercise this privilege.(A)(l) '- -' 
 
 But a company incorporated for carrying on public works is 
 not a corporation within the above exception. (?) 
 
 Without a special authority, express or implied, a corpora- 
 tion has no power to make, indorse, or accept bills or notes.(A) 
 And the defence may be raised by demurrer to the declara- 
 
 (,K) Broiighton v. Manchester Waterworks Company, 3 B. & Al. 1 (5 E. C. 
 L. R.). 
 
 (i) A railway company can neither accept, draw or indorse a hill of ex- 
 change. Ibid. ; Overend, Gurney & Co. v. Mid Wales Railway Co., L. R., 1 
 0. P. 499. This disability, however, seems not to extend to companies incor- 
 porated here for carrying on works abroad. See case of Peru Railway Com- 
 pany, L. R., 2 Chan. Ap. 617. 
 
 (k) Ibid. p. 8, Bayley, J. 
 
 (1) The old doctrine that a corporation can contract only under its corpo- 
 rate seal is now repudiated. Chestnut Hill Turnpike Co. v. Rutter, 4 Scrg. <& 
 Rawle, 16 ; Bank U. S. v.' Dandridge, 13 Wheat. 64 ; Bank of Columbia v. 
 Patterson, 7 Crauch, 299 ; Fleckner v. Bank U. S., 8 Wheat. 333 ; Hamilton 
 V. Lycoming Insurance Co., 5 Penna. State Rep. 339. Corporations cari'ying 
 on business under no restraining acts, may make promissory notes and draw 
 hills of exchange when these are the usual and proper means to accomplish 
 the purpose of their organization. Lucas v. Pitney, 3 Dutcher, 221 ; Came v, 
 Brigham, 39 Maine, Sn ; Clark v. School District, 3 Rhode Island, lf)9 ; Mit- 
 chell V. Rome Railroad Co., 17 Georgia, 074; Hart v. Ins. Co., 2] Missouri, 
 91. An insurance company may make a valid promissory note. Barker v. 
 Mechanic Ins. Co., 8 Wend. 94. A note in the form " I, G. C. L., treasurer " 
 of a corporation, "promise," &c., is the note of the corpi.ration. Mann v. 
 Chandler, 9 Mass. 335. But see Tucker v. Bass, 5 Mass. 104. Power to ad- 
 vance money for a coporation will not authorize signing a note for them. 
 Webbfer V. Williams College, 23 Pick. 302. A factor employed by the genera, 
 agent of a corporation to sell the goods manufactured and to purchase stock, 
 has power to buy on credit, but not to give the note of the corporation. Emer- 
 son V. Providence Manufacturing Co., 12 Mass. 237. The general agent of a 
 corporation can give their note for purchases necessary to carry on their busi- 
 ness. Odiorne v. Maxcy, 18 Mass. 178; White v. Westport Manufacturing 
 Co., 1 Pick. 215 ; Butts v. Cuthbertson, 6 Georgia, 166. A bill of exchange 
 directed to ".John A. Wells, Cashier Farmers and Mechanics Bank of Michi- 
 gan," and accepted by writing across the face thereof, "Accepted, John A. 
 Wells, Cashier," is drawn upon and accepted by the banli, and not by Wells 
 in his individual capacity. Farmers and Mechanics Bank v. Troy City Bank, 
 1 Douglas, 457. A corporation authorized by its charter to employ its stock 
 solely in advancing money upon goods, and the sale of such goods on commis- 
 sion, may lawfully accept bills drawn on account of future consignments. 
 Munn v. Commission Company, 15 Johnson, 44. 
 
 8 
 
114 CAPACITY OF CONTRACTING PARTIES. 
 
 tion,(Z) plea denying acceptance, or, if there be a power not duly 
 exercised, by a general traverse.(m) 
 
 A corporation may, like natural persons, sue in assumpsit. 
 The old doctrine that when a corporation is plaintiff the con- 
 sideration must not be executory, so that promises by it need to 
 be alleged.,(ji) seems to be overruled.(o) And a corporation is 
 liable to be sued in the ordinary forms of action, on negotia- 
 ble instruments, wherever it has the power to issue them.(p)(l) 
 
 (0 Ibid. 
 
 (?n) Hill V. Manchester and Salford Waterworlis Company, 5 B. & Ad. 866 
 (87 E. C. L. R.). 
 
 (ft) Mayor of Stafford v. Till, 4 Bing. 75 (13 E. C. L. R.) ; 12 Moore, 260, 
 S. C. 
 
 (0) Church v. Imperial Gas Company, 6 Ad. & E. 861 (33 E. C. L. R.) ; 
 Mayor of Ludlow v. Cliarlton, 6 M. & W. 815 ; Paine v. Guardians of tlie 
 Strand Union, 15 L. J., M. Ca. 89 ; 8 Q. B. 326 (35 E. C. L. R.), S. C. ; 
 Lamprell v. Billericay Union, 3 Exch. 283. 
 
 (p) Murray v. East India Company, 5 B. & Al. 204 (7 E. C. L. R.). 
 
 (1) A cashier has prima facie authority to indorse, on behalJ'of the bafik, 
 securities held by it, and any restr.ction on this authority must be proved by 
 the party contesting it. Wild v. Passamaquoddy Bank, 3 Mason, 505 ; Fleck- 
 cer V. United States Bank, 8 Wheat. 357 ; Everett v. U. States, 6 Porter, 
 166 ; Elliott v. Abbott, 12 N. Hamp. 549 ; Crocket v. Young, 1 Smedes and 
 Mai'sh. 241 ; Harper v. Calhoun, 7 How. Miss. 203 ; Farrar v. Gilman, 19 
 Maine, 440 ; Farmers and Mechanics Bank v. Troy City Bank, 1 Dougl. 457 ; 
 Badger v. Bank of Cumberland, 26 Maine, 428. A corporation is liable on a 
 draft drawn or accepted by an authorized agent, tliough the name of the cor- 
 poration is not used, if it be drawn or accepted undiT a name adopted by the 
 corporation. Conro v. Port Henry Iron Co., 12 Barbour, 27. 
 
 Manufacturing and other like corporations, when expressly prohibited by 
 t.heir charters, may make and receive promissory notes and bills of exchange 
 in carrying on their lawful business. Oxford Iron Co. v. Spradley, 46 Ala- 
 bama, 98; San Antonio v. Gould, 34 Texas. 49; Monument National Bank 
 V. Globe Works, 101 Mass. 57. A railroad company have an inherent author- 
 ity to take and negotiate a promissory note in the ordinary course of Wieir 
 business. Goodrich v. Reynolds, 31 Illinois, 490. A corporation is liable on 
 indorsement by its president or cashier. Aiken v. Marine Bank, 16 Wis. 679; 
 Clark V. Titcomb, 42 Barb. 122 ; State Bank v. Fox, B Blatchf. C. C. 431 ; 
 Patten v. Moses, 49.Maine, 255 ; Goodrich v. Reynolds, 31 Illinois, 490. Notes 
 signed by agents or officers. Dow v. Moore, 47 New Hamp. 419 ; Yowell v. 
 Bodd, 3 Bush, 581 ; Caphait v. Dodd, Ibid. 584. A draft signed by the secre- 
 tary of an insuiance company is not binding upon such company, in the 
 absence of evidence that it was authorized or customary. First National 
 Bank v. Hogan, 47 Mo. 472. An agent of a corporation may haveauthority 
 
CAPACITY OF CONTEACTING PARTIES. 115 
 
 The capacity of corporations and banking companies to 
 make, draw or accept negotiable instruments, is farther nar- 
 rowed by the following enactment, contained in the various 
 statutes passed for protecting the privileges of the Bank of 
 England -.{q) " That it shall not be lawful for any body, politic 
 or corporate, whatsoever, or for any other persons whatsoever, 
 united or to be united in covenant or partnership, exceeding 
 the number of six persons in England, to borrow, owe or take 
 up any sum or sums of money oil their bills or notes payable at 
 demand, or at any less time than six months from the bor- 
 rowing thereof, during the continuance of the privilege of 
 banking granted to the Governor and Company of the Bank of 
 ;England."(r) 
 
 *It has been held that these restrictions do not affect p^_„^ 
 a commercial firm consisting of more than six persons.(s) '- -' 
 
 But in consequence of the panic in the latter part of the 
 year 1826, the Bank of England consented to forego a portion 
 of their exclusive privilege: and the 7 Geo. 4, c. 46, enacts, 
 accordingly, that corporations or co-partnerships of more than 
 six in number, carrying on business more than sixty-five miles 
 from London, may issue bills or notes payable on demand, and 
 that such corporations or co-partnerships may issue notes or 
 bills amounting to 50?. payable in London or elsewhere at any 
 period after date or sight.(<) 
 
 The third section declares, that any such corporation or 
 partnership may discount bills not drawn by or upon them. 
 
 (?) 39 & 40 Geo. 3, c. 28, si. 15. 
 
 (r) For the history and exclusive privileges of the Bank of England more 
 at large, see the case of the Bank ot England v. Anderson, 3 Biiig. N. C. 589 
 (5)3 E. C. L. R) ; 4 Scott. 50 ; Keen, 338. 
 
 (s) Wigan v. Fowler, 1 Stark. 459 (8 E. C. L. R,). 
 
 (Q The limitation of 50;. appears to be abolished by the 3 & 4 Will. 4, c. 
 83, s. 3, and 7 & 8 Vict. c. 33, s. 36. As to the mode of recovering penalties, 
 see 8 & 9 Vict. c. 76, s. 5. 
 
 to transfer a note by inclorsement, without aulhority to bind the corporation as 
 indorser. The authority of an agent of a corporation to indorse a note may 
 be shown by other evidence than the by-laws. Brown v. Donnell, 49 Maine, 
 4®!. Maker of a promissory note to a corporation, transferred to a bona 
 fide holder before maturity, is estopped to deny the legal existence of the cor- 
 poration. Camp V. Byrnie, 41 Mo. 535. 
 
116 CAPACITY OF CONTRACTING PARTIES. 
 
 • Each offence against the provisions of the act subjects to a 
 penalty of 50^. 
 
 The act by which the Bank Charter was renewed in 1833, 
 the 3 & 4 Will. 4, c. 98, continued the privileges bestowed on 
 the Bank of England by the 39 & 40 Geo. 3, and subsequent 
 acts, subject to termination on twelve months' notice to be 
 given after the 1st August, 1844. The privileges of the . 
 Bank are now further continued by the 7 & 8 Vict, c' 32, sub- 
 ject to termination on twelve months' notice to be given after 
 the 1st August, 1855. 
 
 The 3 & 4 Will. 4, c. 98, provides that no bank of more than 
 six persons shall issue in London, or within sixty-five miles 
 thereof, bills or notes payable on demand, saving the rights of 
 country bankers to make their notes payable in London.(M) 
 
 The 3 & 4 Will. 4, c. 98, further declares that other corpora- 
 tions and companies of more than six persons may carry on the 
 business of banking in London, provided they do not issue bills 
 or notes at less than six months' date.(a;) 
 
 That the notes of the branch banks of England shall be made 
 payable where issued. (y) 
 
 The Bank of England can issue bank notes unstamped,(2) 
 r4f7n *^^^ ^^^ ^^^ exclusive privilege of doing so within the 
 *- -^ city of London and three miles thereof.(a) 
 
 ^o person who was not a banker issuing his own notes on 
 the 6th of May, 1844, can now issue bank notes.(6) 
 
 Bank notes under 51. payable to bearer on demand are pro- 
 hibited in Engliand.(e) 
 
 (m) 3 & 4 Will. 4, c. 98,. s. 2. 
 
 (a) Sect. 3. Therefore a banking partnership of more than six persons in 
 London, or within sixty-five. miles thereof, could not accept a bill at less than 
 six months drawn upon them by a customer. Bank of England v. Anderson, 
 3 Blng. N. C. 589 (32 E. 0. L. R.) ; 4 Scott, 50 ; Keen, 328, S. q. But the 
 restriction is relaxed by the 7 & 8 Vict. c. 33, s. 26. 
 , (y) 3 & 4 Will. 4, c. 98, s. 4. 
 
 (z) 7 and 8 Vict. c. 82, s. 7. 
 
 (a) 9 Geo. 4, c. 23, s. 1. 
 
 (5) 7 & 8 Vict. c. 33, ss. 10, 11, 13. This privilege extends to a surviving 
 partner in a banking firm. Smith v. Everett, 39 L. J., Chanc. 336. 
 
 (c) 7 Geo. 4, 0. 6. 
 
CAPACITY OF CONTRACTING PARTIES. 117 
 
 Banks of ten, formerly six, or fewer than six persons, exist- ' 
 ing as banks of issue before the 6th May, 1844, may issue bills 
 and notes and promissory notes payable to bearer on demand, 
 on unstamped paper, (except within the city of London and 
 three miles thereof,) within the provisions of 9 Geo. 4, c. 23, s. 1. 
 
 Banking corporations and companies of more than ten 
 (formerly six) persons cannot issue in London or within sixty- 
 five miles thereof any bill or note payable on demand. (rf) 
 
 Every member of a banking partnership is liable to the pay- 
 ment of outstanding notes, though he were not a partner when 
 they were issued.(e) 
 
 But a more lengthened and minute inquiry into the pro- 
 visions of these nnd other statutes regulating the rights and 
 duties of the Bank of England and other banks of issue would 
 be a digression from the main subject of this work. Such a 
 discussion would find a more appropriate place in a treatise 
 on the law of Banks of Issue, Deposit and Exchange; 
 
 The law as to the liability of joint stock companies drawing, 
 accepting or indorsing bills, involves some nice distinctions, 
 and is not yet very clearly settled. 
 
 As to joint-stock companies at the common law, it is con- 
 ceived to be a general rule, that if the directors accept simply 
 in their own names, with or without authority to do *so, 
 they, and they only, are liable at law on the bills.(/) '- ^ 
 And that they are liable at law not, only to holders who are 
 strangers, but to holders who may be also holders of letters of 
 allotment, or holders of 8crip.(^) 
 
 If, however, having authority to bind the company by bills, 
 the directors regularly accept, in the name of the company, a 
 
 (d) 39&40 Geo. 3, c. 28, s. 15 ; 3 & 4 Will. 4, e. 98, s. 3 ; and see 3 & 4 Wil!. 
 4, c. 83, s 3. Bee further, Bank of England v. Anderson, supra, and Booth 
 V. Bank of England, 6 Bing. N. C. 415 (37 E 0. L. R.) ; 1 Scott, N. R. 701, 
 
 8 C. See also the provisions of 7 Geo. 4, c. 46 ; 7 &8 Vict. c. 33, s. 36 ; 8 & 
 
 9 Vict. c. 76 ; 30 & 31 Vict, c 49, s 13. 
 
 (e) 7 Geo. 4, c. 46, s. 1. 
 
 (/) Page 36, even though the company's seal be affixed. Dutton v. Marsh, 
 L, R., 6 Q B. 361 ; 40 L. J. 175. 
 ig) Fox V. Frith, 10 M. & W. 131. , 
 
118 CAPACITY OF CONTRACTING PARTIES. 
 
 bill drawn on the company, every member of the company is 
 liable as a joint acceptor to any holder, not being also a mem- 
 ber of the company. (A) 
 
 An authority, to make contracts and bargains, and to trans- 
 act all matters requisite for the aftairs of the company, will 
 not in general authorize the directors to draw bills.(j) But a 
 limited authority to draw bills will receive a fair and reasona- 
 ble c6nstruction.(^) 
 
 Directors signing a joint and several note, though for them- 
 selves and the other shareholders, are personally respoBsible.(i) 
 But not necessarily so if the note be joint on]y.(m) And it has 
 been held, that if the secretary's name is countersigned as 
 secretary, he also is liable.(??) 
 
 If a bill be drawn on several trustees or directors who have 
 power to bind each other, an acceptance by one in his owu 
 name is the acceptance of all.(o') 
 
 Notice of a fact to one member of a joint-stock company is 
 not notice to all,(p) as in the ease of a private partnership. 
 
 A bill drawn on the agent of a joint-stock company, he 
 being a member of it, and accepted by him per procuration for 
 the company, binds him personally as a member. (g') 
 
 {h) See Tea?ue v. Hubbard, 8 B. & C. 345 (15 E. C. L. R.) ; 2 M. & R. 
 369, S. C. ; Higgins v. Senior, 8 M. & W. 834 ; Fox v. Frith, 10 M. & W. 
 131 ; Steele v. Harmrr, 15 L. J., Exch. 317; 14 M. & W. «81 j 19 L. J., 
 Exch. 34 ; 4 Exch. 1, S. C. ; Maclae v. Soulherland, 5 E. & B. 1 (85 E. C. L. 
 R.). 
 
 (J) See Harilier t. Steele, 19 L. J., Exch; 34 ; 4 Exch. 1, S. C. ; Allen v. 
 Sfca Life Assurance Comisany, 9 C. B. 574 (47 E. C. L. R.); Halford V. 
 Cameron Coal Company, 20 L. J., Q. B. 160 ; 16 Q. B. 443 (71 E. C. L. R )( 
 S. C. ; Edwards v. Same, 6 Exch. 269. 
 
 (Jc) Thompson v. Wesleyan Newspaper Association, 8 C. B. 849 (65 E. C. 
 L. B.). 
 
 (0 Healey v. Story, 18 L. J., Exch. 8 ; 3 Exch. 3, S. C. See also Penklvil 
 T. Connell, 19 L. J., Exch. 305 ; 5 Exch. 381, S. C. 
 
 («i) Lindas v. Melrose, 27 L. J., Exch. 326 ; 2 H. & N. 293, S. C, in error, 
 27 L. J., Exch. 328 ; 3 H. & N. 177. This was a decision on the stat. 19&20 
 Vict. c. 47, s. 43. See, however, Dutton v. Marsh, L. R., 6 Q. B. 361 ; 40 L. 
 J. 175 
 
 (ra) Bottomley v. Fisher, 81 L. J., Exch. 417 ; 1 H. & Colt. 211. 
 
 (fl) Jenkins v. Morris, 16 M. & W. 877. 
 
 (p) Powles V, Page, 3 C. B. 31 (54 E. C. L. R) ; Steward v. Dunn, 12 M. 
 & W. 664 ; Peru Railway Company, L. R., 2 Chan. Ap. 617. 
 
 (?) Nichols V. Diai»0Qd, 9 Exch. 154. 
 
CAPACITY OF CONTRACTING PARTIES. 119 
 
 *The Stat. 7 & 8 Vict. c. 110,8. 45 (since repealed), 
 enacted that where the directors were a^thorized by '- -' 
 deed of settlement or by-law to issue or accept bills or notes, 
 tbey should be made or accepted by two directors, and ex- 
 pressed to be made or accepted on behalf of the company, and 
 countersigned by the secretary. That they might be indorsed 
 in the name of the company) by any officer authorized by deed 
 or by-law. That on instruments properly made the company 
 might be sued, but the signing officers were not liable. 
 
 The liability of a company formed under this act could not 
 be Hmited by the deed of settlement,(r) and a proviso in a bill 
 of exchange limiting the liability is repugnant and void.(s) 
 
 On this statute it was held that an acceptance in this form 
 " A. and B., directors appointed by resolution to accept this 
 bill," was an acceptance within the 8tat.ute.(<) 
 
 The registered deed is notice of its contents to all who deal 
 with the company.(M) 
 
 The statute 25 & 26 Vict, c.89, s. 47, amended by 30 & 31 
 Vict. c. 181, enacts, that bills and notes made, accepted or in- 
 dorsed in the name of the company, by any person acting 
 under the authority of the company, express or implied, shall 
 bind the company .(a;) 
 
 But if any person on behalf of a limited company registered 
 under the act signs or indorses a bill, check, or note on which 
 the name of the company is not duly mentioned,(y) he is liable 
 
 (r) Gordon v. Sea Fire Society, ' 1 H. & N. 599; Re Sea Fire and Life 
 Society, 3 De G., M. & G. 459. See also Peddell v. Gwynn, 1 H. & N. 590, 
 and Lindley on Partnership, vol. i., p. 201. 
 
 («) Re State Fire Insurance Oompany, 33 L. J., Chanc. 300. 
 
 (0 Halford v. Cameron Coal Company, 20 L. J., Q. B. 160 ; 16 Q. B. 443 
 {111 E. C. L. R.), S. 0. .; Edwards v. Cameron Coal Company, 6 Exch. 369. 
 
 («) Ridley v. Plymouth Company, 3 Exch. 711 ; Balfour v. Ernest, 28 
 L. J., C. P. 170 ; 5 C. B., N. S. 601 (94 E. C. L. R), S. C. ; Royal British 
 Bank v. Turquand, 5 E. & B. 248 (85 E. C. L. R.) ; 6 E. & B. 327 (88 E. C. 
 L. R). 
 
 (») Lindus v. Melrose, supra. As to what is,a making in the name of the 
 Gompany, see further, Aggs v. Nicholson, 1 H. & N. 165. 
 
 (y) And described as limited. See sect. 5. 
 
120 CAPACITY OF CONTKACTINO PARTIES. 
 
 to a penalty of 50^., and is moreover made personally responsi- 
 ble to the holder.(5r) 
 
 By the 25 & 26 Vict. c. 89, s. 95, official liquidators ap- 
 pointed under that act have power, with the sanction of 
 *the Court, to draw, accept, make or indorse hills and 
 L -I notes in the name and on behalf of the company. By 
 sect. 133, the same or perhaps wider powers are conferred on 
 liquidators appointed under a voluntary winding up. But one 
 cannot accept on behalf of all, even under a resolution to that 
 effect.(a) 
 
 If persons who fill official situations, as churchwardens,' 
 overseers, surveyors, commissioners, managers of joint-stock 
 banks, agents and secretaries to companies, and the like, give 
 bills or notes on which they describe themselves in their official 
 capacity, they are nevertheless personally liable. Thus drafts 
 on a banker, signed by commissioners under an inclosure act 
 " as commissioners," bind the commissioners personally .(6) So 
 does a promissory note given by A. and B. as churchwardens 
 and overseers. (c) 
 
 So it is conceived that the legal interest in a bill or note 
 given to an officer by his name of office, vests in the person who 
 happens to fill the office at the time. Thus, a note given to 
 the manager of a joint-stock banking company vests at law in 
 
 (s) Sect. 43 ; Penrose v. Martyr, 28 L. J., Q. B. 28 ; E., B. & E. 499 (96 
 E. C. L. R.)i S. C. But it seems be is not liable as an acceptor of a bill drawn 
 on the company. Easlwood v. Bain, 28 L. J., Ex. 74 ; 5 H. «& N. 738, S. C. 
 Query, whether be be liable for a false representation. (Ibid.) 
 
 (a) See sub-section 6, and Ex parte Birmingham Bank, L. R., 3 Chan'. Ap. 
 651, where the bill holders, however, were allowed to prove for money ad- 
 vanced. Ex parte Agra & Masterman, L. R., 6 Chan. Ap. 206, decided the 
 same point as to renewed bills. See also Bolognesi's case, L. R., 5 Chan. 
 Ap. 567. 
 
 (J) Eaton V. Bell, 5 B. & Al. 34 (7 E. C. L. R.) ; Nichols v. Diamond, 
 9 Exch. 154 ; Bottomley v. Fisher, 1 H. & C. 211. 
 
 (c) Rew V. Petit, 1 Ad. & B. 196 (38 E. C. L. R.) ; 3 Nev. & M. 456, S. C, 
 nom. Crew r. Petit; Price v. Taylor, 29 L. J., Ex. 331 ; 5 H. & N. 540; 
 and vide ante, p.- 37. The personal liability of churchwardens and overseers 
 ii not transferred to their successors by the 11 & 12 Vict. c. 91. See Cbam- 
 bers v. Jones, S Exch. 229. 
 
CAPACITY OF CONTRACTING PARTIES. 121 
 
 the person who fills that office when the note is given.(t^) And 
 where a note was made payable to the trustees acting under 
 A.'s will, parol evidence was held admissible to show who they 
 were and what the trusts were.(e) 
 
 But a bill or note payable at a certain time after date to the 
 secretary or other officer for the time being of a company, is 
 void, the payee being uncertain at the time of making.(/) 
 
 *The manager, as well as any other bona fide holder, |-„„-, 
 may of course sue in his own name on any bills indorsed ^ ^ 
 in blank belonging to a banking company.(5r) 
 
 And where a note was given to the treasurer of a loan 
 society ior the time being, under the 5 & 6 Will. 4 c. 26, neither 
 the treasurer when the note was given, nor his successor in 
 office, could maintain an action on the note, for the additional 
 reason that the acts of parliament, establishing loan societies, 
 contemplated proceedings by complaint before a justice of the 
 peace.(A) 
 
 But now by the 3 & 4 Vict. c. 110, ss. 16 & 17, the treasurer 
 or clerk for the time being may sue on such a note in any 
 county court or court of conscience or request. 
 
 ((?) Robertson v. Sheward, 1 M. & Gran. 511 (39 E. C. L. K.) ; 1 Scott, 
 N. R. 419, S. C. 
 
 («) Megginson v. Harper, 4 Tyrwh. 96 ; 3 Or. & M. 323, S. C. 
 
 (/) Storm V. Sterling, 3 E. & B. 833 (77 E. C. L. R.) ; Yates v. Nash, 
 39 L. J., C. P. 306 ; 8 C. B., N. S., 581 (98 E. C. L. R.), S. C. But a prom- 
 issory note to tlie trustees of a cliapel or their treasurer for the time being was 
 held good, for the trustees were held to be the payees and the treasurer merely 
 an agent. Holmes v. Jaques, Law Rep., 1 Q. B. 376. See the Chapter on 
 
 iBBBGTJIiAB InSTBUMEHTS. 
 
 (p) Law V. Parnell, 30 L. J. 17 ; 7 C. B., N. S. 383 (97 E. C. L. R.), S. C. 
 
 (A) Tims r. Williams, 3 Q. B. 413 (43 E. C. L. R.). The justices must 
 order payment forthwith, for they cannot postpone the time for payment of 
 the notfe. Parker v.Boughey, 31 L. J., Mag. Ca. 373. 
 
122 
 
 lORM OP BILLS AND NOTES. 
 
 [*76] 
 
 *OHAPTER VI. 
 
 OF THE FORM OF BILLS OP EXCHANGE AND PROMISSORY 
 
 NOTES. 
 
 on what substance they may 
 
 be ■written, 
 in what language, . 
 in pencil ok in ink, 
 signature by a mark, 
 ov the bupersoription of the 
 
 place wheke made, 
 of the date, . . . .77 
 of the superscription op the 
 
 bum payabi-e, .... 
 of the time when payable, . 
 
 op usance 
 
 of the bequest to pay, . 
 
 of the name of the payee, . 
 
 op the words " order " or 
 
 "bearer," .... 
 
 76 
 
 70. 
 76 
 
 77 
 
 77 
 
 79 
 79 
 80 
 80 
 80 
 
 83 
 
 OP THE SUM PAYABLE, . . 83 
 
 BILLS AND NOTES UNDER 20»., . 84 
 BILLS AND NOTES UNDER 51., . 84 
 OP THE WORDS ''TALUE BE- 
 
 CEIVED^" 85 
 
 OTHEK STATEMENT OF THE CON- 
 SIDERATION, . • . .86 
 OP THE drawee's SIGNATURE, . 87 
 OF THE DIRECTION OP THE 
 
 DRAWEE f"? 
 
 OF THE PLACE WHERE MADE 
 
 PAYABLE BY THE DRAWER, . 88 
 OF THE DIRECTION • TO PLACE 
 
 TO ACCOUNT, . . . .89 
 OP THE WORDS "AS PER AD- 
 VICE," 89 
 
 Bills of exchange and promissory notes are usually, but it 
 is apprehended not necessarily, written on paper. It is con- 
 ceived that they might be written on parchment, linen, cloth, 
 leather, or any other convenient substitute for paper, not being 
 a metallic substaiiee.(a) 
 
 They may be written in any language, and in any form of 
 words. 
 
 A bill or note, or any other contract, may be written in 
 pencil, as well as in ink. " There is," says Abbott, C. J., " no 
 authority for saying, that when the law requires a contract to 
 be in writing, that writing must be in ink. There is not any 
 great danger that our decision will induce individuals to adopt 
 the mode of writing by pencil in preference to that in general 
 use. The imperfection of this mode of writing, its liability to 
 obliteration, and the impossibility of proving it when so ob- 
 literated, will prevent its being generally adopted."(6) Contracts 
 
 (a) See post, as to Metallic Tokens. 
 
 (J) .Geary v. Physic, 5 B. & C. 334 (11 E. C. L. R.J ; 7 Dow. & R. 658, 
 S. C. 
 
FORM OF BILLS AND NOTES. 123 
 
 written and signed *in pencil are constantly admitted as .^„„-. 
 
 written contracts at Nisi Priu8,(c) and testamentary '- -' 
 writings in pencil often in the Ecclesiastical courts.(rf) 
 
 The signature or indorsement of negotiable instruments may 
 be by a mark.(e) 
 
 It is proper, though not necessary, to superscribe the name 
 of the place where the bill or note is made. 
 
 But a check on a banker must, formerly, unless stamped as 
 a bill, have expressed the place where drawn, and such place 
 must have been within fifteen miles of the banker's place of 
 business.(/) 
 
 The 9 Geo. 4, c. 65, prohibits the circulation of all neaiotiable 
 notes or bills under 5Z., or on which less than 5Z. shall remain 
 undischarged, payable to bearer on demand, and which were 
 made, or purport to he made, in Scotland, or Ireland, or else- 
 where, out of England, under the penalty of 20L, to be recovered 
 in a summary way.(^) 
 
 Neither is a date in general essential to the validity of a bill 
 or note ; and if there be no date, it will be considered as dated 
 at the time it was made.(/j)(l) And if in pleading it be stated 
 
 (c) Jeffery v. Walton, 1 Stark. 2r>7 (3 E. C. L. R.). 
 
 (4) Rhymes v. Claikaon, 1 Pliil. 22 ; Gieen v. Skipworth, 1 Pbil. 53 ; 
 Dickenson v. Dickenson, 2 Phil. 173. 
 
 («) George v. Suriey, 1 M. & M. 516 (22 E. C. L. R.). 
 
 (/) 55 Geo. 8, c. 184, s. 13 ; 9 Geo. 4, c. 49, s. 15. See the Chapter on 
 Checks, and the recent statutes there referred to. 
 
 dg) This does not extend to drafts on banlters,, see sect. 4. 
 
 (A) De la Conrtier v. Bellamy, 2 Show. 423 ; Hague t. French, 3 B. & P. 
 173 ; Giles v. Bourne, 6 M. & Sel. 73 ; 3 Chit. R. 300 (18 E. C. L. R.), S. C. 
 PSvrol evidence is admissible to show from what time an undated instrument 
 was intended to operate. Davis v. Jones, 35 L. J., 0. P. 91 ; 17.C. B. 625 
 (84 E C. L. R.>, S. C. 
 
 (1) A date is not essential. Michigan Ins. Co. v. Leavenworth, 80 Ver- 
 Hiont, 11. The indorsee, in a suit against the maker, may prove that there 
 was a mistake in the date of the note. Drake v. Rogers, 32 Maine, 524i, 
 Where the date of a note bearing interest from date has been omitted, the 
 (late of its delivery may be shown, and interest computed from that time. 
 Richardson v. Ellett, 10 Texas, 190. A promissory note which is not dated 
 will be considered as dated at the time it was made. Seldonridge v. Con- 
 
124 FORM OP BILLS AND NOTES. 
 
 to have been drawn on a particular day, but, the declaration 
 does not state the date appearing on the bill, that is sufficient 
 on a motion in arrest of judgment or on demurrer.(i) 
 
 The date expressed in the instrument is (except when it is 
 tendered by assignees of a bankrupt, as evidence of a petition- 
 ing creditor's deht)(J) prima facie evidence of the time when 
 the instrument was rc\a,&e.{k) 
 
 (i) Ibid. 
 
 (j) Wright V. Lainson, 3 M. & W. 739 ; 6 Dowl. 146, S. C. ; see post. 
 
 (ft) Anderson v. Weston, 6 Bing. N. C. 296 (37 B. C. L. R.) ; 8 Scotl, 893, 
 S. C. ; Taylor v. Kinlocli, 1 Stark. 175 (3 E. C. L. R.) ; Obbard v. Betharri, 
 1 M. & M. 486 (23 B. C. L. K.) ; Smith v. Battens, 1 M. & Rob. 341 ; but 
 see Cowie v. Harris, 1 M. & M. 141 ; 4 M. & P. 723, S. C. ; Rose v. Rowcroft, 
 4 Camp. 345. And this rule applies to written documents in general. Sin- 
 clair V. Baggaley, 4 M. & W. 313 ; Davies v. Lowndes, 7 Scott's New Rep. 
 213 ; Potez v. Glossop, 3 Exch. 195 ; Harrison v. Clifton, 17 L. J., Exch. 
 333 ; and the cases cited in the note to Potez v. Glossop. All the Irish judges, 
 in Butler v. Mouatgarret, considered the point as finally settled ; but in the 
 same case, 7 H. L. Cases, 647, Lord Wensleydale expressed a doubt whether 
 the cases above referred to had been rightly decided. The weight of authority, 
 however, is in favour of the rule as laid down in the text, and it would be 
 difficult to conduct investigations at Nisi Prius, without such a presumption. 
 
 nable, 32 Indiana, 375. The place where or the time when a note is made, 
 need not be specified therein to render it binding on the maker. Wexel v. 
 Cameron, 81 Texas, 614. In an action cm a promissory note, which bears 
 date on Sunday, it is competent to allege and prove that it was, in fact, exe- 
 cuted and delivered on a different day. Aldj'idge v. Branch Bank, 17 Ala- 
 bama, 45. A note made on the Sabbath is void when no subsequent ratiflca- 
 tii/U is made. Bosler v. McAllister, 13 Indiana, 365. If delivered on any 
 other day, though sif^ned on Sunday, it is good. Bank v. Mayberry, 48 
 Maine, 198. A note signed and delivered to the payee on Sunday, but bear- 
 ing date on another day, is valid in the hands of a bona fide holder. Ibid. 
 A promissory note, given on Sunday for an antecedent debt, is valid. Kauf- 
 man V. Hamm, 30 Missouri, 387. A note made and delivered on Sunday is 
 good in the hands of a bona fide holder. State Bank v. Thompson, 43 New 
 Hampshire, 369. A note is not invalidated by being antedated. Gray v. 
 Wood, 3 Har. & Johns. 338 ; Richter v. Selin, 8 Serg. & Rawle, 425. A note 
 takes effect by delivery, and from the time of delivery ; but a delivery and at 
 the time of the date will be presumed, until the contrary appear. Woodford 
 v. Dorwia, 3 Vermont, 83 ; Lansing v. Gains, 2 Johns. 300. Where a bill 
 was drawn in blank as to date and name of drawer, but at four months afler 
 date, and the person to whom it was delivered to be negotiated filled up the 
 date with a day anterior to the delivery, and left it with a creditor of his own 
 who knew that it was antedated, as security for an antecedent delit, it was 
 held to be void in his liauds.. Goodman v. Simon, 19 Missouri, 106. 
 
.FORM OF BILLS AND NOTES. 125 
 
 ♦Formerly promissory notes, payable to bearer on p^,Q, 
 demand, must not have had printed dates under the ^ ^ 
 penalty of 50L(Z) But the statute prohibiting them is now 
 repealed.(/rt) 
 
 In general, a hill or note may be post dated.(n) Bat under 
 the old acts it" this was done so as to postpone the time of pay- 
 ment beyond the period of two months after the making, or so 
 as to make it in effect payable at a longer interval than sixty 
 days after sight, and thus evade the higher scale of duty for 
 bills at long dates, a penalty of 100?. was incurred,(o) and the 
 instrument was inadmissible in evidence.(p) 
 
 But an unstamped bill or note issued by bankers -under the 
 provisions of 9 Geo. 4, c. 23, must not be post dated, under the 
 penalty of lWl.{q). 
 
 All negotiable bills, notes, or drafts, for 20s. or any sum be- 
 tween 20s. and 5?., must formerly have been dated before or at 
 the time of issuing, under the penalty of 20?.(r) 
 
 The usual allegation that a bill or note was made on a par- 
 ticular day is not matter of description, and the day need not 
 be proved as laid.(s) It would be otheVwise if the declaration 
 went on to describe the instrument as bearing date on a par- 
 ticular day. 
 
 Misdescription of the date of a bill in an agreement is 
 immaterial if the bill were in existence and present. For 
 ^'■presentia corporis tollit errorem nominis."(t) 
 
 (0 55 Geo. 3, c. 184, s. 18. 
 
 (m) 23 & 24 Vict. c. Ill, s. 19. 
 
 (re) Piismore v. North, 13 East, 517. See Austin v. Bunyaid, 27 L. J. 217 ; 
 Poisterv- Mackworth, L. R., 2 Exch. 163; 36 L. J. 94, S. 0.; Emmanuel 
 V. Roberts, 9 B. & S. 121 ; Bull v. O'Sullivan, L. R, 6 Q. B. 209 ; 40 L. J. 
 141. 
 
 (o) 55 Geo. 3, c. 184, s. 12. 
 
 (p) Field V. Wood, 6 Dowl. P. 0. 23 ; 7 Ad. & El. 114 (34 E. C. L. R.) ; 
 2 N. & P. 117, S. C. ; Serle v. Norton, 9 M. & W. 309. Unless to order, see 
 sect. 13, and Emmanuel v. Roberts, sup. 
 
 (g),Sect. 12. 
 
 (r) 17 Geo. 3, c. 30, revived by 7 Geo. 4, c. 6 ; repealed as to checks, 17 
 &-18 Vict. c. 83, s. 9 ; temporarily repealed by 26 & 27 Vict. c. 105, and 33 
 & 33 Vict. c. 85, and 34 & 35 Vict. c. 95. 
 
 (s) Coxon V. Lyon, 2 Camp. 307, n. ; Smith v. Lord, 14 L. J., Q. B, 112 ; 
 2 D. & L. 759, S. 0. 
 • (0 Way V. Hearnc, 33 L. J. 34. 
 
126 FORM OP BILLS AND NOTES. 
 
 r*7qT *The sum for which a bill is made is usually super- 
 scribed in figures ; iu a note or check, the figures are 
 commouly subscribed. 
 
 The superscription or subscription of the sum payable is not 
 necessary,, if the sum be stated in the body of the note, but it 
 will aid an omission in the body : as, where the word Ji/ty was 
 written in the body of the note, without the word pounds.{u){l) 
 
 The time of payment is regularly and usually stated in the 
 beginning of the note or bill ; but, if no time be expressed, the 
 instrument will be payable on demand.(t;i)(2) 
 
 («) Elliot's case, 3 East, P. C. 9)51 ; t I/each, 175, S. C. 
 
 (») Whitlock V. Underwood, 3 Dowl. & R. 336 ; 3 B. & C. 157 (9 E. C. L. 
 E.), S. C. ; Down v. Hailing, 4 B. & C. 333 (10 E. C. L. R.), 6 Dowl. & E. 
 455 ; 2 C. & P. 11, S. C. ; Baylcy, 0th ed. 109 ; and the words may be added 
 ■without avoiding the instrument. Aldous v. Oornwell, L. R., 3 Q. B. 573; 
 37 L. J. 201. But on a motion to set aside an annuity, the Court will not as- 
 sume that even a Bank of England note, or a draft on a banker, is payable on 
 demand. See the cases collected in the recent cast/ of Abbott v. Douglas, 1 
 C. B. 491 (50 E. C. L. R.). / 
 
 (1) The check mark or figures of a note form no part of its legal obligation, 
 and can be used to control the body of the note only when the meaning is 
 doubtful. , Riley v. Dickens, 19 Illinois, 29. Mears v. Graham, 8 Blackford, 
 144 ; Smith v. Smith, 1 Rhode Island, 398 ; Corgan v. Frew, 39 Illinois, 31. 
 A note for thee hundred dollars, and in figures $300, is a good note for that 
 amount, if the maker so intended when he signed it, which is a question for 
 the jury. Bunham v. Allen, 1 Gray, 496. , 
 
 (2) Holmes v. West, 17 California, 623; Salinas v. Wright, 11 Texas, 573; 
 Porter v. Porter, 51 Maine, 376 ; Key v. Fenatermaker, 24 Cal. 329. A note 
 specifying no time of payment but providing for interest from date to be paid 
 annually, is in legal effect payable immediately. Jones v. Brown, 11 Ohio 
 (N. S.), 601. A note promising to pay a sum of money " on demand, with 
 interest within six months," is payable on demand. Jillson v. Hill, 4 Gray, 
 316. A note promising to pay "on demand, with interest annually payable 
 four months from date"— is a promise to pay on demand, and annual interest 
 after four months from date. Shaw v. Shaw, 43 New Hampshire, 170. A note 
 given to a mutual insurance company payable at such times and iu such por- 
 tions as the directors may require, is in legal effect, payable on demand, that 
 is at its date ; from wliich time the statute of limitations begins to ruuj Col- 
 gate v. Bnckingham, 39 Barboifr, 177. A note payable " sixr-after. date" is 
 not void for uncertainty. But the intention of the parties if legally ascer- 
 tainable should control in the construction of it. Nichols v. ProthingliUffli, 
 45 Maine, 220. The ambiguity being patent is not capable of, explanation by 
 parol testimony, but evidence of the usual credit in such cases was let in. 
 
FORM OF BILLS AND NOTES. 127 
 
 Negotiable bills or notes under bl. must formerty have been 
 made payable within the space of twenty-one days from the 
 datei(ir) But now there is no limitation as to the time when the 
 bill or note is to be made payable. The bill or note may be made 
 payable on demand, or at sight, (which is now the same thing, 
 34 & 35 Vict. c. 74), or at any certain period after date, or after 
 si^ht, or at usance. " If a bill of exchange be made payable at 
 never so distant a day, if it be a day that must come, it is no 
 objection to the bill."(2/) 
 
 The expression after sight, on a hill of exchange, means after 
 acceptance, or protest for non-acceptance, and not after a mere 
 private exhibition to the drawee, for the sight must appear in 
 a legal way.(2)(l) But if a note is made after sight, the expres- 
 sion merely imports that payment is not to be demanded till it 
 has been again exhibited to the maker ;(a) for a note being in- 
 ca_pable of acceptance, the word " sight" must, on a note, bear a 
 different meaning from the same word on a bill. 
 
 *Foreign bills are commonly drawn at one, two, or more n^Qn-, 
 usances, or, as it is sometimes expressed, at single, double, '- -^ 
 treble, or hal f usance. Usance signifies the usage of the countries 
 between which bills are drawn with respect to the time of pay- 
 ment. If a foreign bill be drawn, payable at sight, or at a cer- 
 tain period after sight, the acceptor will be liable to pay accord- 
 ing to the course of exchange at the time of acceptance, unless 
 
 (») 17 Geo. 3, c. 30, now repealed. 
 
 {y) Willes, C. J., in Colehan.v. Cooke, Willes, 396. 
 
 (s) Marius, 19, cited by Lord Kenyon in Campbell v. French, 6 T. E. 312. 
 So in America it lias been held that after sight means after acceptance, and not 
 after mere presentment. Byles on Bills, 5th American edition, p. 170. 
 
 (a) Holmes v. Kerrison, 3 Taunt. 333 ; Sturdy v. Henderson, 4 B. &'A1. 
 593 (6 B. C. L. R.) ; Sutton v. Toomer, 7 B. & C. 416 (14 E. C. L. R.) ; 1 
 M. & Ry. 125, S. C. ; Dixon v. Nult^U, 1 C, M. & R. ii07 ; 6 C. & P. 320 
 (25 E. C. h. R.), S. C. 
 
 IWd. See Conner v. Routh, 7 Howard (Miss ), 176. A note payable " four 
 months after" is payable four months after date. Pearson v. Stoddard, 9 
 Gray, 199. 
 
 (1) A bill payable so many days after sight, means legal sight, and the bill 
 begins to run from tlie presentment and acceptance, and not from the time 
 of mere presentment. Mitchell v. De Grand, 1 Mason, 176. 
 
128 FOKM OF BILLS AND NOTES. 
 
 the drawer express that it is payable according to the course of 
 exchange at the time it was drawn en especes de ce jour.{b) 
 Where half usance stands for half a month, it is fifteen days. 
 And, in the case of all bills payable in England, month means 
 calendar month. 
 
 The bill or note must be certainly payable at some time or 
 other.(c) 
 
 The order to pay need be in no particular form : any expres- 
 sion amounting to an order,(<^) or direction, is sufficient, (e)(1) 
 The word '■'■pay" itself is not indispensable. Any synonymous 
 or equivalent expression will suffice, as " Credit in Gash."{f) , 
 
 The payee should be particularly described, so that he can- 
 not be confounded with another person of the same name, and 
 must be a person who is capable of beingascertained at the time 
 the instrument is made.(5') It is sufficient that the payee be so 
 designated, though he be riot named.(A) But if the bill get into 
 
 (S) Poth. i'i'4. 
 
 (c) Yidepost, Irkegtjlar Instruments. 
 
 (,d) Hamillon v. Spotliswood, 4 Exch. 300. 
 
 (e) Beawes, 3 ; Marius, 11. In Fi-anoe il voua plaira payer, is the common 
 language of a bill. Morris v. Lee, 8 Ld. Eayra. 1397 ; 1 Stra. 639. S. C. 
 Quaere, whether a mere written request, without any words of demand; 
 amount to a bill. Lord Kenyon held this instrument to be a bill: — "Mr. 
 Nelson will much oblige Mr. Webb, by paying to J. Ruff, or order, twenty 
 guineas on his account." Ruffv. Webb, 1 Esp. 129. But Lord Tenterden held 
 the following instrument not to be a bill : — " Mr. Little, please to let the bearer 
 liaiie seven pounds, and place It to my account, and you will oblige your hum- 
 ble servant, R. Slackfokd." Little v. Slackford, 1 M. & M. 171 (22 E. C. 
 L. R.). "The paper," says his Lordship, "does not purport to be a demand 
 made by a party having a right to call on the other to pay. The fair mean- 
 ing is, ' you will oblige me by doing it.' " But see Russell v. Powell, 14. M. 
 & W. 418. 
 
 (/) Ellison V. Collingridge, 9 C. B. 570 (67 E, C. L. R.). 
 
 (_g) Yates v. Nash, 29 L. .1., C. P. 306 ; 8 C. B., N. S. 581 (98 E. C. L. R.). 
 
 ih) Storm v.. Stirling, 3 E. & B. 833 (83 E. C. L. R.) ; Cowie v. Stirling, 6 
 E. & B. 333 (87 E. C. L. R.). 
 
 (1), Where an instrument is capable of being interpreted cither as a bill: of 
 exchange or a promissory note, the person who receives it may at his option 
 treat it as either. Therefore, an instrument, which is in the form of a note,; 
 but which in addition is addressed to a third person, who accepts it, is a 
 promissory note, and may be so declared on. Brazelton v. McMurray, 44 
 Ala. 333. 
 
FORM OF BILLS AND NOIES. 129 
 
 the hands of a wrong payee, unless it be payable to bearer, he 
 can neither acquire nor convey a title. One Christian drew a 
 bill on the *defendant, in London, payable to Henry Davis. 
 The bill got in the hands of another Henry Davis than L J 
 the one in whose favour it was drawn j was accepted by the de- 
 fendant, and by the wrong Henry Davis was indorsed to the 
 plaintift". Held, that the indorsement of his own name by 
 Henry Davis was, under these circumstances, a forgery, and 
 [dissentienle Lord Kenyon) could convey no title to the plaiii- 
 tifF.(i)(l) If the name be spelt wrong, parol evidence is admis- 
 sible to show who was intended.(/(;) K there be father and son 
 of the same name, it will be intended payable to the father till 
 the contrary appear.(Z) But if the son be found in possessioa 
 of the note, and he indorse, that is evidence that he, and not 
 the father, is payee.(m) A note payable to A. or to B. & C, or 
 his or their order, is not a promissory note, within the statute.(n) 
 A note in this form — " 16L 5s. balance due to A. C,,I am still 
 indebted, and do promise to pay."(o) Or in this — " Eeceived 
 of A, B. 100?., which I promise to pay on demand, with law- 
 fuf interest," sufficiently designates the payee.(p) A note pay- 
 able "to the trustees acting under A-'s will" is a good note, 
 and parol evidence is admissible, to show who the trustees are, 
 and what are the trusts.(g')(2) A note was made payable to the 
 
 • (i) Mead v. Young, 4 T. R. 28. 
 
 (ft) Willis V. Barrett, 3 Stark. 39 (3 E. C. L. E.). 
 
 (I) Sweeting v. Fowler, 1 Stark. 106 (i E. C. L. E.) ; "Wilson v. Stubs, 
 Hobart, 330 ; See Bro. Ab. Addition, 18, 34, 43, 9 to 6 ; 13 Dyer, 5. 
 
 (to) Stebbiug v. Spicer, 19 L. J., C. P. 34; 8 C. P. 827 (65 B. C. L. R.) ; 
 B. C. 
 
 (re) Blanckenbagen v. Blundell, 3 B. & Al. 417. 
 
 (0) Cbadwiek v. Allen, 1 Stra. 706. 
 
 (p) Green v. Davies, 4 B. & C. 235 (10 E. C. L. E.) ; 6 D. & R. 306, S. C. 
 (?) Megginson v. Harper, Tyr. 96 ; 3 C. & M. 322, S. C. 
 
 (1) Every negotiable note must be negotiated by the person (or liis repre7 
 sentatives) to whom the note was made payable, and not by a person of the 
 same name. Foster v. Shattuck, 2 New Hamp. 446. It is competent for the 
 liolder of a promissory note or other instrument to declare upon it as a pro- 
 mise made to himself in a name different from his own, and to prove that he 
 was the person intended. Patterson v. Graves, 5 Blackford, 593 ; Jester v. 
 Hopper, 8 English, 43. ' 
 
 (3) The name of the payee need not be inserted in the bill, if he be so cer- 
 tainly described as to be easily ascertained. Adams v. King, 16 lUiuois, 169. 
 
 9 
 
130 FOKM OF BILLS AND KOTBS. 
 
 manager of the National Provincial Bank of England. To an 
 action by the payee in bis own name, the defendant pleaded that 
 he did not make the note. Held, that under this plea, the 
 plaiiitiif was entitled to recover.(r) " On demand I promise to 
 pay J. W., T. S and D. M., or to their order, or the major part 
 of them, 1001." is a promissory note upon which the three per^ 
 sons mentioned can jointly maintain an action.(s) 
 
 If the bill be not made payable, either to any payee in par- 
 ticular, or to the drawer's order, or to bearer in geueral»;it 
 would seem, According to the opinion of the majority of the 
 Judges,(i) to be payable to bearer ; but according to the opinion 
 
 r*82l °^ ^y^^' ^- ■^•' ^" ^^^ ^^^^ °^^®' ^* '^^ ™®^® waste *paper.(?<) 
 ■ ■ If drawn payable to a fictitious payee, and the drawer 
 indorse the fictitious payee's name, the holder cannot either as 
 indorsee or bearer, recover against the acceptor •,{x) but if the 
 holder's money has got into the acceptor's hands, the holder 
 may recover it as money had and received. If the acceptor, at 
 the time of acceptance, knew the payee to be a fictitious person^ 
 he shall not take advantage of his own fraud ; but a bona fide 
 liolder may recover against him on the bill, and declare on it as 
 payable to bearer, or may recover on the money couuts.(j') So 
 
 (r) Robertson v. Sheward, 1 M. & G. 511 (39 E. C. L. R.) ; 1 Scott, N. R. 
 419, S. C. 
 
 is) Watson v. Evans, 33 L. J., Exch. 137 ; 1 Hurl. & Colt. 663, S. C. ' 
 
 (0 Minet v. Gibson, 1 H. Bl. 608. 
 
 (m) In Rex t. Randall, Rtiss. C. C. 185, a bill payable to , or order. 
 
 Was held not to be a bill of exchange ; because there was no payee ; and see 
 Rex V. Richards, 1 R. & R. C. C. 198. 
 
 {x) Bennett v. Farnell, 1 Camp. 130. 
 
 iy) Minet v. Gibson, 3 T. R. 481 ; judgment affirmed in Parliament, 1 H. 
 Bl. 569 ; and see Vere v. Lewis, 3 T. R. 183 ; Collis v. Emett, 1 H. Bl. 313 ; 
 Tatlock V. Harris, 3 T. R. 174. To Bennett v. Farnell, 1 Camp. 130, the 
 learned reporter appends the following note : — "Almost all the modern cases 
 upon this question arose out of the bankruptcy of Livesay & Co., and Gibson 
 & Co., who negotiated bills, with flctitious names upon them, to the amount 
 of nearly a million sterling a year. The first case was Tatlock v. Harris, 3 T. ^ 
 
 A note payable to the administrator of A.'s estate is a good promissory note. 
 Moody V. Threlkeld, 13 Georgia, 55. To hold one liable as the drawer of a 
 hill, his name must be either inserted in it or subscribed to it. May v. Miller,' 
 27 Alabama, 515. When the drawer's name is not mentioned, but it is ac; 
 cepted and indorsed, assumpsit will not lie. Tevis v. Young, 1 Metmlf 
 (Ky.), 197. 
 
FORM OP' BILLS AND NOTES. 131 
 
 the folder rnay recover *ag£^ip8t an ajCceptor for the [-#00-1 
 honour of the drawer where the payee is a fictitious 
 person and treat the bill as payable to bearer.(2)(l) 
 
 If a blank be left for the payee's name, a honp, fide holder 
 may fill it up y^ith hip own name, and recover against the 
 
 R. 174, in which the Cotirt of K. B. held that the bona fide holder for a valua- 
 ble consideration of a bill drawn payal)le to a fictitious person, and indorsed 
 in that name by the drawer, miglit recover the amount of it. in an action 
 against the acceptor, for money paid or money had and received, upon the 
 idea, tliat there was an appropriation of so much money to be paid to tlie per- 
 son who should become the bolder of the bill. In Vere v. Lewis, 3 T. R. 
 188, decided the same day, the Court held, there was no occasion to prove 
 that the defendant had received any value for the bill, as the mere circum- 
 stance of his ^ecuptance was sufficient evidence of tliis ; and three of the 
 Judges thought the plaintiff might recover on a count which stated that the 
 bill was drawn payable to bearer. Minet y. Gibsou,-3 T. R. 481, pnt this 
 point directly in issue, and the unanimous opinion of the Court was, that 
 where the circumstance of .the payee being a fictitious person is known to the 
 acceptor, the bill is in effect payable to bearer. Soon after the Court of C. P. 
 laid down the same doctrine in CoUis v. Bmett, 1 11. Bl. 313. This decision 
 was acquiesced in ; but Minet v. Gibson was carried up to the House of Lords, 
 1 H. Bl. 569. The opinion of the Judges being then taken, Eyre, C. B. (p. 
 618), and Heath, J. (p. 619), were for reversing the judgment of the Court 
 below, and Lord Thurlow, C, coincided with them (p. 635), but tlie other 
 Judges thinking otherwise, judgment was affirmed. Pari. Gas. 8vo. ii. 48. 
 The last case upon the subject reported is Gibson v. Hunter, 2 H. Bl. 187, 388, 
 which came before the House of Peers upon a demurrer to evidence, and in 
 which it was held, that in an action on a bill of this sort against the acceptor 
 to show that he was aware of the payee being fictitious, evidence is admissi- 
 ble of the circumstances under which he had accepted other bills payable to 
 fictitious persons. Vide Tuft's case. Leach, Cro. Law, 159." Phillips v. Im 
 Thurn, 18 C. B., N. S. 694 (86 E. C. L. R.). 
 
 (is) Phillips V. Im Thurn, 18 C. B., N. S. 694 (85 E. C. L. R.) ; and see 
 Phillips V. Im Thurn, L. R., 1 C. P. 468 ; 35 L. J. 330, S. C. 
 
 (1) A note payable to a company, having no existence legal or de facto is a 
 note to a fictitious payee, and any bona fide holder may sue on it. Farns- 
 woith V. Drake, 11 Indiana, 101. When a note is made payable to a firm, 
 and no such firm exists, the person to whom it is given may indorse the name 
 of the firm. Blodgett v. Jackson, 40 Now Hampshire, 31. To entitle the 
 holder of a note, payable to a fictitious payee, to recover, it must appear affir- 
 matively that the holder was Ignorant thereof at the time he received the note. 
 M^niort v. Roberts, 4 E. D. Smith, 83. An instrument for the payment of 
 money not payable to any particular person or to bearer, is not negotiable ; 
 and a memorandum made by a payee on the back of a note in these words, 
 "Mr. A., pay on within $750," did not authorize a recovery on the money 
 counts by the holder against the payee. Douglass v. Wilkeson, 6 Wendell, 687; 
 
132 FORM OF BILLS AND NOTES. 
 
 (irawer.(a) But in order thus to charge the acceptor, the holder 
 must show that he had authority from the drawer to insert his 
 own name as payee.(6) 
 
 If the name of the payee do not purport to he the name of 
 any person, as where a note was made payable to ship Fortune 
 or bearer, it is a note payable to hearer simply.(c) 
 
 Unless a bill or note be payable to order or to hearer, it is not 
 negotiable, though still a valid security as between the original 
 parties,(c?)(l) but, if it be, notwithstanding, assigned by the 
 payee, he is chargeable at the suit of an indorsee (e) 
 
 A bill or note may be made payable to A. B. or order, or to 
 A. B. or bearer,(/) or to the drawer's own order,(^) or to hearer 
 generally. 
 
 If made payable to order^ it is assignable by indorsement ; if 
 made payable to bearer, it is assignable by mere delivery. 
 
 The sum for which a bill is made payable is usually written 
 in the. body of the bill in words at length, the better to prevent 
 alteration ; and, if there be any difl'erence between the sum in 
 the body and the sum superscribed, the sum mentioned in the 
 
 (a) Crutchley v. Clarence, 3 M. & Sel. 90 ; Atwood v. Griffin, R. & M. 425 ; 
 2 C. & P. 368 (13 E. C. L. R), S. C. 
 
 (6) Crutchley v. Mann, 5 Taunt. 539 (1 E., C. L. B.) ; 1 Marsh. 29, S. C. 
 And see Awde v. Dixon, 6 Exch. 869. 
 
 (c; Grant v. Vaughan, 3 Burr, 1516. 
 
 (d) Smith V. Kendall, 6 T. B. 133; 1 Esp. 331, S. C. ; Bex v. Box, 6 
 Taunt. 335 (1 E. C. L. B.) ; Russ. & By. 300, S. C. See post, Chapter on 
 Tkanspek. 
 
 («) Hill V. Lewis, 1 Salk. 133. See further on this subject the Chapter on 
 Tkansfer. 
 
 (/) As to bills payableto bearer on demand, see the last Chapter. 
 
 (p) Drawn payable to the drawer's order, it is payable to himself. SmilU 
 T. M'Clure, 5 East, 476 ; 3 Smith, 443, S. C. So also held in America, Byles 
 on Bills, 5lh American edition. 
 
 (1) Fernon v. Fhimer, 1 Hairington, 33 ; Hackney v. Jones, 3 Humphreys, 
 612 ; Reed v. Murphy, 1 Killy, 236 ; Tingling v. Kohlhass, 18 Maryland', 148. 
 A bill or note made payable "lo the order" of the plaintiff need not be in- 
 dorsed by him before suit brought. It is the same as if made payable to t lie 
 plaintiff or order. Huling V; Hugg, 1 Walts & Sergeant, 418. . A note payable 
 "to the bearer A.," is not a note payable lo bearer, and is not negotiable. 
 Warren v. Scott, 33 Iowa, 33. 
 
FOEM OF BILLS AND NOTES. 183 
 
 body will be taken tp be that for which the biU is made pay- 
 able ;(A) when the figures express a larger sum than the words, 
 evidence to show that the difference arose from an accidental 
 omission of words, is inadniissible.*)^?) We have already r^Qi-i 
 seen, that an omission in the body will be aided by the 
 superscription. (A) 
 
 An inaccurate, but intelligble, statement of the sum payable 
 will not vitiate. Tlius, an order, or promise to pay so many 
 "pound instead of "pounds," is a good bill or note.{l) A bill 
 for ",twenty-five, seventeen shi. lings and three," is a bill for 261. 
 lis. Bd.{m){l) The word sterling means sterling in that part 
 of the United Kingdom where the bill is payable.(n) 
 
 All negotiable bills, notes or drafts for any sum under 20s., 
 were made void by 48 Geo. 3, c. 88, s. 2 ; and the third section 
 imposed on the utterers and negotiators of such notes, bills, or 
 drafts, a penalty of bl. to 201., at the discretion of a magistrate, 
 to be. recovered in a summary way. 
 
 Ifegotlable bills and notes for more than 20s. and less than bl. 
 (except checks on bankers),(o) were also formerly void, unless 
 they specified the name and abode of the payee, were attested 
 by a subscribing witness, bore date at or before the time of issue, 
 and were made payable within twenty-one days after date, but 
 
 (h) Maiins, 138 ; Beawes, 1 93 ; Saunderson v. Piper, 5 Bing. N. C. 425 
 (35 E. C. L. R.) ; 7 Scott,- 408, S. C. 
 
 (0 Saunderson v. Piper, 5 Bing. N. C. 425 (33 E. C. L. R.) ; 7 Scott, 408, 
 S. C. 
 
 (A) Elliott's case, 2 Bast, P. C. 951 ; 1 Leach, 175, S. C. 
 
 (0 Rex V. Port, Bayley, 12, 6th ed; 
 
 (to) Phipps V. Tanner, 5 C. & P. 488 (24 E. C. L. R ). 
 ,. (n) Taylor v. Booth, 1 & P. 286 (12 E. C. L. R.). 
 
 (o) 7 Geo. 4, c. 6,8. 9, and 17 and 18 Vict. c. 83, s. 9 ; and see ante. Chapter 
 on Checeb. 
 
 (1) Booth v. "Wallace, 3 Root, 247. 
 
 Where a bill was drawn, and the drawee omitted to make the usual prefix 
 of the dollar mark to the figures in the margin, and also omitted the word 
 "dollars" in the body of the writing, the bill was held to be valid. William- 
 son V. Smith, 1 Caldwell, 1. 
 
l34 FORM OF BILLS AND NOTES. 
 
 not to bearer on demand. And such an instrument could not 
 be negotiated after tlietime limited for its payment.(23) 
 
 The 17 Geo. 3, c, 30, was repealed by the 3 Geo. 4, c. 70, but 
 was revived by the 7 Geo. 4, c. 6, s. 1. The latter act provided, 
 however, that nothing therein containfed should extend to ^ny 
 draft drawn by a man on his own banker for money held by 
 that banker to the use of the drawer. By sect. 3 of the same 
 act, a penalty of 201. is imposed oil issuing «tny promissory 
 note payable to bearer on demiand for less than 51. 
 
 The 9 Geo. 4, e. 65, s. 1, prohibits the circulation of all nego- 
 tiable notes 01* bills under dL, or oh whidh less than bl. shall re- 
 main undischarged, payable to bearer on demand, and which 
 were made, or purport to be made in Scotland, or Ireland, or else- 
 where out of England, under the penalty of 20L, to be recov- 
 ered in a summary way. By Beet. 4, these provisions do no't 
 extend to drafts on bankers. 
 
 . *By the 23 & 24 Viet. c. Ill, s. 19, drafts for less than 
 
 L -■ 20s., drawn by a man on his own banker for money held 
 by the banker to or for the use of the drawer, are exempted 
 from the above restrictions. 
 
 And, lastly, by the 26 & 27 Vict. c. 105, the 17 Geo. 3, c. 30^ 
 is temporarily {i. <?., for three years and one session, now pro^ 
 longed by -31 & 32 Vict. c. Ill, and 34 & 35 Vict. c. 95, till 28th 
 July, 1872, and one session of parliament), repealed in toto,a,xiA 
 so much of any other act as prohibits or imposes any penalty 
 with respect to bills or notes under bl.-, except promissory notes 
 payable to bearer on demand. As to the latter^ therefore, the 
 48 Geo. 3, c. 88, s. 2, the 7 Geo. 4, c. 6, s. 3, and the 9 Geo. 4, 
 c. 65, s. 1, are still in force. 
 
 Until the act of 3 & 4 Will. 4, c. 83, s. 2, no bills or notes for 
 any sum under bOl. could be issued or made payable to any 
 corporation or co-partnership consisting of more than six mem- 
 bers, within sixty-tive miles of London.(g') 
 
 There are some old cases tendihg to show that the words 
 
 (p) 17 Geo. 3, 0. 30 ; 7 Geo. 4, c. 6 ; 9 Geo. 4, c. 65, s. 1 ; 17 & 18 Vict, 
 c. 83, s. 9. 
 (g) 7 Geo. 4, c. 46, s. 3. See now the 7 & 8 Vict. c. 33. 
 
FORM OF BILLS AND NOTES. 135 
 
 valiie received are an essential part of a bill,(r) but it is now well 
 settled that they are not at all material (s)(l) 
 
 It has been indeed laid downj(<) that " to entitle the holder 
 of an inland bill or note for the payment of 201. or upwards, to 
 recover interest and damages against the drawer and indorser, 
 in default of acceptance or payment, it shall contain the words 
 "value received. "(m) But it is conceived that this opinion is 
 unfounded. Jt seems to rest on the assumption that a protest 
 is necessary for this purpose, and that the statutes of "Will. 3, 
 and Anne do not authorize or direct a protest, except the bill 
 be expressed to be made for value received. But it has been 
 decided that the 8th section of 3 & 4 Anne, c. 9, makes a pro- 
 test unnecessary for this purpose ■,{x) and, even if it were ne- 
 cessary under those statutes, in bills where those words are 
 expressed, it would not be necessary where they are not ; for, 
 upon a careful perusal of both statutes, it will appear that they 
 only apply to bills expressed to be for value received ; and the 
 6th section of the 3 & 4 Anne distinctly declares, that a protest 
 *shall not be necessary, unless the words " value received" 
 appear on the face of the bill ; thus, leaving bills where '- -J 
 these words are not as at common law : and at common law no 
 inland bill need be protested, in order to charge the drawer 
 with interest and damages.(2/) For this purpose, therefore (if 
 
 (r) Cramlington v. Evans, 1 Show. S ; Vin. Ab. Bills of Excli. G. 2. 
 
 (s) While V. Ledwick, Bayley, 40, 6th ed. ; 4 Dour. 437, S. C. ; Grant v. 
 Da Costa, 3 M. & S. 351 ; and see Popplewell v. Wilson, 1 Stra. 264, and 
 infra, note. 
 
 (t) Chitly, 67. 
 
 («) 9 and 10 Will. 3, c. 17 ; 3 & 4 Anne, c. 9, s. 4. 
 
 {X) Wiudle V. Andrews, 2 B. & Al. 696 ; 2 Stark. 435, S. C. (3 E. C. L. 
 E.). 
 
 (y) Per Bayley, J., 2 B. & A. 701. 
 
 (1) The words "value received" are not necessary in a Iiill of exchange or 
 other negotiable instrument. Benjamin v. Fillman, 3 McLean, 313 ; Town- 
 send V. Derby, 3 Metcalf, 363 ; Hubble v. Fogartie, 3 Rich. 413. A paper 
 directed to certain persons requesting them to pay a specified sum to a person 
 named, and charge the same to the account of the drawer, and dated and 
 signed, is a bill of exchange, although it is neither made payable to order or 
 bearer, nor has the words "value received," nor is made payable at a day 
 certain, or at a particular place. Kendall y. Galvin, 15 Maine, 131 ; see Bourne 
 V. Ward, 51 Ibid. 191. 
 
136 FORM OF BILLS AND NOTES. 
 
 the statutes made any difference), a bill would be more readily 
 effectual without these words than with thera. 
 
 It has been questioned whether an action of debt will lie on 
 a bill, unless the consideration be expressed. (2r) But it is now 
 decided that debt will lie although the consideration be not 
 expressed.(rt) 
 
 The words " value received" are ambiguous, where the bill is 
 drawn payable to a third person ; for the^i may mean either 
 value received, by the drawer, of the payee, or by the acceptor 
 of the drawer. But the first is the more probable interpreta- 
 tion ; for it is more natural " that the party who draws the bill 
 should inform the drawee of a fact which he does not know, 
 than of one of which he must be well aware. "(6) 
 
 If, however, the bill is drawn payable to the drawer's own 
 order, the words "value received" must mean received by the 
 acceptor of the drawer; and on such a bill, if the declaration 
 state that it was for value received by the drawer it will be a 
 variance.(e) " Value received" in a note, means received by 
 the maker of the payee.(rf) 
 
 Though the nature or particulars of the consideration appear 
 on the bill or note, it is riot necessary to state it in the declarai 
 tion, or it may be stated generally as value received.(e) "The 
 defendant," says Maule, J., " may prove that the note was 
 given for a different consideration, or without any considera- 
 tion at all."(/). 
 
 - But it has'been held that the defendant will not be allowed 
 to contradict his written admission on'the note, of the nature 
 
 (2) Bi.shop V. Young, 3 B. & P. 78 ; Pviddy v. Henbry, 3 D. & R. 165;1 B. 
 & 0. 674 (8 B. C. L. R.), S. C. 
 
 (a) Hatch v. Trays ; Watson v. Kightly, 11 A. D. & B. 703 (39 B. C. L. 
 R.) ; 3 Per. & Dav. 408, S. C. 
 
 (6) Per Lord Ellenborougli, in Grant v. Da Costa, 3 M. & Sel. 351. 
 
 (c) HigLmore v. Primrose, 5 M & S. 65. 
 
 (d) Clayton v. Gosling, 5 B. & C. 361 (11 B. C. L. R.) ; 8 D. & R. 110. ■ 
 
 (e) Coombs v. Ingram, 4 D. & R. 311 (16 E. C. L. R.) ; Bond v. Stock-' 
 dale, 7 D. & R. 140 (16 E. C. L. R.). 
 
 (/) Abbott V. Hendrich, 1 M. & G. 796 (89 B. C. L R.); 2 Scott, N. K. 
 183, S. C. Wbere the note on the face of it purported to be given for "value 
 received in Pennance shares pursuant to annexed contract," it was held un- 
 necessary to put in any contract. Fox v. Fritli, Car. «& M. 502 (41 E. C. L. 
 R.). 
 
FORM or BILLSAND NOTES. 137 
 
 of tlie consideration. Where a note was given by an 
 iidministratrix, *and exprepsed to be " for value received '- -' 
 by my late husband," she was not allowed to show that the 
 note was given only as an indemnity, and that the payee had 
 not been damnified. (^) 
 
 Without the drawer's signature, a bill payable "to my order," 
 though accepted, ia of no force,(A) either as a bill of exchange 
 or as a promissory note. (?)(!) 
 
 The signature of the drawer or maker of a bill or note is 
 usually subscribed in the right-hand corner ; but it is suiEcient 
 if written in any other part. Thus "I, J. S., promise to pay," 
 has been held a sufficient signature of a promissory nOte.(_;') A 
 man who cannot write may sign a bill by his mark.(A-)(2) 
 
 An allegation in pleading that a part/ made his bill or note 
 is sufficient, without alleging that he signed it, for making im- 
 plies signing.[l) 
 
 If a deed be first executed, and then written or filled up, the 
 deed is void;(m) but it is otherwise with a bill of exchange. 
 For, if a stamped paper be signed, leaving blanks for the date, 
 sum, time when payable, and name of the drawee, the drawer 
 will be chargeable for any sum afterwards inserted within the 
 
 (ff) Ridont V. Bristow, 1 C. & J. 231 ; 1 Tyr. 84, S.' C. ; and see Edwairls 
 V. Jones, 2 M. & W. 414; 5 Dowl. 585 ; 7 C. & P. 633 (33 B. C. L. R ), 
 S. C. 
 
 (A) Stoessingcr v. South E. Railway Company, 3 E. & B. 553 (77 E. C. L. 
 R.) ; Goldsmid v. Hampton, 27 L. J., C. P. 288 ; 5 C. B., N. S. 94 (94 E. C. 
 L. R), 8. C. 
 
 (i) M'Call V. Taylor, 34 L. J., C. P. 365. 
 
 ( j) Taylor v. Dobbins, 1 Stra. 399 ; Saynderson v. Jackson, 3 B. & P. 238. 
 
 (Jt,-) George v. Surry, 1 M. & M. 516 (33 E. C. L. R.). 
 
 (0 Elliott V. Cowper, 1 Stra. 609; 2 Ld. Rnym. 1376, S. C. ; 8 Mod. 307; 
 Ereskine v. Murray, 3 Lord RMym. 1542 ; 1 Barn. 88, S. G. 
 ■ (m) Qom. Dig. Fait. (A.) 1. 
 
 (1) May V. Miller, 37 Alabama, 515 ; Tevis v. Young, 1 Metcalfe (KyJ, 197.- 
 J (2) One signed a bill, and opposite his name at the other corner where wit- 
 nesses usually sisrn, but without the word witness above, another signed^ held 
 not siifflcient ;j?'ima /acj'fi that he gigned as maker. Steininger v. Hoch, 3 
 Wright, 2()3. It is immaterial on what part of a note the maker's signature 
 is placed, so that he signs it as original maker. Schmidt v. Schmaelter, 45 
 Missouri, 503. 
 
138 FORM OF BILLS AND NOTES. 
 
 amount warranted by the stamp. It is a letter of credit for 
 an indefinite but not unlimited sum.(M)(I) 
 
 A bill of exchange being in its original a letter, should be 
 properly addressed to the drawee.(o) But where a bill was 
 made payable "at No. 1 Wilniot Street, opposite the Lamb, 
 Bethnal Green, London," without mentioning the drawee's 
 name, and the defendant accepted it, he was not allowed to 
 r*881 ™^^® *^^ objection,(jo)(2) But a bill cannot be Ad- 
 dressed to one man and accepted by another.(g') A bill 
 
 (n) Collis V. Emett, 1, H.. BL, 313 ; Russell v. Langstaffe, 2 Doug. 496; 
 Snailh v. Minga^, 1 M. & S. 87 ; Leslie v. Hastings, 1 M & R. 119 ; MoUoy 
 V. Delves, 7 Ring. 438.(30 B. C. L. R.) ; 5 M. & P. 275 ; 4 C. & P. 493 (19 
 E. C. L. R.), S. C. ; Barker v. Steanie, 9 Exch. 684. 
 
 (0) Peto V. Reynolds, 9 Exch. 410 ; 11 Exch. 418, in error, S 0. 
 
 ip) 'Gray v. Milner, 8 Taunt. 739 (4 E. C. L. R.) ; 3 Moore, 90, S. 0. 
 (g) Davis v. Clarke, 13 L. J., Q. B. 305 ; 6 Q. B. 16 (51 E. C. L. R.), S. C. 
 
 (1) Between the original parties the consideration of a bill or note can 
 always be inquired into ; and it would practically abolish this rule, and lead 
 to great oppression and injustice if the maker or drawer were held to be 
 estopped by any mere statement on the face of the paper as to the character 
 of the consideration. Ryberg v. Snell, 3 Wash. C. C. Rep. 394; Lawrence v. 
 The Stouington Bank, 6 Conn. 464 ; Parish v. Stone, 14 Pick. 198 ; Slade v. 
 Halsted, 7 Cowen, 333 ; Pearson v. Pearson, 7 Johns. 36 ; Barnet v. Offermag^,, 
 7 Watts, 130. 
 
 (3) The omission of the name of the drawee at the foot of a bill does not 
 vitiate it. The acceptance supplies the defect, and is an admission by the 
 acceptor that he is the person intended. Wheeler v. Webster, 1 E D. Smith, 
 1. Where a note is signed and delivered with a blank left for the sum paya- 
 ble, though the first holder is restricted as to the ameant to be inserted, yet, if 
 the note comes into the hands of another, who, without notice of the restric- 
 tion, fills the blank with a larger sum, the obligor will be bound by It. Bank 
 of Commonwealth v. Curry, 2 Dana, 143. A person signing his name on a 
 blank paper and delivering it to another authorizes him to fill up the blank 
 with any sum. Bank of Limestone v. Penick, 5 Monroe, 35; M'Arthur v. 
 M'Leod, 6 Jones (Law), 475; Jones v. Shelbyville Ins. Co., 1 Metcalf, 58. If 
 a person signs a note with a blank date for another's accommodation, he au- 
 thorizes the other to fill up the date as he may see fit. Androscoggin Bank 
 V. Kimball, 10 Cushing, 373. The signer of a blank note as surety is respon- 
 sible for any sum for which it may be filled up by the principal though for a 
 sum exceeding that which he authorized, if the holder took it without notice. 
 Fullerton v. Slurgess, 4 Ohio (N. S.), 539. Where a blank was left for the 
 name of an acceptor, and the bill in this State, and with an indorser on it was 
 Landed to a third person who indorsed it for the accommodation of the drawer 
 and indorser, it was held that the legal intendment of such a transaction was 
 
joak OB' BILLS And Isotes. 139 
 
 directed to A., or iti his absence 16 B., being accepted by A.,, 
 may be declared on without taking notice of B.{r) If the word 
 at precede the drawee's name, whether inserted ignorantly or 
 traudulently, the instrument is still a bill of exchange.(s) A 
 bill inay be directed to the drawer himself, though it is, in that 
 case, rather a note than a bill.(<)(l) 
 
 (r) Anon., 13 Mod. 447. 
 
 (s) ShuttlewortU v. Stephens, 1 Camp. 407 ; Rex v. Hunter, E. & R. C. C. 
 511 ; Allan v. Mawson, 4 Camp. 115. 
 
 (0 Block V. Bell, 1 M. & Rob. 149 ; Starke v. Cheesman, Carth. 509 ; 
 Behei'sv. Harriot, 1 Show. 163; Robinson v. Bland, 3 Burr. 1077; Jocelyn 
 V. Laserre, Fort. 388 ; see Davis v. ClarUe, 6 Q. B. 16 (51 E. C. L. R.) ; Byles 
 on Bills, 3d American edition, p. 145. 
 
 that the blank was to be filled by the name of another person as acceptor, and 
 that the erasure of th« name of the prior indoiser and its insertion as acceptor 
 was in fraud of the rights of the last indorser. Mahone v. The Central Bank, 
 17 Georgia, 111. An indorsement on a note or bill, withont sum, date or time 
 of payment, will bind the ihdorser to pay any sum at any time which the per- 
 son to whom the indorser intrusts it, chooses to insert. Michigan Ins. Co. v. 
 Leavenworth, 30 Vermont, 11. 
 
 (1) It is not necessary to constitute a bill of exchange that there should be 
 three distinct parties to it. A bill drawn by a party upon himself is a bill of 
 exchange in the hands of an indorsee. Randolph v. Parish, 9 Porter, 76. A 
 general request in writing to pay money to the drawer's own order, is a bill 
 of exchange, which the drawer may make payable to himself by indorsement 
 and notice to the acceptor before it is due. Rice v. Hogan, 8 Dana, 133. It 
 is not necessary that the various parties to a negotiable instrument should be 
 different persons in order to render it a bill of exchange. "Wildes v. Savage, 
 1 Story, 23. An order drawn by the president of a corporation on the treasu- 
 rer, payable on demand, may be declared on when dishonored as a bill of 
 exchange. Wetumpka & Coosa Railroad v. Bingham; 5 Alabama, 657 ; Hasey 
 V. White Pigeon Beet Sugar Co., 1 Douglas, 193. Such a bill is the same, in 
 legal effect, as a promissory note ; it imports a pr'>mise to pay on demand, and 
 an action may be maintained upon it without proof of a demand of payment 
 from the treasurer of the corporation. Ibid. Fairchild v. Ogdensburg Rail- 
 road Co., 15 New York, 337 ; Lyell v. Supervisors, 6 M'Lean, 446 ; Dennis v. 
 Table Co., 10 California, 369. A draft by an agent of a corporation on the 
 corporation is not a bill of exchange. Mobley v. Clark, 38 Barbour, 390. An 
 order drawn by a corporation on its own treasurer is an acl^nowledgment of 
 debt by the corporation, but it must be presented for payment before suit. 
 Marion Railroad Co. v. Hodge, 9 Indiana, 163. A county auditor's order is 
 the* promissoiy note of the county afid negotiable. Commissioners v. Daj', 
 19 Indiana, 450. An order on a town treasurer to pay F. or bearer on demand, 
 has all the elements of negotiable paper. Dalrymple v. Whitingham, 36 Ver- 
 mont, 345 ; Bull v. Sims, 33 New York, 570. The general current of the cases, 
 however, is that county and township warrants or orders are not negotiable," 
 
140 FORM OF BILLS AND NOTES, 
 
 If the drawei' intends that the bill should be payable at a 
 particular place, he may insert such a direction. "Without the 
 words " only and not elsewhere," appended to such directioni^ 
 the acceptance will be general, within 1 & 2 Geo. 4, c. TS/m) so 
 as to charge the acceptor. The drawer himself cannot be charged, 
 unless the bill have been presented at the place where the 
 drawer himself made it payable.(a;) This statute does not ap- 
 ply to promissory notes ; and therefore, if any place of payment 
 be mentioned in the body of a note, it is part of the contract. 
 The place of payment must be described, in the declaration, and 
 a presentment there is essential, in order to charge the maker 
 or any other. party.(2/) But, where the place of payment is 
 merely stated in a memorandum at the foot or in the margin 
 of the note, by way of direction, it need not be noticed in plead- 
 ing, and presentment there, though it is sufficient,(2') is nqt 
 essential. (a) 
 
 But where the whole note was printed (except the name?, 
 dates, and sum), and a place of paj'ment was also printed at 
 the bottom of the note, Lord Ellenborough held that a special 
 presentment at this particular place was necessary.(6) If the 
 r*eQT drawer of a bill makes it payable at his own house, that 
 ^ *circumstance is evidence of its being an accommodation 
 
 bill.(e) 
 
 («) Selby V. Eden, 3 Bing. fill (11 E. C. L. R.) ; 11 Moore. 511, S. C. ; 
 Fayle v. Bird, 6 B. & C. 531 (13 E. C. L. R.) ; 9 Dowl. & R. 639. 
 , {x) Gibbs V. Mather, in error, 8 Bing. 214 (21 E. C. L. R.) ; 1 M. & Scolt, 
 '387, a C. ; 2 C. & .1. 254, S. C. ; Hodge v. Pillis, 3 Camp. 463. 
 
 iy) Sanderson v. Bowes, 14 East, 500 ; Roche v. Campbell, 3 Camp. 247. 
 
 (z) Fife V. Round, 1861. 
 ■ (a) Price V. Mitchell, 4 Camp. 200 ; Exon v. Russell, 4 M. & S. 506; Wil- 
 liams V. Waring, 10 B. & C. 3 (31 E. 0. L. R.) ; 5 M. & R. 9, S. C. But in 
 Hardy v. "Woodroffoi 2 Stark. 319 (3 E. G. L. R.) ; and in Sproule v. Legg, 3 
 Stark. 156 (3 E. C. L. R.). Lord Tenterden held that the note might be de- 
 scribed as made payable at a place mentioned in the memorandum only. 
 
 (S) Trecothick V. Edwin, 1 Stark. 468 (11 E. C. L. R.). 
 
 (e) Sharp v. Bailey, 8 B. & C. 44 (15 E. C. L. R ) ; 4 M. & R. 4, S. C. ' , 
 
 or entitled to the privileges or subject to the rules of commercial paper. They 
 are in fact only payable out of a particular fund. Dyer v. Covington, 7 Har- 
 ris, 300; Allison v. Juniata County, 14 Wright, 351 ; Bayergue v. San Fran- 
 cisco, 1 McAllister, C. C. 175; Dana v. San Francisco, 19 California, 486 ; 
 Bturtevant v. Liberty, 46 Maine, 457. 
 
FORM OF BILLS AND NOTES. 141 
 
 The 7 Geo. 4, c. 6, s. 10 enacts, that every promissory note 
 under iOl, payable to bearer on demand, must be made payable 
 at the place where issued, but may be made payable at other 
 places also. 
 
 Bills or notes drawn by co-partnerships' or corporations of 
 more than six persons must,'by 7 Geo. 4, c. 46, specify the place 
 of payment, and that place must not be in- London, or within 
 sixty-five miles thereof, unless in case of a hilt for 50L and up- 
 wards, drawn payable at some leriod after date or sight.(c?) 
 But this restriction as to making the bills payable in London, 
 is now removed by 3 & 4 "Will. 4, c. 83, s. 2. And the restric- 
 tion is further relaxed by 7 & 8 Vict. c. 32, s. 26. 
 
 Notes of the branches of the Bank of England are payable at 
 the Bank in London; but none of their notes are payable at a 
 branch bank, unless specially made payable at such branch.(<;) 
 
 The direction to place to account is unneceEsary.(/) 
 
 A bill is sometimes directed to be paid ^^ as per advice;" 
 sometimes " without further advice ; " sometimes " with or with- 
 out further advice ; " and sometimes, and more commonly, 
 without any of these words. In the first case, it is said the 
 drawee js not justified in paying without further advice.(^) 
 
 id) 7 Geo. 4, c. 46, s. 1. 
 
 («) 3 & 4 Will. 4, c. 98, s. 6, -which they must now be ; see p. 70. ^ 
 (/) Laing v. Barclay, 1 B. & C. 398 (8 E. C. L. R.) ; 2 D- & E. 530, S. C. 
 Cff) Chilty, 103, 9th ed. 
 
142 
 
 IKRE(JULAR INSTRUMENTS. 
 
 [*90] 
 
 *CH AFTER VII. 
 
 OF AMBIGUOUS, CONDITIONAL, (a) AND OTHERWISE IRKEGU: 
 LAR INSTRUMENTS. 
 
 NOTE PAYABLE TO THE MAKER, 
 EQUIVOCAL INSTRUMENTS, . 
 BILLS AND NOTES MUST BE FOR 
 
 PAYMENT OP A SUM OP MONEY 
 
 AND FOR THAT ONLY, 
 AND FOR MONEY IN SPECIE, 
 AND FOR A SUM CERTAIN, . 
 AND FOR PAYMENT OP IT, . 
 MUST NOT SUSPEND PAYMENT 
 
 ON A CONDITION, 
 PERIOD OP PAYMENT MAY BE 
 
 UNCERTAIN IF INEVITABLE, . 
 
 90 
 
 92 
 92 
 93 
 93 
 
 95 
 
 ■WHERE SEVERAL MAKERS OR 
 SEVERAL PAYEES ARE RE- 
 SPECTIVSLY LIABLE OB EN- 
 TITLED IN THE ALTERNATIVE, 95 
 
 MUST NOT BE MADE PAYABLE 
 OUT OP A PARTICULAR FUND, 96 
 
 IRREGULAR BILL OR NOTE MAY 
 BE AN AGREEMENT, . . 96 
 
 COUPONS, 96 
 
 LETTERS OP CREDIT AND CIR- 
 CULAR NOTES, . . . .96 
 
 A NOTE cannot of course be made by a man to himself without 
 more. Neither can it be made to himself and another man.(6) 
 
 But a note made payable to the maker's order becomes, 
 in legal effect, when indorsed in blank, a note payable to 
 bearer ;(c) and when specially indorsed, a note payable to. the 
 indorsee's order.(d)(l) 
 
 If an instrument be made in terms so ambiguous that it is 
 
 (a) As to the contracting words in promissory notes, see Cliapter II. 
 
 (6) ,.gee Moffatt v. Van Millingen, 2 B. & P. 124, n."; Mainwaring v. New- 
 man, iljid. 120 ; and see Teague v. Hubbard, 8 B. & 0. 345 (15 E. C. L. R.)- 
 It was formerly a doubt whether a note promising to pay to the maker's 
 order, or to the maker or order, be a note within the statute. Such a note 
 was sued on in Richards v. Macey, 14 M. & W. 484. It should on principle 
 seem, when indorsed by the maker in blank, to be in legal effect a note paya- 
 ble to bearer. So decided by the Court of C. P. since these observations were 
 written. Browne v. De Winton, 17 L. J., C. P. 281 ; 6 C. B. 336 (60 E. C. 
 L. R. ), S. C. ; see ante, Chapter IV. 
 
 (c) Browne v. De Winton, 17 L. J., C. P. 280 ; 6 C. B. 836, 8. C. (60 
 E. C. L. R.). 
 
 (d) Gay V. Lander, 17 L. J., 0. P. 287 ; 6 C. B. 336 (60 E. C. L.'R.), S. C. 
 
 (1) A note made payable to the maker's own order cannot pass by mere 
 delivery, but must be indorsed by the maker. Smalley v. Wight, 44 Maine, 
 442. Conira, Central BanW v. Lang, 1 Bosworth, 202. 
 
IKREGULAR INSTRUMENTS. 143 
 
 doubtful whether it be a bill of exchange or a promissory 
 note, the holder may treat it as either, at his electioii,(e) 
 *Thus, where for goods sold and delivered the defend- ^^q^^ 
 ant gave the plaintiff an instrument in thfe following '- -* 
 form : — 
 ^44: lis. U. 
 
 London, 5th August, 1833. 
 Three months after date I promise to pay Mr. John Bury, 
 or"- order, forty-four pounds eleven shillings and five pence, 
 value received. ' 
 
 J. B. Grutherot, John Burt. 
 
 35, Montague Plaee, 
 Bedford Place. 
 
 And Grutherot's name was written across the instrument as an 
 acceptance, and Bury's name on the back as an indorsement, 
 it was held that the plaintiff might treat the defendant Bury 
 either as a drawer of a bill or maker of a note, and therefore 
 was not bound to give him notice of dishonour.(/) ' 
 So where an instrument was in the following form : — 
 
 2\st October, 1804. 
 Two months after date pay to the order of John Jenkins, 
 £78 : lis., value received. 
 
 Thomas Stephens. 
 At Messrs. John Morson & Co. 
 
 iLord Ellenborough held that it was properly a bill of ex- 
 
 (e) Peto V. Reynolds, 9 Exch. 410 ; Armfield v. Allport, 27 L. J., Exch. 
 43 ; Fielder v. Marshall, 30 L J., C. P. 158 ; 9 C. B (N. S.) 606 (99 E. C. L. 
 R.), S. C. ; and a Court of law, in furtherance of justice and the Intentions 
 of the parties, will be astute to put such a construction upon it, ut res magis 
 mleai. But still, if it be a mere inchoate instrument, it is neither a bill of 
 ex'change nor a promissory note. ' Bee M'Call v. Taylor, 34 L. J. 365, and 
 the preceduig Chapter. 
 
 (/) Edis V. Bury, 6 B. & C. 433 (13 E. C. L. R.) ; 9 D. & R. 492 ; see 
 Edwards v. DicU, 4 B. & Aid. 213 (6 B. C. L. R.) ; Block y. Bell, 1 M. & Rob. 
 149 ; see Dickenson v. Teaguo, 4 Tyrwh. 450 ; 1 C, M. & R. 241, S. 0. ; 
 Lloyd v. Oliver, 18 Q. B. 471 (83 E. C. L. R.). 
 
144 IRRBGULAR INSTRUMENTS. 
 
 change, but that perhaps it might have been treated as a prom- 
 issory note, at the option of the holcler.(^Xl) 
 
 A man may draw a bill on himself,(/i) and of that opinion 
 were all the Judges of the C. P.{j) Perhaps such a bill would 
 be good where the drawer draws on himself payable Ho 
 ^ \ his own order ;{k) and a bill is sometimes drawn payable 
 to the drawee's order. It is conceived, that in the latter case, 
 as well as the former, the instrument might, when accepted be 
 declared on as a promissory note of the drawee. But a bill 
 payable to the drawee's order is clearly not a bill of ex- 
 change.(^) 
 
 If a man draw a bill upon himself, it may be treated by the 
 
 (g) Shuttleworth v. Stephens, 1 Camp. 407; Allan v. Mawson, 4 Camp. 
 115 ; Gray v. Milner, 8 Taunt.. 7o9 (4 E. C. L. R.) ; 3 B. Moore, 90, S. C. ; 
 Kex V. Hunter, R. & R. 0. C. 511 ; Armfiekl v. AUport, 37 L. J., Exch. 42. 
 
 (/t) Starke v. Cheesman, Carthew, 508 ; Dehors v. Harriot, 1 Show. 163 ; 
 Robinson v. Bland, 3 Burr. 1077. 
 
 (i) Magor v. Hammond, 0. P., cited by Bayley, J., 9 B. & C. 364 (17 E. 
 C. L. R.) ; and see Roach v. Ostler, 1 Man. & K. 130 ; Byles on Bills, 5th 
 American edition, p. 185. 
 
 (_k) 1 Pardessus, 351. 
 
 ( ) Reg. V. Barllett, 3 M. & Rob. 363. See Peto v. Reynolds, 9 Exch. 410. 
 
 (1) An indorsement on a boad, ordering the contents to be paid to order 
 for value received, is a good bill of exchange. Bay v. Freazer, 1 Bay, 66. 
 So of a request to pay a promissory note, written under the note by the 
 promisor ; and the drawee, after acceptance, is liable to an action. Leonard 
 v. Mason, 1 Wend. 523. As between indorsee and iiidorser, a promissory 
 nole is a l)ill of exchange as to demand and notice. Crenshaw y. McCierman, 
 ■ Minor, 295. Where a promissory note made by a resident of one State, and 
 payable to a person resident in another, is indorsed, if the indorsement can be 
 regarded as a bill, it is to be deemed a foreign bill. Carter v. Burley, 9 N. 
 Hamp. 558. A writing purporting to be a certificate that A. had deposited a 
 sum of money in a bank of the City of New York, dated July 6, 1839, and 
 payable oix the 1st December then next, to the order of A., and signed by the 
 president of the bank, was assigned to B. for value received by an indorse- 
 ment thereon subscribed by A. Held that such indorsement was a bill of 
 exchange, imposing on the parties the ordinary liabilities attached to thiit 
 kind of paper. Kilgore v. Bulkley, 14 Conn. 862. ' 
 
 Although a note be not in form negotiable, the payee may make it so by 
 indorsing it payable to order, after which it becomes, as between him and the 
 holder, an inland bill of exchange, which an indorsee takes subject to the 
 same rules which govern instruments negotiable in their inception. Brenizer 
 v. Wightman, 7 Watts & Sergl 364. See LeiJy v. Tammany, 9 Watts, 353 ; 
 Elkinton v. Fennimore, 13 Penna. Statei Rep. 173. 
 
IREBGULAK INSTRUMENTS. 145 
 
 holler as a note.(?/i) So may a bill drawn by abaiiking com- 
 pany in one place, on the same banking company in another 
 pluee.(n) 
 
 An instrument which directs the drawee to pay without ac- 
 ceptance, is nevertheless a bill of exchange.(o) 
 
 A note written by the creditor to his debtor at the foot of 
 the creditor's account, requesting the debtor to pay that ac- 
 count to the creditor's agent, has been held not a bill of ex- 
 change, nor an order for the payment of money within the 
 Stamp Act.(p) 
 
 Bills and notes must be for payment of money only, and not 
 for the payment ot money and the performance of some other 
 act. Thorefore,(5') a note to deliver up horses and a wharf, and 
 pay money at a particular day, was held no promissory note, 
 Nor must a bill or note be in the alternative, as to pay a sum 
 of money, or render A. B. to prison.(r)(l) 
 
 (m) Roach v. Ostler, 1 M. & R. 120. 
 
 (n) Miller v. Thomson, 3 M. & G. 576 (43 E. C. L. R.). 
 
 (0) Reg V. Kinnear, 3 M. & Rob. 117 ; Miller v. Thomson, 3 M. & G. 576 
 (43 E. C. L. R.). 
 
 (p) Norris v. Solomon, 3 M. & Rob. 266. But in America it has been held 
 that an indorsement on a bond or promissory note ordering the contents to be 
 jraid to order, is a good bill of exchange. Byles on Bills, 5th American edi- 
 tion, p. 184. 
 
 (!) Martin v. Chauntry, 3 Stra. 1271 ; Moore v. Vanlute, B. N. P. 372, 
 5tlied. ; Follettv. Moore, 19 L. J., Exch. 6; 4 Bxch. 410, S. C. In this 
 case a note, agreeing also to give real security, was held void as a note. But 
 a note reciting, that real security had been, given, is a good note, and requires 
 only a note stamp. Fancourt v. Thorne, 9 Q. B. 313 (58 E. C. L. R ) See 
 ante, Chapter IV. An instrument in this form, " I promise to pay C. A. D. or 
 bearer on demand the sum of 162. at sight, by giving up clothes and papers," 
 &c., was held a good promissory note, it being considered, that the latter 
 words impoited the consideration already received by the maker. Dixon.' 
 v; Nultall, 1 C, M. & R. 307 ; 6 0. & P. 330 (25 E. 0. L. R.), S. C. 
 
 (»•) Smith V. Boheme, Gilb. Ca. L. & E. 98, cited Lord Raym. 1896. 
 
 (1) A note promising to pay A. a, given sum in one from the first of 
 October following the date, in cattle or in grain the first of January following, 
 held void for uncertainty. Wainwright v. Straw, 15 Verm. 215. A note 
 payable "twenty-four after date" is not void for uncertainty, nor is it a note 
 on demand ; it is payable some time after date. Such a note is admissible in 
 evidence without other testimony, under an averment in the declaration th-at 
 twenty-four mouths after date was the time meant by the parties, the jury 
 
 10 
 
146 IRREGULAR INSTRUMENTS. 
 
 And it must be for money in specie ; therefore, a promise to 
 pay in three good East India bond8,(s) or in cash, or Bank of 
 England notes,(i) is not a promissory note.(l) 
 
 (s) Bull. N. P. 273. 
 
 (0 Bayley, 11, 6th ed. ; Ex parte Imeon, 3 Rose, 335 ; but see 3 & 4 Will. 
 4, 0. 98, s. 6 ; and Byles on Bills, 5th American edition. 
 
 being the judges of the fact of the time of payment intended. Conner v. 
 Routh, 7 How. Miss. 176. See Henschel v. Mahler, 3 Denio, 428 ; Sweetset 
 V. French, 13 Metcalf, 362 ; White v. Word, 23 Alabama, 442; Burnham v. 
 Alters, 1 Gray, 496 ; Nichols v. Frothingham, 45 Maine, 320 ; Pearson v. 
 Stoddard, 9 Gray, 199. In ascertaining the amount of a note, where there is 
 an uncertainty, it was held that the words in the body, not the figures in the 
 margin, should govern. Mears v. Graham, 8 Blackf: 144 ; Smith v. Smith, 
 1 Rhode Island, 398. In an action on a note for " the sum of fifty-two 35- 
 100," it was held that the fraction showed beyond question that the word 
 omitted was "dollais." Murrill v. Handy, 17 Missouri, 406. 
 
 (1) A note pa3'able in current funds or New York funds, is not negotiable. 
 Hasbrobk v. Palmer, 3 McLean, 10 ; Kirkpatrick v. McCollough, 3 Humph. 
 171 ; Collins v. Lincoln, 11 Venn. 368 ; Thompson v. Slown, 23 Wend. 71 ; 
 Whiteman v. Childress, 6 Humph. 303 ; Fry v. Rousseau, 3 McLean, 106 ; 
 see Swetland v. Creigh, 15 Ohio, 118 ; Besancon v. Shirley, 9 Smedes & 
 Marsh. 457 ; Cotkrill v. Kirkpatrick, 9 Missouri, 697 ; White v. Rithmonfl, 
 16 Ohio, 5 ; Wilburn v. Greer, 1 English, 255 ; Ogden v. Slade, 1 Texas, 13 ; 
 Fleming v. Null, 1 Texas, 246 ; Chevalier v. Buford, lb. 503. See ante p. 5, 
 n. (1). A bill payable in " currency" is not a bill of exchange. Faswell v. 
 Kennett, 7 Miss. 595. So a draft payable in " Arkansas money." Hawkins v. 
 Watkins, 5 Pike, 481. So "current rate of exchange to be added." Phila- 
 delphia Bank v. Newkirk, 2 Miles, 443. See Little v. Phoenix Bank, 7 Hill, 
 859 ; Bank of Hamburg v. Johnson, 3 Rich. 43. A bill payable in "funds 
 current in the city of New York," was held to be payable in gold and silver, 
 or their equivalent, and was therefore good as a bill of exchange. Lacy v. 
 Holbrook, 4 Ala. 88 ; Carter v. Penn, lb. 140! A note fur a sum certain, 
 paya,ble in cotton at a fixed price is a promissory note, and may be declared 
 on as such. Rankin v. Sanders, 6 How. Miss. 53. 
 
 It will be seen upon an examination of the foregoing cases, that many of 
 them are not so irreconcilable as at first sight they may appear. Many of 
 them construe the words current money, New York funds, Arkansas money, 
 used in bills and notes, to mean lawful gold or silver coin of the United 
 Stales. In Missouri, current ftinds is held to mean either coin or notes of tlie 
 Missouri Bank— a bank authorized by the State— and in Texas the terms 
 "bank notes," "good bank notes," or "current bank notes," as emplnyed 
 by them, are held to import in their ordinary acceptation such banlj bills only 
 as are redeemable in gold or silver, or such as are equivalent thereto.- A 
 contract for the payment of a certain sum in bank notes or other paper cur- 
 rency may or may not be equivalent to that sum in specie. The extent of tbe 
 obligation depends on the meaning which usage affixes to the terms, at the 
 time the contract was made. Usage gives force and effect lo language ; and 
 
IRRiaULAK INSTRUMENTS, 147 
 
 *And the sum must be certain, not susceptible of con- r«qq-| 
 tiiigent or indefinite additions. Therefore, where an in- 
 strument promised to pay J. S. the sum of 65^., with lawful 
 interest for the same, and all other sums which should be due 
 to him. Lord EUenborough held that it was not a promissory 
 note, even for the sixty -five pounds.(M) N'or must the sum payable 
 be subject to indefinite or contingent deductions. Thus, where 
 the defendant promised to pay 400^- to the representatives of J. 
 S., first deducting thereout any interest or money J. S. might 
 owe to the defendant, it was held no promissory note.(a;') 
 
 And for the payment of money. Where the instrument con- 
 tains a stipulation, that the money or a portion of it shall be 
 paid.by a set-oft', it is no promissory xxot&.{y) 
 
 . The order or promise must be to pay absolutely and at all 
 events ;(1) and payment must not depend upon a contingency.; 
 
 («) Smith V. Nightingale, 3 Stalls. 375 (3 E. 0. L. E.) ; Bolton v. Dug- 
 dale, 4.B. & Ad. 619 (24 E. C. L. R.), 1 N. & M. 412, S. C. 
 
 (K) Smith V. Nightingale, 2 Stark. 375 (3 E. C. L. R.) ; Barlow v. Broad- 
 hmst, 4 B. Moore, 471 (16 E. C. L. R.) ; and see Leeds v. Lancashire, 2 
 Camp. 305; Bolton v. Dugdale, 4 B. & Ad. (il9 (34 E. C. L. R.) ; 1 N. & 
 M. 412, 8. C. ; 2 Bligh, 79 ; Ayrey v. Fearnsides, 4 M. & W. 168. 
 
 iy) DaTies v. Wilkinson, 10 A. & E. 98 (37 E. C. L. R.) ; 2 P. & D. 256, 
 S. C. 
 
 as terms are generally understood in the ordinary transactions of life, so 
 should they be construed by courts of justice. 1 Texas, 246. 
 
 As to bills or notes payable in goods or merchandise, see Jerome v. Whit- 
 ney, 7 Johns. 321 ; Thomas v. Roosa, Ibid. 461 ; Ptdy v. Pickett, 1 Nott & 
 McCord, 254 ; Rhodes v. Lindley, 1 Hamm. Ch. Rep. 51 ; Atkinson v. 
 Manks, 1 Co wen, 691 ; Lawrence v. Doherty, 5 Yerger, 435 ; Burns v. 
 Graham, 4 Cowen, 452 ; Wyman v. Winslow, 2 Fairf. 398 ; Bailey v. 
 Symonds, 6 N. Hamp. 159 ; Smith v. Loomis, 7 Conn. 110. See ante p, 
 5, n. (1). 
 
 As to bills or notes payable in bank notes, see Keith v. Jones, 9 Johns. 120 ; 
 Judah V. Harris, 19 Ibid. 144 ; Leiber v. Goodrich, 5 Cowen, 136 ; Lange v. 
 Kohne, 1 MoCord, 115 ; Jones v. Fales, 4 Mass. 245 ; McCormick v. Trotter, 
 10 Serg. & Eawle, 94 ; Digberty v. Dumell, 5 Yerger, 451 ; Gray v. Dona- 
 hoe, 4 Watts, 400 ; 3 Kent's Com. 76. 
 
 (1) Bunker v. Atheam, 35 Maine, 364 ; Hays v. Qwin, 19 Indiana, 19. A 
 promissory note, in terms payable to order, but containing a condition that 
 it shall be given up to the maker as soon as the amount of it.is received by 
 the payee, is not negotiable. Hubbard v. Mosely, 11 Gray, 170. A written 
 
148 IBREGULAB, INSTRUMENTS. 
 
 for as observed by Lord Kenyon,(2:) " It would perplex com- 
 mercial transactions, if paper securities of this kind were issued 
 into the world, incumbered with conditions and* contingencies, 
 and if the persons to whom they were offered in negotiation 
 were obliged to inquire when these uncertain events would 
 probably be reduced to a certainty." Besides, the recognition 
 of conditional promissory notes would make a variety of con- 
 ditional promises in writing valid, without evidence of con- 
 sideration, and thus materially infringe on an established and 
 very salutary rule of law.(a) Thus, a note to this effect, " We 
 promise to pay A. B. 116^. lis. value received, on the death of 
 George Ilenshaw, provided he leaves either of us sufficient to 
 pay that said sum, or if we otherwise shall be able to pay it," 
 is not a promissory note within the statute.(6) So, a written 
 engagement to pay a certain sum so many days after the de- 
 fendant's marriage, is no promissory note, for, possibly, he 
 never may marry.(c) So, a paper, whereby the defendants prom- 
 r*Q4l ^^'^^ **° IP^y ^^® plaintiffs, or order, the sum of lU., 
 for value received, with interest at 5^. per cent., "andall 
 fines, according to the rule," cannot be declared on as a promis- 
 es) Carlos V. Fancourt, 5 T. B. 4-2. 
 {a) See Pearson v. Garrett, 4 Mod. 242. 
 
 (J) Roberts v. Peake, 1 Burr. 323 ; Leeds v. Lancashire, 2 Camp. 205. 
 (c) Beardsley v. Baldwin, 2 Stra. 1151 ; and see Pearson v. Garrett, 4 Mod. 
 243 ; Comb. 227, S. C, wliicli was before the statute 3 & 4 Anne, c. 9. 
 
 promise to pay money, on the happening of a contingency, does not import 
 a consideration suiBcient to support the promise, but one must be averred 
 and proved by the party seeking to recover upon such instrument. Conover 
 V. Stillwell, 34 New Jersey (Law), 54. A promise to the maker's own order, 
 " subject to the policy," and endorsed specially to the order of an insurance 
 company, is not negotiable. American Exchange Bank v. Blanchard, 
 7 Allen, 333. "Payable without defalcation or discount, provided said sum 
 is not in the meantime collected from assets of Pemberton & Co.," tlie 
 promise to pay is not conditional. The effect is simply to charge third per- 
 sons with notice, and imposes no obligation on the payees to collect any sum 
 from the assets mentioned. Pemberton v. Hoosier, 1 Kansas, 108. A note 
 payable in six months after date, if not paid when due, to bear ten percent 
 interest, is not a conditional note. Houghton v. Francis, 29 Illinois, 244. A 
 promise to pay "when any dividends shall be declared," by a certain cor- 
 poration, is payable on a contingency, being dependent on the will of the 
 coiporatioB, and is not a promissory note. Brooks v. Hargreaves, 21 Mich. 
 254. 
 
IKREGULAK INSTRUMENTS. 1-19- 
 
 sory note.{d) So, an order payable, " provided the terms men- 
 tioned in certain letters, written by the drawer, were complied 
 with," is no bill.(e) So a note promising to pay, " On the sale 
 orproduceof the White Hart, St. Alban's, Herts, and the goods, 
 &G., value received," is not a promissory note, though it be 
 averred that before action brought, the White Hart and the 
 ^oods were so!d.(/) The following instrument was held not to 
 be a note: "Borrowed and received of A. the sum of 200^ in 
 three drafts, by B., dated as under, payable to us on C, which 
 we promise to pay to the said A., with interest." The instru- 
 ment then specified the drafts which fell due at a future day. 
 Lord EUenborough observed, " There can be no doubt that the 
 money was not payable immediately, and that it was not to be 
 paid at all, unless the drafts were honoured."(^) So, an order 
 to pay at thirty days after the arrival of the ship Paragon at 
 Calcutta, was held to be no bill of exchange.(A) So, an order 
 to pay " 14^. 3s. out of the fifth payment, when it should be 
 d,ue, and should be allowed by J. S.," is no bill of exchange.(?) 
 But, "I promise to pay to J. S., or his order, at three months 
 after date, as per memorandum of agreement," was held to be a 
 ■promissory note, and that if the agreement made the promise 
 conditional, the defendant ought to have shown it by setting it 
 out in his plea. (A) 
 
 An instrument in this form, "At twelve months I promise to 
 pay A. B. 500^., to be held by them as collateral security for 
 any monies now owing to them by M. & M., which they may 
 be unable to recover on realizing the securities they now hold 
 
 (d) Ayrey v. Fearnsides, 4 M. & W. 168. 
 
 (e) Kingston v. Long, Bayley, 16, 6th ed. 
 (/) Hill V. Halfoid, 2 B. & P. 413. 
 
 (s) Williamson v. Bennett, 3 Camp. 417 ; and see Clarke v. Perceval, 3 B 
 & Ad. 660 (33 E. C. L. R.) ; Shenton v. James. 5 Q. B. 199 (48 B. C. L 
 R.) ; Drury v. Macaulay, 16 M. & W. 146 ; Alexander v. Thomas, 16 Q. B 
 333 (61 E. C. L R.) ; Storm v. Stirling, 3 E. & B. 833 (77 E. C. L. R.) 
 Cowie V. Stirling, 6 E. & B. 333 (88 E. C. L. R.) 
 
 (A) Palmer y. Pratt, 2 Bing. 18,5 (9 E. C. L. R.) ; 9 Moo. 358 ; Clarke v 
 Perceval, 2 B. & Ad. 660 (33 E. C. L. R.) ; Worley v. Harrison, 5 Nev. & 
 M. 173 ; SA.T& E. 669 (30 E. 0. L. R.), 8. C. 
 
 (OHayfJock v. Lynch, 2 Ld. Raym. 1563. 
 
 (*) Jmy V. Baker, E., B. & E. 459 (96 E. C. L. R.). 
 
150 IRREGULAR. INSTKUMENTS. 
 
 and others which may be placed ia their hands by him," is no 
 promissory note.(Z) 
 
 *But it is not material that the time when the event 
 L ■' may happen is uncertain, provided it must happen at 
 some time or other ; thus, a note payable on the death of A. 
 B., or of the maker, is gQod:(m) So, a note payable whei) a ' 
 King's ship shall be paid oS, has been held to be a good note, 
 the Court of Error observing, " The paying off of the ship is a 
 thing of a public nature."(n) But it is said,(o) that the Court 
 below assigned as a reason, that the ship would certainly be 
 paid oft" one time or other.(p) The contingency, in order to 
 vitiate the note as such, must be apparent on the face of the 
 instrument.(g') A promissory note payable with interest, twelve 
 months after notice, is not to be considered as payable on a 
 contingency, and is consequently, valid.(7-)(l) 
 
 0) Robins v. May, 11 A. & E. 314 (39 E. C. L. R.) ; 3 Per. & D. 147; 3 
 Jurist, 1188, S. C. 
 
 (m) Cooke V. Colehan, 2 Stra. 1317; Roffey v. Greenwell, 3 Per. & Dav. 
 365 ; 10 A. & E. 332 (37 E. C. L. R.). 
 
 (to) Andrews v. Franklin, 1 Stra. 24; Evans v. Underwood, 1 Wils. 263. 
 
 (0) And see Haussoullier v. Hartsink, 7 T. R. 733 ; Dixon v. Nuttall, 6 C. 
 & P. 330 (35 E. C. L. R.) ; 1 0., M. & R. 307, S. C. ; Goss v. Nelson, 1 Burr. 
 236. "I promise to pay or cause to be paid," is a good note, tlie alternative 
 expression importing the same tiling. Lovell v. Hill, 6 C. & P. 338 (35 E. C. 
 L. R.). 
 
 (p) Colehan v. Cooke, "Willes, 399 ; 1 Selw. N. P. 375. A note to an in- 
 fant, payable when he shall come of age, has been held good, if it specify the 
 particular day. Goss v. Nelson, 1 Burr. 336 ; 1 Lord Kenyon, 498, S. C. 
 
 (?) Richards v. Richards, 3 B. & Ad. 447 (23 E. C. L. R.). 
 
 (?•) Clayton v. Gosling, 5 B. & G. 360 (U E. C. L. R.) ; 3 D. & R. 110, S. 
 C. 
 
 (1) A writing in these words, " one day after date I promise to pay, oral 
 my death — W. G. C. or bearer" may be sued as a promissory note. Conn 
 V. Thornton, 46 Ala. 587. The negotiable character of a promissory note 
 is not affected by the fact that it is made pnyable ^y its terms, "on or before " 
 a future day therein named. It may be regarded as payable solely on the 
 day named. Jordan v. Tate, 19 Ohio St. 586. A memorandum at the foot 
 of a promissory note : " This note is to be valid as part pay for a piano forte 
 of nie at retail price " — held to be consistent with the promise in the note to 
 pay in money, and without explanatory evidence aliunde, to le^ve the appli- 
 cation at the payee's option. Preston v. Whitney, 33 Mich. 360. A note 
 payable thirty days after peace between the Confederate States and the United 
 States, is valid. It does not depend upon a condition. Morter v. Edwards, 
 30 Louis. Ann. 336. 
 
IRREflTJLAR IN Sp; RUM HINTS. 151 
 
 The happening of the contingency on which the payment of 
 the bill is dependent will not cure the defect.(s) 
 
 A note beginning, " I., A. B., promise," &c., and signed A. 
 B., or else C. D., is a good note against A. B., but only evidence 
 ^as against G. D. of a conditional agreement to pay if A. B- 
 does not.(<) 
 
 In this last case the maker was uncertain ; the note as such, 
 is not available at ail, if the payee be uncertain. Thus, where 
 the maker promised to pay to A. or to B. and C. a certain sum, 
 Abbot, C. J., said, " I have no doubt this instrument is not a 
 promissory note within the statute of Anne : for, if a note is 
 made paj^able to one or other of two persons, it is payable 
 only on the contingency of its not having been paid to the 
 other, and is not a good promissory no'e within the statute. "(m) 
 So a bill of exchange or *promissory note payable after 
 date to the secretary, for the time being of a company '■ -' 
 is void as a bill or note.(j;) 
 
 Upon the same principle, the bill or note must not be made 
 payable out of a particular fund,(?/) for the fund may prove 
 insuf&cient.(l) Plaintiff drew upon A., and required him to pay 
 
 («) Chitty, 7th ed. 45 ; Hill v. Halford, 2 B. & P. 413 ; Chitty, 9th ed. 135. 
 144. 
 
 (0 Ferris v. Bond, 4 B. & Al. 679 (6 B. C. L. R.) ; and see Appleby v. 
 Biddulph, B. N. P. 273, cited Morice v. Lee, 8 Mod. 383 ; 4 Via Ab. 240, 
 pi. 16. 
 
 («) Blanckenhagen v. Blundell, 2 B. & Aid. 417. 
 
 (s) Storm V. Stirling, 3 E. & B. 833 (77 B. 0. L. R.) ; Cowie v. Stirling, 6 
 E. & B. 883 (87 E. C. L. R.) ; Yates v. Nash, 8 C. B. (N. S.) 581 (98 B. C. 
 L. B ) ; but see Holmes v. Jaques, ante, p. 74. 
 
 (ji) Jenny v. Herle, 2 Ld. Raym, 1361 ; 8 Mod. 265 ; 1 Stra. 591, 8. 0. ; 
 Haydock v. Lynch, 2 Ld. Raym. 1553 ; Dawkes v. Lord de Loraine, 3 W. 
 Bla. 782 ; 3 Wils. 307, S. C. ; Yaies v. Grove, 1 Ves. juu. 280 ; Carlos v. Fan- 
 court, 5 T.. R. 483. 
 
 (1) It is essential to a bill or note that it be payable in money only at all 
 events, and not out of a particular fund. Atkinson v. Manks, 1 Cow. 691 ; 
 Conkv. Satterli'e, 6 Cow. 108; Waters v. Carlton, 4 Porter, 205; Tucker 
 V. Maxwell, 11 Mass. 143 ; Wooley v. Sergeant, 3 Halsf. 263 ; Mills v. Kuy- 
 kendall, 2 Blackf. 47; May v. Lansdown, 6 J. J. Marsh. 170; Van Vacter 
 V. FlacU, 1 Smedes & Marsh. 393 ; Hamilton v. Myrick, 3 Pike, 541 ; Rice 
 V. Porter, 1 Harr. 440 ; Wallace v. Dyson, 1 Spears, 137 ; Strader v. Batche- 
 
152 IRRSaULAR. INSTRUMENTS. 
 
 B. 11. per month, out of plaintiff's growing subsistence. This 
 was held no bill of exchange: for had plaintiff died, or his 
 subsistence been taken away, the bill would not have been pay- 
 
 ler, 8 B. Monroe, 168 ; Warden v. Dodge, 4 Denio, 159 ; Wilamoice v. 
 Adams, 8 English, 13 ; Kinney v. Lee, 10 Texas, 155 ; Owen v. Lavine, U 
 Arkansas, 389 ; Averott v.. Booker, 15 Grattan, lfi3 ; Van Wagner v. Terrell, 
 27 Barbour, 181 ; Gliddon v. McKinstry, 38 Alabama, 408 ; Harriman v, 
 Sanborn, 43 New Hampshire, 138 ; Harriman v. Sanborn, 43 New Hamp, 
 138; Second National Bank v. Lansing, 1 Mich. (G. C.) 181. A note by 
 ■which the maker promises to pay " when he receives it from the government, 
 for losses, or as soon as otherwise convenient," a sum certain for labor therein 
 mentioned to have been done, was held not to be a conditional obligation, 
 but to be payable in any event, in a reasoiiable time. Jones v. Eisler, 
 3 Kansas, 134. The words, " payable out of and from my separate property 
 and estate, with interest payable quarterly," added to an instrument drawn 
 in the usual form of a promissory note, will not affect its negotiability. The 
 expression of that fact does not state a particular fund, the separate property 
 of the maker not being in the legal sense a particular fund. Skillen v. Rich- 
 mond, 48 Barb. 438. An order directing the amount to be charged " against 
 •whatever amount may be due me, for my share of fish caught on board 
 Schooner Star," is an absolute order, and not limited to the proceeds of the 
 drawer's share. An action may be maintained thereon in the name of an 
 indorsee. Redmnn v. Adams, 51 Muine, 439 ; Grant v. Wood, 13 Gray, 3S0. 
 An order of a clii'nt on an attorney, to pay money out of any sum collected 
 for him, is not a bill of exchange. Crawford v. Cully, Wright, 453. So an 
 order for a certain amount in merchandise is not a bill of exchange. Gwinn 
 v. Roberts, 8 Pike, 73 ; Bradley v. Morris, 3 Scamm. 183 ; Carlelon v. 
 Brooks, 14 New Hamp. 149. An order to pay over rents accruing up to 
 a specified time, is not a bill of exchange, though the rents were payable- 
 in money. Morton v. Naylor, 1 Hill, 583. An order in this form, " On 1st 
 January, 1836, pay to my order five tliousand dollars, for value received, 
 and chaige the same to my account for transporting the United States mail," 
 is not negotiable, so as to entitle the holder to sue in his own name. Reeside 
 V. Kaox, 8 Whart. 333. A draft on the General Post Office to pay from 
 certain funds, is not a bill of exchange. Raisruel v. Ayliff, 16 Arkansas, 594. 
 An order drawn upon the treasury by a public ofHcer, for his salary, is not a 
 bill of exchange. Strader v. Batcheler, 8 B. Monroe, 168. A bill of ex- 
 change in form, drawn by one government on another, as the bill drawn by 
 our government on the government of France, for moneys due 'according 
 to a treaty stipulation, is not and cannot be governed by the law merchant, 
 and therefore is not subject to protest and consequential damages. United 
 States V. Bank of the United States, 5 Howard (U. &.) Rep. 383. An order 
 drawn in express terms for a particular fund, will operate as an assignment 
 of the fund ; but it will not be negotiable, and is not a bill of exchange. 
 Cowperthwaite v. Sheffield, 1 Sand. Sup. Ct. Rep. 416. A bill of exchange, 
 although accepted, does not operate lo invest the payee with the character of 
 an assignee of a particular fund, unless drawn on such fund. Wheeler v. 
 
IRKEGTJLAR INSTRUMENTS. 153 
 
 able.(0) So,_an order from the owner of a ship to the charterer, 
 to pay money on account of freight is no bill ; for the future 
 existence and amount of any debt due for freight are subject 
 to a contingency.(a) And the same rule holds if the contin- 
 gency is expressed on the back of the note, by an indorsement 
 made before the note was a perfect instruraent.(6) 
 
 But the statement of a particular fund in a bill of exchange 
 will not vitiate it, if introduced merely as a direction to the 
 drawee how to reimburse himself: thus, a bill directing the 
 drawee to pay J. S. 21. 10s., "as my quarterly half-pay," was 
 held to be a good bill.(c) 
 
 If the instrument be defective as a bill or note, it still may 
 be evidence of an agreement. (fi?), • 
 
 A coupon is not a promissory note(e) and requires no stamp.(/) 
 
 Letters of credit and circular notes are methods of obtaining 
 *credit abroad, introduced for the convenience of travel- 
 lers and agents, to obviate the trouble and risk of carry- ^ ^ 
 ing about coin or bank notes. 
 
 (s) Josselyn v. Lacier, 10 Mod. 394 ; Fort. 281, S. C. ; see Russell v. 
 Powell, 14 M. & W. 418. 
 (a) Banbury v. Lisselt, 2 Stra. 1211. 
 (p) Leeds v. Lancashire, 3 Camp. 30o. 
 ('■) Macleod v. Snee, 2 Str. 762. 
 
 (d) By the new Stamp Act, 1870, bills of exchange and promissory notes 
 include any documents or writings (other than bank notes) containing a 
 promise to pay out of a particular fund or on any condition, and such docu- 
 ments must be stamped in accordance with the act ; tljose in the form of bills 
 of exchange with a fixed duty of one penny being deemed payable on de- 
 mand, and those in the form of promissory notes in accordance wilh the 
 scale. See post. Chapter on Stamp, and Appendix. 
 
 (e) Enthoven v. Hoyle, 13 C. B. 373 ; 21 L. J., C. P. 100. 
 
 (/) 33 & 34 Vict. c. 97, Sched. tit. " Bill of Exchange," Exemption 9. 
 
 Stone, 4 Gill. 38. If the fund described in the bill is certain, and is mentioned 
 only as a means by which the drawee is to be indemnified, the bill is good. 
 Banek, &c., v. banders, 3 Marsh. 184; Varner v. Nobleborough, 2 Greenl. 
 123 ; Kelly v. Mayor, &c. , 4 Hill, 363 • Wiggin v. Taught, Cheves, 91 ; Hoyt 
 V. Lynch, 2 Sandf. Sup. Ct. Rep. 328 ; Smith v. Ellis, 39 Maine, 443 ; see 
 West V. Foreman, 31 Alabama, 400 ; Shields v. Taylor, 25 Mississipi, 143 ; 
 Coursin v. Ledlie's Admin's, 7 Casey, 506 ; Lowery v. Steward, 3 Busworth, 
 505. 
 
154 IRREGULAR INSTRUMENTS. 
 
 They are now generally used together, in which case the 
 letter of credit i? called a letter of indication. 
 
 A letter of credit is an authority, or rather request, by a 
 banker to his foreign correspondents therein named to discount 
 bills drawn on him by the bearer. Circular notes are the un- 
 signed drafts generally for some specific amount given with the 
 letter and to be used or not at the bearer's discretion. The 
 banker usually indemnifies himself against the bills by antici- 
 pation, in which case the bearer may recover the balance of his 
 deposit, if any, on surrendering the letter and unused note8.(^) 
 
 It seems that the effect of such instruments is to place the 
 issuer under a contract binding probably at law, but certainly 
 so in equity ,(A) to pay even without acceptance(i) all bills drawn 
 in conformity with the letter of credit ; and the holders are 
 not to be prejudiced by any set-off or cross claim by the drawee 
 against the di;awer.(A:) 
 
 Letters of credit to be used in England require a Btamp,(/) 
 those to be used abroad none,(m) though presumably the drafts 
 when brought to England for payment or negotiation fell within, 
 the 17 & 18 Vict. c. 83, s. 5, and now within the 51st sectiou of 
 the present act, and must be stamped in accordance with the 
 ad valorem scale. 
 
 (g) But if any of the notes be lost it lias been held that a satisfactory in- 
 demnity must be giyen. Confliins Company v. Parker, L. R., 3 C. P. 1. 
 {K) Agra and Mastevman's Bank v. Asiatic Bank, 36 L. J , Chanc. 3-'3. 
 (i) Com. Dig. tit. Meroh. F. 3. 
 (Jc) Agra and Masterman's Bank, supra. 
 (0 33 & 84 Vict. c. 97, s. 43. 
 (w) Sched. tit. "Bill of Exchange," Exemption 4. 
 
OF AGREEMENTS CONTROLLING BILLS OR NOTES. ISS' 
 
 *CHAPTER VIII. 
 
 [*9S] 
 
 OF AGREEMENTS INTENDED TO CONTROL THE OPERATION 
 OF BILLS OR NOTES. 
 
 VARIOUS SORTS OF AGRKEMEKTS, 98 
 BFFKCT OF CONTEMPORANEOUS 
 AGREEMENT WRITTEN ON THE 
 INSTRUMENT, . . . .98 
 
 EFFECT OF AN AGREEMENT SUB- 
 SEQUBN T WKITTBN ON THE 
 INSTRUMENT, . . . .99 
 
 EFFECT OF AGREEMENT ■WRITTEN 
 ON A DISTINCT PAPER, . . 99 
 
 AGREEMENT CONTEMPORANEOUS 
 BUT COLLATERAL, . . .99 
 
 PROMISSORY NOTE ACCOMPANYING 
 A MORTGAGE, . . . .100 
 
 EFFECT OF AN ORAL AGREEMENT, 100 
 
 DELIVERY IN THE NATURE OF 
 
 AN ESCROW, .... 100 
 
 AGREEMENT TO RENEW, . . 101 
 
 AGREEMENT ON BILL MUST BE 
 BEAD 101 
 
 PLEADING ON AGREEMENT, . 101 
 
 Such agreements are either written or oral. 
 
 A written agreement is either on the instrument itself or on 
 a distinct paper. Again, a written agreement on the instru- 
 ment itself is either contemporaneous with the completion of 
 the bill or note, or it is a subsequent agreement. Once more, 
 even a contemporaneous written agreement may either be parcel 
 of the instrument, or it may be collateral. 
 
 A memorandum on a bill or note, made before it is complete, 
 is sometimes considered as part of the instrument, so as to 
 control its operation, and sometimes not (1) 
 
 If the memorandum make the payment contingent, we have 
 seen that it will be incorporated in th^ instrum(3nt.(a') 
 *But where it is merely directory, as if it point out the '- ^-^ 
 
 (a) Leeds v. Lancashire, 2 Camp. 305 ; Hartley v. Wilkinson, 4 M. & S. 
 25 ; 4 Camp. 137, S. C. Though by way of indorsement ; Leeds v. Lanca- 
 sliire, ubi supra. A joint and several promissory note bad an indorsement in 
 this form : " The within note is given for securing floating advances from the 
 Lincoln and Lindsay Banking Company, to the within-named Thomas Smith, 
 sen. (one of the joint and several makers of the note), with lawful interest 
 for the same from the respective times when such advances have been or may 
 
 (1) A note will be controlled by anything written on or appended to it by 
 the parties. Eppinger v. Richards, 35 MiSsissipppi, 540. 
 
156 OF AGREEMENTS INTENDED TO CONTROL 
 
 place of payment,(6) 9r be merely the expression of au intended 
 courtesy, as if it intimate a wish that the money lent should 
 not be called in by the payee's executors till three years after 
 his death ;(c) or if it import that a collateral security (as the 
 deposit of title deeds) has been given 0) or be Intended only to 
 identify and ear-mark the instrument ;(e) it does not affect its 
 operation. But a memorandum of the time when a note falls 
 due may correct ah error in the datc.(/) 
 
 A memorandum made after the note is perfected and de- 
 livered is an independent agreement, requiring an agreement 
 stamp. " If," says Lord Ellenborough, " the memorandum 
 was subsequently written, when the note had been perfected 
 and delivered in its absolute state, it could not be considered as 
 a part of that instrument, though it chanced to be inscribed 
 upon the same piece of paper. In that case it was an agreement 
 by way of defeasance, and it lay upon the defendant to produce 
 it with a proper stamp."(^) 
 
 A written agreement, on a distinct paper, to renew, or in 
 other respects to qualify, the liability of the maker or acceptor, 
 is good as between the original partie8.(A) Thus if the drawer 
 agree to indemnify the acceptor against a claim by other 
 parties, for a portion of the sum for which the bill is drawn, 
 and the acceptor afterwards pays those other parties a sum to 
 
 be made, together with commissions, stamps, postages, &c., and all usual 
 charges and disbursements, not exceeding in the whole the sum of 100! 
 within mentioned." It was lield to be an agreement which could not be read 
 in evidence without an agre_ement stamp. Sed qucsre, whether the indorse- 
 ment were anything more than an explanation of the consideration. Cholm- 
 loy V. Darley, 14 M. & W. 344. See the Chapter on Considekation. 
 
 (J) Exon V. Eussell, 4 M. & S. 505. 
 
 (fl) Stone V. Metcalfe, 4 Camp. 317 ; 1 Stark. 53 (2 E. C. L. R.), S. 0. 
 
 id) Wise V. Charlton, 4 A. & E. 786 (31 E. C. L. E.) ; 6 Nov. & M. 364 ; 2 
 Har. & W. 49, S. C. ; Fancourt v. Thorne, 9 Q. B. 313 (58 E. C. L. R.). 
 
 («) Brill V. Crick, 1 M. & W. 383. 
 
 (/) Fitch V. Jones, 5 E. & B. 338 (85 E. C. L. R.). And see Fanshawe 
 V. Feet, 3 H. & N. 1. 
 
 (g) Stone v. Metcalfe, 4 Camp. 317; 1 Stark. 53 (3 E. C. L. R.) ; S. C. ;33 
 & 34 Vict. c. 97, s. 7. 
 
 (7i) Bowerbank v. Monteiro, 4 Taunt. 844 ; but it requires a good considera- 
 tion to support it. M'Manus v. Bark, 5 L; E., Ex. 65 ; 39 L. J. 65. ' 
 
THE OPERATION OF BILLS AND NOTES. 157 
 
 which the indemnity applies, the acceptor's liability, as between 
 himself and the drawer, will be reduced ipro tanto, and he will 
 not be turned round to his cross action on the indemnity. («) 
 
 But a written agreement, though contemporaneous, will not 
 restrain the operation of the bill or note if it be collateral, 
 *e.g; if other persons besides the parties to the bill or 
 note be parties to it.(J) ^ J 
 
 When a promissory note is given to accompany a mortgage 
 deed as further security, the mortgagee is not entitled to sever 
 thetwo,iand a court of equity will, if necessary, issue an in- 
 junction to restrain him from so doing.(A:) 
 
 No mere oral agreement can have any effect at law in con- 
 trolling the instrument, if contemporaneous with the making 
 of it ; for that would be to allow oral evidence to vary a writ- 
 ten contraet.(/) " Every bill or note," says Parke, J., •' imports ' 
 two things, value received, and an engagement to pay the 
 amount on certain specified terms. Evidence is admissible to 
 deny the receipt of value, but not to vary the en'gage- 
 ment."(m)(l) 
 
 (i) CaiT T. Stephens, 9 B. & C.'758 (17 B. C. L. R.) ; 4 M. & R. 591, 8. C. 
 
 (i) Webb V. Spicer, 19 L. J., Q. B. 34 ; 13 Q. B. 894, S. C. (66 E. C. L. 
 E.) ; on error iti Exchequer Chamber. 
 
 ik) Walker v. Jones, L. R., 1 Pr. C. 50. 
 
 (O'Hoare v. Graham, 3 Camp. 57; Free v. Hawkins, 8 Taunt. 93 (4 
 E. C. L. R.) ; 1 Moore, 38, S. C. ; Woodbridge v. Spooner, 3 B. & Al. 383 (5 
 E. C. L. R.) ; 1 Ch. R. 661, 8. 0. ; Moseley v. Hanford, 10 B. & C. 729 (81 
 E. C. L. R) ; Foster v. Jolly, 1 C. M. & R. 703 ; 5 Tyr. 355, S. C. ; Richards 
 T. Thomas, 1 C, M. & R. 773 ; Holt v. Miers, 9 C. & P. 191 (38 E. 0. L. 
 E.) ; Besant v. Cross, 10 C. B. 895 (67 E. C. L. R.). 
 
 (m) Abbott V. Hendricks, 1 M. & G. 795 (39 E. C. L. R.) ; Moseley v. 
 Hanford, 10 B. & C. 729 (21 E. 0. L. R ). "The cases," says Maule, J., 
 " show that although a consideration Is stated in the note you may show that 
 it was given for a different consideration, or without any consideration at all." 
 Abbott T. Hendricks, 1 M. & G. 791 (39 E. C. L. R.) ; 3 Scott, N. R. ie3, 8. 
 C. ; but see Ridout v. Bristow, 1 C. & J. 231 ; 1 Tyr. 84, S. C, and Edwards 
 
 (1) The American cases in affirmance of this point are very numerous. It 
 would incumber a note too much to begin to cite. The circumstances and 
 relations of the parties may always be shown by parol wherever they may 
 be calculated to assist in the interpretation of any doubtful words or clauses 
 
158 OF AGREEMENTS INTENDED TO CONTROL 
 
 An instrument under seiil may be delivered as an escroAv, 
 that is to say, with a condition that it shall not operate as a 
 
 V. Jones, 3 M. & W. 414 ; 5 Dowl. 585 ; 7 C. & P. 633 (33 E. C. L. R.), 
 
 s. c. ■ 
 
 In Pike v. Street, 1 Dans, & Lloyd, 159 ; 1 M. & M. 326 (33 B. C. L. R.), 
 it was held a good defence to an action against the drawer that, at the time 
 when the plaintiff discounted the bill, he verbally agreed, in the event of 
 its being dishonoured, not to proceed against the drawer, who had indorsed the 
 bill to him. In Abrey v. Crux, the conlrai-y was held by the Court of 0. P, 
 dubitante that most eminent judge, the late Mr. Justice Willes, L. R., 5 C. P. 
 37 ; 39 L. J. 9. 
 
 An indorsement may, perhaps, be excepted from the rule in the text on ac- 
 count of its twofold operation, it being at once an express assignment to the 
 indorsee of the right of action against the acceptor, and containing incorpor- 
 ated therewith an implied conditional promise on the part of the indorser to 
 pay on the acceptor's default. This conditional promise may be varied by 
 paiol, so as to increase the iudorser's liability. Phipson v. Kelner, 4 Camp. 
 385 ; Burgh v. Legge, 5 M. & W. 418 ; Brett v. Levett, 13 East, 314. It may, 
 therefore, by analogy well be varied by parol so as to diminish his liability. 
 
 See the numerous American authorities to this effect. Byles on Bills, 5th 
 American ed. 196. See also the Chapter on Transfer. 
 
 in a written contract, but evidence of an agreement or understanding between 
 the parties, or of their declarations at or' before the time of the execution of a 
 contract, to add, alter, or vary its legal construction, is universally repudiated 
 as inadmissible. To this rule the only recognized exception is fraud or mis- 
 take, which may always be shown when the contest is between the original 
 parties to a negotiable instrument. Mistake cannot of course affect the rights 
 of a third person, a bona fide holder without notice, who took the note or bill 
 for what it appeared on its face. Even fraud as between the original parties 
 can only so far affect the bona fide holder as to throw upon him the burden of 
 proving affirmatively that which the law presumes in general— the consideration 
 whicli he gave for the note or bill. In Pennsylvania, this exception of fraud 
 has been carried so far as in effect to repeal the rule itself. In Hill v. Gaw, 4 
 Barr, 493, in the Supreme Court In that State, in an action on a postdated 
 check, the defence set up a parol agreement made at the time of its execution, 
 that payment was not to be demanded at maturity, but that time was to be 
 given at the election of the drawee, it was held that such evidence was inad- 
 missible, and no defence to the action. " It has been repeatedly ruled," says 
 , Judge Rogers, " that oral testimony is not admissible to contradict, vary, or 
 materially affect, by way of explanation, any written contract. There are 
 some exceptions to this rule, founded in mistake or fraud, but they never have 
 been extended so far as to admit evidence of a distinct, independent parol 
 agreement, which varies, alters, or contradicts the written contract, whether 
 by bond, promissory note, bill of exchange, or by a check which is in the 
 nature of a bill of exchange." In the subsequent case of Renshaw v. Gans, 
 7 Barr, 117, which was not an action on a negbliablejnstrnment, though 
 when the question is as between the original parties, there is no difference . e- 
 
THE OPERATION OE BILLS AND NOTES. 159 
 
 *deed, except in a certain event. An instrument under 
 
 seal, which is to operate as an escrow, must be delivered, '- ^ 
 
 tween the cases, they laid down the position that fraud, to work an exception 
 to the rule, need not be fraud In the contract itself; but fraud in setting up 
 the writing in opposition to the agreement is equally excepted. "All the 
 cases," says Judge Bell, "show that to pave the way for the reception of 
 oral declaration, it is not necessary to prove a party was actuated by a frau- 
 \dulent intention at the lime of the execution of the writing. His original 
 object may have been perfectly honest and upright ; and if, to procure an un- 
 fair advantage to hiniself, he stibscqusntiy deny the parol qualification of the 
 written contract, it is such a fraud as willj under the rules operate to let in 
 evidence of the real intent and final conclusion of Ihe contractors.'' Hufst's 
 Lessee v. Kirkbride, 1 Binn. 616 ; Christ v. Diffenbach, 1 Serg. & Rawle, 
 464 ; Claik v. Partridge, 2 Barr, 13 ; Park v. Chadwick, 8 Watts & Serg 98. 
 The Courts in Pennsylvania exeicise a mixed jurisdiction of law and equity. 
 Equity is part of tlie law of that State, and is administered through common 
 law forms. It is unquestionable that where an important term of a contract, 
 and forming a part of its consideration, has been omitted Irom the wiiting, 
 equity will naturally incline to refer it to the head of mistake, or if that be 
 precluded by the circumstancls, to a design at the time to take advantage 
 subsequently of the omission. It might be said with propriety in such cases, 
 that the evidence is admissible, leaving to the jury the power of drawing the 
 inference from the subsequent setting up of the written contract in opposition 
 to the parol understanding, that it entered into the original intent of the party 
 taking the undue advantage. See Rearich v. Swinehart, 11 Penna. St. Rep. 
 233. It was held, therelbre, by the same Court, in Miller v. Henderson, 10 
 Serg. & Rawle, 2i)0, in which it was deciled that parol evidence is admissible 
 under the plea of payment to a suit in a bond against a surety to show that 
 he executed the bond under a declaration by the obligee that his signing was 
 mere matter of form, and that he never sliould be called on fcir payment, that 
 it must appear alfirmatively that the instrument was executed upon the faith 
 of such representations. " The destiuction of a wiitten instrument," says 
 C. J. Tilghman, " by parol evidence, may seem dangerous, and, in fact, it is 
 so. But the community would be in a still worse condition, if it were estab- 
 lished as an inflexible rule that when a man's hand was once got to an instru- 
 ment, no matter by what means, the door should be shut against all inquiry. 
 The encouragement to fraudulent villany would be so great, under such a 
 system, that the consequences might be intolerable." Upon the question of 
 fraud, see Stark v. Littlejobn, 4 Randolph, 368 ; Prentiss T. Russ, 4 Shepley, 
 30 ; Sanford v. Handy, 23 Wendell, 200 ; Holbrook v. Burt, 22 Pick, 546 ; 
 Gooch V. Conner, 8 Missouri, 391 ; McMahon v. Spangler, 4 Randolph, 51 ; 
 Hunt V. Rousmanier, 8 Wheat. 174; Fishell v. Bell, 1 Clark, 37; Jarvis v. 
 Palmer, 11 Paige, 650 ; Leonard v. Smith, 11 Metcalf, 330 ; Craig v. Baptist 
 Education Society, 7 B. Monroe, 73 ; Young v. Frost, 5 Gill, 287. 
 
 There are some cases, however, which apparently modify the rule in the 
 text, which it may be well tg notice. The reasons which forbid the admis- 
 sion of parol evidence, to alter or explain written agreements, or other in- 
 iustruments, do not apply to those contracts implied by operation of law, such 
 
160 OP AGREEMENTS INTENDED TO CONTKOL 
 
 not to, the obligee, but to a stranger, and regularly the conrli- 
 tion should be expressed bj apt words used at the time of the 
 delivery.(w) 
 
 in) Sheppard's Touchstone, 58 ; see Murray v. Earl of Stair, 2 B. & C. 83 
 (9 E. C. L. R.), where the Court of King's Bench expressed an opinion thsnt 
 it was not indispensable that express words should be used at the time, but 
 thMt the condition might be gathered from cireuuistances. 
 
 as that which the law implies in respect to the indorser of a note of hand. 
 Susquehanna Co. v. EvanSj 4 Wash. C. C. 480 ; Smith v. Barber, 1 Root, 
 207 ; contra, Barry v. Morse, 3 N.' Hamp. 132 ; Anderson v. Yell, 15 Arkan- 
 sas, 9 ; Cottrell v. Conklin, 4 Duer, 45 ; Prescott Bank v. Caverly, 7 Gray, 
 217; Bank of Albion v. Smith, 27. Barbour, 489; Goodwin v. Davenport, 47 
 Maine, 112. Parol evidei.ce is admissible to show the circumstances under 
 which, the time when, the purpose for which, and at whose request the 
 defendant wrote his name on the back of a note. Peirse v. Irvine, 1 Minne- 
 sota, 369 ; Winslow v. Boyden, Ibid. 363. The contract of indorsement may 
 be converted by parol evidence into an absolute and unconditional engage- 
 ment to pay ; and it may be explained by the |ame kind of evidence to mean 
 nothing more than the transfer of the note without recourse to the indorser. 
 Patterson v. Todd, 18 Penna. Stale Rep. 426; Bircleback v. "Wilkins, 23 Ibid. 
 26. An mdorsement of negotiable paper is not regarded in law as a written 
 contract to pay on condition that the usual demand be made and notice given ; 
 but from it is implied a contract to pay on such condition, and such implica- 
 tion is liable to be changed by the exhibition of circumstances inconsistent 
 with it, whether shown orally or in writing. The duty of demand and nolice 
 is not a part of the contract, bnt is merely a step in the remedy, wliich may 
 be waived by the indorser. Barclay v. Weaver, 19 Penna. State Rep. 396. 
 Under a plea of non est factum, in an aciion upon a note, parol evidence is 
 admissible to show the character of the delivery. Owings v. Grubb, 6 J. J. 
 Marshall, 31. Parol agreement may show the place where payment was to 
 be demanded. Brent v. The Bank of the Metropolis, 1 Peters, 92. So in an 
 action on a note given for a horse, to show that the note was to be returned 
 if the horse died. Barlow v. Flemming, 6 Alabama, 146. Where a collate- 
 ral agreement is made between two indorsers of a note, that they will divide 
 the loss between them, in an action by one of them against, the other upon 
 such agreement, parol evidence is admissible to prove the agreement. Phil- 
 lips V. Preston, 5 Howard (U. S.), 278. A written instrument may be con- 
 tradicted by the party making il, when offered in a suit to which a stranger 
 to the instrument is a party. Venable v. Thompson, 11 Alabama, 147. A 
 promissory note was signed A. B. (for C. D.). It was held that parol 
 evidence was admissible to show that it was intended to be the note of A. B. 
 Early v. Wilkinson, 9 Grattan, 68. The date of a note is only descriptive, is 
 not necessary to its validity, and may be explained. Dean v. De Lizardi, 34 
 Mississippi, 424. A. purchased goods of the plaintiff, and being required to 
 give security, made his promissory note payable to the order of plaintiff ; 
 the defendant, being requested, put his name on the back of it, and A. then 
 
THE OPERATION OF BILLS ASD NOTES. 161 
 
 In analogy with a deed, it has been held that a written 
 and signed simple contract may be delivered with an express 
 parol condition precedent, that it is not to take effect except in 
 
 delivered it to the plaintitf ; tlie plaintiff afterwards indorsed, putting his 
 name above that of the defendant. Held, that parol evidence was admissi- 
 ble to explain the circumstances under which the note was executed by A. 
 and the defendant, and indorsed by the plaintiff ; that the defendant was lia- 
 ble on the note as original maimer or promissor, and that the plaintiflF, by 
 afterwards indorsing the note, did not change its character or discharge the 
 defendant. Balser v. Scott, 5 Bichardson, 305. In an action to charge as 
 an original promissor, a person who put his name on the back of a note to 
 ■which he was not a parly, parol evidence is admissible to show that he signed 
 as an indorse)', and that such was the understanding of the parties at the 
 time. Lewis v. Harvey, 18 Missouri, 74. Parol evidence is admissible to 
 show the intent under which a note was indorsed by a stranger thereto. Rey 
 V. Simpson, 22 Howard (S. C), 341. In a suit by tlie payee of a promissory 
 note' against one who indorsed it in blank at the time it was given, parol evi 
 denoe is admissible to show the real nature of the transaction. Riley v. Ger- 
 rish, 9 Gushing, 104. A payee and first indorser cannot recover against the 
 second indorser on the note by parol evidence that he intended to become 
 bound to him. Hank v. Hand, 1 Bosworlh, 431. Parol evidence is admissi- 
 ble to show that parties are co-sureties. Clapp v. Rice, 13 Gray, 403. A 
 promissory note by three makers — the word " sureties " being written opposite 
 the names of the last two — though prima fade they are co-sureties, yet it can 
 be explained by parol evidence. Apgar v. Hiler, 4 Zabriskie, 812. If two 
 persons indorse a note, it may be shown that they did it as joint sureties. 
 Dunn V. Wade, 23 Missouri, 207. Where all the makers are on the face of 
 the note. principals, parol evidence is not admissible to show^ in a suit against 
 lliem, that one is surety for the other. Hendrickson v. Hutchinson, 5 Dutcher, 
 180. A bill was drawn "payable on the 6-9 Jan." Evidence of bankers 
 and merchants was allowed to show that 9 meant the last day of grace. Kel- 
 sey v. Hibbs, 13 Ohio (N. S.), 340. 
 
 The want, failure or illegality of consideration may be established by parol 
 testimony between the parties to a note. Reeve v. Uonghty, 19 Louis. Ann. 
 164. In an action by the indorsee against the maker, the defendant may show 
 that it was made for the accommodation and at the request of the plaintiff, 
 and without consideration. ^ Corlies v. Howe, 11 Gray, 125. An indorsee of 
 a note payable to Aaron " Formey" may aver a promise to pay Aaron 
 "Formliy," by the name of Aaron Formey, and may show by evidence that 
 Formby was the person really meant. Taylor v. Strickland, 37 Ala. 642. 
 Parol evidence may be received of an agreement by all the parties to a note, 
 that payment shall be made at a particular place. Meyer v. Hibsher, 47 New 
 York, 205. 
 
 In general, the legal effect of a note or bill cannot be varied by parol evi- 
 dence. Fields V. Stunston, 1 Coldwell, 40; Anspach v. Bast, 2 P. F. 
 Smith, 356 ; Howes v. Austin, 35 Illinois, 390 ; Lawrence v. Schmidt, Ibid. 
 440 ; Billan v. Hereklebrath, 33 Indiana, 71 : Butkr. v. Paine, 8 Minn. 324 • 
 
 II 
 
162 OF AGREEMENTS INTENDED TO CONTKOL 
 
 a certaiQ event. And the instrument may be so delivered, not 
 only to a stranger, but by one party to the other.(o) And evi- 
 dence of the parol condition is admissible not only when it is 
 relied on as a condition, but also when an action is brought 
 upon it as an agreement.(p)(l) 
 
 (o) Davis V. Jones, 17 0. B. G25 (48 E. C. L. R.) ; Pym v. Campbell, 6 E. & 
 B. 370 (83 E. C. L. R.) ; Wallis v. Littell, C. B., M. T. 1861 ; 31 L. J. 101, C. 
 P. ; Lara v. Hacon, E. T., C. P. 1863 ; Rogers v. Hadley, 32 L. J., Ex. 841. 
 In this last case parol evidence was held admissible to show that a contract 
 signed and delivered was never intended to be the real contract between the 
 parties. 
 
 (;;) Hindley v. Lacey, 34 L. J., C. P. 7. 
 
 Exeter Bank v. Slowell, 16 N. Hamp. 61 ; Heath v. Derry Bank, 44 Ibid. 
 174 ; Tower v. Richardson, 6 Allen, 351 ; Foy v. Blackstone, 31 Illinois, 538 ; 
 Arnold v. Spragne, 34 Vermont, 403 ; Myers v. Sunderland, 4 Greene, 567; 
 Morse v. Low, 44 Vermont, 561 ; Kaufman v. Barringer, 30 Louis. Ann. 419 ; 
 Skillen v. Richmond, 48 Barb. 438 ; Griffith v. Furry, 30 Illinois, 251 ; Koane 
 V. Greene, 24 Ark. 310. 
 
 Upon the question whether the contract implied by indorsement may be 
 varied by parol evidence, the cases are not harmonious. That it may, see 
 Benton v. Willa-rd, 17 N. Hamp. 593 ; Maynard v. Fellows, 43 N. Hamp. 255 ; 
 Sweet V. McAllister, 4 Allen, 353; Davis v. Morgan, 64 N. Car. 371; Ross 
 v. Espy, 16 P. P. Smith, 481; Kuntz v. Tempel, 48 Mo. 71 ; Rockhill v. 
 Moore, 1- Clark, 393 ; Denton v. Lytle, 4 Bush, 597; Lewis v. Williams, 4 
 Bush, 678 ; Smith v. Morrill, 54 Maine, 48 ; Sturtevant v. Randall, 53 Maine, 
 149 ; Smith v. Morrill, 54 Ibid. 48 ; Patton v. Pearson, 55 Maine, 39. Tbnt 
 it cannot, see Campbell v. Bobbins, 29 Indiana, 271 ; Woodward v. Foster, 
 18 Gratt. 200 ; Wright v. Morse, 9 Gray, 337 ; Peckham v. Oilman, 7 Minn. 
 446 ; Williams v. Smith, 48 Maine, 135 ; 'McGaugliey v. Elliott, 18 Indiana, 
 131 ; Goldman v. Davis, 33 Cal. 256 ; Johnson v. Crane, 16 N. Hamp. 68; 
 Drake v. Markle, 21 Indiana, 433 ; Bartlett v. Lee, 33 Geo. 491 ; Patten v. 
 Pearson, 57 Maine, 428. In an action upon a note containing an indorse- 
 ment without date or signature, "The conditions of the within note are as 
 follows ; B. (the payee) or bearer is not to ask or expect payment of said note 
 until C.'s (the maker's) old mill is sold for a fair price " — it was held admis- 
 sible to show by parol that the indorsement was on the note at the time it 
 was signed, and if so, it turned It into a mere agreement. Blake V. Cole- 
 man, 23 Wise. 415. 
 
 (1) A plea by the drawer of a bill setting up an oral agreement before or 
 at the time of drawing the bill, that the drawer should not be liable to pay it 
 until a time subsequent to that when it would by law be payable, is bail. 
 Rackmore v. Davenport, 14 Texas, 603. When a note is indorsed by several 
 in the usual manner, there being nothing on the face of the note to sliow a 
 joint indorsement, parol evidence is not admissii)le to show this. Williams 
 V. Smith, 48 Maine, 135. Evidence is admissible to prove that when a note 
 
THE OPERATION OF BILLS AND NOTES. 163 
 
 Wheu such a doctrine is extended to a bill of exchange or 
 promissory note, it is obvious that it must not be applied to the 
 injury of a holder for value without notice. 
 
 An agreement to renew, without more, is an agreement to 
 renew once only.(g') But the party liable is not bound to apply 
 during the currency of the bill; he may do so within a reason- 
 able time after the bill falls due.(r) 
 
 A defendant has a right at the trial to call oti the plaintiff to 
 read any indorsement that may be on the bill.(s) 
 
 Though it be necessary that the agreement affecting the 
 operation of the bill or note should be in writing, it is not 
 necessary in pleading to aver that it is in writing.(i() 
 
 (j) Innes v. Munro, 1 Exch. 473. See as to an agreement to renew being 
 used as a defence to an action. Flight v. Gray, 3 C. B., N. S. 320 (91 E. C. 
 L. E.) ; "Webb v. Spicer, 13 Q. B. 886, 894 (66 E. 0. L. R.) ; Salmon v. Webb, 
 3 H. L. Cas. 510. The point did not arise in Innes v. Munro. 
 
 (r) Maillard v. Page, L. R., 5 Ex. 313. 
 
 (s) Richards v. Frankum, 9 0. & P. 221 (38 E. C. L. R.). As to agree- 
 ments by clerks in fraud of their employers, see Bosanquet v. Foster, 9 C. & 
 P. 659 (38 E. C. L. R.) ; Bosanquet v. Corser, 9 C. & P. 664 (38 E. C. L. R.). 
 
 (0 Kearns v. Durell, 18 L. J., C. P. 28 ; 6 C. B. .596 (60 E. C. L. R.), S. 
 C. See Gilbert v. Whitmarsh, 8 Q. B. 969 (55 E. C. L. R.) ; Austin v. Toung, 
 Li. R., 4 C. P. 553. 
 
 is dated in December, and made payable on "the 25th of December next" — 
 December instant was intended. McCrary v. Caskey, 27 Georgia, 54. 
 
 Like deeds, promissory notes can be delivered as escrows to take effect only 
 upon the happening of a certain event. Foy v. Blackstone, 31 Illinois, 538. 
 A promissory n'ote when once delivered to the payee will not be considered 
 as an escrow. If no fraud be charged, proof of an oral agreement by which 
 the note was to become legally binding, not from its delivery according to its 
 tenor, but on the happening of a certain contingency, is inadmissiblfc. Mass- 
 mann v. Holcher, 49 Missouri, 87. A bona fide holder for value without 
 notice may enforce payment against the maker of a note delivered as an 
 escrow, and surrendered to the payee without authority. Fearing v. Clark, 
 83 Mass. 74. 
 
164 
 
 OF THE STAMP. 
 
 [*102] 
 
 *CHAPTER IX. 
 
 OF THE STAMP. 
 
 THE PKBSKNT STAMP ACT, . . 102 
 
 HOW INSTKUMBNTS ARE TO BE 
 
 WRITTEN AND STAMPED, . 103 
 
 SEPARATE DUTIES IN CERTAIN 
 
 CASES, 103 
 
 STAMPS APPROPRIATED TO PAR- 
 TICULAR INSTRtlMBNTS, . .103 
 
 FOREIGN CURRENCIES, . . 103 
 
 BTiMPING AFTER EXECUTION, . 104 
 
 INSTRUMENT NOT DULY STAMPED 
 INADMISSIBLE EXCEPT IN CRIM- 
 INAL PROCEEDINGS, . . . 104 
 
 STAMPS TO BE IMPRESSED ONLY, 
 UNLESS THERE BE A SPECIAL 
 PROVISION TO THE CONTRARY, 104 
 
 ADHESIVE STAMPS, HOW CAN- 
 CELLED, 105 
 
 INTERPRETATION OP TERMS, . 105 
 
 BANK NOTE, . . . .105 
 
 BILLS OP EXCHANGE, . . .106 
 
 PROMISSORY NOTES, . . .106 
 
 FIXED DUTY ON BILL OF EX- 
 CHANGE PAYABLE ON DEMAND, 107 
 FOREIGN BILLS AND NOTES, . 107 
 
 WHEN BILLS OR NOTES MAY BE 
 
 STAMPED AFTER EXECUTION, •. 108 
 ISSUING UNSTAMPED INSTRU- 
 MENTS, 108 
 
 STAMP ON SETS OP BILLS, . . 108 
 
 FOREIGN SECURITIES, . . . lOQ 
 
 NOTARIAL ACTS 1)09 
 
 RECEIPTS, 109 
 
 SCHEDULE TO THE ABOVE ACT, . 110 
 RESERVATION OF INTEREST, . 114 
 
 EFFECT OF WANT OF STAMP, . 114 
 PRESUMPTION AS TO STAMP, . 116 
 
 The Stamp Act of 1870, 33 & 34 Vict. c. 97,(a) came into 
 operation on the first day of January, 1871, and is the act now 
 in force.(l) 
 
 (a) Followed by the Stamp Duties Management Act, 33 & 34 Vict. c. 98, 
 and tlie Inland Revenue Repeal Act, 83 & 34 Vict. c. 99. 
 
 (1) The Acts of Congress of June 30, 1864, as amended by the Acts of 
 March 8, 1865, and July 13, 1866, have provided for stamps, which so for as 
 relate to the subjects treated of in this work, are as follows : 
 
 Bank Check, draft, or order for the payment of any sum of money whatso- 
 ever, drawn upon any bank, banker, trust company, or for any sum exceed- 
 ing $10, drawn upon any other person or persons, companies or corporations, 
 at sight or on demand, 2 cents. 
 
 Bill of Exchange (Inland), draft or order for the payment of any sum of 
 money, not exceeding $100, otherwise than at sight or on demand, or any 
 promissory note (except bank notes issued for circulation, and checks made 
 and intended to be forthwith presented, and ^(ijiich shall be presented to » 
 bank or banker for payment), or any memorandum, check, receipt or other 
 written or printed evidence of an amount of money to be paid on demand or 
 at a time designated, for a sum not exceeding $100, 5 cents ; and for every ad- 
 ditional $100, or fractional part thereof in excess of $100, 5 cents. 
 
 Bill of Exchange (Foreign), or letter of credit drawn in, but payable out 
 
OF THE STAMP. 165 
 
 There would be great difficulty and confusion in attempting 
 in one place a sketch of the law as it now stands with refer 
 
 of the United States, if drawn singly or olUerwise tlian in a set of three or 
 more according to tlie custom of meicliants and bankers, sliall pay tlie same 
 rates of duty as inland bills of exchange or promissory notes. 
 
 If drawn in sets of three or more : For every bill of each set, when the sum 
 made payable shall not exceed $100, or the equivalent thereof in any foreign 
 country, in wliich such bills may be expended, according to the standard of 
 value fixed by the United States, 2 cents. 
 
 And for every additional hundred dollars or fractional part thereof in ex- 
 cess of $100, 3 cents. 
 
 Certificate of deposit of any sum of money in any bank or trust company, 
 or with any banker or person acting as such, if for a sum not exceeding $100, 
 S cents ; for a sum exceeding $100, 5 cents. 
 
 Protest. — Upon the protest of every note, bill of exchange, check or draft, 
 or any marine protest, whether protested by a notary public, or by any other 
 officer who may be authorized by the law of any State or States to make 
 such protest, 35 cents. 
 
 Provided, that when more than one signature is aflSxed to the same paper, 
 one or more stamps may be affixed thereto representing the whole amount of 
 the stamp required for such signatures ; and that the term money,, as herein 
 used, shall be held to include drafts and instruments given for the payment 
 of money. 
 
 No Instrument, document, writing, or paper of any description, required 
 by law to be stamped, shall be deemed or held invalid and of no effect for 
 the want of the particular kind or description of stamp designated for and 
 denoiting the duty charged on any such instrument, document, writing, or 
 paper, provided a legal stamp or stamps, denoting a duty of equal amount, 
 shall have been duly affixed and used thereon. 
 
 In any and all Cases where an adJtesive stamp shall be used for denoting 
 any duty imposed by this Act, the person using or affixing the same shall 
 write thereupon the initials of his name, and the date upon which the same 
 shall be attached or used, so that the same may not again be used. And if 
 any person shall fraudulently make use of an adhesive stamp to denote any 
 duty imposed by this Act, without so effectually cancelling and obliterating 
 ■such stamp, he, she or they shall forfeit the sum of fifty dollars. 
 
 Any person or persons who shall make, sign or issue, or who shall cause to 
 be made, signed or issued, any instrument, document, or paper of any kind 
 or description whatever, or shall accept, negotiate or pay, or cause to *e ac- 
 cepted, negotiated or paid, any bill of exchange, draft or order, or promis- 
 sory note for the payment of money, without the same being duly stamped, 
 or having thereupon an adhesive stamp for denoting tlie tax chargeable 
 thereon, and cancelled in the manner required by law, with intent to evade 
 the provisions of this Act shall, for every such offence, forfeit the sum of 
 fifty dollars, and such instrument, document or paper, draft, order or note, 
 not being stamped according to law, shall be deemed invalid and of no effect. 
 
 In all cases where the party has not affixed to any instrument the stamp re- 
 
166 OF THE STAMP. 
 
 ence to bills and notes made before these acts as well as since ; 
 it has therefore been thought conducive to perspicuity to state 
 in the text the existing acts only, and to relegate to the Ap- 
 
 quired by law thereon, at the time of making or issuing the said instrument, 
 and he or tliey, or any party having an interest therein, shall be subsequently 
 desirous of affixing such stamp to said instrument, or if said instrument be 
 lost to a copy thereof, he or they shall appear before the collector of the 
 revenue of the proper district, who shall, upon the payment of the price 
 of the proper stamp required by law, and of a penalty of fifty dollars ; and 
 when the whole amount of the tax denoted by the stamp required shall ex- 
 ceed the sum of fifty dollars, on payment also of interest at the rate of six 
 per centum on said lax from the day on which such stamp ought to have been 
 affixed, affix the proper stamp to such instrument or copy, and note upon 
 the margin thereof the date of bis so doing, and the fact that such penalty 
 has been paid, and the same shall thereupon be deemed and held to be as 
 valid to all intents and purposes as if stamped when made or issued. 
 
 When it shall appear to said collector, upon oalh or otherwise to his satisfac- 
 tion, that any such instrument has not been duly stamped at the time of mak- 
 ing or issuing the same, by reason of accident, mistake, inadvertence or urgent 
 necessity, and without any wilful design to defraud the United States of the 
 stamp, or evade or delay the payment thereof, then and in such case, if sucU 
 instrument, or if the original be lost, a copy thereof duly certified by the 
 officer having charge of any records in which such original is required to be 
 recorded, or otherwise duly proven to the satisfaction of the collector, shall, 
 within twelve calendar months after the first day of August, 1866, or within 
 twelve calendar months after the making or issuing thereof, be brought to the 
 said collector of revenue to be stamped, and the stamp tax chargeable thereon 
 shall be paid, it shall be lawful for the said collector to remit the penalty afore- 
 said, and to cause such instrument to be duly stamped. 
 
 In all cases where the party has not affixed the stamp required by law upon 
 any instrument made, signed or issued at a time when and at a placewhere 
 no collection district was established, it shall be lawful for him or them, or 
 any party having an interest therein, to affix the proper stamp thereto, or if 
 the original be lost, to a copy thereof ; and the instrument or copy to which 
 the proper .stamp has been thus affixed prior to January 1, 1867, and there, 
 cord thereof shall be as valid to all intents and purposes as if stamped by the 
 collector in the manner hereinbefore provided. 
 
 The acceptor or acceptors of any bill of excliange or order for the payment 
 of any sum of money, drawn or purporting to be drawn in any foreign coun- 
 try, but payable in the United States, shall, before paying or accepting the 
 same, place thereupon a stamp indicating the duty upon the same as the law 
 requires for inland bills of exchange or promissory notes, and no bill of ex- 
 change shall be paid or negotiated without such stamp ; and if any person 
 shall pay or negotiate, or oflfer in payment, or receive or take in payment any 
 such draft or order, the perscm or persons so otTending shall forfeit the sum of 
 |200. « 
 
 No stamp duty shall be required on deposit notes to mutual insurance com- 
 
OPTHESTAMP. ■ 167 
 
 pendix observations made in former editions of this book on 
 the acts then in force. 
 
 The following are the provisions contained in the act and 
 schedule thereto, which relate to bills of exchange' and pro- 
 missory notes : — 
 
 By sect. 7, (1) Every instrument written upon stamped ma- 
 terial is to be written in such manner, and every instrument 
 partly or wholly written before being stamped is to be so 
 stamped, that the stamp may appear on the face of the r*inq-i 
 *instrument, and cannot be used for or applied to any 
 -other instrument written upon the same piece of material. 
 
 (2) If more than one instrument be written upon the same 
 piece of material, every one of such instruments is to be separ- 
 ately and distinctly stamped with the duty with which it is 
 chargeable. 
 
 By sect. 8, Except where express provision to the contrary 
 is made by this or any other act, 
 
 (1) An instrument containing or relating to several distinct 
 matters is to be separately and distinctly charged, as if it were 
 a separate instrument, with duty in respect of each such 
 matters. 
 
 (2) An instrument made for any consideration or consider- 
 ations in respect whereof it is chargeable with ad valorem duty, 
 and also for any further or other valuable consideration or con- 
 siderations, is to be charged with duty in respect of such last- 
 mentioued consideration or considerations as if it were a sep- 
 arate instrument made for such consideration or considerations 
 only. 
 
 By sec, 9, (1) A stamp which by any word or words on the 
 
 panies for insurance upon wliich policies subject lo stamp duties have been or 
 are to be issued, nor to any indorsement of a negotiable instrument, or on 
 any warrant of attorney accompanying a bond or note, when such bond or 
 note shall have affixed thereto the stamp or stamps denoting the duty re- 
 quired ; and whenever any bond or note shall be secured by a mortgage, but 
 one stamp shall be required to be placed on such papers : Provided, that the 
 slamp duty placed thereon shall be the highest rate required for said inslru 
 ments or either of them. 
 
168 OF THE STAMP. 
 
 face of it is appropriated to any particular description of in- 
 strament is not to be used, or, if used, is not to be available, 
 lor an instrument of any other description. 
 
 (2) An'iustrument falling under the particular description to 
 which any stamp is so appropriated as aforesaid is not to be 
 deemed duly stamped, unless it is stamped with the stamp 
 so appropriated. 
 
 ft 
 
 By sect. 11, Where an instrument is chargeable with ad 
 valorem duty in respect of any money in any foreign or colonial 
 currency, such duty shall be calculated on the value of such 
 money in British currency according to the current rate of ex- 
 change on the day of the date of the instrument. 
 
 By sect. 12, Where an instrument is chargeable with ad 
 valorem duty in respect of any stock or of any marketable 
 security, such duty shall be calculated on the value of such 
 stock or security according to the average price thereof on the 
 day of the date of the instrument. 
 
 By sect. 13, Where an instrument contains a statement of 
 current rate of exchange, or average price, as the case may re- 
 quire, and is stamped in accordance with such statement, it is, 
 so far as regards the subject-matter of such statement, to be 
 r*l041 ^®^™®^ ^'^'y stamped, unless or until it is shown that 
 *such statement is untrue, and that the instrument is 
 in fact insufficiently stamped. 
 
 By sect. 15, (1) Except where express provision to the con^ 
 trary is made by this or any other act, any unstamped: or in- 
 sufficiently-stamped instrument may be stamped after the 
 execution thereof, on payment of the unpaid duty and a penalty 
 of ten pounds, and also by way of further penalty, where the 
 unpaid duty exceeds ten pounds, of interest on such duty, at 
 the rate of five pounds per centum per annum, from the day 
 upon which the instrument was first executed up to the time 
 when such interest is equal in amount to the unpaid duty.(6) 
 
 (6) There are appareotly three cases in which a bill or note may be stamped 
 after execution : — 
 
OF THE STAMP. 169 
 
 And the payment of any penalty or penalties is to be denoted 
 on the instrument by a particular stamp. 
 (2) Provided as follows : 
 
 (a) Any unstamped or insufficiently-stamped instrument, 
 
 which has been first executed at any place out of the 
 United Kingdom, may be stamped, at any time 
 within two months after it has been first received 
 in the United Kingdom, on payiAent of the unpaid 
 duty only: 
 
 (b) The commissioners may, if they think fit at any time 
 
 within twelve months after the first execution of 
 any instrument, remit the penalty or penalties, or 
 any part thereof. 
 
 By sect. 17, Save and except as aforesaid, no instrument ex- 
 ecuted in any part of the United Kingdom, or relating, where- 
 soever executed, to any property situate, or to any matter or 
 thing done or to be done, in any part of the United .Kingdom, 
 shall, except in criminal proceedings, be pleaded or given in 
 evidence, or admitted to be good, useful, or available in law or \ 
 equity, unless it is duly stamped in accordance with the law in 
 force at the time when it was first executed. 
 
 3y sect. 23, Except where express provision is made to the 
 contrary, all duties are to be denoted by impressed stamps on]y.(c) 
 
 *By sect. 24, (1) An instrument, the duty upon which 
 is required, or permitted by law, to be denoted by an ^ ^ 
 adhesive stamp, is not to be deemed duly stamped with an ad- 
 hesive stamp unless the person required by law to cancel such 
 .adhesiv€f stamp cancels the same by writing on or across the 
 
 1. Where the bill or note is drawn or made abroad. See post, s. 51. 
 
 3. When a bill or note bears an impressed stamp of sufiBcient value but 
 wrong denomination. See post, s. 53. 
 
 3. In the case of a bill of exchange payable on demand (which by s. 48, 
 includes cheques, &c.), and liable to a fixed duty of Id., deuotable by an 
 adhesive stamp, it is competent for the drawee to affix the stamp. See post, 
 s. 54. 
 
 (c) The use of adhesive stamps is permissible in tlie case of bills of ex- 
 change payable on demand (which include cheques, &c., s. 48), and is obli- 
 gatory in the case of bills or notes drawn or made out of the United. King- 
 dom. See post, BS. 50, 51. 
 
170 OP THE STAMP. 
 
 stamp his name or initials, or the name or initials of his firm, 
 together with the true date of his so writing, so that the stamp 
 may be eft'ectually cancelled, and rendered incapable of being 
 used for any other instrument, or unless it is otherwise proved 
 that the stamp appearing on the instrument was affixed thereto 
 at the proper time. 
 
 (2) Every person who, being required by law to cancel an 
 adhesive stamp, wilfully neglects or refuses duly and effec- 
 tually to do so in manner aforesaid, shall forfeit the sum of ten 
 pounds. 
 
 By sect. 36, The duty of sixpence upon an agreement may 
 be denoted by an adhesive stamp, which is to be cancelled by 
 the person by whom the agreement is first executed. 
 
 By sect. 45, The term "banker" means and includes any 
 corporation, society, partnership, and persons, and every indi- 
 vidual person carrying on the business of banking in the United 
 Kingdom; 
 
 The term " bank note" means and includes — 
 
 (1) Any bill of exchange or promissory note issued by any 
 
 banker, other than the Governor and Company of 
 the bank of England, for the payment of money 
 not exceeding one hundred pounds to the bearer on 
 demand : 
 
 (2) Any bill of exchange or promissory note so issued 
 
 which entitles or is intended to entitle the bearer 
 or holder thereof, without indorsement, or without 
 any further or other indorsement than may be 
 thereon at the time of the issuing thereof, to the 
 payment of money not exceeding one hundred 
 pounds on demand, whether the same be so ex- 
 pressed or not, and in whatever form, and by 
 whomsoever such bill or note is drawn or made. 
 
 By sect. 46, A bank note issued duly stamped, or issued un- 
 stamped, by a banker duly licensed or otherwise authorized 
 *to issue unstamped bank notes, may be from time to 
 L J time re-issued without being liable to any stamp duty by 
 reason of such re-issuing. 
 
OF THE STAMP. 171 
 
 . By sect. 47, (1) If any banker, not being duly licensed or 
 ©therwiae authorized to issue unstamped bauk notes, issues, or 
 causes or permits to be issued, any bank note not being duly 
 stamped, he shall forfeit the sum of fifty pounds. 
 -. (2) If any person receives or takes any such bank note in 
 payment or as a securitj', knowing the same to have been is- 
 sued uHstampod contrary to law, he shall forfeit the sum of 
 twenty pounds. 
 
 By sect. 48,(1) The term "bill of exchange" for the pur- 
 poses of this act includes also draft, order, cheque, and letter 
 of credit, and any document or writing (except a bank note) 
 entitling or purporting to entitle any person, whether named 
 therein or not, to payment by any other person of, or to draw 
 upon any other person for, any sum of money therein men- 
 tioned. 
 
 (2) An order for the payment of any sum of money by a bill 
 of exchange or promissory note, or for the delivery of any bill 
 of exchange or promissory note in satisfaction of any sum of, 
 money, or for the payment of any sum of money out of any 
 particular fund which may or may not be available, or upon 
 any condition or contingency which may or may not be per- 
 formed or hajipen, is to be deemed for the purposes of this act 
 a bill of exchange for the payment of money on demand. 
 
 (3) An order lor the payment of any sum of money weekly, 
 monthly, or at any other stated periods, and also any order for 
 the payment by any person at any time after the date thereof 
 of any sum of money, and sent or delivered by the person 
 making the same to the person by whom the payment is to be 
 made, and not to the person to whom the payment is to be 
 made, or to any person on his behalf, is to be deemed for the 
 purposes of this adt a bill of exchange for the payment of 
 money on demand. 
 
 By sect. 49, (1) The term " promissory note" means and in- 
 cludes any document or writing (except a bank note) contain- 
 ing a promise to pay any sum of money. 
 
 (2) A note promising the payment of any sum of money out 
 of any particular fund which may or may not be available, or 
 upon any condition or contingency which may or may not be 
 
172 OF THE STAMP. 
 
 perforiified or happeu, is to be deemed for the *purpose8« 
 '- J of this act a promissory note for the said sura of 
 monej. 
 
 By sect. 50, The fixed duty of one penny on a bill of ex- 
 change for the payment of money on demand may be denoted 
 by an adhesive statmp, which is to be cancelled by the person: 
 by whom the bill is signed before he delivers it out of his 
 hands, custody, or power. 
 
 By sect. 51, (1) The ad valorem duties upon bills of exchange 
 and promissory notes drawn or made out of the United King- 
 dom are to be denoted by adhesive stamps, 
 
 (2) Every person into whose hands any such bill or note 
 comes in the United Kingdom before it is stamped shall, before 
 he presents for payment, or endorses, transfers, or in any man- 
 ner negotiates, or pays such bill or note, affix thereto a proper 
 adhesive stamp or proper adhesive stamps of sufficient amount', 
 and cancel every stamp so affixed thereto.(rf) 
 
 (3) Provided as follows : 
 
 (a) If at the time when any such bill or note comes iuto 
 the hands of any bona fide holder thereof there is 
 affixed thereto an adhesive, stamp etfectually ob- 
 literated, and purporting and appearing to be duly 
 cancelled, such stamp shall, so far as relates to such 
 holder, be deemed to be duly cancelled, although it 
 may not appear to have been so affixed or cancelled 
 by the proper person. 
 
 (6) If at the time when any such bill or note comes into 
 the hands of any bona fide holder thereof there is 
 affixed thereto an adhesive stamp not duly cancelled, 
 it shall be competent for such holder to cancel such 
 stamp as if he were the person by whom it was 
 affixed, and upon his so doing such bill or note shall 
 be deemed duly stamped, and as valid and available 
 as if the stamp had been duly cancelled by the per- 
 son by whom it was affixed. 
 
 id) It is not necessary that the instrument should be stamped before it is 
 presented for acceptance. Sharpies v. Rickards, 3 H. & N. 57 ; Griffin V- 
 Weathersby, L. R., 3 Q. B. 753.. And see post, Appendix. 
 
OF THE STAMP. 173 
 
 (4) But neither of the foregoing provisoes is to relieve any 
 person from any penalty incurred by him for not cancelling any 
 adhesive stamp. 
 
 By sect. 52, A bill of exchange or promissory note purport- 
 ing to be drawn or made out of the United Kingdom is, for the 
 purposes of this act, to be deemed to have been so *drawn 
 or made, although it may in fact have been drawn or ^ -' 
 made within the United Kingdom. 
 
 By sect. 53, (1) Where a bill of exchange or promissory note 
 has been written on material bearing an impressed stamp of 
 , sufficient amount but of improper denomination, it may be 
 stamped with the proper stamp on payment of the duty, and a 
 penalty of forty shillings if the bill or note be not thtn payable 
 according to its tenor, and of ten pounds if the same be so pay- 
 able. 
 
 (2) Except as aforesaid, no bill of exchange or promissory 
 note shall be stamped with an impressed stamp after the execu- 
 tion thereof. 
 
 By sect. 54, (1) Every person who issues, indorses, transfers, 
 negotiates, presents for payment, or pays any bill of exchange 
 or promissory note liable to duty and not being duly stamped, 
 shall forfeit the sum of ten pounds, and the person who takes 
 or receives from any other person any such bill or note not 
 being duly stamped, either in payment or as a security, or by 
 parchase or otherwise, shall not be entitled to recover thereon,, 
 or to make the same available for any purpose whatever. 
 
 (2) Provided that if any bill of exchange for the payment of 
 money on demand, liable only to the duty of one penny, is 
 presented for payment unstamped, the person to whom it is so 
 presented may atfix thereto a proper adhesive stamp, and cancel 
 the. same, as if he had been the drawer of the bill, and may, 
 upon so doing, pay the sum in the said bill mentioned, and 
 charge the duty in account against the person by whom the 
 bill was drawn, or deduct such duty, from the said sum, and 
 such bill is, so far as respects the duty, to be deemed good and 
 valid. 
 
174 OPTHBSTAMP. 
 
 (3) But the foregoing proviso is not to relieve any person 
 from any penalty he may have incurred in relation to such bill. 
 
 By sect. 55, When a bill of exchange is drawn in a set ac- 
 cording to the custom of merchants, and one of the. set is duly 
 stamped, the other or others of the set shall, unless issued or in 
 some manner negotiated apart from such duly stamped bill, be 
 exempt from duty ; and upon proof of the loss or destruction 
 of a duly stamped bill forming one of a set, any other bill of 
 the set which has not been issued or in any manner negotiated > 
 apart from such lost or destroyed bill may, although un- 
 stamped, be admitted in evidence to prove the contents of such 
 lost or destroyed bill. 
 
 *By sect. 69, (1) The duty on a contract note may be 
 '- -■ denoted by an adhesive stamp, which is to be cancelled 
 by the person by whom the note is first executed. 
 
 (2) Every person who makes or executes any contract note 
 chargeable with duty, and not being duly stamped, shall forfeit 
 the sum of twenty pounds. 
 
 (3) No broker, agent, or other person shall have any legal 
 claim to any charge for brokerage, commission, or agency, with 
 reference to the sale or purchase of any stock or marketable 
 security of the value of five pounds or upwards . mentioned 
 or referred to in any contract note, unless such note is. duly 
 stamped. 
 
 By sect. 113, The term " foreign security " means and in- 
 cludes every security for money by or on behalf of any foreign , 
 or colonial state, government, municipal body, corporation, or 
 company, bearing date or signed after the third day of June,' 
 one thousand eight hundred and sixty-two (except an instru- 
 ment chargeable with duty as a bill of exchange or promissory 
 note), 
 
 (1) "Which is made or issued in the United Kingdom ; 
 
 (2) "Which the interest thereon being payable in the United 
 
 Kingdom, is assigned, transferred, or in any manner 
 negotiated within the United Kingdom. 
 
 By sect. 114, Every person who in the United Kingdom 
 makes, issues, assigns, transfers, or negotiates, or pays any in- 
 
OF THE STAMP. 175 
 
 terest upon any foreign security not being duly stamped, shall 
 forfeit the sum of twenty pounds. 
 
 By sect. 115, The commissioners may at any time, without 
 reference to the date thereof, allow any foreign security to be 
 stamped without the payment of any penalty, upon being 
 satisfied, in any manner that they may think proper, that it 
 was not made or issued, and has not been transferred, assigned, 
 or negotiated within the United Kingdom, and that no interest 
 has been paid thereon within the United Kingdom. 
 
 By sect. 116, The duty upon a notarial act, and upon the 
 protest by a notary public of a bill of exchange or promissory 
 note, may be denoted by an adhesive stamp, which is to be 
 cancelled by the notary. 
 
 By sect. 120, The term " receipt " means and includes any 
 note, memorandum, or writing whatsover whereby any p^-. ^ r,-, 
 *money amounting to two pounds or upwards, or any 
 bill of exchange or promissory note for money amounting to 
 two pounds or upwards, is acknowledged or expressed to have 
 been received or deposited or paid, or whereby any debt or 
 demand, or any part of a debt oi; demand of the amount of two 
 pounds or upwards, is acknowledged to have been settled, 
 satisfied, or discharged, or which signifies or imports any such 
 acknowledgment, and whether the same is or is not signed 
 with the name of any person. 
 
 By sect. 121, The duty upon a receipt may be denoted by an 
 adhesive stamp, which is to be cancelled by the pei'son by 
 whom the receipt is given before he delivers it out of his 
 
 By sect. 122, A receipt given without being stamped may be 
 stamped with an impressed stamp upon the terms following ; 
 that to say, 
 
 (1) Within fourteen days after it has been given, on payment 
 
 of the duty, and a penalty of five pounds ; 
 
 (2) After fourteen days, but within one month, after it has 
 
 been given, on payment of the duty and a penalty of 
 ten pounds ; 
 
176 OF THE STAMP. 
 
 and shall not in any other case' be stamped with an impressed 
 stamp. 
 
 By sect. 123, If any person^ — 
 
 (1) Gives any receipt liable to duty and not duly stamped ; 
 
 (2) In any case where a receipt would be liable to duty re- 
 
 fuses to give a receipt duly stamped ; 
 
 (3) Upon a payment to the amount of two pounds or upwards 
 
 gives a receipt for a sum not amounting to two pounds 
 or separates or divides the amount paid with intent 
 to evade the duty ; 
 he shall forfeit the sum of ten pounds. 
 
 Schedule to the above Act. 
 
 £ s. d. 
 
 Agreemekt, or any Memoeandtjm of an Agreement, 
 made in England or Ireland under hand only, or 
 made in Scotland without any clause of registration, 
 and not otherwise specifically charged with any 
 duty, whether the same be only evidence of a con- 
 tract, or obligatory upon the parties from its being 
 a written instrument 6 
 
 [*111] * Exemptions. 
 
 (1.) Agreement or memorandum the matter whereof 
 
 is not of the value of bl. 
 (2.) Agreement or memorandum for the -hire of any 
 
 labourer, artificer, manufacturer, or menial 
 
 servant. 
 (8.) Agreement, letter, or memorandum made for 
 
 or relating to the sale of any goods, wares, 
 
 or merchandise. 
 (4.) Agreement or memorandum made between the 
 
 master and mariners of any ship or vessel for 
 
 wages on any voyage coastwise from port to 
 
 port in the United Kingdom. 
 And see section 36. 
 

 
 OF THE 
 
 STAMP. 
 
 £ 
 
 177 
 s. d. 
 
 Bank Note — 
 
 
 
 
 
 For money not exceeding 11. 
 
 . 
 
 . 
 
 5 
 
 Exceediii 
 
 gll. 
 
 and not exceeding 21. . ^ 
 
 . 
 
 10 
 
 (( 
 
 21. 
 
 it 
 
 61. 
 
 . 
 
 1 3 
 
 (( 
 
 61. 
 
 It 
 
 101. 
 
 . 
 
 1 9 
 
 « 
 
 m. 
 
 a 
 
 201. 
 
 . 
 
 2 
 
 (( 
 
 201. 
 
 fcb 
 
 301. 
 
 . 
 
 3 
 
 (( 
 
 301. 
 
 u 
 
 bOl. 
 
 . 
 
 5 
 
 
 501. 
 
 (( 
 
 ' 1001. 
 
 . 
 
 8 6 
 
 And see seictions 45, 46 and 47. 
 
 Bill of Exchakqb — 
 
 Payable on demand 
 
 Bill of Exchange of any other kind whatsoever 
 (except a bank note) and Peomissory Note of any 
 kind whatsoever (except a bank note) — drawn, or 
 expressed to be payable, or actually paid, or endorsed, 
 or in any manner negotiated in the United Kingdom : 
 Where the amount or value of the money for 
 which the bill or note is drawn or made does 
 
 1 
 
 not exceed 5^, 
 
 ■ • 
 
 
 • ■ • 
 
 . 
 
 
 
 1 
 
 Exceeds 5^. and does not exceed 101. . 
 
 . 
 
 
 
 2 
 
 " ' 101. 
 
 a 
 
 
 25?. . 
 
 . 
 
 
 
 3 
 
 " 2bl. 
 
 (C 
 
 
 60?. . 
 
 . 
 
 
 
 6 
 
 " 50;. 
 
 (( 
 
 
 75?. . 
 
 . 
 
 
 
 9 
 
 " 75?. 
 
 (( 
 
 
 100?. . 
 
 . 
 
 1 
 
 
 
 " 100?.— 
 
 
 
 
 
 
 
 for every 100?., 
 
 and also 
 
 for 
 
 any fractional 
 
 part of 
 
 
 
 100?., of such amount 
 
 or 
 
 value 
 
 . 
 
 1 
 
 
 
 Exemptions. 
 
 (1.) Bill or note issued by the Governor and Com- 
 pany of the Bank of England or Bank of 
 Ireland. 
 
 (2.) Draft or order drawn by any banker in the 
 
 United Kingdom upon any other banker in 
 
 the United Kingdom, not payable to bearer 
 
 or to order, and used solely for the purpose 
 ' 12 
 
178 OF THE STAMP. ■ 
 
 of settling or clearing any account between 
 sttch bankers. 
 
 (3.) Letter written by a banker in the United King- 
 dom to any other banker in the United King- 
 dom, directing the payment of any sum of 
 money, the same not bejng payable to bearer 
 r*l 1 21 °'' ^° order, and such letter *not being 
 sent or delivered to the person to whom 
 payment is to be made, or to any persoii on 
 his behalf. 
 
 (4.) Letter of credit granted in the United Kingdom 
 authorizing drafts to be drawn out of the 
 United Kingdom payable in the United 
 Kingdom. 
 
 (5.) Draft or order drawn by the Accountant Gene- 
 ral of the Court of Chancery in England or 
 Ireland. 
 
 (6.) Warrant or order for the payment of any an- 
 nuity granted by the Commissioners for the 
 Reduction of the l!fational Debt, or for the 
 payment of any dividend or interest on any 
 share in the government or parliamentary 
 stocks or funds. 
 
 (7.) Bill drawn by the Lords Commissioners of the 
 Admiralty, or by any person under their 
 authority, under the authority of any act of 
 parliament upon and payable by the Account- 
 ant General of the 'Nayy.{d) 
 
 (8.) Bill drawn (according to a form prescribed by 
 her Majesty's orders by any person duly 
 authorized to draw the same) upon and pay- 
 able out of any public account for any pay or 
 allowance of the army or other expenditure 
 connected therewith. 
 
 (9.) Coupon or warrant for interest attached to and 
 , issued with any security. 
 
 And see sections 48, 49, 50, 51, 52, 53, 54 and 55, 
 
 (d) Repealed 35 & 36 Vict. c. 20, s. 7. 
 
 £ s. d. 
 
. 
 
 . 
 
 
 
 8 
 
 rbOl. 
 
 . 
 
 1 
 
 3 
 
 1001. 
 
 . 
 
 2 
 
 6 
 
 IbOl. 
 
 . 
 
 3 
 
 9 
 
 2001. 
 
 . 
 
 5 
 
 
 
 2601. 
 
 . 
 
 6 
 
 3 
 
 300?. 
 
 . 
 
 7 
 
 6 
 
 OF THE STAMP. 179 
 
 £ S. d. 
 
 Mortgage, Bond, Debentuk:^, Covenant, "Warrant 
 OF Attorney to confess and enter up judgment, and 
 Foreign Seodrity of any kind. 
 (1.) Being the only or principal or primary security 
 for — 
 
 The payment or repayment of money not 
 
 exceeding 261. 
 Exceeding 261. and not exceeding 601. 
 " 50^. " 
 
 " 100?. " 
 
 " 150/. " 
 
 " 200?. « 
 
 " 250?. " 
 
 " 300?. 
 For every 100?., and also for any fractional 
 
 part of 100?., of such amount . .026 
 (2.) Being a collateral, or auxiliary, or additional, 
 or substituted security, or by way of further 
 assurance f^r the above-mentioned purpose 
 where the principal or primary security is 
 duly stamped : 
 
 For every 100?., and also for any fractional 
 ■ partof 100?., of the amount secured .0 6 
 (3.) Transfer, Assignment, Disposition, or Assigna- 
 tion of any mortgage, bond, debenture, cove- 
 nant, or foreign security, or of any money or 
 stock secured by .any such instrument, or by 
 any warrant of *attorney to enter up r*i i o-i 
 judgment, or by any judgment: 
 
 For every 100?., and also for any fractional 
 part of 100?., of the amount transferred, 
 ' assigned, ordisponed . . . .006 
 And also where any further money is added 
 to the'money already secured, the same duty 
 as a principal security for such further 
 money. 
 (4.) Reconveyance, Eelease, Discharge, Surrender, 
 ' Ee-surrender, Warrant to vacate, or Renun- 
 ciation of any such security as aforesaid, or 
 
180 OF THE STAMP. 
 
 £s. 
 
 of the benefit thereof, or of the money thereby 
 secured: 
 Tor every 100^., and also for any fractional 
 part of 100^., of the total amount or value 
 of the money at any time secured . .006 
 And see sections 105, 106,- 107, 108, 10,*, 110, 111, 
 112,113, 114,115. 
 
 Protest of any bill of exchange or promissory note : — 
 Where the duty on the bill or note does not ex- 
 ceed Is, the same duty as the bill or note. 
 
 In any other case . . . . • .010 
 And see sec. 116. 
 
 Receipt given for, or upon the payment of, money 
 
 amounting to 21. or upwards . . . .001 
 
 IJxemptions. 
 
 (1.) Receipt given for money deposited in any 
 bank, or with any banker, to be accounted 
 for and expressed to be received of the per- 
 son to whom the same is to be accounted for. 
 
 (2.) Acknowledgment by any banker of the re- 
 ceipt of any bill of exchange or promissory 
 note for the purpose of being presented for 
 acceptance or payment. 
 
 (3.) Receipt given for or upon the payment of any 
 parliamentary taxes or duties, or of money to 
 or for the use of her majesty. 
 
 (4.) Receipt given by the Accountant General of 
 the Navy for any money received by him Vor 
 the service of the navy. 
 
 (5.) Receipt given by any agent for money intrusted 
 to him on account of the pay of the army. 
 
 (6.) Receipt given by any officer, seaman, marine or 
 soldier, or his representatives, for or on ac- 
 count of any wages, pay or pension, due 
 from the Admiralty or Army Pay Office. 
 
OF THE STAMP. 181 
 
 \ (7.) Eeceipt given for the consideration money for 
 the purchase of any share in any of the 
 Government or Parliamentary stocks or 
 funds, or in stock of the East India Com- 
 pany, or in the stocks and funds of the 
 Secretary of State in Council of India, or of 
 the governor and company of the Bank of 
 England, *or of the Bank of Ireland, 
 or for any dividend paid on any ^ ■' 
 share of the said stocks or funds respectively. 
 
 (8.) Receipt given for any principal money or in- 
 terest due on an exchequer bill. 
 
 (9.) Eeceipt written upon a bill of exchange or 
 promissory note duly stamped. 
 
 (10.) Receipt given upon any bill or note of the 
 goverijor and company of the Bank of Eng- 
 land or the Bank of Ireland. 
 
 (11.) Receipt indorsed or otherwise written upon or 
 contained in any instrument liable to stamp 
 duty, and duly stamped, acknowledging the 
 receipt of the consideration money therein 
 expressed, or the receipt of any principal 
 money, interest, or annuity thereby secured 
 or therein mentioned. 
 
 (12.) Receipt given for drawback or bounty upon 
 the exportation of any goods or merchandise 
 from the United Kingdom. 
 
 (13.) Receipt given for the return of any duties of 
 customs upon certificates of over entry. 
 
 (14.) Receipt indorsed upon any bill drawn by the 
 Lords Commissioners of the Admiralty, or 
 by any person under their authority, or 
 under the authority of any act of parliament 
 upon and payable by the Accountant Gen- 
 eral of the Navy. 
 
 And see sections 120, 121, 122 and 123. 
 
 The reservation of interest on a bill or note does not in any 
 case render a larger stamp pecessary ; for the object of the 
 legislature was to impose a pro rata stamp duty on the sum 
 
1S2 OP THE STAMP. 
 
 actually due at the time of taking the security, and not u{)on 
 what might become due in future for the use of the money.(/) 
 Although interest be reserved from a day prior to the date of 
 the instrument.(^) . 
 
 A bill or note not duly stamped is not available nor evi- 
 dence in law or equity for any purpose in futheranee of it8 
 original design, not even as an admission.(A) But an instru- 
 ment not duly stamped might always be looked at for a col- 
 lateral purpose. In an action for money lent, the plaintifl's 
 *witnesses proved that plaintiff hadlent defendant 40^., 
 '- ^ and that defendant had given him a promissory note on 
 unstamped paper; the defendant's case was that plaintiff had 
 inveigled him to drink, and that the transaction was fraudu- 
 lent. The note was produced. Lord Ellenborough : "The 
 note certainly cannot be received in evidence as a security, or 
 to prove the loan of the money ; but I think it may be looked 
 at by the jury as a contemporary writing to prove or disprove 
 the fraud imputed to the plaintiff." The note was put in, and 
 had very much the appearance of having been written by a 
 drunken man. Verdict for the defendant.(j) The statute 17 
 & 18 Vict. c. 83, s. 27, contained an express provision that an 
 unstamped instrument might be admitted in any criminal 
 proceeding. But long before that statute it had been held no 
 defence in a prosecution for forgery that the instrument was 
 not duly stamped.(A;) So it has been held that if A. and B. 
 
 (/) Pruessing v. lug, 4 B. & Aid. 304 (6 E. C. L. R). 
 
 (g) Wills V. Noot, 4 Tyrw. 726. 
 
 (ji) S. 17 ; Wilson v. Vysar, 4 Taunton, 288 ; Jardine v. Payne, IB. & Ad. 
 663 (20 E. C. L. R.) ; Cundy v. Marriott, 1 B. & Ad. 696 (30 E. C. L. R.) 
 But an unstamped instrument was admissible to prove an agreement illegal, 
 Coppock V. Bower, 4 M. & W. 361 ; or to prove usury, Nash v. Duncomb, 
 1 M. & Rob. 184 ; or to corroborate a witness, Dover v. Maestaei-, 5 Esp. 92; 
 or to refresh his memory, Maugham v. Hubbard, 8 B. & C. 14 (15 E. C. L- 
 R.) In Smart v. Nokes, 6 M. & G. 911 (46 E. C. L. R.) ; the Court of C. P. 
 allowed an unstamped bill to be given in evidence to negative by anticipation 
 a plea of payment. 8ed queer e, and see s. 17. 
 
 (i) Gregory v. Eraser, 3 Camp. 454.; and see Holmes v. Sixsmith, fl Ex. 
 803 ; Watson v. Poulson, 15 Jur. 1111 ; Keable v. Payne, 8f A. & E. 555 (35 
 E. C. L. R.) ; Reg v. Gompertz, 9 Q. B. 834 (58 E. C. L. R.). 
 
 (*) Rex V. Hawkswood, Bayley, 6th ed. 91 ; 8 East, P.O. 955; Bexv: 
 Teague, Bayley, 6th ed. 574 ; 3 East, P. C. 79. ' 
 
OP THE STAMP. 183 
 
 enter into a written agreement, duly stamped, and afterwards 
 enter into another written agreement on the.same subject-mat' 
 ter, but inconsistent with the first, and not stamped, though 
 the plaintiff cannot give the second agreement in evidence, it 
 may be looked at by the Court to prove that the first agree- 
 ment was rescinded.(Z) But when the acceptor of a bill re- 
 quired the drawer, who was an illiterate person, to take his 
 second acceptance at six months, in lieu of paj'ment, and the 
 drawer having assented, the acceptor's son wrote the second 
 bill on the back of the first, and the drawer and acceptor signed 
 the second bill, and then the acceptor's son drew a line through 
 the acceptance on the first bill ; it was held, in an action on the 
 firfet bill by the drawer against the acceptor, that the second 
 bill could not be submitted to the jury for the purpose of en- 
 abling them to judge whether the cancelling of the original 
 acceptance were with the assent of the plaintiff.(m) 
 
 A note, reciting that deeds had been deposited as a 
 security, does not, as a note, require a mortgage stamp.(n) A 
 promissory note which amounted to a mortgage might 
 *formerly have been impressed with the mortgage 
 stamp after it was made.(o) - •- -' 
 
 The objection to the want of a stamp should in general be 
 taken before the instrument is read. But where the defect 
 requires extrinsic evidence to show it, the instrument is to be 
 shown to the judge, and the ground of objection afterwards 
 proved.(p) If a judge at Nisi Prius rule against a stamp 
 objection, his decision cannot be reviewed, and he ought not to 
 reserve the point.(g') The absence of a stamp on a bill or note 
 
 (0 Reed v. Deere, 1. B. & C. 261 (8 E. C. L. R.) ; see Swears v. Wills, 
 
 1 Esp. 317. 
 
 (m) Sweetin? v. Halse, 9 B. & C. 365 (17 E. C. L. R.) ; 4 M. & R. 287. 
 It was held in Jones v. Ryder, 4 M. & W. 32, that a promissory note, im- 
 properly stamped, could not be received in evidence to take a case out of the 
 Statute of Limitations; and see Holmes v. Mackrell, 3 C. B , N. S. 789 (91 
 E. C. L. R.). 
 
 (a) Fancourt v. Thorne, 9 Q. B. 312 (58 E. C. L. R.). 
 
 (o) Wise V. Charlton, 4 A. & E. 786 (31 B. C. L. R ) ^6 N. & M. 362 ; 
 
 2 H. & W. 49. See, hoXvftver, s. 53 (2). 
 
 (p) Field V. Woods, 7 Ad. & El. 114 (34 E. C. L. R.) ; 2 Nev. & P. 117. 
 (?) 17 & 18 Vict. c. 125, s. 81 ; Siordet v. Kuczinski, 17 C. B. 251 (84 E. 
 C. L. R.) But see Barnes v. Smith, 1 Jur., N. S. 1025. • 
 
184 
 
 OF THE CONSIDERATION. 
 
 cannot be pleaded unless the plea show that the instrument 
 cannot be made good by being stamped before the trial.(/-) 
 
 If a bill be either lost, or detained by the opposite side after 
 notice to produce, the presumption of law is that it was duly 
 stamped, unless the contrary be shown.(s) 
 
 [*117] 
 
 *OHAPTER X. 
 
 OP THE CONSIDERATION. 
 
 PRESUMPTION, AS TO CONSIDERA- 
 
 TIOKS ON BILLS AND NOTES, . 117 
 WHEN IT MUST BE PBOTBD, . 118 
 
 IN THE CASE OF AN ACCOMMODA- 
 TION BILL, . . . .118 
 EFFECT OF NEW RULEB OP 
 
 PLEADING, .... 120 
 
 AMBIGUITY OF THE EXPRESSION 
 "bona fide holder FOR 
 
 VALUE," 130, 
 
 DISTINCTION BETWEEN HOLDER 
 
 WITHOUT VALUE AND HOLDER 
 
 WITH NOTICE, .... 130 
 
 BURTHEN OF PROOF IN THE CASE 
 
 OF ALLEGED HOLDER WITHOUT 
 
 VALUE, 131 
 
 IN CASE OF ALLEGED HOLDER 
 
 WITH NOTICE, .... 131 
 PROOF OF NOTICE, . . . 133 
 
 PLAINTIFF STANDING ON PRIOR 
 
 TITLE, 133 
 
 WHAT AMOUNTS TO NOTICE, . 183 
 
 EXPLICIT NOTICE, . . .133 
 
 IMPLICIT NOTICE, . . . 133 
 
 ABSTINENCE FROM INQUIRY, . 133 
 
 GROSS NEGLIGENCE NOT EQUIVA- 
 LENT TO NOTICE, . . . 133 
 NOTICE TO AN AGENT, . . 133 
 GIFT OP A BILL OR NOTE, . . 133 
 
 NATURE OF THE CONSIDERA- 
 TION, 124 
 
 PRE EXISTING DEBT, . . .124 
 FLUCTUATING BALANCE, . . 125 
 DEBT OP A THIRD PERSON, . 125 
 A JUDGMENT DEBT, . . .126 
 COMPROMISE OF A CLAIM, . . 126 
 MORAL OBLIGATION, . . .126 
 CASES WHERE MORE THAN ONE 
 CONSIDERATION COMES IN 
 QUESTION, . . . .127 
 FAILURE OP CONSIDERATION, . 128 
 NOTICE OP ABSENCE OP CONSID- 
 ERATION, 128 
 
 ACCOMMODATION BILL, . . 128 
 
 PARTIAL ABSENCE, OR FAILURE 
 
 OP CONSIDERATION, . . 129 
 
 FRAUD, . . . . ' . 130 
 
 BILLS AND NOTES IN FRAUD OP 
 
 THIRD PERSONS, . . .131 
 
 WHERE A PARTY WHO HAS BEEN 
 DEFRAUDED MUST PAY A BILL 
 OR NOTE, SIGNED BY HIM, 
 WITHOUT CONSIDERATION, . 133 
 ILLEGAL CONSIDERATIONS AT 
 COMMON LAW, . . . .134 
 
 IMMORAL, 134 
 
 IN CONTRAVENTION OP PUBLIC 
 POLICY, 135 
 
 (r) Bradley v. Bardsley, 15 L. J., Ex. 115 ; 3 D. & L. 476 ; 14 M. & W. 
 878. See, however, Lazarus v. Cowie, 3 Q. B. 465 (48 E. C. L. R.) ; Tatter- 
 sail V. Fearnley, 17 C. B. 868 (84 E. 0. L. R.). 
 
 («) Marine Insurance Co. v. Haviside, L. R., 5 H. L. 635. 
 
OF THE CONSIDERATION. 
 
 185 
 
 ILLEGAL OK VOID BY STATUTE, . 137 
 
 TI8DSY, 137 
 
 GAMING 137 
 
 HOESB-BACING, .... 138 
 INNOCENT INDORSEE, . . . 138 
 
 NEW SBCTJBITT, . . . .139 
 
 STOCK-JOBBING, .... 189 
 OTHEB CONSIDEKATION8 ILLEGAL 
 BY STATUTE, .... 141 
 
 NOTICE OF FRAUDULENT OR IL- 
 LEGAL CONSIDERATION, . . 143 
 
 ILLEGALITY OF CONSIDERATION 
 ■WHERE JUDGMENT RECOV- 
 ERED, 143 
 
 PART CONSIDERATION, . . 143 
 
 RENEWAL OF BILL GIVEN ON 
 
 ILLEGAL CONSIDERATION, . 143 
 
 If a man seek to enforce a simple contract, he must in plead- 
 ing, aver that it was made on good consideration, and must 
 substantiate that allegation by proof. But to this rule bills 
 and notes are an exception. (1) It is never necessary to 
 *aver consideration for any engagement on a bill or note, '- J 
 
 (1) Where an order is not a draft or any description of negotiable mercan- 
 tile paper, a consideration for its acceptance, must be alleged and proved. 
 Richardson v. Carpenter, 3 Sweeny, 300. 
 
 There is a distinction between a valuable consideration other than money, 
 and a money consideration ; in the former case, the slighcst consideration 
 ■will support a promise to pay the largest amount, in the latter, the considera- 
 tion will support a promise only to the extent of the money forming the con- 
 sideration. Sawyer v. McLouth, 46 Barb. 350. 
 
 Where two sign a note, consideration moving to one will sustain the action 
 against both. Crawford v. Shaw, 18 Indiana, 495 ; Myers v. Sunderland, 4 
 Greene, 567 ; Hoxie v. Hodges, 1 Oregon, 351. 
 
 A note given in consideration of a wholly unfounded claim, but before suit 
 upon such claim, cannot be recovered upon by the payee. Sullivan v. Collins, 
 18 Iowa, 238. The withdrawal of a suit upon a note for $1,500, alleged by 
 the defendants to be forged, is a suflBcient consideration for a note of $1,000. 
 Grant v. Chambers, 1 Vroom, 333. As to compromise of doubtful claim as a 
 consideration. Crans v. Hunter, 28 New York, 389; Richardson v. Com- 
 stock, 21 Ark. 69. When a patented invention is practically useless, the as- 
 signment of a right to construct and use the same under the patent, does not 
 constitute a consideration for a promissory note. Rowe v. Blanchard, 18 
 Wise. 441 ; Bierce v. Stocking, 11 Gray, 174 ; Clough v. Patrick, 37 Vermont, 
 431, A note given to the mother of a bastard child by the reputed father, to 
 relieve himself of the statutory liability for the support of such child, and to 
 avoid public exposure, is valid. Hays v. McParlan, 32 Georgia, 699 ; Jackson 
 V. Finney, 33 Ibid. 512 ; Eaton v. Burns, 31 Indiana, 390. One promissory 
 note is a good consideration for another given in exchange. Savage v. Ball^ 
 2 Green, 142 ; Rankin v. Knight, 1 Taft. & Storer, 515; Bassett v. Bassett, 55 
 Barb. 505. 
 
 As to what constitutes a suflBcient consideration, see Winsted Bank v. 
 Webb, 46 Barb. 177 ; Hynds v. Hays, 25 Indiana, 31 ; Brenner v. Gunder- 
 shiemer, 14 Iowa, 83 ; Green v. Shepherd, 5 Allen, 589 ; Paikman v. Brewster, 
 15 Gray, 271 ; Hudson v. Busby, 48 Mo; 35 ; Weaver v. Lapsley, 43 Ala. 601 ; 
 
186 OP THE CONSIDERATION. 
 
 or to prove the existence of such consideration, unless a pre. 
 sumption against it be raised by the evidence of the adverse 
 party, or unless it appear that injustice will be done to the 
 defendant, or that the law will be violated, if the plaintiff 
 recover. In the case of other simple contracts, the law pre- 
 sumes that there was no consideration till a consideration 
 appear ; in. the case of contracts on bills or notes, a considera- 
 tion is presumed till the contrary appear, or at least appear 
 probable.(a)(l) 
 
 (^a) To obtain the usual decree in a creditor's suit it is not snfBcient for tlie 
 plaintiflF to put in an acceptance of tlie testator proved as an exliibit. Qum'e, 
 whether any evidence should be given of the consideration. Keaton v. 
 Lynch, 1 Y. & Col. N. S. 437. And where an account is directed by a Court 
 of Equity to be taken of dealings between an attorney and his client, it is not 
 sufficient that the attorney produce bills and notes given by the client to him, 
 he must prove the consideration. Jones v. Thomas, 3 T. & Col. 498. 
 
 Henderson R. R. Co. v. Mass, 3 Duval], 242 ; Courtney v. Doyle, 10 Allen, 
 122 ; Prescott v. Ward, Ibid. 203 ; Rutledge's Admrs. v. Townsend, 38 Ala. 
 706 ; Repplier v. Bloodgood, 1 Sweeny, 34 ; HocUenbury v. Meyers, 34 New 
 Jersey (Law), 347; Hildeburn v. Curran, 15 P. F.' Smith, 09; Van Astyne 
 V. Sorley, 33 Texas, 518; Calvert v. Williams, 64 N. Car. 168; Campbell v. 
 Waters, 31 Louis. Ann. 32o ; Kenigsberger v. Wingate, 31 Texas, 43 ; Battle v. 
 Weems, 44 Ala. 105 ; Stafford v. Fargo, 35 Illinois, 481 ; Bourne v. Ward, 31 
 Maine, 191 ; Sullivan v. Collins; 18 Iowa, 338; Harrod v. Black, 1 Duvall, 
 180; Linton v. Porter, 31 Illinois, 107; Black River Bank v. Edwards, 10 
 Gray, 387 ; Williams v. Nichols, 10 Gray, 83 ; Petersborough Railroad i. 
 Chamberlin, 44 N. Hamp. 494 ; Rock v. NichoUs, 3 Allen, 342 ; Henry v. 
 Ritenour, 31 Indiana, 136 ; Jones v. Horner, 10 P. P. Smith, 314 ; Wren v. 
 Hoffman, 41 Minn. 616 ; Baldwin v. Van Deusen, 37 N. York. 487 ; Thrall v. 
 Mead, 40 Vermont, 540. 
 
 (1) A promissory note imports a consideration, and none need be proved 
 unless it be impeached. Middlebury v. Case, 6 Verm. 165; Shoonmakerv. 
 Roosa, 17 Johns. 301 ; Jerome v. Whitney, 7 Ibid. 321 ; Mims v. Whiddon, 
 2 Ba^ly, 451 ; Horn v. Pulley, 6 N. Hamp. 511 ; Goshen Turnpike v. Hurtin, 
 .9 Johns. 217; Camp v. Tompkins, 9 Conn. 545; McMahon v. Crucliett, 
 Minor, 362 ; Mandevijle v. Welch, 5 Wheat. 377 ; Hunley v. Lang, 5 Porter, 
 154 ; Thompson v. Armstrong, 5 Alabama, 383 ; Coburn v. Odell, 10 Foster, 
 540; Mitchell v. Rome Railroad Co., 17 Georgia, 574; Smith v. Poor, 37 
 Maine, 462 , Labadie's Ex. v. Chouteau, 37 Mo. 413 ; Gamwell v. Mosely, 11 
 Gray, 173; Richardson v. Comstock, 21 Ark. 69; Arnold v. Sprague, 34 
 -Vermont, 403 ; Nevins v. Chapman, 15 Louis. Ann. 353 ; Ware v. Kelly, 23 
 Ark. 441 ; Richardson v. Carpenter, 3 Sweeny, 360. The consideration: of a 
 promissory note is inquiraWe into between the original parties. Slade v. 
 Halsted, 7 Cowen, 333 ; Pearson v. Pearson, 7 Johns. 26 ; Parish v. Stone, 
 14 Pick. 198 ; Barnet v. Offerman, 7 Watts, 130 ; Geiger v. Cook, 3 Watts & 
 
OF THE CONSIDERATION. 187 
 
 The defendant is not permitted to put the plaintiff on proof 
 on the consideration which the plaintiff gave for the bill, 
 unless the defendant can make out a prima facie case against 
 bim, by showing that the bill was obtained from the defendant, 
 or from some intermediate party, by undue means, as by fraud, 
 or foree,{6) or that it was lost, or that it was originally infected 
 with illegality .(c) 
 
 (J) As to a note obtained by duress of goods, see Kearns v. Durell, 6 C. 
 
 B. 596 (CO B. C. L. R). The distinction seems to be he\vie%n' a, payment, or 
 a transaction in the nature of payment, which is void for duress of goods, and 
 a coniraat, ■which cannot be so avoided. As to compulsion in the nature of 
 duress of land, see Close v. Phipps, 7 M. & 6. 586 (49 E. C. L R ). See also 
 Atkinson v. Denby, 30 L. J., Exch. 361 ; 7 N. & M. 934, S. C. 
 
 (c) Harvey v. Toweis, 6 Exch. 656 ; Mather v. Lord Maidstone, 26 L. J., 
 
 C. P. 58 ; 1 C. B., N. S. 273 (87 E. C. L. R), S. C. But a wager which is 
 not proliibited but only void under 8 & 9 Vict. c. 109, has been held not 
 to be such an illegality of consideration as will change the burthen of proof. 
 Fitch v. Jones, 5 E. & B. 238 (85 E. C. L. R). 
 
 Serg. 266 ; Haynes v. Thorn, 3 Poster, 886. A promissory note, given for a 
 void patent right, is without consideration, notwithstanding the vendor be- 
 lieved, at the time of the sale, that tlie patent was valid. Dickinson v. Hall, 
 14 Piclt. 217 ; Higgins v. Strong, 4 Blackf. 182 ; Jollip v. Collins, 21 Missouri, 
 338 ; Lester v. Palmer, 4 Allen, 105. The maker of a note is not precluded 
 from showing want of consideration by the fact that the note was made to de- 
 fraud creditors, the payee being conusant of that intent. Weaver v. Pierce, 
 24 Pick. 141. This last case it will be difficult to reconcile with the dictates of 
 sound policy, if it accords, with the principles settled by the cases. That prin- 
 ciple is, that in pari delicto potior eat conditio defendentis. If a party can make 
 out his case or liis defence without showing the fraud, it cannot be objected 
 to him by the other party who is also a particeps. Here tlie case of the plain- 
 tiff is made out by the production of the note. It is prima facie evidence of 
 consideration. The defendant shows want of Cdnsideration, and in so doing, 
 certainly the actual reason why the note was given must appear. Suppose he 
 succeeds in making out, that there was no consideration without disclosing 
 the fraud, the plaintiff may contradict that evidence by showing that there 
 was a consideration, to wit, an engagement to hold against creditors for the 
 use of the maker, tliough that consideration was an intended fraud. It Is a 
 mistake to put such a case on the same footing as an lionest accommodation 
 note. It lias a consideration sufHoient to sustain it as between the parties, 
 though it is void as to third parties. See Murphy v. Hubert, 10 Penna. State 
 Rep. 58"; which Was indeed the case of an executed grant, but the difference 
 does not seem to be material. " (Dourts of justice do not sit to extricate a 
 rogue from his toils. To enable a pai'ty to show a secret trust in the face of 
 an absolute deed, the purpose must have been an honest one, else, by secret 
 fraudulent device, a dishonest man would be sure never to lose, and he has 
 
188 OF THE CONSIDERATION. 
 
 It was formerly held, that the defendant could call on the 
 plaintiff to prove consideration, by showing the bill to be an 
 accommodation bill, or that the defendant received no value.(c?) 
 But it is now definitively settled, after consideration *by 
 L -I all the judges, that mere absence of consideration re- 
 ceived by the defendant will not entitle him to call on the 
 plaintiff to prove the consideration which the plaintiff gave. 
 "There is," says Lord Abinger, delivering the judgment of the 
 
 fd) See Heath v. Sansom, 3 B. & Ad. 391 (33 E. C. L. R.) ; Duncan v. 
 Scott, 1 Camp. 100 ; Grant v. Vaughan, 3 Burr. 1516 ; King v. Milsom, 3 
 Camp. 5 ; Paterson v. Harilacre, 4 Taunt. 114 ; Thomas v. Newton, 3 C. & 
 P. 606 (13 E. C. L. R.) ; De la Chaumette v. Bank of England, 9 B. & C. 
 308 (17 E. C. L. R.) ; Bassett v. Dodgin, 10 Bing. 40 (25 E. C. L. E.) ; 8 
 M. & Scott, 417, S. C. ; Simpson v. Clarke, 3 C, M. & R. 342 ; 1 Gale, 237, 
 • S. 0. It was formerly necessary, in order to enable the defendant to put 
 the plaintiff on proof of consideration, that the defendant should have given 
 ■the plaintiff notice to prove consideration. Paterson v. Hardacre, 4 Taunt. 
 114; Bayley, 6th ed. 474, 500. It is now, however, settled, that notice to 
 prove consideration is not necessary ; Mann v. Lent, 1 M. & M. 240 (32 E. 
 C. L. R.) ; 10 B.- & C. 877 (31 E. C. L. R.), S. C. ; Heath t. Sansom, 2 B. 
 & Ad. 291 (33 E. C. L. R.) ; Bailey v. Bidwell, 13 M. & W. 75 ; and it is now 
 seldom given. It was, however, hefore the new rules, often prudent to give 
 notice ; " For it is," says Lord Tenterden, " matter of comment if no notice 
 were given, or if it were not given at a reasonable time." Mann v. Lent, 1 
 M. & M. 240 (33 E. C. L. R.) ; 10 B. & C. 877 (31 E. C. L. R.), S. C. It was 
 formerly held, that where the consideration given by the plaintiff was dis- 
 puted, and a notice to that effect had been given, the plaintiff must go into his 
 whole case in the first instance, and could not reserve the propf of considera- 
 tion as an answer to the defendant's case. Delauney v. Michell, 1 Stark. 
 439 (3 E. C. L. R.) ; Humbert v. Ruding, Chitty, 9th ed. 651 ; Sponncr v. 
 Gardiner, R. & M., N. P. C. 86 (31 B. C.^L. R.) ; Best, C. J., in C. P. But 
 now, in all the Courts, the plaintiff is allowed to prove the handwriting and 
 make out a prima facie case, and afterwards in answer to the defendant's 
 case, to prove consideration. R. & M. 255, n. (31 E. C. L. R). If, how- 
 ever, he call witnesses to prove the consideration in the first instance, he will 
 not be allowed, after the defendant's case has closed, to call other witnesses 
 for the same purpose. See Browne v. Murray, R. & M. 354 (31 E. C. L. R). 
 
 the chance of gaining. He may accomplish his fraudulent design, and then 
 he is sure to get back his property, or, what is the same thing, keep it for his 
 family. This would be affording encouragement to such frauds. On the con- 
 trary, it Is the policy of common sense and common law, to environ a person 
 with all possible perils, and to make it appear that honesty is the best policyi'' 
 In an action on a note, it is a good defence that it was given to plaintiff for 
 goods conveyed for the purpose of defrauding his creditors. Hamilton v. 
 Scull, 35 Missouri, 165. 
 
OF THE CONSIDERATION. 189 
 
 Court of Exchequer, " a substantial distinction between bills 
 given for accommodation only, and cases of fraud, inasmuch as 
 in the former case it is to be presumed that money has been 
 obtained upon the bill. If a man comes into Court without any 
 suspicion of fraud, but only as the holder of an accommodation 
 bill, it may fairly be presumed that he is a holder for value. 
 The proof of its being an accommodation bill is no evidence of 
 the want of consideration in the holder. If the defendant 
 says, ' I lent my name to the drawer for the purpose of his 
 raising money upon the bill, the probability is that money was 
 obtained upon the bill.' Unless, therefore, the bill be connec- 
 ted with some fraud, and a suspicion of fraud be raised from 
 its being shown that something has been done with it of an 
 illegal nature, as that it has been clandestinely taken away, or 
 has been lost or stolen (in which case the holder must show 
 that he gave value for it), the onus probandi is cast upon the 
 defendant."(e)(l) 
 
 («■) Mills V. Barber, 1 M. & W. 435 ; 5 Dowl. 77 ; 2 Gale, 5 S. C. ; Percival 
 V. Frampton, 2 C, M. & R. 180 ; 3 Dowl. 748 ; Wliitaker v. Edmunds, 1 M. 
 & R. 366 ; 1 Ad. & E. 638 (28 B.C. L. R.), S. G. ; Jacob v. Hungate, 1 M. & 
 R. 445 ; Clarke Vi Holmes, 2 P. & F. 75. It has been held by the Court of 
 Exchequer that a mere admission on record is not sufficient to put the plaintiff 
 on proof that he is a holder for value, but that the presumption against his 
 title must he raised by evidence before the jury. Edmonds v. feoves, 2 M. 
 & W. 642 ; 5 Dowl. 775, S. C. ; and See Smith v. Martin, 9 M. & W. 304 ; 
 Fearn v. Filica, 7 M. & G. 518 (49 E. C. L. R.). The Court of Queen's 
 Bench, however, have held otherwise. Bingham v. Stanley, 1 6. & D. 237 ; 
 2 Q. B. 117 (42 B. C. L. R.), S. C. ; Robins v. Maidstone, 4 Q. B. 815 (45 E. 
 C. L. R.). 
 
 (1) If the indorser of a promissory note proves that it was issued fraudu- 
 lently by the maker, the holder may be called on to show what consideration 
 he gave for it. Holme v. Karsper, 5 Binn. 469 ; Tliompson v. Armstrong, 7 
 Alabama, 256 ; Woodhull v. Holmes, 10 Johns. 231 ; Knight v. Pugn, 4 Watts 
 & Serg. 445 ; Jarden v. Davis, 5 Whart. 338 ; McClintock v. Cummins, 2 Mc- 
 Lean, 98 ; Bertrand v. Barkman, 8 English, 150 ; Catlin v. Hansen, 1 Duer, 
 309 ; The Exchange Bank v. Monteith, 17 Barbour, S. C. Rep. 171 ; Wilson v. 
 Lasier, 11 Grattan, 477 ; Peirin v. Noyes, 39 Maine, 384 ; McKesson v. Stan- 
 berry, 3 Ohio (N. S.), 156 ; Wilson v. Lazier, 11 Grattan, 477 ; Ross v. Bedell, 
 5 Duer, 462 ; Bank v. Gibson", Ibid. 574 ; Bissell v. Morgan, 11 Gushing, 198; 
 Gray v. The Bank of Kentucky, 5 Casey, 365 ; Hutchinson v. Boggs, 4 Ibid. 
 294; Kelly v. Ford, 4 Iowa, 140; Whithed v. McAdams, 18 Texas,-551 ; Hil- 
 lebrant v. Ashworlh, Ibid. 307 ; Tucker v. Morrell, 1 Allen, 528 ; Clark v. 
 Pease, 41 New Hampshire, 414 ; Merriam v. Granite Bank, 8 Gray, 254 ; Por- 
 
190 O.F THE CONSIDBKATION. 
 
 *"W"e shall hereafter see that to an action against the 
 L -I accommodatiug party it is no defence that the plaintiff, 
 
 ter V. Gunnison, 2 Grant's Cases, 297; Albietz v. Mellon, 1 Wright, 367; 
 Devlin v. Clark, 31 Missouri, 22 ; Sistermans v. Field, 9 Gray, 331 ; Hoffman 
 V. Foster, 7 Wright, 137 ; Maples v. Browne, 11 Ibid. 458 ; Union Bank v. 
 Ryan, 21 Louis. Ann. 551 ; Holden v. Cosgrove, 12 Gray, 216 ; Graham v. 
 Maguire, 39 Geo. 531 ; Harbison v. Bank of Indiana, 28 Indiana, 133 ; Perkins 
 T. Prout, 47 N. Hamp. 387 ; Latham v. Smith, 45 Illinois, 25 ; Shipley v. 
 Carroll, Ibid; 285 ; Gage v. Sharp, 24 Iowa, 15 ; Loomis v. Metcalf, 30 Iowa, 
 382; Woodward V. Rogers, 31 liiid. 342; Sloan v. Union Banking Co., 17 P. 
 F. Smith, 470.; Sistermans v. Field, 9 Gray, 331 ; Hoffman v. Foster, 7 Wright, 
 137 ; Maples v. Browne, 12 Ibid. 458 ; Fairthorne v. Garden, 1 Houston, 197. 
 The holder of a bank note proved to have been stolen is not bound to show 
 how he came by the bill. Wyer v. Dorchester Bank, 11 Cushing, 51. Duress 
 is a ground to call on holder to prove value. Clark v. Peace, 41 New Hamp- 
 shire, 414. Want of consideration as between the original parties will not 
 cast upon the indorsee the onus of proving that he is a holder for value. Elli- 
 cott V. JVtartin, 6 Maryland, 509 ; Ross v. Bedell, 5 Duer, 462. The accommo- 
 dation acceptor cannot object that the bill was put in circulation in fraud of 
 an agreement between the payee and the drawer to which he was not a party. 
 Winn V. Wilkins, 35 Mississippi, 186. When there is full consideration for 
 the acceptance of a bill, it is not material whether the bill is applied according 
 to the original undertaking of the parties or to another purpose. Moore v. 
 Ward, 1 Hilton, 337. The innocent holder of a negotiable note, the con- 
 sideration of which has wholly failed, is not bound to prove that he paid value 
 for it. Wilson v. Lazier, 11 Grattan, 477. Proof of fraud or want or failure 
 of consideration obliges the holder to prove value. Ross v. Drinkard, 85 Ala- 
 bama, 434. The party who seeks to defend against the holder by reason of 
 some payment, set-off or equity against the payee or an intermediate holder 
 must show that the holder did not give value for It or raise a presumption of 
 that fact, sufficient to call upon him to explain how he came bj' it. Minell v. 
 Reed, 26 Alabama, 730. The burden of proof that a note was obtained bona 
 fide in the usual course of business is thrown on the plaintiff by very sliglit 
 circumstances. Porter v. Gunnison, 2 Grant's Cases, 297. There is in all 
 cases a presumption of bona fides iu the holder. Gray v. The Bank of Ken- 
 lucky, 5 Casey, 365 ; Palmer v. Goodwin, 5 California, 458 ; Cook v. Helms, 
 5 Wisconsin, 107 ; Hill v. Croft, 5 Casey, 186. Fraud or want of considera- 
 tion is no defence for either the maker or accommodation indorser of a pro- 
 rnissory note, as against a bona fide holder for value, to whose possession it 
 came before maturity in the due course of trade, without notice ; but where a 
 note was purchased under such circumstances at a discount, it will be held to 
 have been negotiated in the way of trade only to the amount advanced by the 
 purchaser. Holeman v. Hobson, 8 Humph. 127. Where a promissory note, 
 indorsed by the payee for the accommodation of the maker, is negotiated by 
 the latter in violation of an agreement between them, the holder cannot re- 
 cover against such payee unless he received the note in good faith, for a vala? 
 able consideration and without notice of the arrangement. Small v. Smith, 1 
 Denio, 588. An indorser of a note for the accommodation of the maker and 
 
OF THE OONSIDERATION. 191 
 
 a transferee for value, had notice that the bill was an accom- 
 modatiou bill, and even took it after it was due.(/) 
 
 If the defendant plead that the note was made on an illegal 
 consideration, and that the plaintift" gave no value, and the 
 plaintiff put the whole plea in issue, it will be sufficient for the 
 defendant to prove the illegality, which .will cast on the plain- 
 tiff the burthen of proving consideration. (5') And in a case of 
 fraud the defendant will equally cast the burthen of proving 
 consideration on the plaintiff by proving so much of the plea 
 as alleges that he, the defendant, was defrauded of the 
 m].{h) 
 
 But the defendant is in all cases at liberty to show affirma- 
 tively, by his own witnesses, absence or failure of consideration, 
 where ou the issues raised that would be a defence.(l) 
 
 The common phrase, "bona fide holder for value," is a very 
 loose and ambiguous expression. It may either mean a holder 
 fdr real value in contradistinction to a holder for apparent or 
 pretended value, or it may mean a holder not only for real value, 
 but also without notice of any fraud, illegality, or other vice, 
 
 ,.(/) See post, aud Chapter XI. 
 
 (g) Bailey v. Bidwell, 13 M. & W. 73. And see Harvey V. Towers, 6 
 Exch. 656. 
 
 (A) Ibid. ; but see Brown y. Pliilpot, 2 M. & Rob. 285, overruled, however, 
 Vy Smith V. Braiue, 20 L. J., Q..B. 204; 16 Q. B. 244 (71 E. C. L. R), S. 
 C. ; Berry v. Alderman, 23 L. J., 0, P. 85 ; 14 C. B. 95 (78 E. 0. L. B.), S. 
 C. ; Hall V. Featherstone, 27 L. J., Exch. 309 ; 3 H. & N. aS4, S. C. 
 
 without consideration, and that fact being known to the indorsee when he took 
 the bill, is notwithstanding liable to the indorsee ; and even if the indorsee 
 takes the note after it is due. Brown v. Mott, 7 Johns. 361 ; Pieison v. Boyd, 
 a Duer, 33. Contra, Tucker v. Jenckes, 5 Allen, 330. An accommodation 
 acceptor is bound to pay It though he was known to be such by the holder 
 wh3n he received the bill. Cronin v. Kellogg, 30 Illinois, 11. 
 
 (1) When a mortgage given at the same time with the execution of a: nego- 
 tiable note and to secure payment of it, is subsequently, but before the maturity 
 of the note, transferred bona fide for value, with the note, the holder of the 
 note when obliged to resort to the mortgage is unaffected by any equities aris- 
 ing between the mortgagor and mortgagee subsequently to the transfer, and 
 of which he the assignee had no notice at the time it was made. He takes the 
 mortgage as he did the note. Carpenter v. Longan, 16 Wallace (S. C.J, 271. 
 
192 OF THE CONSIDERATION. 
 
 affecting the title to the bill.(l) The former, that is to say, a 
 holder for real value, with or without notice, is the correct 
 
 (1) As to what constitutes a bona flde holder for value, clear ef equities 
 between the original parties, see Chrysler v. Reuois, 43 N. York, 209 ; Arnold 
 V. Sprague, 34 Vermont, 403 ; Hendeison v. Bondurant, 39 Mo. 369 ; Lane v. 
 Krekle, 23 Iowa, 399 ; Lalhrop v. Donaldson, 23 Iowa, 334 ; Wightman v. 
 Hart, 37 Illinois, 133 ; Worthington v. Curd, 22 Ark. 277 ; Cook v. Larkin, 19 
 Louis. Ann., 507; "Woodworth v. Huntoon, 40 Illinois, 131; Fletcher v. 
 Schaumberg, 41 Mo. 501 ; Bradford v. Beyer, 17 Ohio St. 388; Blackwellv. 
 Denie, 23 Iowa, 63 ; Pratt v. Coman, 37 N. Yt)rk, 440 ; Bromley v. Walker, 
 51 Barb. 303 ; Holden v. Kirby, 21 Wise. 149 ; Ward v. Wick, 17 Ohio St. 
 159 ; Holdeu v. Kirby, 31 Wise. 149 ; Benior v. Paquin, 40 Verm. 199 ; Tobey 
 V. Chipman, 13 Allen, 133; Haskell v. Mitchell, 53 Maine, 468; Bacon t. 
 Burnham, 37 N. York, 614; Wheeler v. Maillot, 20 Louis. Ann. 75; Brown 
 V. Penfleld, 36 N. York, 473 ; Depuy v. Schuyler, 45 Illinois, 306 ; Gage t. 
 Sharp, 24 Iowa, 15 ; DeWitt v. Perkins, 33 Wise. 473 ; Colton v. Sterling, 20 
 Louis. Ann. 283 ; Jones v. Berryhill, 35 Iowa, 389 ; Kellogg v. French, 15 
 Gray, 354 ; Graham v. Wilson, 6 Kansas, 489 ; Boyce v. Geyer, 3 Mich. 0. C. 
 71 ; Clark v. Thayer, 105 Mass. 216 ; Elliott v. Levings, 54 Illinois, 313 ; Pease 
 V. McClelland, 2 Bond, 43 ; Hapgood v. Needham, 59 Maine, 442 ; Calhonnv. 
 Albin, 48 Mo. 304 ; Gibbs v. Linaburg, 33 Mich. 479 ; Fetters v. Muncie Na- 
 tional Bank, 34 Indiana, ,251 ; Lee v. Cliilicothe Brandh Bank, 1 Bond, 387; 
 Michigan Bank v. Eldred, 9 Wallace (8. C), 544; Hamill v. Mason, 51 Illi- 
 nois, 488 ; Douglass v. Matting, 29 Iowa, 498 ; Davis v. West Saratoga Union, 
 
 82 Md. 285 ; Hamilton v. Vought, 34 N. Jers. (Law), 187 ; Park Bank v. Wat- 
 son, 43 N. York, 490 ; Whitney v. Snyder, 3 Lansing, 477 ; Fearing v. Clark, 
 
 83 Mass. 74 ; Gilbert v. Sharp, ,3 Lansing, 413 ; Ryan v. Chew, 13 Iowa, 689 ; 
 Claflin V. Farmers' Bank, 35 N. York, 393 ; Struthers v. Kendall, 5 Wright; 
 314 ; Tufts V. Shepherd, 49 Maine, 313 ; State Bank v. Fox, 3 Blatchf. C. C. 431 ; 
 Eckeit V. Cameron, 7 Wright, 120; Bailey v. Sinith, 14 Ohio (N. S.), 396; 
 Harpham v. Haynes, 30 Illinois, 404 ; Pierce v. Ricker, 16 N. Hamp. 332 ; 
 Kelly V. Pember, 35 Vermont, 183 ; Connecticut River Bank v. French, 6 
 Allen, 313 ; Essex County Bank v. Russell, 29 N. York, 673 ; Aurora v. West, 
 22 Indiana, 88 ; Manny v. Glendinning, 15 Wise. 50 ; Holmes v. Paul, 3 Grant's 
 Cas. 399 ; Barker v. Valentine, 10 Gray, 341 ; Marford v. Davis, 38 N. York, 
 481 ; Kitchel v. Schenck, 39 Ibid. 515 ; Wilson v. Mechanics' Bank, 9 Wright, 
 488 ; Miller v. Consolidation Bank, 13 Wright, 514 ; Marine Bank v. Clements, 
 31 N. York, 33 ; Russell v. Scudder, 43 Barb. 81 ; Van Buskirk v. Day, 32 Illi- 
 nois, 360 ; Vinton v. Peck, 14 Mich. 287 ; Winstead v. Davis, 40 Miss. 785 ; 
 Younker v. Martin, 18 Iowa, 143 ; Franklin v. Twogood, Ibid. 515. 
 
 If the first indorsee acquired a right of action by being a bona fide purchaser 
 without notice,- before maturity, he could transfer a perfect title as well after as 
 before the note fell due. Woodman v. Churchill, 53 Maine, 58 ; Bassett v. 
 Avery, 15 Ohio St. 299 ; Peabody v. Rees, 18 Iowa, 571. The question whether 
 negotiable paper was taken in the regular course of business, resolves itself into 
 the inquiry whether mercantile paper is ordinarily used in the manner in 
 which the paper was used, and whether a business man would ordinarily have 
 received the paper in the circumstances in which it was offered. Roberts v. 
 
OP THE CONSIDERATION. 193 
 
 sense of the expressioii.(j) For a man may really give part or 
 the whole value for a bill, though he have full notice of the 
 fraud or illegality of the original coii8ideration.(/c) He may 
 think that the vice in the original concoction of the bill cannot 
 be proved, or will not be set up as a defence, or he may rely on 
 the solvency of other parties to the instrument. 
 
 The ambiguity will be avoided, if we divide the snbsequent 
 holders of negotiable instruments vitiated by illegality, r^^. .•,-,-, 
 *6tatutable invalidity ,0 or fraud, into two classes; first, ^ " -^ 
 transferees without value; and, secondly, transferees with 
 notice. 
 
 The distinction is important, because the burthen of proof in 
 the two cases is different. 
 
 As soon as it appears to the jury by the defendant's evidence 
 that the, bill was originally infected with fraud, invalidity or 
 illegality, then it is pkiu that, the original holder's title being 
 destroyed, the title of every subsequent holder, which reposes 
 on that foundation and no other, falls with it. Hence it 
 appears ihat the plaintiff; the transferee, can then have no title 
 till he shows that he, or some other holder under whom he 
 claims, has given value for the bill.(m) Therefore, where the 
 question is thus raised, whether the transferee be a holder for 
 value, it is not for the defendant to prove the absence of value, 
 but for the plaintiff, the transferee, to prove value given either 
 by himself or by some one under whom he claims.(n) 
 
 (0 SeeUlher v. Rich. 10 Ad. & E. 784 (38 E. C. L. R.). 
 
 (*) See the observatioa of Alderson, B., in Smith v. Martin, 9 M. & W. 
 307. 
 
 (() E. g., a gaming contract. 
 
 (m) Smith v. Martin, 9 M. & W. 304 ; Builey v. Bidwell, 13 M. & W. 73 ; 
 Harvey v. Towers, 6 Exch. 656. 
 
 (n) Hogg V. Slieen, 34 L. J., C. P. 155. 
 
 Hall, 37 Conn. 205. The mere fact that a negotiable promissory note was 
 acquired under suspicious circumstances, will not invalidate it in the hands of 
 tlie holder, unless the circumstances were such that bad faith on his part can 
 be reasonably inferred therefrom. Hamilton v. Vought, 34 New Jers. (Law), 
 187. See.Sturges V. Metropolitan National Bank, 49 Illinois, 220; Phelan v. 
 Moss, 17 P. F. Smith, 59 ; Taylor v. Atkinson, 54 Illinois, 196 ; City Bank v. 
 Perkins, 29 N. York, 554. 
 
 13 
 
194 OF THE CONSIDERATION. 
 
 But it is otherwise when the question is raised whether the 
 plaintiff, the transferee, had notice of the original illegalitj^ lor 
 fraud. For he having shown, or it being admitted or undis- 
 puted, that he or his predecessor in title gave value, he has a 
 new and independent title. And though possible, it is not 
 likely, that notice of the original fraud or illegality would be 
 communicated to subsequent holders. If, therefore, the defend- 
 ant seek to impeach this new title by alleging notice of the 
 fraud or illegality, it is for him to prove it.(o) The averment, 
 that the plaintitt" had notice of the fraud or the illegality, is 
 not only in form but in substance an affirmative allegation, and 
 the maxim applies, " Ei incumhit probatio qui dicit.(p){l) Be- 
 sides, until the recent alteration in the law, allowing the plain- 
 tift" to be examined as a witness on his own behalf, it might 
 liave been impossible for the plaintiff to prove the negative. 
 Lastly, fraud, or which is *the same thing, participation 
 L -' in a Iraud, is never to be presumed without proof, but, 
 nevertheless, the proof need not be direct, it may be indirect 
 and circumstantial. 
 
 But absence of consideration moving from the plaintiff, 
 proved by the defendant, or otherwise affirmatively established, 
 may in some cases he prima' facie evidence of notice to the 
 plaintiff of fraud or illegality. 
 
 Although notice to the, plaintiff himself be established, that 
 alone will not destroy his right to recover, if he can make a 
 lurther independent title under any intermediate holder who 
 gave value, and had not notice. 
 
 (0) Goodman v. Harvey, 4 Ad. & B. 870 (31 E. C. L. R.)- See the obser- 
 vations of Parke, B., in Biiiley v. Bidwell, 13 M. & W. 75 ; Oakeley v. Ood- 
 deen, Guildhall, M. T. 1861. So held at the second trial of this last case,, in 
 conformity with the opinion of the majority of the Coart of Common Pleas, 
 •who had previously granted a new trial on other grounds. 2 F. & F. 656. 
 
 (p) So where the defendant alleges that the plaintiff took the bill after it was 
 due, it lies on the defendant to prove it. See the Chapter on Transpkb. 
 
 (1) The assignment of a negotiable note before its maturity raises the pre 
 sumption of a want of notice of any defence to it ; and this presumption stands 
 until it is overcome by sufficient proof. Carpenter v. Longan, 16 'Wallace 
 (S. C), 271. 
 
OF THE CONSIDERATION, 195 
 
 Notice of illegality or fraud is either particular or general. 
 
 Particular or explicit notice is where the holder had notice of 
 the particular facts avoiding the bill. But notice of the facts 
 more or less in detail is not necessary in order to invalidate his 
 title. It is sufficient if he had general notice. 
 
 General or implicit notice is where the holder had notice that 
 there was some illegality or some fraud vitiating the bill, though 
 he may not have been apprised of its precise nature. Thus, if 
 when he took the bill he were told in express terms that there 
 was something wrong about it, without being told what the 
 vice was, or if it can be collected by a jury from circumstances 
 fairly warranting such^an inference, that he knew, or believed, 
 or thought, that the bill was tainted with illegality or fraud, 
 such a general or implicit notice will equally destroy his 
 title.(g') 
 
 A wilful and fraudulent abstinence from inquiry into the 
 circumstances(r) where they are known to be such as to invite 
 inquiry, will (if a jury think that the abstinence from inquiry 
 arose from a belief or suspicion that inquiry would disclose a 
 vice in the bill) amount to general or implicit notice.(s)(l) 
 
 (?) Oakeley v. Ooddeen, Guildhall, C. P., November, 1861. 
 
 (r) And it has even been said by the Court of Queen's Bench, that gross 
 negligence may be evidence of fraud. Goodmun v. Harvey, 4 Ad. & E. 870 
 (31 E. C. L. R.). 
 
 («) Oukeley v. Ooddeen, supra ; and see Jones v. Smith, 1 Hure 55 ; Ware 
 v. Lord Egmont, 4 De 6., M. & G. 473 ; Attorney-General v. Stephens, 6 De 
 G., M. &G. 111. 
 
 (1) If there are circumstances which ought to put a holder on inquiry, and 
 he does make Inquiry bona fide and with due diligenGc, he will be protected. 
 Belmont Bank v. Hoge, 7 Bosworth, 543. Where a partner in two firms drew 
 and indorsed in the name of one of them a note payable to its own order, and 
 then added the indorsement of the other firm, the fact that the note and in- 
 dorsements are all in the handwriting of that partner, is not' an indication of 
 such a want of good faith, as to make it the duty of the bank discounting it, 
 to inquire into his authority for this act. Miller v. Consolidation Bank, 13 
 Wright, 514. A note by a psfrtuer in favor of his firm, and indorsed by him 
 in the firm name, indicates nothing that affects a subsequent holder with no- 
 tice of any fraud. Parker v. Burgess, 5 Rhode Island, 277. If the circum- 
 stances are such as would excite the suspicion of a prudent and careful man, 
 
196 OF THE CONSIDERATION. 
 
 *Biit mere negligence, however gross, not amounting 
 '- " ■' to wilful and fraudulent blindness and abstinence from 
 inquiry, will not of itself amount to notice, thoagk it may be 
 evidence of it.(<) 
 
 "Where the holder in taking the bill employs an agent, though 
 the principal be unaffected with notice to himself personally, 
 yet notice to the agent so employed, whether explicit or im- 
 plicit, is notice to his principal the holder.(w) Perhaps, how- : 
 ever, the rule may be subject to this qualification, that the 
 knowledge of the agent, in order to affect his principal, must 
 either have been acquired by the agent in the same transaction, 
 or at least so recently as that it may be presumed to remain in 
 his memory ; and it must be knowledge of a fact material to 
 the transaction, and which it would be the duty of the agent 
 to communicate to his principal.(2:) The effect of notice to an 
 agent, commonly called constructive notice, is not to be ex- 
 tended.(!/) 
 
 But wherever the agent's conduct amounts to fraud, it-is 
 conceived that the innocent principal who takes the benefit of 
 the agent's fraudulent act is civilly responsible for the agent's 
 fraud.(^) 
 
 It would seem, on general principles, that the payment of no 
 bill of exchange, pronaissory note or check, given by the maker 
 or acceptor to the payee, as a gift, inter vivos, can be enforced 
 
 (0 Goodman v. Harvey, supra. 
 
 (it) Oakeley v. Ooddeen, supra. 
 
 ix) Wyllie y. Pollen, 33 L. J., Ch. 783. 
 
 (.y) Ibid. 
 
 (s) The rule of the civil law is conceived to be equally the rule of the Eng- 
 lish law, " Procuratoris scieniiam et dolum nocere debere domino, nequePompo- 
 nius dubitat neque nog dubitamus." Dig. 14, 4, 5. See Cornfoot v. Fowke, 
 6 M. & W. 373, and Udell v. Alherton, 30 L. J., Exch. 337, where the Court 
 were equally divided. 7 H. & N. 173 ; Byn v. McDowell, 14 Ir. 0.- C. Rep. 
 814. 
 
 the holder will be affected with notice. Roth v. Colvin, 33 Vermont, 135 ; 
 Steinhart v. Boker, 36 Barbour, 384. A party taking a bank note in good 
 faith, may recover upon it, although he be guilty of gross negligence in not 
 ascertaining that it had beenjraudnlently put in circulation. Worcester Bank 
 V, Dorchester Bank, 10 Gushing, 488 ; Robinson v. Bank, 18 Georgia, 65. 
 
OPTHBCONSIDERATIOX. ' If 7 
 
 by action at the suit of the donee against the donor.(a)(l) 
 Thus, where a bill of exchange was accepted by the defendant, 
 as a present to the payee, who indorsed it to the plaintift' for a 
 small sum advanced to him, Lord Ellenborough held, that the 
 •plaintiff was only entitled to recover so much as he had ad- 
 vanced on- the bill. (6) The effect of a gift of a negotiable in- 
 strument, payable to bearer, or indorsed by the donor in blank, 
 should seem on principle to *be this. As between the r-^^^.^ 
 donor and the donee, the donor cannot recover the bill '- ^ 
 back or receive the amount from prior parties,(e) but the donee 
 himself cannot sue the donor upon it. As between the donee 
 and the other prior parties to the bill, they are liable to him. 
 If the bill be not transferable, or be payable to order and not 
 indorsed, it is conceived that the effect of a gift of it is to vest 
 the legal property in the paper and the beneficial interest in the 
 money in the donee ;(<i) who, however, must recover from prior 
 parties in the donor's name. 
 
 The same general rules, as apply to the nature of the consid- 
 eration for other simple contracts, are also applicable to the 
 various contracts on a bill or note. It may suffice to observe 
 here, for the sake of the unprofessional reader, that a consid- 
 eration is in general, either some detriment to the plaintiff, 
 sustained for the sake or at the instance of the defendant, 
 or some benefit to the defendant(e) moving from plaintiff. 
 
 (a) Milnes V. Dawson, 5 Bxcb. 948. 
 
 (6) Kasli V. Brown, Ohitty, 10th ed. 54 ; and see Holiday v. Atkinson, 5 
 
 B. & 0. 501 (U E. C. L. R ) ; 8 D. & R. 163, S. 0. ; Easton v. Prachett, 4 
 Tyrwli. 473 ; 1 C, M. & R. 798 ; 3 Dowl. 472 ; 1 Gale, 33 ; S. C, in error, 3 
 
 C. M. & R. 542 : 1 Gale, 250 ; but see Milnes v. Dawson, 4 Exch. 948. 
 (c) Milnes v. Dawson, 5 Excli. 948. 
 
 ((«) See Barton v. Gainer, 27 L. J., Excli. 890 ; 3 H. & N. 387, S. C, as to 
 the effect of a gift of a speciality. 
 
 («) It is not necessary that the consideration should move to the defendant 
 personally ; if it moves to a third person by his desire or acquiescence, that 
 is sufficient. Therefore, the debt of a third person is a good consideration to 
 support a contract on a bill psiyable at a. future day. Sowerby v. Butcher, 2 
 C. & M. 368 ; 5 Tyr. 330, S. C. ; vide post. Past gratuitous services and 
 
 (1) A promissory note given by a parent to his children during his liefetime 
 without consideration, cannot be enforced after his death against his estate. 
 Phelps V. Plielps, 38 Barbour, 121. 
 
198 OF THE CONSIDERATION. 
 
 Natural affection is not a sufficient consideration to support a 
 simple contract.(/) 
 
 If a man give his acceptance to another, that will be a good 
 consideration for a promise, or for another bill or acceptance, 
 though such first acceptance is, after all, unpaid.(^) And, 
 therefore, cross acceptances for mutual accommodation are re- 
 spectively considerations for each other.(A)(l) 
 
 A pre-existing debt due to the holder of a negotiable instru- 
 ment is a good consideration, and it should seem is equivalent 
 to a fresh advance.(2) At all events where the bill or note is 
 payable at a future time, it places the holder in the same situa- 
 
 future services, wliich the payee was under no contract to render, do not form 
 a snflScient consideration for a note. Hulse v. Hulse, 17 C. B. 711 (84 E. C. 
 L. R.). 
 
 (/) Holiday v. Atkinson, 5 B. & G. EOl (11 B. C. L. K.). 
 
 (g) Rose v. Sims, 1 B. & Ad. 521 (20 E. C. L. R ). 
 
 (/i) Cowley V. Dunlop, 7 T. R. 565 ; Buckler v. Buttivant, 3 East, 72 ; Rose 
 V. Sims, 1 B. & Ad. 521 (20 E. C. L. R.). 
 
 (j) Story on Bills of Exchange, s. 192. 
 
 (1) Where cross notes are made and specifically exchanged by tlie makers, 
 each note is the proper debt of the maker thereof, and its holder is a purchaser 
 for value. Dowe v. Schutt, 2 Denio, 621 ; Whittier v. Eager, 1 Allen, 499 ; 
 Cobb V. Titus, 10 New York, 198 ; Williams v. Banks, 11 Maryland, 198 ; 
 Dockway v. Dunn, 37 Maine, 442. A promise to forbear, for six months, to 
 sue a third person, on a just cause of action, is a valid and sufficient considera- 
 tion for a promissory note. Jennison v. Stafford, 1 Gushing, 168. Forbear- 
 ance to prosecute a legal claim and the compromise of a doubtful right, are 
 both suffleient considerations to support a promissory note. Austell v. Rice, 
 6 Georgia, 473. It is no defence to a suit on the note, that such claim could 
 not have been maintained at law, if no fraud or concealment was practised in 
 obtaining the note ; but If the note was given in consequence of a fraudulent 
 concealment of material facts, the payee cannot recover. Stewart v. Ahren- 
 feldt, 4 Denio, 189 ; Bullock v. Agburn, 13 Alabama, 346. In a suit upon a 
 promissory note, made by the defendant, in cousideralion of the plaintiif 's 
 forbearance to seize certain property on attachment against his debtor, the 
 onus of proving that the debtor had, at the time, no interest In the property ; 
 and that therefore the note was without consideration, is upon defendant. 
 Rood V. Jones, 1 Dougl. 183. A release from a legal arrest is a good consid- 
 eration for a note. Waterman v. Barratt, 4 Harrington, 3U. A note given 
 by a person lawfully imprisoned, in order to procure his discharge, is not in- 
 valid as being given under duress. Bates v. Butler, 46 Maine, 387. 
 
OP THE CONSIDERAIION. 199 
 
 tion as if he had maide fresh advances on *the instru- 
 
 nient ;{k) for the remedy for the previous debt is sus- L - J 
 
 pended till maturity of the bill or note.(i)(l) 
 
 (k) See Percival v. Frampton, 3 C, M. & R., 180; 3 Dowl. 748, S. C. ; 
 Foster v. Pearson, 1 C, M. & E. 849; 5 Tyr. 255, S. C. ; but see De hi 
 Chaumctte v. Bank of Enfjlanil, 9 B. & C. 208 (17 E. C. L. R.) ; Vallance 
 V. Siddel, 6 Ad. & E. 932 (33 E. C. L. R.) ; 3 N. & P. 78, S. C. ; Poirier 
 V. Morris, 1 E. & B. 103 (73 E. C. L. R.) ; see In re Carew, 31 Beav. 39. 
 
 (I) In America tlie judicial decisions on tliis important point vary in dif- 
 ferent States. But tlie Supreme Court of tlie United States lias gone tlie 
 full length of holding that the taker of a note for a pre-existing debt has 
 all the rights of a holder for a new consideration. Swift v. Tyson, 16 
 Petprs, i. See the Stale of the American authorities, Byles on Bills, 5th 
 American edition, pp. 229 to 233. 
 
 (1) According to the New York Courts, and those of some other States, one 
 who takes a bill or note for a pre-existing debt, takes it subject to all the equi- 
 ties between the original parties. The leading case, and that by which the 
 doctrine has become known, is Coddington v. Bay, 20 Johns. 637. The 
 grounds of the determination may be briefly given, in the words of 0. J. 
 Spencer : " We are called upon to establish a new principle, or rather to as- 
 certain a principle from d'^cisions in cases as nearly analogous as can be found. 
 In the cases of Miller v. Race, 1 Burr. 453 ; Grant v. Vaughan, 3 Burr. 151P, 
 and 1 Bl. Rep. 485, and Peacock v. Rhodes, Dougl. 633, the Court lay stress 
 on the fact, that the holder came by the notes for a full and valuable consid- 
 eration, by giving money, or money and goods, for them, in the usual course 
 of trade ; and I consider the real principle to be this, that the person passing 
 the notes, from the fact of his having possession, was the ostensible owner of 
 them, and that the holder having in the usual course of business, given credit 
 to these appearances, which he was justified in doing, has been induced to 
 part with his money or propeity bona fide ; and that, as between him and the 
 real owner, there must be a loss on the one side or the other, the law will not 
 divest him of fruits he has honestly acquired, without the possibility of remu- 
 neration. In other words, the equities of the parties being equal, the law 
 leaves him in possession, who already has it. But how are the equities here ? 
 The respondent was clearly and justly entitled to the proceeds of the sale of 
 the vessel, the notes in question ; his agents and trustees were guilty of a 
 grossly fraudulent abuse of their trust, in attempting to deprive him of these 
 notes. Admit that the appellants came to the possession of them without any 
 knowledge of the fraud in passing the notes, how is their situation altered, or 
 what equities have they as against thu respondent ? If they have to account 
 for these notes, their situation is exactly as it would have been, had the notes 
 not have been transferred to them ; merely having had the good fortune to 
 get the notes, without any new consideration or renouncing any lien, their 
 equity to hold the notes, bears no comparison with that of the respondent to 
 demand them. It was suggested that they might have had the benefit of some 
 other security, had they not taken these notes ; but of this there is no proof 
 
200 OF THE CONSIDERATION. 
 
 A fluctuating balance may form a consideration for a bill.(m) 
 Where a banl5;er'8 acceptances for his customer exceeded the 
 cash balance in his hands, and accommodation accoptauces 
 
 (m) Pease v. Hirst, 10 B. & C. 132 (21 E. 0. L. R.) ; 5 M. & Ry. 98, S. C. | 
 Colleniidge v. Farquliarson, 1 Stark. 359 (3 E. 0. L. R.) ; Richards v. Macey, 
 14 M. & "W. 484 ; and for a bond, Henniberv. Wigg, 4 Q. B. 792 (45 B. C. 
 L. R.) ; and see Cliolmley v. Darley, 14 M. & W. 344. Prima facie tlie con- 
 sideration for a note is tlie advance made or balance dne at tlie time ; and If 
 the payee assert that it was given to secure a fluctuating balance, the burden 
 of proof lies on him. In re Boys, L. R., 10 Eq. 467. 
 
 or possibility." See also Wardell v. Howell, 9 Wendell, 170; Rosav' Brother- 
 ton, 10 Wendell, 85 ; Briggs v. Rockwell, 11 Wendell, 504; Hart v. Palmer, 
 13 Wendell, 523 ; Root v. French, 18 Wendell, 570; Payne v. Cutler, Ibid. 
 605 ; Morton v. Rogers, 14 Wendell, 575 ; Dickerson v. Tillinghast, 4 Paige, 
 205 ; Fulton Bank v. Phoenix Bank, 1 Hall, 563 ; Manhattan Company v. 
 Reynolds, 3 Hill, 140. It is confined, however, to the case where tlie note is 
 taken as collateral secm-ity only, and not in payment or satisfaction of the pre- 
 existing debt. Bank of St. Alban's v. Gilliland, 28 Wendell, 31 ; Bnnk of 
 Sandusky v. Scoville, 34 Wendell, 115 ; Mohawk Bank v. Corey, 1 Hill, 513 ; 
 Norton v. Waite, 3 Appleton, 175 ; ^iley v. Anderson, 3 McCIean, 589 ; Ber- 
 trand v. Barkman, 8 English, 150 ; Young v. Lee, 18 Barbour's S. C. Rep. 187 ; 
 •Thompson v. Posten, 1 Duvall, 389 ; Outbwite v. Porter, 13 Mich. 533 ; Cobb 
 V. Doyle,. 7 Rhode Island, 550 ; Bank of New York v. Vanderhost, 33 N. 
 York, 553; Brookman v. Metcalf, Ibid. 591 ; Stat Is v. Byers, 17Iow^,303; 
 Fletcher v. Chase, 16 N. Hamp. 38 ; Rice v. Raitty, 17 H)id. 116 ; Brown v. 
 Leavitt, 81 N. York, 113; Lyon v. Ewings', 17 Wise. 61; Curtis v. Mohr, 
 18 Ibid. 615 ; Washington Bank v. Krum, 15 Iowa, 53 ; Fetters v. Muneie 
 National Bank, 34 Indiana, 251; Robinson v. Lair, 31 Iowa, 9; May v. 
 Quimby, 3 Bush, 96 ; Bunk of New York v. Vanderhorst, 1 Robertson, 211 ; 
 Fisher v. Fisher, 98 Mass. 308 ; Manning v. McClure, 36 Illinois, 490 ; Steven- 
 son V. Heyland, 11 Minn. 198 ; Citizens' Bank v. Payne, 18 Louis. Ann. 222 ; 
 Boatman's Institution v. Holland, 38 Mo. 49 ; Bright v. Judson, 47 Barb. 29 ;. 
 Rhea V. Allison, 8 Head, 176; Smith v. Isaacs, 23 Louis. Ann. 454; Lindsay 
 V. Chase, 105 Mass. 353 ; Bouand v. Genesi, 43 Geo. 639 ; Succession of Dul- 
 honde, 21 Louis. Ann. 8; Conkling v. Vail, 31 Illinois, 166; Foy v. Black- 
 stone, Ibid. 538; Rnddicb v. Lloyd, 15 Iowa, 441 ; Chesbrough v. Wright, 
 41 Barb. 38 ; Duncan v. Gosche, 8 Boswortb, 243. In Pennsylvania, though 
 recognizing the general principle, that one to whom a negotiable instrument 
 has been indorsed as collateral security for a pre-existing debt, who has given 
 no other consideration for it, is not a holder for value; Petrie v. Clarke, 11 
 Serg. & Rawle, 377; Walker v. Geisse, 4 Wharton, 353; Depeau v. Wad- 
 dington, 6 Ibid. 220 ; and the maker, it is said, may aver any ground of de- 
 fence against the indorsee of such a note which would have been competent 
 against the original payee ; Kirkpatrick v. Muirhead, 16 Penna. State Eep. 
 117 ; yet the maker of an accommodation note cannot set up the want of con- 
 sideration as a defence against it in the hands of a third person, though it be 
 
OF THE CONSIDEE ATION. 201 
 
 were deposited by the customer with the banker as a collateral 
 security, it was held, that, whenever the acceptances exceeded 
 the cash balance, the bankers held the coUateiral bills for 
 
 there as a collateral security merely. He who chooses to put himself in the 
 front of a negotiable instrument for the benefit of his friend, must abide the 
 consequence ; Walker v. The Bank of Montgomery County, 13 Serg. & 
 Eawle, 383 ; and has no more right to complain, if his friend accommodates 
 himself by pledging it for an old debt, than if he had used it in any other way. 
 Appleton V. Donaldson, 3 Penna. State Rep. 381. Accommodation paper is 
 the loan of the maker's credit without restriction as to the manner of its use. 
 Lord V. Ocean Bank, 30 Pi^nna. State Rep. 384 ; per Black, 0. J. Where a 
 note is taken in payment of a debt due and secured by indorsement of a third 
 person, which last note is given up and discharged, it is taken "in a due 
 course of trade." Nichol v. Bate, 10 Yerger, 429. One to whom a promis- 
 sory note has been transferred before due, as collateral security for indorse- 
 ments to be made by him, which are afterwards made, and who takes it with- 
 out notice of a defence existing against it in the hands of the person from 
 whom he received it, is entitled to be treated as a bona fide holder in the com- 
 mercial sense. Such holdei', however, cannot recover upon the note when it 
 is not available as between the original parties^ beyond what is due on the in- 
 dorsements against which it was designed to secure him. Williams Ex. v. 
 Smith, 8 Hill, 801. 
 
 In Brush v. Williams, 11 Connecticut-, 338, 0. J. Williams, after a learned 
 and elaborate review of all the authorities, maintains, that such a transfer, as 
 ' security for a pre-existing debt, ought to invest the transferee with all the 
 rights of a bona fide holder for value in the regular course of trade. In Penn- 
 sylvania, it has been held, as already stated, that although the taking of the 
 note of a third person as collateral secmity for a pre-existing debt, without 
 more, will not place the taker in the situation of a holder for value, so as to 
 protect himself against the equities subsisting between the original, parties to 
 the note, jet it is otherwise, if there is a new and distinct consideration, as if 
 time was given in consideration of obtaining the note as security for the debt. 
 Depeau v. Waddington, 6 Wharton, 230. In the subsequent case of Apple- 
 ton V. Donaldson, 3 Barr, 381, the same Court decided that where a note is 
 given by the maker to the payee for his accommodation, he may sell, discount, 
 or pledge it for an antecedent debt ; the rule governing pledges of the property 
 oPothers, not being applied to commercial paper of this character. Rogers, 
 J.: "ThecaseofPetrie V. Clark (11 Serg. & Rawle, 338), as to the general 
 principle is affirmed in Depeau v. Waddington, with t6e expression of regret, 
 that the negotiability of commercial paper should have been restrained, so as 
 to prevent it from being pledged as a security for a debt. That it shall be 
 still further extended is now the question. Petrie v. Clark was the case of a 
 misapplication of funds, which the executor held as trustee for the benefit of 
 creditors and legatees ; and for this reason, the latter were permitted to inter- 
 pose a defence as against a person who in legal parlance had not paid value 
 for it. The same equities were supposed to exist between them as the original 
 parties. But that case differs from this in this essential particular, that in 
 
202 OF THE CONSIDEKATION. 
 
 value.(n) Where bills or notes are deposited as a security for 
 tKe balance of an account current, the successive balances form 
 a shifting consideration for the bill. Thus, where A. and Co., 
 
 (re) Bosanquet v. Duclman, 1 Stark. 1 (3 B. C. L. R.) ; and see Bolland t. 
 Bygiave, 1 R. &M. 271 (21 B. C. L. R.). 
 
 Petrie v. Clark the executor -was not the owner of the note pledged ; here the 
 payee is the legal and equitable owner ; the note is put into the hands of the 
 payee by the maker, for the express purpose of using it in any manner which 
 will best promote his interests." The Supreme Court of the United States, 
 lidwever, have gone the full length of holding, that receiving a note in pay- 
 ment or as security for a pre-existing debt is according to the known usual 
 course of business, and entitles the taker to all the rights and benefits of a 
 liolder bona fide and for valuable consideration. Swift v. Tyson, 16 Peters, 
 1. Story, J. : "It is for the benefit and convenience of the commercial world 
 to give as wide an extent as practicable to the credit and circulation of nego- 
 tiable paper, that it may pass not only as security for new purchases and ad- 
 vances made upon the transfer thereof but also in payment of and as security 
 for pre-existing debts. The creditor is thereby enabled to realize or to secure 
 his debt, and thus may safely give a prolonged credit, or forbear from taking 
 any legal steps to enforce his rights. The debtor has also the advantage of 
 making his negotiable securities of equivalent value to cash. But establish 
 the opposite conclusion, that negotiable paper cannot be applied in payment 
 of or as security for pre-existing debts, withput letting in all the equities be- 
 tween the original and antecedent parties, and the value and circulation of 
 such securities must be essentially diminished, and the debtor driven to the 
 emban-assment of making a sale, thereof, often at a ruinous discount, to some 
 third person, and then by circuity to apply the pi-oceeds to the payment of 
 his debts. What, indeed, upon such a doctrine, would become of that large 
 class of cases where new notes are given by the same or by otherparties, byway 
 of renewal or security to banks, in lieu of old securities discounted by them, 
 which have arrived at maturity ? Probably more than one-half of all bank 
 transactions in our country as well as those of other countries are of this nature. 
 The doctrine would strike a fatal blow at all discounts of negotiable securities 
 for pre-existing debts." 
 
 Besides the considerations thus forcibly presented as to the disastrous con- 
 sequences of the doctrine upon commercial business generally, it may be ob- 
 served, that when a note is transferred as collateral security, if forbearance is 
 not actually stipulated for, it is most commonly implied, or at least there 
 follows a remission of that vigilance and activity, which might otherwise have 
 secured satisfaction of the debt. 1 Leigh's Nisi Prius, 477, American Edition, 
 note (1). Lee alse Washington Bank v. Lewis, 23 Pickering, 24. The plain- 
 tiffs had advanced some money and taken the note for that and as security 
 for a prior debt ; it was held to be available in their hands for both amounts, 
 as the money was advanced for the purpose of securing the prior debt. 
 
 Since the foregoing note to the Fourth Edition was written, the subject has 
 been much agitated in the American Courts, and the cases are numerous and 
 
OF THE CONSIDERATION. 203 
 
 bankers in the country, being pressed by the plaintiffs B. and 
 Co., bankers in town, to whom they are indebted, to send up 
 any bills that they can procure, transmit for account an aceom- 
 
 conflicting. The decision of the Supreme Court of the United Stales in Swift 
 V. Tyson has been followed in Bridgeport City Bank v. Welch, !i!9 Connecti- 
 cut, 475 ; Bank of the Republic v. Carrington, 5 Rhode Island,' 515 ; Davis t. 
 Miller, 14 Grattan, 1 ; Bank v. Chambers, 11 Richardson (Law), 657 ; Payne 
 V. Beasley, 8 California, 260 ; Gardner v. Gager, 1 Allen, 502 ; Robinson v. 
 Smith, 14 California, 94 ; Naglee v. Lyman, Ibid. 450; Atkinson v. Brooks, 
 26 Vermont, 569. On the other side are Fenouille v. Hamilton, 35 Alabama^ 
 319 ; King v. Doolittle, 1 Head, 77 ; Lee v. Smead, 1 Metcalfe (Kent.), 628 ; 
 Alexander v. Springfield Bank, 3 Ibid. 534 ; Farrington v. Frankfort Bank, 
 
 31 Barbour, 183 ; New York Co. v. De Wolf, 3 Bosworth, 86 ; Scott v. Ocean 
 Bank, 23 New Yoik, 289 ; Hutter v. Slower,- 48 Maine, 163 ; Ryan v. Chew, 
 13 Iowa, 589 ; Jenkins v. Schaub, 14 Wisconsin, 1. It seems however to be 
 agreed all round that even where the creditor is held to be a holder for value, 
 be is so only to the extent necei^sary to protect his debt. Grant v. Kidwell, 
 30 Missouri, 455 ; Roche v. Ladd, 1 Allen, 436 ; Williams v. Cheney, 3 Gray, 
 215 ; Mayo v. Moore, 38 Illinois, 428 ; Gilleu v. Huber, 4 Green, 155. And it 
 is" held in Courts which adhere /to the rule that the indorsee as collateral is 
 not a holder for value— that the payee of an accommodation note may pledge 
 it for a pre-existing debt. Such a note is a loan of the credit of the maker to 
 the payee to be used for any legitimate purpose. De Long v. Fyfe, 1 Bos- 
 worth, 335 ; Robbins v. Richardson, 3 Ibid. 248 ; Appleton v. Donaldson, 3 
 Barr, 386 ; Lord v. The Ocean Bank, 8 Harris, 384 ; Perry v. Armstrong, 39 
 New Hampshire, 583 ; Work v. Kase, 10 Casey, 138 ; Agawam Bank v. 
 Blrever, 18 New York, 503. That where the note is taken in paj'ment'of an 
 antecedent debt, the holder lakes it discharged of equities, is settled in 
 McCaskey v. Sherman, 34 Conn. 605. New York Woiks v. Smith, 4 Duer, 
 362 ; Gould V. Seger, 5 Ibid. 360 ; Scott v. Belts, Hill & Denio, 363 ; Dixon 
 V. Dixon, 31 Vermont, 450 ; New York Co. v. De Wolf, 3 Bosworth, 86 ; 
 Purchase v. Mattison, Ibid. 810 ; Emanuel v. White, 34 Mississippi, 56 ; 
 Stevens v. Campbell, 13 Wisconsin, 375 ; Struthers v. Kendall, 5 Wright, 214 ; 
 Youngs v. Lee, 18 Barbour, 187 ; Youngs v. Lee, 3 Kernan, 551. One who 
 receives a note as security for an old debt, and thereupon surrenders securities 
 previously held, holds the note free from all equities. Ayrault v. M'Queen, 
 
 32 Barbour, 305 ; Slettheirner v. Meyer, 33 Ibid. 215. Whew holder gives 
 time on an antecedent debt, in consideration of the transfer to him, he is a 
 holder for value. Boyd v. Cummings, 17 New York, 101. A forbearance to 
 sue and a surrender of other collaterals is a good consideration for a new 
 transfer of collaterals. Goodman v. Simonds, 20 Howard (S. C), 343. When 
 there is an exchange of notes between the indprEer and payee, the holder is 
 for value. Bacon v. Holloway, 2 B. D. Smith, 159. Where one receives a 
 note as collateral security for money advanced alj the time of the iudorse- 
 menl, or for any consideration then arising, he is a kolder for value. Tarbell 
 v. Bturtevant, 36 Vermont, 513 ; Griswold v. Davis, yi Ibid. 390 ; Housum 
 V. Rogers, 4 Wright, 190. 
 
204 OF THE CONSIDERATION. 
 
 modation bill accepted by the defendant ; when the bill becomes 
 due the balance is in favour of A. and Co., but the bill is not 
 withdrawn, and afterwards the balance between the houses; 
 turns considerably in favour of B. and Co., the plaintiffs, and 
 is so when A. and Co. become bankrupts, B. and Co., are en- 
 titled to recover against the defendant, the accommodation 
 acceptor.(o) 
 
 .A subsisting debt due from a third person is a good con- 
 sideration for a bill or note(p) payable at a future day; 
 *and so is a debt due from the defendant and a third 
 L ■'■'^"-1 * person.(g) If the debt of the third person is extin- 
 guished by the bill or note being taken in satisfaction, there is 
 a good consideration, though the instrument be payable on 
 demand. (1) 
 
 (o) Atwood V. Crowdie, 1 Stark. 483 (3 B. C. L. R.) ; see Woodroffe v. 
 Hayne, 1 Car. & Payne, 600 (47 E. 0. L. R.). 
 
 (p) Popplewell V. Wilson, 1 Stra. 264 ; Coombs v. Ingram, 4 D. & B. 211 
 (16 E. C. L. R.) ; Sowerby v. Butcher, 2 C. & M. 373 ; 4 3Cyr. 320, S. C; 
 Garnet v. Clarke, 11 Mod. 226 ; Ridout v. Bristow, 1 C. & J. 331 ; 1 Tyr. 84, 
 S. C. ; Wilders v. Stevens, 15 L. J. Exch. 108; 15 M. & W. 208, S. 0. ; nnd 
 see Leclimere v. Fletcher, 1 C. & M. 633; Baker v. Walker, 14 M. & W. 
 465 ; Walton v. Mascall, 14 L. .T., Exch. 54 ; 13 M. & W. 453, S.C. ; Cook , 
 V. Long, Car. & M. 510 (41 E. C. L. R.). At least, if the note be payable at 
 a future day, for then the note amounts to an agreement to give time to the 
 original debtor, and that indulgence to him is a consideration to the maker. 
 Ballour v. Sea, Fire and Life Insurance Company, 3 C. B., N. S. 300 (91 E 
 C. L. R.). Secus, if the original debtor is dead and has no representati! 
 Nelson V. Serle, 4 M. & W. 795 ; reversing Serle v. Waterworlh, 4 M. & W. 
 9 ; 6 Dowl. 684, S. C. But if the note be payable immediately, it is con- 
 ceived that the pre-existing debt of a stranger could not be a consideralj^ 
 unless it were taken in saliisfaction, or unless credit had been given to the 
 original debtor at the maker's request. Crofts v. Beale, 11 C. B. 173 (73 E. 
 C. L. R), ace. 
 
 (?) Heywood v. Watson, 4 Bing. 496 (18 E. C. L. R.) ; 1 M. & P. 368, 
 S. C. 
 
 (1) The debt of a third person to the payee is a sufllcient considera:tioii'f '' 
 the promise of the maker of a note. Brainard v. Capella, 31 Missouri, 438. , 
 A debt from the drawee to a third person is a good consideration for the ac- _ 
 ceptance of a bill. Arnold v. Sprague, 34 Vermont, 403. C.'s note given to 
 payA.'s debt to B. is without consideration. Bingham v. Kimball, IT In- 
 diana, 396 ; Tousey v. Taw, 19 Ibid. 212. The consideration of a promissBiyjjg 
 note taken'before due, cannot be inquired into in a suit between the bon&fiii 
 
OFTHK CONSIBERATION. 205 
 
 A judgment <}ebt is a good consideration for a note payable 
 at a future day ; for it imports an agreement on the part of the 
 judgment creditor to suspend proceedings on the judgment till 
 the maturity of the note.(r) 
 
 The compromise of a claim, though really unfounded and 
 believed to be so by the party against whom it is made, may 
 be a good consideration for a promissory ,note.(s)(l) 
 
 A ■moral obligation is in general iusuiBcient, but may, in 
 some cases, be a consideration for a bill or note, as where there 
 once existed a legal liability, though it may have been barred ' 
 by Btatute.(<) " Quisque renunciare potest juri pro se intro- 
 dudo." Thus, for example, where a bankrupt, after his bank- 
 ruptcy, gave a promissory note to the plaintiff, one of his 
 creditors, for part of his debt, it was held that the note was 
 given on a good consideration.(M) And a note given by the 
 purchaser of an estate to the vendor for the purchase-money, 
 though the contract be void by the Statute of Frauds, is made 
 on sufficient eonsideration.(a;)(2) 
 
 (r) Baker v. Walker, 14 M. & W. 465. 
 
 (s) Cooke V. Wright, 30 L. J., Q. B. 331 ; Callisher v. Bischcffsheim, L. R, 
 5Q.B. 449; 39L. J. 181. 
 
 (0 See the note to Wennall v. Adney, 3 B. & P. 249 ; Eas'.-wood v. Ken- 
 yoii, 11 Ad. & E. 438 (39 E. C. L. R). 
 
 (tt) Truman v. Fenton, Cowp. 544 ; and see Brix v. Braham, 1 Bing. 281 
 (8 E. C. L. R.) ; 8 Moore, 201, S. C. 
 
 (X) Jones V. Jones, 6 M. & W. 84. Perhaps this case may be rested on an- 
 otlier ground. 
 
 I A majority of the Court of Exchequer have recently held that a bill given 
 since the repeal of the usury laws to repay a debt with usurious interest con- 
 tracted during the existence of the usury laws is binding. Plight v. Iteed, 23 
 L. J., Exch. 365 ; 1 H. & C. 708, S. C. 
 
 F 
 
 holder and maker, unless the note is void in its creation. Baker v. Arnold, 3 
 Caines, 879 ; Vallelt v. Parker, 6 Wend. 615 ; Woods v. Hynes, 1 Scam. 
 103. 
 
 (1) A settlement of a doubtful claim is a good consideration for a note, un- 
 less there was fraudulent representation. Stephens v. Spiers, 35 Missouri, 
 386 ; Phelps v. Younger, 4 Indiana, 450 ; Magee v. Badger, 30 Barbour, 3^6 ; 
 Russell V. Cook, 3 Hill, 504. 
 
 (3) See Nightingale v. Barney, 4 Greene, 106 ; Anderson v. Chicago Ins. 
 Co., 31 Illinois, 601. An expectation, on the part of the payee, that the maker 
 
206 OF THE CONSIDERATION. 
 
 r*io-i *Between immediate parties — that is, Between the 
 '■ 'J drawer and acceptor, between the payee and drawer, 
 between the payee and maker of a note, between the indorsee 
 and indorser, the only consideration is that wbich moved from 
 the plaintift to the defendant, and the absence or failure of this 
 is' a good defence to an action. Thus, where a bill was drawn, 
 in the regular course of trade, and delivered to the payee^s 
 agent, before the consideration was given, and the payee's 
 agent, who was to have paid the consideration, failed, the 
 paj'ee ctfuld not recover against the drawer.(y) But, between 
 remote parties — for example, between payee and acceptor, 
 between indorsee and acceptor, betwieen indorsee and remote 
 indorser, two distinct considerations, at least,' must come in 
 question : first, that which the defendant received for his lia- 
 bility ; and, secondly, that which the plaintift'gaveforhis title. 
 An action between remo.te parties will not fnil unless there be 
 absence or iailure of both these considerations.(2) And if any 
 intermediate holder between the defendaht and the plaintiff 
 gave value for the bill, that intervening consideration will 
 sustain the plaiutiiF's title.(a)(l) 
 
 (y) Pnget de Bras v. Forbes, 1 Esp. 117 ; Astley y. Johnson, 89 L. J., 
 Excli. 161 ; 5 H. & N. 137, S. C, where it was held that a promise to give 
 consideration in money at a specified fnture time having been broljen, parties 
 liable on the bill have a right to treat the payment of money as the considera- 
 tion, and not the promise to pay it. Jeffries y. Austen, 1 Stra, 674 ; Jackson 
 y. Warwick, 7 T. R. 131. In Munrpe v. Bordior, 19 L. J., C. P. 133 ; 8 0. 
 B. 863 (65 E. C. L. R.), S. C, it seems to be held that a payee who takes a 
 bill bona fide for value from a person to whom the drawer had entrusted the 
 bill, but who parts with it against his instructions, acquires a title. 
 
 Indeed, a payee, when he is a third person, seems to have the same title as 
 the first indorsee of a bill payable to the drawer's own order. Poirierv. 
 Morris, 3 E. & B. 89 (7.i E. C. L. R.). 
 
 (a) Robinson v. Reynolds, 3 Q. B. 196 (43 E. C. L. R.) ; Thiedemann v. 
 GoldschmidI, 1 De G., F. & J. 4. See Agra and Mastorman v. Leighton, 36 
 L. J., Exch. 33; L. R., 3 Exch. 56, S. C, where an equitable plea stating 
 faets amounting to a failure of both these considerations was held good. 
 
 (a) Hunter v. Wilson, 19 L. J., Exch. 8 ; 4 Exch. 489, S. 0. 
 
 would marry her, is not a sufficient consideration for a promissory note. 
 Raymond v. Sellick, 10 Conn. 480. A promissoiy note, the only considera- 
 tion -of which is the love and affection of the maker to the payee, will nflt 
 create a valid obligation against the maker or his representatives, either at law 
 or in equity. Smith v. Kittredge, 31 Vermont, 33^. 
 
 (1) Boyd V. McCann, 10 Maryland, 118; Howell v. Crane, 13 Louisiana 
 Annual, 126 ; Watson v. Flanagan, 14 Texas, 354. 
 
OF THE CONSIDERATION. 207 
 
 Thus it is no defence to an action by an indorsee for value 
 against an acceptor, that the acceptor received no value.(6) 
 Nor on the other hand, that though the acceptor received value, 
 the indorsee gave none. On the same principle, if the accept- 
 ance were without consideration, and the plaintiff", the indorsee, 
 knew it, he, as a general rule, can recover no *more than p^. no-i 
 he gave for the bill ;'c) for, suppose the bill to be for 
 lOOl. and that the indorsee gave 601. for it, if he could recover 
 1001. from the acceptor, the acceptor having recovered that sum 
 of the drawer, the drawer might recover back 40?. from the 
 •indorsee as money received to the drawee's use.(c?)(l) 
 
 The entire failure of the consideration has the same eff'ect as 
 its original aiid total absence. A. appointed B. his executor 
 and gave him a promissory note, payable on demand, for 100?., 
 
 (J) Collins V. Martin, 1 Bos. & Pul. 651. 
 
 (c) Wiffen v. Bobers, 1 Esp. 261. 
 
 (d) Jones v. Hibbeit, 2 Stark. 304 (3 E. C. L. R.). These observations 
 do not apply to an accommodation acceptance, properly so called. 
 
 (1) The consideration of a promissory note taken before due, cannot be in- 
 quired into in a suit between the bona fide holder and tnaker, unless the note 
 is Yoid in its creation. Baker v. Arnold, 3 Gaines, 279 ; Vallett v. Parker, 
 6 Wend. 615 ; Woods v. Hynes, 1 Scam. 108. , The indorsee who takes the 
 note after it is due, takes it subject to all the equities between the original 
 parties arising from the note, including want or failure of consideration. 
 Sylvester v. Crapo, 15 Pick. 92 ; Thompson v. Hale, 6 Pick. 259 ; Ayer v. 
 HutchiiiB, 4 Mass. 370 ; Wilson. v. Holmes, 5 Ibid. 543; Rice v. Goddard, 14 
 Pick. 293 ; Barnett v. Off'erman, 7 Watts. 130. In a suit in the name of the 
 payee of a note not negotiable, for the use of an innocent indorsee against the 
 maker, the defendant may set up want of consideration. Long v. Long, I 
 Morris, 43. When a promissory note has been assigned but not indorsed, 
 proof by the maker that there was no consideration, or that the note was 
 fraudulently obtained by the payee, is admissible. Oalder v. Billington, 15 
 Maine, 398. A note absolutely void, as for an illegal consijeratlon, is void in 
 the hands of an innocent indorsee for a valuable consideration without notice. 
 Lucas V. Waul, 12 Smedes & Marsh. 157. A negotiable note, given for a 
 gambling debt, is void, even in the hands of a bona fide holder for value. 
 Unger v. Boas, 13 Penna. State Rep. 601. The maker of a negotiable note, 
 appearing on the face of it to have been given in consideration of the trans- 
 fer of a patent light, which afterwards proved to be of no value, cannot set 
 up this want of consideration as a defence to an action by a bona fide indorsee. 
 Goddard v. Lyman, 14 Pick. 268. It seems that in Mississippi, the indorsee 
 of a note in all cases takes it subject to the equities existing against it in the 
 hands of the assignor. Regan v. Gray, 27 Miss. 645. 
 
208 OF THE CONSIDERATION. 
 
 in, consideration of the trouble he would have in the office of 
 executor after A.'s death. B., however, died firsft ; but his 
 executors brought an action on the 'note against A. It was 
 held, that, as the consideration for the note had totally failed, 
 the action was not maintainable.(e) 
 
 It is no defence to an action by an indorsee for value against 
 an accornmodation acceptor, who has received no consideration, 
 that, at the time the plaintiff took the bill he knew the defend- 
 ant had received no value ;(/) unless, indeed, the plaintiff took 
 it of a person who held it , for a particular purpose, and was 
 therefore guilty of a breach of duty in transferring it to the 
 plaintiff", and the plaintiff", at the time of taking it, w^s cogni- 
 zant of the circunistances.(^) 
 
 An accommodation bill is a bill to which tjie accommodating 
 party, be he acceptor, drawer, or indorser, has put his name, 
 without consideration, (A) for the purpose of benefiting or accom- 
 modating some other party, who desires to raise money on it 
 and is to provide for the bill when due.(j)(l) 
 
 («) Solly V. Hinde, 2 C. & M. 516 ; 6 C. & P. 316 (35 E. C. L. R ), S. 
 C. ; Wells V. Hopkins, 5 M. & W. 7. 
 
 (/) Smith V. Kuox, 3 Esp. 47 ; Charles v. Marsden, 1 Tannt. 234 ; Fen- 
 tum V. Pococke, 5 Taunt. 193 (1 E. C. L. R.) ; 1 Marsh, 14 S. C. ; Bank of 
 Ireland v. Beresford, 6 Dow. 337 ; and see Popplewell v. Wilson, 1 Stra. 
 264 ; and Wiflen v. 'Roberts, 1 Esp. 261 ; and see Jewell v. Parr, 16 C. B. 
 684 (81 E. C. L. R.) ; 36 L. J., Ex. 33 ; L. R., 3 Ex. 56. 
 
 {g) If a message be sent comprising facts, the communication of which 
 would impugn tlie title to a bill, there is no presumption that the message was 
 delivered ; its delivery must be proved. Middleton v. Earned, 4 Exch. 241. 
 See the Chapter on Tbanbfer. 
 
 (Ji) As to his remedy for the costs of an action brought against him, see 
 post, Chapter XXXIII. 
 
 (j) Bills drawn specifically the one against the other, for the same amount, 
 are not in this sense accommodation bills. See the Chapter on Bankruptcy. 
 Burden v. Bentou, 9 Q. B. 843 (58 E. C. L. R.) ; 16 L. J., Q. B. 353, 8. 
 C. ; see also King y. Phillips, 13 M. &. W. 705. 
 
 (1) Accommodation paper in the strict sense of the term, is a loan of the 
 maker's credit without instruction as to the manner of its use. Lenheiin Vr 
 Wilmarding, 5 P. F. Smith, 73. See as to accommodation paper generally, Har- 
 rington V. Dorr, 1 Robertson, 351 ; Stewart v. Smith, 17 Ohio St. 82 ; Cole 
 V. Saulpaugh, 48 Barb. 104; Schepp v. Carpenter, 49 Barb, 5 43; Deems v. 
 
OE THE CONSIDEBATION. 209 
 
 *A party who procui-es another to lend his acceptance, p^-, nq-i 
 thereby engages either himself to take up the bill, or 
 else within a reasonable time before the bill becomes due to pro- 
 vide the accommodation acceptor with funds for so doing, or, 
 lastly, to indemnify the accommodation acceptor against the 
 consequences of non-payment.(A) And, therefore, where the 
 drawer of a bill, accepted for his accommodation, a week before 
 the bill became due, handed over bank notes to the accommoda- 
 tion acceptor, it was held that he could not himself revoke this 
 payment, and therefore that his bankruptcy before the bill be- 
 came due did not amount to a revocation.(^)(l) 
 
 (*) Reynolds v. Doyle, 1 M. & G. 753 (39 E. 0. L. R.) ; 3 Scott, N. R. 45, 
 S. C. 
 
 (0 Yates V. Hoppe, 9 C. B. 541 (67' E. C. L. R). Had the payment been 
 a fraudulent preference, it would of course have been otherwise. 
 
 Crook, 1 Edmonds' Sel. Cas. 95; Fenn v. Dugdale, 40 Mo. 63; Crane v. 
 Trudean, 19 Louis. Ann. 807; Winters v. Honie Ins. Co., 31 Iowa, 173; 
 Palmer v. Whitney, 31 Indiana, 58; Bowman v. Cecil Bank, 3 Grant's Cas. 
 33 ; Traders' Bank v. Bradner, 43 Barb. 879 ; Sawyer v. Chambers, 44 Baib. 
 42; Sitgreares v. Farmers' Bank, 13 Wright, 859; Weston v. Hardin, 6 
 Coldwell, 375 ; Jones v. Jones, 33 Ark. 313 ; Stickney v. Mohler, 19 Md. 490 ; 
 Howe V. Potter, 61 Barb. 356 ; Connelly v. Bourg, 16 Louis. Ann. 108 ; De 
 Barry v. Withers, 8 Wright, 356 ; Heintzelman v. L'Amoureux, 3 Nevada, 
 377 ; Shaw v. Knox, 98 Mass. 814 ; Owens v. Miller, 39 Md. 144 ; Corbitt v. 
 Miller, 43 Barb. 305 ; Thatcher, v. West River National Bank, 19 Mich. 196 ; 
 Chester v. Dorr, 41 N. York, 379. 
 
 A note for the accommodation of the payee may be pledged before or after 
 maturity, and it matters not that the pledgor knew its character. East River 
 Bank v. Butterworlh, 45 Barb. 476. The fact that the maker of an indorsed 
 note has it in possession, and offers it for discount before maturity, is not 
 notice to the purchaser of its payment, but rather that it was indorsed for his 
 accommodation. Eckert v. Camenm, 7 Wright, 130. 
 
 (1) If the maker gets an indorsed note discounted, the transaction on its 
 face shows that it was indorsed for the accommodation of the maker. Wal- 
 lace V. Branch Bank, 1 Alabama, 565, If a prior indorser offer a note to be 
 discounted on his own account, the transaction imports upon its face that the 
 subsequent indorsement was made for the accommodation of the prior in- 
 ^dorser. Mauldin v. Branch Bank, 3 Alabama, 502; Noble v. Walker, 33 
 Ibid. 456. An accommodation indorsement need not be exclusively for the 
 benefit of the indorsee, but may be for the mutual accommodation of the 
 drawer and the indorsee. Farrer v. Gregg, 1 Richardson, 378. Indorsers of 
 promissory notes, indorsed for the use and accommodation of the maker, are 
 cosureties, and the last indorser cannot recover more than a contribntive sliare 
 against a previous indorser. Douglas v. Waddle, 1 Hamm. 418. Contra, 
 
 14 ^ 
 
210 - OF THE CONSIDERATION. 
 
 The effect of indorsing or otherwise transferring an overdue 
 accommodation bill, will be further considered hereafter in the 
 Chapter on Transfer. 
 
 Where a defendant can insist on a total want of considera- 
 tion as a defence, he may also set np its partial absence or fail- 
 ure, as an answer pro tanto. Thus in an action by the drawer 
 of a bill for 19Z. 5s., payable to his own order, against the ac- 
 ceptor, it appearing that the bill was accepted, for value as to 
 10Z.,and as an accommodation to the jilaintiff as to the residue, 
 Lord Ellenborough held, " that although with respect to third 
 persons the amount of the bill might be 19^. 55., yet as between 
 these parties it was an acceptance to the amount of 10^. only."(m) 
 
 But the money as to which the consideration fails must be of 
 a specific ascertained amount, for the jury cannot, in an actiou 
 on a bill or note, assess by way of set-off the damages arising 
 from a breach of contract, but the defendant must be left to his 
 cross action. Drawer against the acceptor of a bill : the plain- 
 tiff agreed to let a house to the defendant for twenty-one years, 
 and in consideration of 500^., to be paid by three bills, to be 
 
 (m) Darnell v. Williams, 3 Stark. 166 (3 E. C. L. B.) ; Barber v. Bacls- 
 ho-aae, Peake, 61 ; Clarke v. Lazarus, 3 M. & G. 167 (43 E. C. L. E.) ; 2 
 Scott, N. R. 391, S. C. ; Agra and Masterman v. Leighton, 36 L. J., Ex. 33 ; 
 L. E., 3 Ex. 56. 
 
 Youngs V. Ball, 9 Watts, 139. The last indorser of a note, who pays the 
 amount to the holder, may recover it against any prior indorser, whether the 
 note was Indorsed by all for the accommodation of the maker or not. Ibid. ; 
 Williams v. Basson, 11 Ohio, 63 ; Cathcart v. Gibson, 1 Eichardson, 10. See 
 Hunt V. Armstrong, 5 B. Monroe, 399 ; Stiles v. Eastman, 1 Kelly, 205; Bank 
 of the U. S. V. Beime, 1' Grattan, 234 ; Sherrod v. Rhodes, 5 Alabama, 683. 
 
 A. procured the discount of two notes, one indorsed by B., and the other by 
 
 B. and C, for the accommodation of A. When they fell due, A. procured a 
 renewal by giving one note for the amount indorsed by B. and C, but the 
 order of their indorsements being changed : held, that it was for the jury to 
 determine whether or not such change in the order was intended to change 
 their liabilities. Allison v. Purdy, 6 Barr, 501. If one of two joint payees 
 and indorsers of a note discounted for the accommodation of the maker di% 
 before the note falls due, his representatives are not liable to the holder for 
 any part of the amount. Kennedy v. Carpenter, 2 Whart. 344. An accom- 
 modation indorser of a note to be discounted in bank may, before the note is 
 discounted, recede from his agreement and direct the bank not to receive the 
 note ; and such indorser will not be liable to a third person who takes the 
 note with notice. Dog^n v. Dubois, 3 Richardson, Eq. Eep. 85. 
 
.OF THE CONSIDERATION. 211 
 
 \ 
 
 drawn bj' the plaintift' and accepted by the defendant, agreed to 
 execute a lease for that term. The bill in question, and two 
 others, were drawn and accepted accordingly, and the desfend- 
 aut was immediately let into possession ; but the plaintiff re- 
 fused to execute the lease. *It was argued, therefore, r*i oq-i 
 that the consideration had failed. But Lord Ellen- 
 borough, and afterwards the Court, on a motion for a new trial, 
 held, that it was no defence to the action, that the defendant 
 was bound to pay the bills and might have his remedy on the 
 agreement for non-execution of the lease.(?i) Where the con- 
 sideration lor an acceptance was goods sold, and the vendor for- 
 cibly retook possession, the consideration was held not to have 
 failed.(o) So, where a bill or note is given for goods sold, or 
 work done, the price, amount, and quality of the goods, or work, 
 cannot be disputed in an action on the bill.(2') So, where work 
 had been done by the plaintiff for the defendant, for which the 
 plaintiff charged the defendant 63Z., and the defendant paid the 
 plaintiff 43?. in money, and gave him a bill for the remaining 
 201. ; it is no defence to an action by the plaintiff' against the 
 defendant on the bill that the work done was not worth 4:3L{q) 
 And, where the amount for which the consideration fails is 
 unliquidated, a bill in equity for an injunction to restrain an 
 action on the bill of exchange and for an account carmot be 
 niaintained.(r)(l) 
 
 («) Moggeridge v. Jones, 14 East, 486 ; 3 Camp. 38, S. C. ; Spiller v. West- 
 lakf, 3 B. & Ad. 155 (22 E. C. L. R.) ; Mann v. Lent, 10 B. & C. 877 (21 E. 
 C. L. R.) ; Giant v. Welchman, 16 East, 207 ; Cuff v. Browne, 5 Price, 297. 
 
 (o) Stephens V. Wilkinson, 3 B. & Ad. 320 (33 B. C. L. R.) ; see also Jones 
 V. Jones, 6 M. & W. 84 ; and Lomas v. Bradshaw, 19 L. J., C. P. 378 ; 9 C. 
 B, 620 (67 E. C. L. R.), S. 0. 
 
 (p) Morgan v. Richardson, 7 East, 483, n. ; 8 Smith, 487, S. C. ; Tye v. 
 Gwynne, 3 Camp. 846 ; Obbard v. Betham, 1 M. & M. 483 (32 E. C. L. R.) ; 
 ■Warwick v. Nairn, 10 Exch. 762. 
 
 (S) Tricky v. Larne, 6 M. & W. 278. 
 
 (r) Glennie v. Imrie, 3 Y. & C. 436. 
 
 (1) The failure of consideration, either in whole or in part, may be set up 
 as a defence between the original parties, or any other than a bona fide holder 
 without notice.. Tillotson v. Grapes, 4 N. Hamp. 444 ; Earl v. Page, 6 N. 
 Hamp. 447; Pryor v. Coulter, 1 Bailej-, 517; Cook v. Mix, 11 Conn. 433; 
 Denniston v. Bacon, 10 Johns. 198 ; Amherst Academy v. Cowls, 6 Pick. 
 427; Payne v. Cutler, 13 Wend. 605 ; Barnes v. Finch, 3 Root, 53 ; Spalding 
 
212 OF THE OONSIDKRATION. 
 
 Fraud is an artifice to deceive and injure. 
 Fraud avoids every contract and every act. " Fraud," says 
 the Lord Chief Baron, " cuts down everything. The law sets 
 
 V. Vandercook, 2 Wend. 431 ; Burton v. Steward, 3 Ibid. 236 ; Rogers v. 
 McKnight, 4 J. J. Marsh. 154 ; J!.hn^on v. Titus, 2 Hill, 606 ; Lattin v. Vail, 
 17 Wend. 188; Scudder y. Andrews, 3 McLean, 464 ; Washburn v. Picott,'3 
 Dev. 890 ; Campbell v. Krown, 6 How. Miss. 106 ; Jenness t. Parker, 24 
 Maine, 289 ; Stone v. Fowle, 22 Piik. 1C6 ; Firguson v. Oliver, 8 Smedes & 
 Marsh. 232 ; Beers v. Williams, 16 Illinois, 69; Wise v. Keal, 39 Maine, 492. 
 When the consideration for accepting a bill was timber which the payee 
 directed the drawer to cut and deliver to the acceptor, and the payee had no 
 property in the timber which never came to the bands of the acceptor, it was 
 held that the acceptor was not liable in an action by the payee. Walker v. 
 Squires, Hill & Denio, 23. Failure of consideration, is not a good defence 
 against a bona fide holder without notice. McCaskill v. Ballard, 8 Ricliardson, 
 470 ; Harlow v. Boswell, 15 Illinois, 56 ; Black v. Mitchell, 14 Indiana, 397. 
 The fact that the holder of a note took it with a knowledge of the considera- 
 tion for which the note was given, but without knowledge of any failure 
 therein, is not enough to charge such holder with notice of a failure in such 
 consideration. Davis v.. McCready, 4 E. D. Smith, 565. 
 
 That a partial failure of consideration is no defence, see Jordan v. Jordan, 
 Dudley Geo. 181 ; Hinlon v. Scott, Ibid. 245 ; Scudder v. Andrews, 3 Mc- 
 Lean, 464 ; Washburn v. Pitott, 3 Dev. 390; Kernoille v. Hunt, 4 Bhickf. 
 57 ; Wentworth v. Goodwin, 27 Maine, 150 ; Chase v. Weston^ 12 N. Hamp. 
 413 ; Riddle v. Gage, 37 N. Hamp. 519 ; Loring v. Otis, 7 Gray, 5{'3 ; Thomp- 
 son V. Mansfield, 43 Maine, 490; Hassam v. Dampier, 2 Williams, 32; 
 Stookey V. Hughes, Id Illinois, 55; Martin v. Foreman, 18 Arkansas, 249;. 
 Thompson v. Crulcher, 26 Missouri, 31!) ; Richardson v. Sanborn, 33 Ver- 
 mont, 75 ; Harrington v. Lee, 33 Vermont, 249 ; Reese v. Gordon, 19 Cali- 
 fornia, 147; Wallers v. Armstrong, 5 Minnesota, 448; Cragin v. Fowler, 34 
 Vermont, 326 ; contra, McHenry v. Yokum, 27 Illinois, 160 ; Mcfpre v. Lan- 
 ham, 3 Hill (South Carolina), 299 ; Sumpter v. Welsh, 1 Brevard, 539 ; Smith 
 V. Ackerman, 5 Blackf. 541 ; Purkett v. Gregory, 2 Scam. 44 ; Barr v. Baker, 
 9 Missouri, 850 ; Griffey v. Payne, 1 Morris, 68 ; Hammct. v. Emerson, 27 
 Maine, 308 ; Coburn v. Ware, 30 Maine, 202 , Andrews v. Wheaton, 23 
 Conn. 112 ; Tompkins v. Tigiier, 17 Georgia, 103. In an action on a bill or 
 note, the defendant cannot show a partial failure of consideration to reduce 
 the damages, if the quantum to be deducted is of an uncertain and unliqui- 
 dated amount, and there has been no attempt to repudiate the contract or 
 restore the consideration. Pulsifer v. Hotchkiss, 12 Conn. 234; Drew v. 
 Towle, 7 Foster, 412. 
 
 See further as to failure of consideration in whole or in part, as between the 
 original parties; Wyckoff v. Runyon, 33 New Jersey (Law), 107; Blood v. 
 Norlhup, 1 Kansas, 28 ; Wynne v. Whisenant, 1 Ala. Sel. Cas. 282 ; Fletcher 
 V. Chase, 16 K Hamp. 38 ; Sawyer v. Chambers, 44 Barb. 42 ; Nichols v. 
 Hunton, 45 N. Hamp. 470 ; Richards v. Bitzer, 53 Illinois, 466 ; Middlebrook 
 V. Nelson, 34 Geo. 506 ; Piitillo v. Hapson, 23 Ark. 196 ; Raines v. Dooley, 
 
OF THE CONSIDERATION. 213 
 
 itself against fraud to the extent of breaking through almost 
 every rule, sacrificing every maxim, getting rid of every ground 
 of opposition. The law so abhors fraud that it will not allow 
 technical difficulties of any kind to interfere to prevent the suc- 
 cess of justice and trath."(s) 
 
 If the consideration for a bill can be shown to be vitiated by 
 fraud, of which the defendant was ignorant when he gave the 
 bill, and, if the defendant has derived no benefit from the con- 
 tract, but has elected to repudiate it as soon as he knew of the 
 fraud, he has a defence to an action on the bill *at the r*iqi-] 
 suit of the party to whom he ^ave it.{t) Defendant gave 
 plaintiff a promissory note for some pictures. It was proposed 
 to prove that the sum for which the note was given infinitely 
 exceeded the value of the pictures. Lord Ellenborough — " I 
 will not admit the evidence for the purpose of I'educing the 
 damages, by showing that the pictures were of an inferior value ; 
 but, if you can, by the inadequacy of the value, and other cir- 
 cumstances, prove fraud on the part of the plaintiff, so as to 
 show that there was no contract at all, the evidence will be ad- 
 missible: if it fall short of that, it will be unavailing. "(m) So, 
 if a horse is warranted, a check is given, and the horse turn out 
 unsound, the breach of the warranty is no answer to an action 
 on the check ; but if the seller knew of the unsoundness, there 
 is fraud ; there was no contract, and no action lies on the check, 
 
 (s) Rogers v. Hadley, 83 L. J., Exch. S48. 
 
 ■ (0 Mills V. Otldy, 2 , M. & R. 103. 
 
 ■ (m) Solomon v. Turner, 1 Stark. 51 (3 E. C. L. R.). But it is conceived 
 that this ruling is wrong if tlie defendant kept the picture. 
 
 Ibid. 329 ; Miller v. Wood, Ibid. 546 ; Sherrer v. Bullock, Ibid. 739 ; Kock v. 
 Lay, 38 Mo. 147 ; Edwards v. Porter, 2 Caldwell, 42 ; Hughes v. Todd, 3 
 Duvall, 188 ; Burr v. Wilson, 36 Indiana, 303 ; Keith v. Mattt, 38 Illinois, 
 303 ; Holland t. Hoyt,, 14 Mich. 338 ; Cook v. Whitfield, 41 Miss. 541 ; Bliss 
 V. Clark, 82 Mass. 60 ; Bierce v. Stocking, 11 Gray, 174 ; O'Neal v. Bacon, 1 
 Houston, 215 ; Peterson v. Johnson, 22 Wise. 21 ; Diamond v. Harris, 33 Texas, 
 6^4. 
 ; Failure of consideration is no defence against a bona fide holder for value, 
 though he may have taken the note with notice of the consideration. Patten 
 y. Gleason, 106 Mass. 439; Bank of Commerce v. Barrett, 38 Geo. 126; 
 Splivallo V. Patten, 38 Cal. 138 ; Thrall v. Horton, 44 Vermont, 386 ; Anthony 
 V. Slonaker, 18 Indiana, 373. 
 
214 OF THE COXSIDERA'TION. 
 
 at the suit of the se]ler,(a;) if the horse be tendered back. Sd,if 
 by fraudulent representations a man induces another to give 
 him for a business more than it is worth, and take a bill in pay- 
 ment, he cannot recover on the bill.(2/) So, where the plaintiff 
 had distrained goods of the defendant on the premises of the 
 plaintiff's tenant, and the defendant, to get rid of the distress, 
 accepted the bill in question, it appearing that there was no rent 
 due at the time of the distress, Best, J., left .it to the jury to 
 say, whether the plaintiff had not falsely represented to the de-: 
 fendaht that the rent was due, in order to induce him to give' 
 his acceptance, and that, if so, the acceptance was fraudulently 
 obtained, and the defendant was entitled to a verdict.(2)(l) 
 
 But where the defendant insists on the fraud as a defence,, 
 hernust altogether repudiate the contract, and retain no bene-' 
 fit under it.(«) 
 
 Equally unavailing is the instrument, if it were given in 
 fraud of third persons. ^ 
 
 An insolvent proposed to compound with his creditors), 
 qoT *bat the plaintifis, being creditors, refuse to execute the. 
 L " -' deed of composition, unless the insolvent gave them a 
 promissory note for the residue of his debt to them. He ac- 
 
 (ir) Lewis v. Cosgrave, 3 Taunt. 2. 
 
 iy) Archer v. Bamford, 3 Stark. 175 (3 E. C..L. R.). 
 
 (is) Grew v. Bevan, 3 Stark. 134 (3 E. C. L. R.). 
 
 (a) Archer v. Bamford, supra ; and see Clarke v. Dixon, E., B. & E. 148 
 (96 E. C. L. R.). As to Pleading, see the Chapter on that subject. Yet the 
 Court of Exchequer have held, that a plea of fraud to an action for goods 
 sold and delivered is good. Lawton v. Elmore, 37 L. J., Exch. 141. For 
 goods may be sold and delivered, e. g., under a written contract, and yet not 
 accepted. 
 
 (1) If a creditor for the purpose of obtaining his debtor's note for a debt 
 already due, falsely and fraudulently promises to supply him with goods for 
 a specified future time, this constitutes no defence to an action on the note. 
 Overdeer v. Wiley, 30 Alabama, 709. 
 
 For other cases of fraud, see Conkling v. Vail, 31 Illinois, 166 ; Stacy v. 
 Ross, 37 Texas, 3 ; Church v. Muir, 38 New Jersey (Law), 318 ; Stevens v. 
 Parker, 7 Allen, 361 ; Penton v. Ham, 35 Mo. 409 ; Weaver v. Waterman, 18 
 Louis. Ann. 24t ; Grifl5th v. Parry, 16 Wise. 318 ; Carpenter v. McClure, 39 
 Vermont, 9; Sternburgv. Bowman, 103 Mass. 335; Briggs v. Merrill, 58' 
 Barb. 389. 
 
OF THE CONSIDERATION. 215 
 
 cordingly did so, without the knowledge of the other creditors, 
 and the plaintiffs and the rest of the creditors then signed the 
 composition deed. The note was held void, as a fraud on the 
 other creditors;(&)(l) But if the insolvent pay the bill or note 
 when due to the holder, he cannot recover back from the 
 creditor the money so paid.(c) And the note is equally void, 
 if given, not by the insolvent, but by d third person. So, the 
 note, being given with a fraudulent intention, would have been 
 void; though the composition had never been effected.(c?) And 
 any better security than the other creditors have, though for 
 the same amount, if taken without their knowledge, is void as 
 a fraud on them. " The real question is," says Le Blanc, J., 
 " whether one creditor be put in a better situation than he 
 stipulated for with the other creditors,' and it is immaterial 
 whether that be done by receiving more money, or that which 
 is meant to procure him more money, namely, a better security 
 for the same sum. "(e) 
 
 In these cases the creditor and the insolvent, though "pa7Hi- 
 
 cipes criminis" are not " in pari delicto." It is oppression on 
 
 one side and submission on the other. " It can never," says 
 
 -Lord Ellenhorough, "be par delictum when one holds the rod 
 
 and the other bOws to it."( /) 
 
 A compounding creditor cannot split his demand, and com- 
 
 (S) Cockshott V. Bennett, 2 T. R. 763 ; Knight v. Hunt, 5 Bing. 433 (l.? E. 
 0. L. R.) ; 3 M. & P. 18, S. C. ; Bryant, v. Cliristie, 1 Stark. 839 (3 E. C. L. 
 R.) ; and see Took v. Tuck, 4 Bing. 334 (13 E. C. L. R.) ; 13 Moore, 485. 
 , (c) Wilson V. Ray, 10 Ad. & E. 83 (36 E. C. L. R.) ; 3 Per. & Dav, 253, S. 
 C., overruling Turner v. Hoole, 1 D. & R., N. P. C. 37 (16 E. C. L, R.). 
 
 (d) "Wells V. Girling, 1 B. & B. 447 (5 E.G. L. R.) ; 3 Moore, 79, S. C. 
 
 (e) Leicester v. Rose, 4 East, 373, overruling Feise v. Randall, 6 T. R. 146. 
 (/) Smitli V. Cuff, 6 M. & S. 160 ; Smith v. Bromley, 3 Doug. 695, 697 ; 
 
 Atkinson v. Denby, 30 L. J., Exch. 361 ; 81 L. J. 362, S. C. In error. The 
 money paid at the time may be recovered back. But if a bill be given after- 
 wards and voluntarily paid, it has been held that the money cannot be re- 
 covered back. Wilson v. Ray, 10 Ad. & E. 83 (37 E. C. L. R.). 
 
 (1) A note given by a bankrupt to a creditor for his consent to the bank- 
 rupt's discharge, is void from illegality of consideration, though given after 
 his discharge. Rice v. Maxwell, 13 Sraedes & Marsh. 289. In case of a 
 composition with creditors, the taking of the note of the debtor for the bal- 
 ance not covered by the composition notes, is such a fraud as renders void, 
 not only the notes so taken, but the composition notes themselves. Dougherty 
 V. Savage, 23 Conn. 340. 
 
216 OF THE CONSIDERATION. 
 
 pound for part, and afterwards sue for the residue, unless he 
 acquaint the other creditors with his proceeding. Therefore, 
 where the plaintiff held two bills, drawn by the insolvent, both - 
 due, one for 400^., the other for 156^. 19a. IQd. ; and expecting 
 that the acceptor would pay the first, inserted in the schedule 
 attached to the composition deed the amount of the second 
 only as his debt, it was decided that he could not afterwards' 
 r#, n-i ^^® *^® insolvent on the first bill.(^) So, if *the agree- 
 '- -' ment of composition contain a stipulation that all se- 
 curities shall be given up, if the compounding creditor holds 
 bills drawn by the defendant and accepted by a third person, 
 and he afterwards receives the amount of these bills from the 
 acceptor, he must refund the money to . the insolvent.(A) Eut 
 he may retain money so received, if the agreement of composi- 
 tion contained no stipulation for the surrender of secaritieB.(i) 
 A creditor who holds a bill, and accepts a composition, im- 
 pliedly engages that the bill is in his own hands. If, therefore, 
 an indorsee of the bill afterwards compels the compounding 
 debtor to pay the ^ill, the latter may recover the amount from 
 the compounding creditor as money paid to his use,(^) unless • 
 the debtor made the payment voluntarily to a holder who was 
 a mere agent of the original creditor, and known by the debtor 
 to be so.(^) If the creditors of an insolvent compound with 
 him, and take notes of hand for the amount of their respective 
 compositions, and one creditor, in addition to his note of hand, 
 fraudulently and clandestinely take a further security, his 
 dealing with the insolvent is one entire transaction, and he 
 cannot recover, even on the promissory note.(m) 
 
 So, if a man becomes surety for another for the price of goods 
 — as, for example, by joining him in a joint and several note, 
 and the party to whom the surety is responsible conceals from 
 
 (g) Biitten v. Hughes, 5 Bing. 430 (15 E., C. L. R.) ; 3 M. & P. 77, 8. C, 
 overruling perhaps, Payler v. Homersham, 4 M. & Sei. 423 ; and see Holmer 
 V. Viner, 1 Esp. 183 ; Cecil v. Plaistow, 1 Anst. 303. Not so where debtor 
 omits bill from schedule; Buvelot v. Mills, L. R., 1 Q. B. 104. 
 
 (A) Stock V. Mawson, 1 B. & P. 286. 
 
 (4) Thomas v. Courtnay, 1 B. & Aid. 1 
 
 (&) Hawley v. Beverley, 6 M. & G. 231 (46 E. C. L. R.). 
 
 (.1) Gibson V. Bruce, 5M. & G.'399 (44 E. C. L. R.). 
 
 (wi) Howden v. Haigh, 11 Ad. & E. 1033 (39 E. U. L. R.) ; and see In re 
 Cross, De G. & S. 364. 
 
OF THE CON ST DERATION. 217 
 
 him a stipulation for an additional sum, which it is secretly 
 agreed between himself and the principal that the principal 
 shall pay in liquidation of an old debt, that is a fraud on the 
 surety and releases him from his engagement. (n) 
 
 But where a fraud has been practised on the maker or ac- 
 ceptor, an indorsee for value without notice may, nevertheless, 
 recover against him.(l) Thus we have seen, that though a 
 partner fraudulently use the names of his co-partnera, they will 
 ail be bound to pay an innocent indorsee,(o) *So, in an (-*i 04.-1 
 action by the indorsee against the maker of a note thir- 
 teen years old, the defendant obtained a rule nisi to set aside a 
 judgment by default, on an affidavit that he the defendant was 
 swindled out of the note. An affidavit being made on the other 
 side, that the plaintiff took the note bona fide, and gave a valu- 
 able consideration for it, the Court held, that, however imjjrop- 
 erly.it might have been obtained, a third person, who took it fairly 
 and gave a consideration for it, was entitled to recover, and they 
 discharged the rule.(p) A., by false representations, induced. B. 
 to sign his name to a blank stamped paper, wh'ich A. afterwards 
 secretly filled up as a promissory note for 100/^., and induced C. 
 to advance him 100^. upon it. A. was indicted for defrauding 
 C. Held, that C. had his remedy against B. on the note, and 
 that the fraud, therefore, not being upon C, but upon B., the 
 indictment was not sustained by the evidence.(5') 
 
 (») Pidcock V. Bishop, 3 B. & C. 605 (10 E. C. L. R.) ; 5 D. & R. 505, S. 
 C. See these questions more fully discussed in the Chapter on Principal 
 
 AND SnilETT. 
 
 (0) Ante, see Partnership. 
 
 (jj) Morris v. Lee, 3 Ld. Riiym. 1396 ; 1 Stra. 629, S. C. ; Bayley, 6tU ed. 
 509 ; Thiedemann v. Goldschmidt, 1 De G., F. & J. 4. 
 (g) Rex V. Revett, Bury Summer Assizes, 1839, coram Garrow, B. 
 
 (1) Powers V. Ball, 1 Williams, 662. The indorser takes free from equi- 
 ties. Doe V. Burnham, 11 Foster, 435 ; Johnson v. Meeker, 1 Wisconsin, 
 436 ; Canett v. Thompson, 16 B. Monroe, 573. When a note issued by a 
 partner, in fraud of their firm, is bad in the hands of a holder, see Halde- 
 itian V. Bank of Middletown, 4 Casey, 440 ; Collier v. Cross, 20 Georgia, 1 ; 
 Rich V. Davis, 4 California, 23 ; 6 California, 141 ; Gray v. Ward, 18 Illinois, 
 33. A note void as against public policy is good in the hands of an innocent 
 holder, whether absolutely or as collateral. Meadows v. Bird, 33 Georgia, 346 ; 
 Thome v. Yontz, 4 California, 331. The bearer of a note payable to one 
 named or bearer takes it subject to no equities or right of set-off which the 
 maker would have against the original payee. Pettee v. Prout, 3 Gray, 5(53. 
 
\ 
 
 218 OF TflECONSIDERATION. 
 
 The consideration given for a bill or note must not be illegal. 
 It is said, that the test, whether a contract be contaminated 
 with an illegal transaction is this: Does the plaintiff require 
 any aid from the illegal transaction to establish his case?(?-) 
 Considerations or contracts are illegal, either, first, at common 
 law ; or, secondly, by statate.(s) 
 
 Considerations illegal at common law are the following : — 
 First, such as violate the rules of religion or morality. Though the 
 law does not pretend to enforce religious or' moral obligatioak 
 as such, yet it seizes every opportunity of countenancing them ; 
 and, therefore, will not assist a man whose claim for redress is 
 founded on their violation. " Ex turpi causa non oritur actio." 
 " Justice," says Lord Mansfield, " must be drawn from pure 
 fountains." 
 
 Thus, for example, a bond or note given in consideration of 
 future illicit cohabitation is void, but past cohabitation is not 
 an illegal consideration so as to avoid a deed, though it is not 
 sufficient to support a promise.(<) So the rent of lodgings know- 
 r*1 ^'^^ ^"S^y ^®* ^*"' ^^^ purpose of prostitution, is *an illegal 
 consideration.(M) A wager as to the sex of a third per- 
 son is illegal, because it tends to indecent evidence, to injure the 
 feelings of the individual, and disturb the peace of society .{t>) 
 So is- a wager as to whether an unmarried woman had borne, or 
 would have, a child.(a;) And any bill or note founded on such 
 illegal considerations would be void. 
 
 The second sort of agreements, illegal at common law, are 
 such as contravene public policy. 
 
 If it be merely doubtful whether an agreement be at variance 
 
 (r) Simpson v. BloSs, 7 Taunt. 346 (3 E. C. L. R.) ; 3 Marsh, 543, S. C. 
 
 («) The reader must not expect a complete enumeration of all the illegal 
 considerations affecting a contract, but only such as are of most frequent oc- 
 currence, or useful as illustrating some principle. 
 
 (0 Binnington v. Wallis, 4 B. & Aid. 651 (10 E. C. L. R.) ; Gibson v. 
 Dickie, 8 M. & Sel. 463 ; Nye v. Mosely, 6 B. & C. 133 (13 E. 0. L. B.) ; 9 
 
 D. & R. 165, S. C. ; Beaumont v. Reeve, 15 L. J., Q. B. 141 ; 8 Q. B. 483 (55 
 
 E. C. L. R.), S. C. 
 
 (m) Girardy v. Richardson, 1 Esp. 13 ; Howard v. Hodges, Selw. N. P. 7th 
 ed. 68. 
 («) Da Costa v. Jones, Cowp. 739. 
 (a) Ditchburn v. Goldsmith, 4 Camp. 153. 
 
OF THE CONSIDBEATIOIT. 219 
 
 with the public interest, it is not void ; it must be cleg,rly 
 and indubitably in contravention of public policy.(2/) A con- 
 tract in general restraint of trade^ as, not to carry on a par- 
 ticular busines^ atiy where in England, is illegal and void ; 
 though an agreement not to trade within a specific distance of 
 a particular place, or not with certain customers, is gobd,(2:) 
 although unlimited in point of time.(a) A contract in general 
 restraint of marriage is void,(6) as, a bond given by a widow 
 conditional for the payment of a sum of money if she should 
 marry again.((;) And it makes no difference that the restraint 
 is only for a limited period, as, for six years. (<^) An under- 
 taking for reward to procure a marriage between two parties 
 is void.(e) A contract tending to the injury of the revenue, by 
 evading or violating the customs and excise lawsj is illegal. (/) 
 But if a trader sell goods with the mere knmoledge that the 
 purchaser intends to make an illegal use df them, without in 
 any way lending his aid to the effectuation of the unlawful 
 purpose *he may sustain an action on the contract.(^) 
 Considerations impeding the course of public justice, as, L -' 
 dropping a criminal prosecution for a felony or a public misde- 
 meanor, or suppressing evidence, are illegal considerations.(A)(l) 
 
 (j/) Hichardson v. Mellisb, 2 Bing. 229 (9 E. C. L. R.) ; 9 Moore, 435, S. C. 
 
 iz) Co. Liu. 206, b. n. 1; Hunlock v. Blacklowe, 2 Saund. 156, n. 1 ; 
 Mitcbel V. Reynolds, 1 P. Wms. 181 ; 10 Mod. 130, S. C. ; Davis v. Mason, 5 
 T. R. 118; Ward v. Byrne, 5 M. & W. 548 ; Tallis v. Tallis.l E. & B. 391, (73 
 E. C. L. R.). Wiere the covenant is not to carry on business within two 
 districts, one small and reasonable, and tlie other large and unreasonable, it 
 is divisible. See Mallan v. May, 11 M. & W. 653 ; Green v. Price, 13 M. & 
 W. 695 ; Price v. Green, 16 M. & W. 346. 
 
 (a) Pemberton v. Vaughan, 12 Q. B. 87 (64 E. C. L. R.) ; Sainter v. Fer- 
 guson, 7 C. B. 716 (63 B. C. L. R.). 
 
 (J) Lowe V. Peers, 4 Burr. 2235. 
 
 (e) Baker v. White, 2 Vern. 215. 
 
 ((2) Hartley v. Rice, 10 East, 22. 
 
 («) Hall V. Potter, 8 Lev. 411 ; Roberts v. Roberts, 8 P. Wms. 66 ; Com. 
 Big. Chancery, 8 Z. 8. 
 
 (/) Biggs V. Lawrence, 3 T. R. 454 ; Vandyk v. Hewitt, 1 East, 97 ; Tay- 
 lor V. Crowland Gas Company, 10 Exch. 293. 
 
 (g) Hodgson v. Temple, 5 Taunt. 181 (1 E. C. L. R.). • 
 
 (A) Nerot V. Wallace, 3 T. R. 17 ; Fallows v. Taylor, 7 T. R. 475 ; Edge- 
 combe V. Rodd, 5 East, 294. 
 
 (1) A note given in consideration that the payee would stop a prosecution 
 for a supposed felony, instituted against the maker, and not appear as a wit- 
 
220 OF THE CONSIDERATION. 
 
 But it has been held that compounding a private misdemearior 
 is a good consideration for a note.(i) A wager on the result of 
 a criminal prosecution is illegal.(/fc) A note, given iafter con- 
 viction to the prosecutor, for the expenses of the prosecution, 
 the amount of which is settled by the Court, is legal.(i) So, 
 though the particulars of the arrangement -are not communi- 
 cated to the court and sanctioned by them.(?ri) And the sub- 
 stitution of a good bill for a forged one, at the instance of the 
 forger, if unaccompanied with any stipulation to stifle a prose- 
 cution for forgery, is not illegal.(?i) Contracts respecting the 
 sale of public offices are for the most part void at common 
 law,(o) as well as by statute. Any contract tending to cause a 
 neglect of duty in a public officer is illegal. Thus, though the 
 6 Geo. 2, c. 31, authorizes parish officers to take security from 
 the putative father of a bastard child to indemnify the parish, 
 it is not lawful for them to take an absolute promissory note 
 for a sum certain, and such a note is void. " It is a shocking 
 consideration," observes* Lord Ellenborough, " that by means 
 of such a security as this, the parish officers, who have a public 
 duty imposed upon them to take care that the father shall make 
 a proper provision for the maintenance of the child, acquire an 
 interest that the child should live as short a time as possible. "(p) 
 Contracts with a public enemy are illegal ; and a bill drawn by 
 
 (0 iJrage v. Ibberson, 2 Esp. 643 ; and see Coppock v. Bower, 4 M. & Wi 
 361. 
 
 (k) Evans v. Jones, 5 M. & W. 77. 
 
 (!) Beeley v. Wingfluld, 11 East, 46 ; see Keir v. Leman, 9 Q. B. 394 (oS 
 E. C. L. R.). 
 
 (m) Kirk v. Strickwood, 4 B. & Ad. 431 (34 E. C. L. R.) ; 1 N. & M. 275, 
 S. C. ; and see Baker v. Townshend, 1 B. Moore, 130. 
 
 (n) Wallace v. Hardacre, 1 Camp. 45. 
 
 (n) Richardson V. Mellisli, 2 Bing. 229 (9 E. C. L. R.) ; 9 Moore, 435, S. 0. 
 
 (p) Cole V. Gower, 6 East, 110. 
 
 ness against him, is founded on an illegal consideration and is invalid. Swaa 
 V. Chandler, 8 B. Monroe, 97 ; Clark v. Ricker, 14 N. Hamp. 44 ; The Com- 
 monwealth V. Johnson, 3 CusUing, 454 ; Gardner v. Maxey, 9 B. Monroe, 
 90 ; Hinesburgh v. Sumner, 9 Verm. 33 ; Soule v. Bonney, 37 Maine, 128. 
 A note given in part to suppress a prosecution is void, even if for a just debt. 
 Bowen v. Buck, 2 Williams, 308 ; Porter v. Haverst, 37 Barbour, 343 ; Os- 
 born V. Robbins, Ibid. 481 ; Brown v. Padgett, 36 Geo. 609 ; Murphy v. 
 Bottomer, 40 Mo. 67 ; Clark v. Pomeroy, 12 Allen, 557. 
 
OF THE CONSIDERATION. 221 
 
 an alien enemy on his debtor here, and indorsed, to the plain- 
 tiff, a British subject resident in the hostile country, cannot be 
 recovered on, though the plaintiff do not sue till the return of 
 peace, and though he were resident at the time of taking the 
 bill in the hostile country .(§') But where a British prisoner iu 
 France drew a bill on an English subject, and indorsed it to 
 *the plaintiff, then an alien enemy, it was held, that 
 after the return of peace the plaintiff might recover.(?-) '- -• 
 And a bill drawn by a British prisoner, in favour of an alien 
 enemy, cannot he enforced by the payee.(l) 
 
 Among the considerations now or formerly illegal by statute 
 are the following : — (2) 
 
 (?) Willison V. Patteson, 7 Taunt. 440 (3 E. C. L. R). 
 (r) AntDine v. Morsliead, 6 Taunt. 237 (1 E. C. L. E.) ; 1 Marsh, .558, 
 B.C. 
 
 (1) Consideration to resign a public office is bad. Meachum v. Dow, £2 
 Vermont, 731. Resignation of an office in a corporalinn is a sufficient con- 
 sideration fur a promissory note. Peck v. Bequa, 13 Gray, 407. A note to 
 become due upon the election of A. to a certain office is void upon grounds of 
 public policy as much as any formal wager. Cooper v. Brewster, 1 Min- 
 nesota, 94 ; Nudd v. Burnett, 14 Indiana, 23. A note given by one of several 
 bidders for government contracts to another to induce him to withdraw his 
 bid, is an illegal consideration and cannot be enforced. Kennedy v. Murdick, 
 5 Harrington, 458. A note made in consideration of the promise of a defendant 
 in a divorce suit to withdraw her papers and make no defence is without valid 
 consideration. Stoutenburg v. Lybrand, 13 Ohio (N. S.), 228. Note for ser- 
 vices to be rendered in procuring a pardon held good. Meadow v. Bird, 22 
 Georgia, 246. A note given to obtain possession of goods wrongfully withheld 
 is without consideration between the parties to it. White v. Heylman, 10 
 Casey, 143. Though a bank be specially restricted by its charter from taking 
 more than a certain interest, a note securing higher interest is not void as 
 being a contract which the bank is notauthoiized to make. Rock River Bank 
 V. Sherwood, 10 Wisconsin, 280. When a party voluntarily receives bank 
 notes which are at a discount, and gives his note for the full amount, it is no 
 defence. Life Ins. Co. v. Lanier, 5 Florida, 110 ; Conwell v. Pumphrey, 9 
 Indiana, 135. 
 
 A note given to induce a public officer to violate his duty as such is void in 
 the hands of either the payee or holder, with notice. Devlin v. Brady, 36 
 Kew York, 581. 
 
 (2) For cases on notes made in violation of statutes to enforce the observ- 
 ance of the Sabbath. Fritsch v. Heislen, 40 Mo. 555 ; Flanagan v. Meyer, 41 
 Ala. 183 ; Bensoii v. Drake, 55 Maine, 555 ; Sayre v. Wheeler, 31 Iowa, 113 ; 
 
222 OF THE CONSIDERATION. 
 
 1. Usury. The English statutes on this subject are repealed. 
 The decisions on them, however, are still not unimportstnt with 
 a view to general principles. Moreover, usury laws exist in the 
 United States and in almost all foreign countries. In France 
 and Holland they have been repealed, but re-enacted. It will 
 be more convenient to discuss the nature and former conse- 
 quences of usury in the Chapter on Interest. 
 
 - 2. Gaming considerations. The old statute 16 Car. 2, c. 7, 
 avoided all securities, written or oral, given to secure any sum 
 of money exceeding 100?. lost at p]ay.(s) And the 9 Anne, c. 
 14, expressly avoided all written contracts for any sum of money 
 won at play, or by betting at play, or lent for playing, or bet- 
 ting ;(<) and by subjecting to the animadversion of criminal jus- 
 tice all winnings above lOZ., it impliedly avoided all contracts 
 to enforce them also.(M) 
 
 Both acts avoided judgments for gaming debts, but the judg- 
 ments to which they refer are voluntary judgments given by 
 the loser, and not judgments obtained by an adverse actioii.(a;) 
 
 Any game, whether of skill or chance, was within the aet8.(y) 
 
 But both these acts are now repealed by the 8 & 9 Vict. c. 
 109, s. 15, except so much of the statute of Anne as was altered 
 by the 5 & 6 Will. 4, c. 41. 
 
 The statute 8 & 9 Vict. c. 109, makes cheating at play an 
 offence indictable as obtaining money under false pretences (z) 
 
 (s) See Bentinck v. Connop. 5 Q. B. 693 (48 E. C. L. R.). 
 
 (0 See also 13 Geo. 3, c. 38, and 18 Geo. 3, c. 34. 
 
 (m) Sect. 5 ; see Daintree v. Hutchinson, 10 M. & W. 85 ; Applegarth t. 
 CoUey, 10 M. & W. 723. 
 
 (a) Lane.v. Chapman, 11 Ad. & E. 966 (39 E. C. L. E.) ; 3 P. & D. 668, S. 
 C. ; affirmed in error, ibid. 980. 
 
 iy) Sigell V. Jebb, 3 Stark. 1 (3 E. C. L. K.). 
 
 (z) Sect. 17. 
 
 Tillock V. Webb, 56 Maine, 100 ; Marshall v. Russell, 44 N. Hamp. 509 ; Do- 
 honey V. Dohoney, 7 Bush, 317 ; Vinton v. Peck, 14 Mich. 287. 
 
 For other cases of illegal consideration. Wentworth v. Blaisdell, 17 N. 
 Hamp. 375 ; Pine River Bank v. Hodson, 46 N. Hamp. 114 ; Poorman v. 
 Mills, 39 Cal. 845 ; Holden v. Cosgrow, 13 Gray, 316 ; Brown v. Tarkington, 
 3 "Wallace (S. C), 377 ; Burton v. Stewart, 63 Barb. 194 ; United Congrega- 
 tion V. Stegner, 31 Ohio St. 488 ; Lemon v. Grosskopf, 23 Wise. 447 ; James' 
 Adm. V. Rogers, 33 Indiana, 451. 
 
OF THE COXSIDERATIOlir. 223 
 
 It further makes all gaming contracts, written or oral, null and 
 void.(a) 
 
 *Money lent to play at any illegal game cannot be re- r^, no-i 
 covered back by the lender. " This principle," says Lord 
 Abinger, "was not for the first time laid- down in Oannan v. 
 Bryce,(i!») but that case finally settled that the repayment of 
 money lent for the express purpose of accomplishing an illegal 
 object cannot be enforced. "(c) 
 
 To discuss in detail the complicated provisions of the gaming 
 acts, and the minute distinctions which arise on them, would 
 be to wander from the main subject. 
 
 Horse-races, though legalized by 13 Greo. 2, c. 19, and 18 Geo. 
 2, c. 34, were within the former acts against gaming.(<^) But a 
 bet under 10?., on a legal horse-race, was valid ;(e) though a bill 
 or note given to secure it would have been void.(/") But if the 
 horse-race be for a sum less than bQl.,[g) or above 50Z., but not 
 a contest between horses running on the turf, the bet was 
 void.(A) ^^^^ 
 
 A bill of exchange or note given for a gaming debt was, until 
 recently, void, even in the handf of an innocent indorsee for 
 value, as against the party losing at play ; but as against other 
 parties it was, and still is, valid. Thus, if a bill were accepted, 
 or a note made, for a gaming debt, no party could charge the 
 
 (a) Sect. 18. But not illegal in the sense of criminal, or in sucli a sense as 
 to impose on llie subsequent liolder of a negotiable instrument the obligation 
 of proving the consideration he himself gave. Pitch v. Jones, 34 L. J., Q. 
 B. 293 ; 5 B. i& B. 238 (85 E. C. L. R.), S. C. See further on the construc- 
 tion of tjie act. Parsons v. Alexander, 24 h. J., Q. B. 277 ; 5 E & B. 263 (85 
 E. C. L. E.), S. C. ; Coombes v. Dibble, Law Rep., 1 Exch. 248. 
 
 (6) 3 B. & A. 179 (5 E. C. L. R.). 
 
 (c) McKinnell v. Robinson, 3 M. &. W. 434. 
 
 (d) iGoodburn v. Mariey, 2 Stra. 1159 ; Clayton v. Jennings, 3 W. Bl. 706 ; 
 Blaxton v. Pye, 3 Wils. 309 ; Shillito v. Theerl, 7 Bing 405 (20 E. C. L. R.) ; 
 5M. &P. 303,8. C. 
 
 («) McAllister v. Haden, 3 Camp. 438. 
 (/) 9 Anne, c. 14, s. 1. 
 (?) Johnson v. Bann, 4 T. R. 1. , 
 
 (A) Ximenes v. Jacques, 6 T. R. 499 ; Whalley v. Pajot, 2 B. & P. 51 ; 
 see now 3 & 4 Vict. c. 5, which repeals 13 Geo. 3, c. 19, and 8 & 9 Vict. c. 109. 
 
224 OF THE CONSIDERATION. 
 
 acceptor or maker ;(i) but the drawer and indoraer were and 
 are nevertheless liabIe.(A-)(l) 
 
 The same rule of law applied to bills or notes given for the 
 ransom o*f captured ships or cargoes -,(1) to hills or notes given 
 by a bankrupt to his creditor to induce him to sign the bank- 
 rupt's certiticate.(m) In all these cases, as well as in the case of 
 usury, the acts of parliament *avoidiag bills or notes, 
 '- -^ so far as they make the instruments absolutely void,'are 
 repealed by the 5 & 6 Will. 4, c. 41, s. l.(n) This statute enacts, 
 that in these cases bills or notes which would otherwise have 
 been void, shall only be taken to have been given for an illegal 
 consideration.(o) The effect of the enactment is conceived to 
 be, that they are good in the hands of an innocent indorsee for 
 value against all parties.(;3) 
 
 The second section of this statute enacts, that if a loser at 
 play gives a negotiable instrument, void under the acts against 
 gaming, and pays the transferee, he may recover back the 
 money so paid from the person to whom he originally gave the 
 bill or note.{q) 
 
 (0 Bowyer v. Barapton, 2 Stra. 1155 ; Shillito y. Theed, 7 Bing. 405 (20 E. 
 C. L. E.); oM. &P. 303, S. C. 
 
 (k) Ibid. ; Edwards v. Dick, 4 B. & Aid. 213 (6 E. C. L. R.). 
 
 (0 45 Geo. 3, c. 72, s. 17. 
 
 (wO 12 & 18 Vict. c. 100, s. 203 ; Wiggins v. Read, C. P., T. T. 1863; or 
 not to oppose the order for discliarge, 34 & 35 Vict. c. 134, s. 166. 
 
 («) Tliis statute is preserved in force by 8 & 9 Vict. c. 109, s. 15, the effect 
 of which seems to be, that a winner of slakes may recover, though a promis- 
 sory note lor the amount would be void. Batty v. Marriott, 17 L. J., C. P. 
 215 ; 5 C. B. 818 (57 E, C. L. R.), S. C. 
 
 (0) As to the effect of this enactment, see Edmunds v. Groves, 2 M. & W. 
 643. Both sections of the statute are prospective. Hitclicocli v. Way, 3 N. 
 & P. 72 ; 6 Ad. & El. 943 (33 E. C. L. R.), S. C. ; Humphreys v. Earl of 
 Wuldegrave, 6 M. & W. 633. 
 
 (p) Hay V. Ayling, 16 Q. B. 433 (71 E. C. C. R.). See Pitch v. Jones, 5 E. 
 & B. 238 (85 E. C. L. R.). But see Goldsmid v. Hampton, 5 C. B., N. S. 
 94 (94 B. C. L. R.). In the case of a banlsrupt it is now expressly so enacted, 
 34 & 35 Vict. c. 134, s. 166. 
 
 (g) But it is no defence to an action against an acceptor that the bill was 
 given for bets on horse-races, made by the drawer as his agent, and paid ^ 
 without his request. Quids v. Harrison 10 Exch. 572. 
 
 (1) A note given for money lent for gambling purposes cannot be recoTered. 
 Cutler V. Welsh, 43 New Hampshire, 497. 
 
OF THE CONSIDERATION. 225 
 
 Even under the old law a renewed security was good, if 
 given to an innocent indorsee before the bill fell due.(r) 
 
 3. Stockjobbing. The Stock-Jobbing Act, was the 7 Geo. 
 2, c. 8, made perpetual by 10 G-eo. 2, c. 8, but now both 
 statutes are repealed by the 23 & 24 Vict., c. 28.(s) The 
 principal provisions of the first-mentioned statute were as , 
 follow :(0 
 
 1. Putting upon stock was prohibited ; that is, a contract to 
 pay or receive a certain sum of money for the liberty to deliver 
 or not to deliver, or to accept or refuse a certain quantity ot stock 
 at a fixed .price on a given day. Such a contract is declared 
 void, the money paid is made recoverable *and both ^^^ .^, 
 parties are subject to the penalty of 500?., unless the '- -' 
 money paid has been recovered or refunded. 
 
 2. The payment of money, instead of delivering or receiving 
 stock, Subjects to the penalty of 100?. 
 
 3. It has been supposed that contracts to buy or sell stock, 
 of which the seller is not at the tinie possessed, subjected both 
 parties to the penalty of 500?. But such contracts were after- 
 wards held to be legal.(M) 
 
 It was formerly held, that nioney expended by another 
 person in settling a stock-jobber's differences for him, or money 
 lent hira to settle them with, could be recovered. (a;) But it 
 was afterwards settled, that as the fifth section of the act 7 
 Geo. 2, e. 8, prohibits expressly the payment of money for the 
 arrangement of diiferences, a person paying differences for 
 another, or lending him money to pay them himself, advanced 
 
 . (?■) George v. Stanley, 4 Tannt. 6S3. 
 
 . (s) Quare, whether some cases of gaming in stock may not have been 
 within 9 Anne, c. 14, and be not now within 8 & 9 Vict. c. 109. 
 
 (0 Tfansactions in foreign stock are not within this statute. Henderson 
 y, Bise, 3 Stark. 158 (3 E. C. L. R.) ; Wells.v. Porter, 3 Bing. N. 0. 733 (39 
 E. C. L. R.) ; Oakley v. Rigby, 3 Bing. N. C. 733 (39 E. C. L. R.) ; nor rail- 
 way shares; Hewitt v. Price, 4 M. & G. 355 (43 E. C. L. B.) ; Williams v. 
 Trye, 18 Beav. 366. 
 
 (u) Mortimer v. McCallan, 7 M. & W. 30 ; affirmed 9 M. & "W. 636. 
 . (ai> Faikney v. Reynous, 4 Burr. 3069 ; Petre v. Hannay, 3 T. R. 418. 
 
 15 
 
226 OF THE CONSIDEKATION. 
 
 money for an illegal purpose, and could, not recover it 
 back.(2/)(l) . 
 
 The following cases relating to bills have been decided on 
 this statute: — The defendant employed a broker,(2) to pay 
 differences for him, and after they were settled a dispute arose 
 between, them as to the amount of money so paid by the 
 broker. The case was referred to the plaintiff and three other 
 arbitrators, who awarded the sum of 306Z. 12s. M. to be due 
 from the defendant to his broker. The broker then drew on 
 the defendant for 1002., part of this sura; the defendant ac- 
 cepted the bill, and the broker indorsed it to the plaintiff. It 
 was held that the bill was void as between the broker and the 
 defendant, and the plaintiff, having been an arbitrator, had 
 notice of the illegal consideration, and stood in the same situar 
 tion as the broker.(a) "Where a broker had settled differences 
 for his principal in omnium, had taken his principal's accept- 
 ance for the amount, and indorsed the bill when overdue, it 
 was held, first, that jobbing in omnium was within the act; 
 secondly, that the bill was void in the hands of the broker; and, 
 thirdly, that having *been indorsed when overdue, it 
 L ' was also void in the hands of the indorsee,, as against 
 the acceptor.(6) A stock-jobber gave his broker a promissory 
 
 {y) Cannan v. Bryce, 3 B. & Aid. 179 (5 E. C. L. R.) ; McKinnell v. Rob- 
 inson, 3 M. & W. 434. 
 
 (z) Stock brokers are within the statutes 6 Anne, c. 16, s. 4, and 57 Geo. 3, 
 c. 40 ; Clarke v. Powell, 4 B. & Ad. 846 (24 E. C. L. R.) ; 1 N. & M. 492 (24. 
 E. C. L. R.), S. C. ; by which brokers are prohibited under a penalty from 
 acting in London without aOmission by the mayor and aldermen. Fortbe 
 condition of the bond given by brokers, and the oath taken by them, see Kem- 
 ble V. Atkins, Holt, N. P. C. 437 (3 E. C. L. R.). , 
 
 (a) Steers v. Lashley, 6 T. R. 61 ; 1 Esp. 166, S. 0. 
 
 {by Brown v. Turner, 7 P. R. 630 ; 2 Esp. 631, S. C. 
 
 (1) A note given for money paid by the request of the maker to a broker, 
 for losses sustained in illegal stock-jobbing transactions, is valid. Wyman v. 
 Fiske, 3 Allen, 338. 
 
 Promissory notes given as a "margin " to cover a rise or fall in the price 
 of slocks not actually paid for, and delivered are the instruments of a wager, 
 and cannot be recovered. Swartz's Appeal, 3 Brewster, 131. Notes given for 
 a inargin on the sale of stock, to be delivered at a future day, where the'party 
 contracting to sell has no stock, and the party agreeing to purchase ' pnys 
 nothing, are void for illegal consideration. Brua's Appeal, 5 P. F. Soiilli, 
 31)4. 
 
OF THE CONSIDEB ATION. 227 
 
 note for differences paid for him by his broker, and the broker 
 indorsed it overdue to the plaintiffs. The plaintiffs threatened 
 to sue the defendants upon the note, but they consented to give 
 up the note, and take the defendant's bond instead, knowing at 
 the time they took the bond, that the note had been given on 
 an illegal consideration. Held, that they could not originally 
 have recovered upon the note, nor afterwards upon the bond.(c) 
 "Where a man gave his acceptance for differences owing from 
 himself to the drawer, and the drawer indorsed the bill for 
 value without notice, it was held that the indorsee might re- 
 cover against the drawer.(<Z) And as the statute dofes not 
 expressly avoid securities given for differences, it should seem, 
 the indorsee might have recovered against the acceptor.(e) 
 Where a man sells stock of which he is. not possessed, and 
 afjlerwards buys it and transfers it to the vendee, he might, 
 notwithstanding the statute, maintain an action for the price. (/) 
 This act is to be construed strictly. (y) 
 
 Besides the cases which have been mentioned, there are many 
 other instances of securities expressly avoided by the legisla- 
 ture ;(1) as, gaming policies on ships or lives ;(.A) sale of an 
 
 (c) Ainory v. Merryweather, 2 B. & C. 573 (9 E. C. L. R.) ; 4 D. & R. 86, 
 S.,C. 
 
 (,d) Day v. Stuart, 6 Bing. 109 (19 E. C. L. R.) ; 3 M. & P. 334, S. C. 
 
 (e) See Mr. J. Holroyd's observiitioas in Broaghton v. Mancliester Water 
 Works Company, 3 B. & Aid. 10 (5 E. C. L. R.). 
 . (/) Mortimer v. McCallan, 7 M. & W". 20 ; affirmed 9 M. & W. 636. 
 
 (?) Wells V. Porter, 2 Bing. N. C. 730 (39 E. C. L. R.) ; Hewitt v. Price, 
 4 M. & G. 355 (43 E. V. L. R.). 
 
 (A) 19 Ge6. 2, c. 37 ; 14 Geo. 3, c. 48. 
 ( , i 
 
 (1) Many cases have been decided upon questions growing out of the late 
 civil war in this country, to which it will be sufficient to refer. Thus, when 
 the consideration has been the government notes or money of the Confederate 
 States; Hanauer v. Woodruff, 15 Wallace (S. C). 439; Coco v. Callihan, 
 21 Louis. Ann. 624 ; Rivers v. Moss, 6 Bush. 600 ; Powr v. Powr, 42 Ala- 
 bama, 113 ; Marshall v. Marshall, Ibid. 149 ; iStory v. Dobson, 2 Heiskill, 29 ; 
 Taylor v. Turley, 33 Maryland, 500; Hale v. Huston, 44 Alabama, 134 ; Law- 
 son V. Miller, Ibid. 616 ; Winter v. Jones, 22 Louis. Ann. 485 ; Robertson v. 
 Shores, 7 Coldwell, 164 ; Torbett' v. Worthy, 1 Heiskill, 107 ; Crosby v. 
 Tucker, 21 Louis. Ann. 512 ; Bailey v. Milner, 1 Abbott C. C, 261 ; Prigeon 
 V. Smith, 31 Texas, 171 ; Goodman v. McGehee, Ibid. 352 ; Reavis v. Black- 
 shear, 30 Ibid. 753 ; Scott v. Davidson, 33 Texas, 807 ; Calfee v. Burgess, 3 
 
223 OP THE CONSIDERATION. 
 
 office ;(i) a stipulation with a sheriff for ease or favour ;{]() a 
 security whereby a creditor of a bankrupt who has proved his 
 debt is to receive more than others ;(Q or to receive anything 
 for siguing the bankrupt's' certificate ;(?n) or for not opposing 
 the order for his discharge •,(n) a security given by a man for a 
 debt from which he has been discharged *by the Insol* 
 L J vent Debtors' Act.(o) And to these (except where the 
 statute(p) gives a title to a holder for value without notice) 
 
 (i) 5 & 6 Edw. 6, c. 16 ; 49 Geo. 3, c. 126 ; 53 Geo. 3, c. 129. 
 
 {k) 23 Hen. 6, c. 9. 
 
 (0 12 «fc 13 Vict. c. 106, s. 268 ; Eose v. Main, 1 Bing. N. C. 357 (27 E. C. 
 L. R.) ; 1 Scott, 127, S. C. ; Davis v. Holding, 1 M. & W. 159. 
 
 {m) 12 & 13 Vict. c. 106, s. 202 ; Bircli v. Jervis, 3 0. & P. 379 (14 E. CI 
 L. R.) ; Taylor v. WII&od, 5 Exch. 251 ; Hanltey v. Cobb, 1 Q. B. 490 (41 E. 
 C. L. R.) ; Smitli v. Saltzman, 9 Exch. 335. 
 
 (71) 24 & 25 Vict. c. 134, s. 166. 
 
 (0) Evans v. Williams, 1 C. & M. 30 ; 3 Tyrw. 268, S. C. ; A.shley v. Kil- 
 lick, 5 M. & W. 509 ; and see Kernot v. Pittis, 2 E. & B. 431 (75 E. C. L. 
 E.) ; Humphreys v. Willing, 32 L. J., Ex. 33 ; 1 Hurl. & Colt. 7. 
 
 (p) 5 & 6 Will. 4, c. 41, s. 1 ; 24 & 25 Vict. c. 134, s. 166. 
 
 West Virg. 274 ; Thornbnrg v. Harris, 3 Coldwell, 157 ; Brown v. Wylie, 3 
 West Virg. 502 ; Potts v. Gray, 3 Coldwell, 468 ; Peltz v. Long, 40 Missouri, 
 532 ; Crawford v. Storms, 41 Miss. 540 ; Reeve v. Doughty, 19 Louis. Ann, 
 164 ; Huck v. Haller, Ibid. 257 ; Gill v. Creed, 3 Coldwell, 295. So also, as 
 to other matters connected with the Confederate service ; Hamilton v. Now- 
 lin, 5 Coldwell, 83 ; Chancely v. Bailey, 37 Georgia, 532 ; Booker v. Rol)bins, 
 26 Arkansas, 660 ; Oxford Iron Co. v. Spradley, 46 Alabama, 98 ; Hunt v. 
 Jones, 60 North Car. 258 ; PowelJ v. Smith, Ibid. 401 ; Ruddell v. Landers, 
 35 Arkansas, 238 ; McMuttry v. Eamsey, Ibid. 349 ; Portis v. Green, Ibid. 
 376 ; Pickens v. Eskridge, 42 Miss. 114 ; Tedder v. Odom, 1 Heistill, 68. 
 So in regard to property in slaves emancipated bylaw. Austin v. Sandal, 
 
 19 Louis. Ann. 309 ; Leslie v. Langham, 40 Alabama, 524 ; McMath v. John- ^ 
 son, 41 Miss. 439 ; Thompson v. Warren, 5 Coldwell, 644 ; Lapier v. Bow- 
 man, 20 Louis. Ann. 234 ; Jeffrion v. Wilson, Ibid. 413 ; White v. Hart, 13 
 Wallace (S. C), 646; Osborn v. Nicholson, Ibid. 654; Wilkinson v. Coot, 
 44Miss. 367 ; WjUis v. Halliburton, 25 Arkansas, 173 ; Gresham v. Morrow, 
 40 Geo. 487 ; McElvain v. Mudd, 44 Alabama, 48 ; Carson v. Hunter, 46 Mo. 
 467 ; Venable v. Born, 40 Geo. 74 ; Heberl v. Chastant, 23 Louis. Ann. 153; 
 Allen V. Tarlton, Ibid. 427 ; Tliompson v. Simmons, Ibid. 450 ; Officer v. 
 Sims, 3 Heiskill, 39 ; Hand v. Armstrong, 34 Geo. 233. Similar questions 
 have arisen under the laws of several of the States against the sale of intoxi-' 
 eating liquors ; Pecker v. Kennisen, 46 New Hamp. 488 ; Widoc v. Webb; 
 
 20 Ohio St. 431 ; Field v. Tibbelt, 57 Maine, 358 ; Merrick v. Butler, 2 Lan' 
 sing, 103; Blake v. Sawih, 10 Allen, 340; Garland v. Lane, 46 New Hamp. 
 345. 
 
OF THE CONSIDERATION. 229 
 
 the same general rules apply as to seou cities given for a gaming 
 debt, before that statute. 
 
 "Many cases there are, also, in which, though the transaction 
 is prohibited by the legislature, the security is not expressly 
 avoided. In such instances, the bill is void in the hands of 
 parties to the illegal transaction, or cognizant thereof, but not 
 in the hands of a bona fide indorsee for value, before the bill is 
 due, without notice of the illegality.(g')(l) The 24 Geo. 2, c. 
 40, 8. 12, prohibits persons from recovering a debt incurred-by 
 sale of spirituous liquors, in less quantities than the value of 
 20s. ; and, where part of the consideration for a bill was for 
 spirituous liquors, within the statute, and part for money lent, 
 the bill was wholly void in the hands of the payee.(r) But 
 where the defendant was indebted to the plaintiff for board 
 and lodging, and for spirituous liquors in quantities of less 
 value than 20s., and having made the plaintiff several unap- 
 propriated payments, gave a promissory note for the balance, it 
 was held that the plaintiff might appropriate these payments 
 to the discharge of his demands for spirituous liquors, and that 
 the consideration of the note being thus purged of those items, 
 the plaintiff might recover on the note.(s) 
 
 So a bill of exchange accepted to secure payment of money 
 taken at the doors of an unlicensed theatre, is void(<) in the 
 hands of the payee, who knew the theatre to be unlicensed.- 
 
 (?) Wyat V. Bulmer, 2 Esp. 538. 
 
 (»■) Scott V. GUmore, 3 Taunt. 236. Qumre tamen, see Crookshanlis v. 
 Rose, 1 M. & Rob. 100 ; 5 C. & P. 19 (24 E. C. L. R.), S. C. Where two 
 sorts of spirits had been sujiplied at one time, the amount of each sort being 
 vinder 20g., but of both together above 20s. , it was held that the value of both 
 was recoverable. Owens v. Porter, 4 C. & P. 367 (19 E. C. L. R.). 
 
 (s) Orookshanks v. Rose, 1 M. & Rob. 100 ; 5 C. & P. 19 (34 E. C. L. R.), 
 8. C. The 24 Geo. 2, c. 40, s. 13, is partially repealed by the 25 &-36 Vict. c. 
 38, as to Spirituous liquors consumed elsewhere than on the premises where 
 sold. 
 
 (0 De Begnis v. Armistead, 10 Bing. 107 (35 E. C. L. R.) ; 3 M. & P. 
 511, S. C. 
 
 (1) If the price of goods sold, the sale whereof is prohibited by law, con- 
 stitute part of the consideration of a promissory note, the note is void between 
 Ibe original parties to it. Carlton v. Bailey, 7 Foster, 330. Note given for 
 illegal consideration is good in the hands of a bona fide indorsee for value. 
 Norris v. Langley, 19 N. Hamp. 433. 
 
230 OP THE CONSIDERATION. 
 
 Therefore, also, as the statute 57 Geo. 3, c. 99, prohibits spir- 
 itual persons from trading, it was held, that a joint-stock bank- 
 ing company, in which a beneficed clergyman held shares, could 
 not sue as indorsee on a bill of exchange.(M) In consequence of 
 . this decision, an act of *parliament, 1 Vict. c. 10 (con- 
 L -■ tinued by 4 Vict. c. 14), was passed to obviate the in- 
 convenience. 
 
 But a note given for the amount of an attorney's bill not 
 delivered pursuant to 6 & 7 Vict. c. 73, is good.(a;) 
 
 If a person be employed to make an illegal contract, arid at. 
 the request of his principal discharges a claim made on such a 
 contract, the agent can recover from the principal the money 
 so paid on his account.(y) 
 
 It is no defence that the plaintiff being a transferee of a bill 
 or note had notice of a fraudulent or illegal consideration, if 
 he can deduce title from a prior party not shown to have had 
 any such notice.(2') 
 
 A judgment recovered by default will not be set aside,, on 
 the ground of illegality in the consideration, unless the defend- 
 ant can affect the plaintiff with knowledge of that fact : but 
 the Court has permitted him to try that in an issue.(a) 
 
 If part of the consideration of a bill or note be fraudulent 
 or illegal, the instrument is vitiated altogether.(6) Where 
 parties have woven a web of fraud or wrong, it is said to be 
 
 («)• Hall V. Franklin, 3 M. & "W. 359 ; 1 Har & W. 8, S. C. 
 
 (x) Jefifteys v. Evans, 14 M. & W. 310. 
 
 (j/) Knight V. Chambei-s,,24 L.-.J., C. P. 131 ; 15 Com. B. 562 (FO E. C. L. 
 E.), S. 0. ; Knight v. Fitch, 24 L, J , C. P. 123 ; 15 Com. B. 500 (80 E. C. 
 L. R,)> 8- C. ; Rosewarne v. Billing, 33 L. J., C. P. 55 ; 15 Com. B., N. 8. 
 316 (109 E. C. L. R.), S. C. 
 
 ■ (2) Masters v. Ibbersen, 18 L. J., C. P. 348 ; 8 C. B. 100 (65 E. C. L. B.), 
 S. C. 
 
 (a) -George v. Stanley, 4 Taunt. 683; Davison v. Franklin, 1 B. &A(i. 
 143 (20 E. C.L. R.). 
 
 (i) Robinson v. Bland, 3 Bnrr. 1077 ; Scott v. Gilmore, 3 Taunt. 2(i3 ; 
 Orookshanks v. Rose, 5 Car. & P. 19 (24 E. C. L. R.) ;.l M. & Rob. 100, S.O. ; 
 Story on Promissory Notes, s. 190 ; Williams v. Bulmore, 33 L. J., Cb. 461. 
 
OP THE CONSIDERATION. 23 
 
 no part of the duty of Courts of Justice to uuravel the 
 threads.(l) 
 
 If a bill originally given upon an illegal consideration be re- 
 newed, the renewed bill is also void,(c) unless the amount be 
 reduced by excluding so much of the consideration for the 
 original bill as was illegal.(t/) 
 
 *And if a bill or note be originally without any con- 
 sideration, and it is given up, another bill between the ■- -^ 
 same parties being substituted for it, the giving up of the first 
 bill is no consideration for the second, but both are alike void 
 for want of consideration, (e). 
 
 (c) Chapman V. Black, 2 B. & Aid. 588; Wynne v. Callender, 1 Rusa. 293 ; 
 Preston V. Jackson, 2 Stark. 237 (3 E. C. L. R.). 
 
 (rf) Ibid. ; and see Hiibner v. Richardson, Bayley, 6th ed. 527. In some 
 cases, where there has been a change of parties, the defendant must plead the 
 -whole agreement on which the renewed bill was given. Boulton v. Coghlan, 
 1 Bing. N. C. 640 (27 E. C. L. R.). In others, where the parties are the 
 same, it is sufl3cient to plead the illegality attaching to the original bill with- 
 out mentioning the substitution. Hay v. Ayling, 20 L. J., Q. B. 171 ; 16 Q. 
 B. 423 (71 E. C. L. R.), S. 0. 
 
 (e) Southall v. Rigg, 11 C. B. 481 (73 B. C. L. R.). It has, however, been 
 held that bills accepted subsequently to the passing of the 17 & 18 Vict. c. 90, 
 abolishing the usury laws, in lenewal of bills accepted before that act, are not 
 without consideration. Flight v. Reed, 82 L. J., Exch. 265; 1 Hurl. & Colt. 
 703, S. C. ; Martin, B., dusentiente. 
 
 (1) Carleton v. Bailey, 7 Foster, 230. Where a part of the consideration 
 is illegal and the contract is entire, an action cannot be sustained for any part 
 of the amount. Coburn v. Odell, 10 Foster, 540 ; PerkinS v. Cummings, 2 
 Gray, 258. Kidder v. Blake, 45 N. Hamp. 530 ; Potts v. Gray, 3 Coldwell, 468 ; 
 Peltz V. Long, 40 Mo. 532 ; Crawford v. Storms, 41 Miss. 540 ; Doty v. Knox 
 Bank, 16 Ohio St. 133 ; Widoc v. Webb, 20 Ohio St. 431. It is no defence to an 
 action on a note given in part payment of an account, that part of the account 
 is for goods sold in violation of law, if the amount of the items for goods law- 
 fully sold exceeds the amount of the note. Warren v. Chapman, 105 Mass. 87. 
 
232 OP THE TRANSFER OF BILLS AND NOTES. 
 
 [*145] 
 
 *OHAPTER XI. 
 
 OF THE TRANSFER OF BILLS AND NOTES. 
 
 DIVISION OF THE SUBJECT, . . 1 46 
 
 •WHAT BILLS TBANSFEBABLE, . 146 
 EFFECT OF INDORSEMENT OF A 
 
 BILL HOT NEGOTIABLE, . . 146 
 OF A NOTE NOT NEGOTIABLE, . 147 
 SUBSEQUENT INSERTION OF 
 WORDS CREATING NEGOTIA- 
 BILITY, 147 
 
 MODES OF TRANSFER, . .147 
 
 BLANK INDORSEMENT, . . 148 
 
 SPECIAL INDORSEMENT, . . 148 
 
 ON THE FACE OF BILL, . . 149 
 
 AN ALLONGE, . . . .149 
 
 MISSPELT INDORSEMENT, . . 149 
 
 BY A PLURALITY OF HOLDERS, . 149 
 CONVERSION OF BLANK INTO 
 
 SPECIAL INDORSEMENT, . . 149 
 
 DELIVERY NECESSARY, . .150 
 
 LIABILITY OF INDORSER, . . 150 
 
 HOW DBCLI-NED, . . . .151 
 
 BY INDORSEMENT SANS RECOURS, 151 
 BY AGREEMENT, .... 151 
 BY CONVERTING BLANK INTO 
 
 SPECIAL INDORSEMENT, . . 152 
 MAY BE SUSPENDED ON A CON- 
 DITION 153 
 
 WHAT INDORSEMENT ADMITS, . 153 
 STRIKING OUT INDORSEMENTS, . 153 
 RIGHTS OF INDORSEE, . . 154 
 
 OF TRANSFEREE TO COMPEL IN- 
 DORSEMENT, .... 154 
 WHERE A BILL IS RE-INDORSED 
 
 TO A PRIOR INDORSER, . . 154 
 
 WHERE THE INDORSER IS A 
 
 TRUSTEE, 155 
 
 RESTRICTIVE INDORSEMENTS. . 156 
 LIABILITY OF PERSONS TRANS- 
 FERRING BY DELIVERY, . . 158 
 NO LIABILITY ON THE INSTRU- 
 MENT, 158 
 
 NOB IN GENERAL ON THE CON- 
 SIDERATION, .... 158 
 
 WHERE THE BILL IS CONSID- 
 ERED AS BOLD, • . .158 
 UNLESS BILL OB NOTE GIVEN 
 
 FOR PRE-EXISTING DEBT, . IfiO 
 
 OTHER EXCEPTIONS TO THE GEN- 
 ERAL RULE, . . . .160 
 SALE TO AN AGENT OF A FOR- 
 EIGN PRINCIPAL, , . .161 
 WARRANTY OF GENUINENESS, . 161 
 NO LIABILITY TO SUBSEQUENT 
 
 TRANSFBBBB, . . . .161 
 EFFECT OF FRAUD, . . .163 
 EIGHTS OF TBANSFEREE BY DE- 
 LIVERY, 162 
 
 FORMER EFFECT OF NEGLIGENCE 
 
 IN THE TRANSFEREE, . . 163 
 
 PRESENT EFFECT OF NEGLIGENCE 
 
 OR FRAUD, . . . .163 
 
 TITLE OF AN AGENT, . . .163 
 
 PLEDGING BILLS PAYABLE TO 
 
 BBAEBB, 163 
 
 OTHER INSTRUMENTS PAYABLE 
 
 TO BEARER 163 
 
 METALLIC TOKENS, . . .164 
 
 TRANSFER UNDEB PECULIAR CIR- 
 CUMSTANCES, . . . .164 
 BEFOBE BILL FILLED UP, . . 164 
 AFTEB REFUSAL TO ACCEPT, . 165 
 WHERE THE TRANSFEREE HAS 
 
 NO NOTICE, . . . .165 
 
 AFTER DUB, . . . .166 
 
 TRANSFER OF OVERDUE CHECK, 168 
 OF NOTE PAYABLE ON DEMAND, 168 
 PLEADING, . . . . .169 
 
 EQUITABLE BELIEF IN CASE OF 
 
 OUTSTANDING OVERDUE BILL, . 169 
 BURTHEN OF PBOOF, . . .169 
 
 CHECK DRAWN ON BEARER'S 
 
 BANKER 169 
 
 AFTER ABANDONMENT OP BIGHT, 169 
 AFTER PAYMENT, . . .169 
 
 BY OTHER PARTIES, . . .170 
 
OE THE TRANSFEE OF BILLS AND NOTES. 233 
 
 AFTBK PREMATURE PAYMENT, . 171 
 AFTER PARTIAL PAYMENT, . 171 
 
 WHERE THERE IS A QUESTION 
 WHBTHEU THE BILL WAS PAID 
 OR TRANSFERKED, . . . 171 
 
 TRANSFER TO ACCEPTOR, . . 171 
 
 TRANSFER FOR PART OF THE 
 
 SUM DUE, .... 171 
 
 FOR 'RESIDUE UNPAID, . . 173 
 
 AFTER RELEASE, . . . .172 
 
 AFTER ACTION BROUGHT, . .173 
 
 TRANSFER ABROAD, . . .173 
 
 AFTER holder's DEATH, . .173 
 
 AFTER BANKRUPTCY, . . .173 
 
 AFTER MARRIAGE, 
 
 BY DEPOSIT WITH A BANKER, . 
 
 BY WILL, 
 
 DONATIO MORTIS CAUSA, . 
 
 HOW IT RESEMBLES A LEGACY, . 
 
 HOW IT DIFFERS FROM A' LEGACY, 
 
 EXECUTION, 
 
 LARCENY, 
 
 EMBEZZLEMENT, . . . . 
 
 EFFECT OF A TRANSFER IN RE- 
 MOVING TECHNICAL DIFFICUL- 
 TIES IN SUING, 
 
 WHEN A COURT OP EQUITY WILL 
 RESTRAIN NEGOTIATIONS, 
 
 173 
 
 173 
 174 
 174 
 176 
 176 
 176 
 177 
 177 
 
 178 
 178 
 
 *In examining the subject of the transfer of bills and i 
 
 notes, let us consider, first, what bills are transfera- '- -■ 
 ble; secondly, the modes of transfer; thirdly, the nature and 
 extent of an indorser's liability ; fourthly, tlie rights of an in- 
 do,rsee; fifthly, the liability of a person transferring by de- 
 livery; sixthly, the rights of a transferee by delivery; sev- 
 enthly, transfer under peculiar circumstances ; eighthly, and 
 lastly, when a Court of Equity will restrain a transfer. 
 
 First, as to what bills are transferable.(a) We have al- 
 ready seen, that a bill or note which does not contain a direc- 
 tion or promise to pay to the order of the payee, or to bearer, is 
 not transferable ; that is, not so as to charge the drawer or 
 iaceeptor by an assignment of the right of action. 
 
 But if nevertheless, the payee do indorse a hill not negotia- 
 ble, he is liable on his indorsement to his indorsee.(6) For 
 every indorser of a hill is in the nature of a new drawer.(c)(l) 
 
 (fl) See the observations on the Assignability of Bills, ante, p. 3. 
 
 (J) Hill V. Lewis, 1 Salk. 1,S3 ; Smallwood v. Vernon, 1 Stra. 478 ; Gwin- 
 nell, Y. Herbert, 5 Ad. & E. 436 (31 E. C. L. R.) ; Burmester v. Hogarth, 11 
 M. & W. 97; Penny v. Innes, 1 C, M. & R. 439 ; 5 Tyr. 107 S. C. But see 
 Plimley v. Westley, infra, where the Court seemed to think that the stamp 
 laws might .interpose an obstacle. 
 
 , (c) And therefore a blank indorsement on a bill not negotiable has been 
 held to operate as the drawing of a bill payable to bearer. Matthews v. 
 Bldxam, 33'l. J., Q. B. 209. See Allen v. Walker, 3 M. & W. 317 ; 5 Dowl. 
 460. 
 
 (I) The indorsement of a note is not an assignment of a claim against the- 
 maker, but a bill upon the maker for the money he has agreed to pay in favor 
 of the indorsee. Hicks v. Wirlh, 4 E. D, Smith, 313. 
 
23i OP THE TRANSFER OF BILLS AND NOTES. 
 
 If the bill, however, were not originally negotiable, it seems 
 to have been considered by the Court of Common Pleas that 
 the first drawing exhausts the stamp, *and that the 
 L -' indorsee cannot acquire a right, without a new 8tamp,(ci) 
 which cannot by law be impressed. If the declaration on a 
 bill indorsed in blank but not originally negotiable, or not in- 
 dorsed by the payee, state that the defendant, the indorser, 
 drew and indorsed the bill, payable to his order, it will upoji 
 evidence be open to the double objection, that the same act is 
 treated both as a drawing and an indorsement, which it cannot 
 be, and that the bill is described as made payable to order, 
 whereas the eflect of the blank indorsement is to make it paya- 
 ble to bearer.(e)(l) 
 
 (d) Plimley v. Westley, 2 Bing. N. C. 349 (39 E. C. L. R.) ; 3 Scott, 433 ; 
 1 Hodges, 324, S. C, which however was the case of a note, 
 («) Burmester v. Hogarth, 11 M. & W. 97. 
 
 (1) The indorsee of a note in its terms not negotiable, may sue the indorser 
 in his own name. Leidy v. Tammany, 9 Watts, 353. The indorser of paper 
 not negotiable is only responsible where he specially contracts to he so, or 
 where he transfers the paper fraudulently ; and in the latter case, not upon 
 the indorsement, but by special action for the consideration paid by the 
 indorsee. Kirkpatrick v. McCuUough, 3 Humph. 171. The indorser of a 
 note not negotiable has no right in an action against him to insist upon pre- 
 vious demand and notice ; bis indorsement is equivalent to a guaranty. Sey- 
 mour V. Van Slyck, 8 Wend. 403. The indorser of a note not negotialile is 
 liable to his indorsee in the same manner iis in ease of a negotiable nole. 
 Jones V. Fales, 4 Mass. 345 ; Sanger v. Stimpson, 8 Ibid. 260. Every in- 
 dorsement of a bill may be regarded as a new bill, drawn by the indorser on 
 the acceptor in favor of the indorsee ; and the indorsee may sue the acceptor, 
 though the bill be not payable to order, and even though no pnyee is men- 
 tioned in the bill. Van Staphorst v. Pearce, 4 Mass. So"*. The indorser of a 
 promissory note not negotiable, is not an original promisor, nor does he en- 
 gage that the maker shall pay the note at all events. Huntington v. Harvey, 
 4 Conn. 134. The statute 8 & 4 Anne,c. 9, distinguishes between the in- 
 dorsement and assignment of a negotiable note, and authorizes the holder by 
 either mode of transfer to bring suit in his own name against the maker or 
 indorser. An assignment of a promissory note transfers to the holder tbe 
 rights of the assignor ; the assignor being responsible for nothing more than 
 the genuineness of the claim. Lyons v. Divelbis, 33 Penna. State Rep. 1?5. 
 
 As to the effect of the indorsement of a non- negotiable note, and the lia- 
 bility of the indorser, see Pay v. Jones, 18 Barbour, 340 ; Bircleback v. 
 Wilkins, 10 Harris, 36 ; Thompson v. McClelland, 5 Casey, 475 ; Ranson v. 
 Sherwood, 36 Conn. 437 ; Helper v. Alden, 3 Minnesota, 332 ; Peddicord v. 
 Whlttam, 9 Iowa, 471 ; Macy v. Kendall, 33 Missouri, 164 ; Wareham Bank 
 
OF THE TRANSFER OF BILLS AND NOTES. 235 
 
 But the indorsement of a note (whether originally negotiahle 
 or not), by one to whom it has not been transferred, will not 
 make the indorser liable on his indorsement. (/) For though 
 every indorser of a bill may be treated, without inconvenience, 
 as a new drawer or maker (for in that character he still re- 
 quires notice of dishonour), yet an indorser of a note cannot be 
 treated as a drawer or maker of the note, without altering his 
 situation for the worst, and depriving him of the right to no- 
 tice, of dishonour. 
 
 The words or to his order or to bearer, if omitted by mistake, 
 may be afterwards inserted, without vitiating the instrument 
 either at common law, or under the Stamp Act.(^) 
 
 Whether a bill or note be negotiable or not is a question 
 of law. (A) 
 
 Secondly, as to the modes of transfer. We have observed, 
 that a bill or note, if payable to order, is not transferable, ex- 
 cept by indorsement ; but that, if payable to bearei-, it is trans- 
 ferable by mere delivery. («) 
 
 *If a bill be made paj'able to A., or order, for the use 
 of B., B. has but an equitable title, and the right of '- ^ 
 transfer is in A. alone.(/(;) 
 
 (/) Gwinnell v. Herbert, 5 A. & E. 436 (31 E. C. L. R.) ; 6K- & M. 7?3, 
 S. C. ; Imt see Story on Promissory Notes, s. 138; 
 
 (g) Kershaw v. Cox, 3 Esp. 846. See the Chapter on Alteration. , 
 
 (A) Grant v. Vaughan, 3-Burr. 1516. 
 
 (i) It is Conceived, that if an agent, a banker for example, hold a bill trans- 
 ferable by delivery, a direction given to hiin by the owner to hold it for an- 
 other, is a sufficient transfer by delivery. And thiit if the owner make over a 
 bill transferable by delivery, by deed, and perhaps by any valid written or 
 verbal contract, without actually delivering the bill, the deed amounts to de- 
 livery in Ihw, and the transferor holds it as agent of the transferee. 
 
 (A) Evans v. Cramlington, Carth. 5 ; Cramlington v. Evans, 2 Vent. 207 ; 
 Skin. 364. 
 
 V. Lincoln, 8 Allen^ 192. In an action on a due bill, not negotiable, by n 
 third party to whom it had been assigned, the maker has every legal set-off 
 against the holder that he had against the original payee. Thompson v. 
 McClelland, 5 Casey, 475 ; 'White v. Heylman, 10 Ibid. 142; Keagy v. Com- 
 monwealth, 7 Wright, 70. , 
 
236 OF THE TRANSFER OF BILLSAND NOTES. 
 
 Indorsements are of two sorts : an indorsement in blank, or, 
 as it is sometimes termed, a blank indorsement, and an indorse- 
 ment in full, or special indorsement.(^) No particular form of 
 words is essential to any indorsement. A blank indorsement is 
 made by the mere signature of the indorser (usually and prop- 
 erly, though not necessarily) on the back of the bill;(m), 
 its effect is to make the instrument thereafter payable to 
 bearer.(?i)(l) 
 
 (0 The mark of a person who cannot write is a sufiBcient indorsement. 
 George v. Surrey, M. & M. 516 (32 E. C. L. B.). 
 (m) See infra, 
 (n) Peacock v. Rhodes, Doug. 611 ; Francis v. Mott, Doug. 613. 
 
 (1) The contract prima facie implied from a blank indorsement of a nego- 
 tiable promissory note by a third person, is that the note is due and payable ■ 
 according to its tenor ; that the maker will be able to pay it at maturity ; and 
 that it is collectable by the use of due diligence. Laflin v. Pomroy, 11 Conn. 
 440 ; Perkins v. Catlin, Ibid. 213 ; Walton v. Scott, 4 Ibid. 527. Indorse- 
 ment in blank of a note by one to whom it is not payable, as between the 
 original parties, may be shown by parol to have been merely a collateral 
 undertaking. Barrows v. Lane, 5 Vermont, 161. By the law merchant, bills 
 and notes payable to order, can be transferred only by indorsement. Hestone 
 V. Williamson, 2 Bibb. 83 ; Hopkirk.T. Page, 2 Brock. 30 ; Taylor v. Binney, 
 7 Mass. 479 ; Blakely v. Grant, 6 Ibid. 386 ; Russell v. Swan, 16 Ibid 314. 
 
 The American courts have been very much agitated by the question in 
 what light a party is to be regarded who, not being the payee, writes his 
 name on the back of the note before it is delivered. In a very large majority 
 of the cases he is treated as an original proniissor or surety, and not as in- 
 dorser. Baker v. Briggs, 8 Pick. 123; Sumner v. Gay, 4 Ibid. 311 ; Austin 
 V. Boyd, 24 Ibid. 64 ; White v. Howland, 9 M ass. 314 ; Malbon v. Southard, 
 36 Mfiine, 147. See also Tenney v. Prince, 4 Pick. 385 ; Ulen v. Kittredge, 
 7 Mass. 233 ; Birchard v. Bartlet, 14 Mass. 279 ; Moies v. Bird, 11 Mass. 436 ; 
 Baker v. Scott, 5 Richardson, 805 ; Lewis v. Harvey, 18 Missouri, 17; Perry 
 V. Barsit, Ibid. 140 ; Pear v. Dunlap, 1 G, Greene, 331 ; Pierson v. Boyd, 2 
 Duer, S3 ; Peckham v. Gilman, 7 Minnesota, 446 ; Richards v. Warring, 39 
 Barbour, 42 ; Pearson v. Stoddard, 9 Gray, 199 ; Brett v. Marston, 45 Maine, 
 401 ; Baker v. Block, 30 Missouri, 239 ; Perkins v. Barstow, 6 Rhode Island, 
 505; Childs v. Wyman, 44 Maine, 433 ; Hawkes v. Phillips, 7 Gray, 284; 
 Carpenter v. Oaks, 10 Richardson (Law), 17; Car v. Rowland, 14 Texas, 
 275; Cecil v. Mix, 6 Indiana, 478 ; Webster v. Cobb, 17 Illinois, 459; Ambler 
 V. Hillier, 9 Richardson (Law), 243; Malbon v. Southard, 36 Maine, 147; 
 Leonard v. Wildes, Ibid. 265 ; Schneider v. Schiffman, 20 Missouri, 571 ; 
 Sargeant v. Robbins, 19 New Hampshire, 572. An indorsement by one not 
 the payee creates a liability as an original promisor or surety— and It may be 
 explained by parol evidence. Cook v. Southwick, 9 Texas, 615 ; Riggs v. 
 Walde, 2 California, 485 ; Clarke v. Smith, Ibid. 605. The parties are pre- 
 
OF THE TRANSFER OF BILLS AND NOTES. 237 
 
 " All indorsement in blank," says Lord Ellenborough, " con- 
 veys a joint right of action to as many as agree in suing on 
 
 sumed to stand to each other in the relations in which their n.ames appear. 
 As between themselves and as against a holder with knowledge, the facts may 
 besliown. Whitehouse V. Hanson, 42 New Hampshire, 9. Wlien one indorses 
 a note drawn by a third person and payable to plaintitf or bearer, he may 
 be cliarged as drawer, indorser or guarantor, according to the circumstances as 
 shown by the evidence. McCclvey v. Noble, 12 Richardson (Law), 167; 
 McCreaiy v. Bird, Ibid. 554. When one places his name on the bacli of a 
 note, the presumption is that he intends to assume the liability of an indorser 
 and' nothing more ; but this presumption may be rebutted by parol evidence 
 that he intended to assume the liability of a maker, in which case he will be 
 regarded as a joint maker. Sill v. Leslie, 16 Indiana, 236 ; Snyder v. Oatman, 
 Iliid. 265 ; Boque v. Meliok, 25 Illinois, 91 ; Cady v. Shepard, 12 Wisconsin, 
 639 ; Davis v. Barron, 13 Ibid. 227. Strangers indorsing for the benefit of 
 the maker are not liable as joint makers, if the payee alterwards write his 
 name as indorser before theirs. Clapp v. Rice, 13 Gray, 403. A. having 
 procured the name of B. in blank, wrote a piomissory note on tlie other side, 
 in favor of C. or order, who indorsed it under B.'s name, and then D. in- 
 dorsed it, and A. procured it to be discounted. Held, that B. was an indorser 
 and not a joint promisor. Greenough v. Smead, 3 Ohio, 415. One who 
 writes his name on the back of a note before delivery can be charged as in- 
 dorser only and not as joint maker ; and that though the note was given for 
 his debt. Heath v. Van-Colt, 9 Wisconsin, 516. The indorsement, in blank, 
 of a negotiable note before its delivery to the payee, by one not a party to it, 
 renders such indorser lialile to the payee on proof of non-payment on present- 
 ment and due notice. Waterbury v. Sinclair, 26 Barbour, 455. When a note 
 was indorsed by strangers before it was delivered to the payee, they were, 
 held liable as joint indorsers. Rey v. Simpson, 22 Howard (S. C), 341. 
 When a negotiable note is indorsed by one not a party to it, the presumption 
 is that he indorsed for the accommodation of the prior parties, and no lia- 
 bili(y would attach to him so long as the note remains in the hands of the 
 payee. Schollenberger v. Nehf, 4 Casey, 189 ; Barto v. Schmeck, Ibid. 447. 
 A third person who indorses a promissory note before the payee, is not re- 
 sponsible to the payee on such indorsement alone. Smith's Adm'r v. Kessler, 
 8 Wright, 142. If a note, purporting to be joint and several, be signed by 
 one person on its face, and by two others, neither of whom is the payee, on 
 the back, the latter are prima facie to be treated as indorsers and not as joint 
 makers. Guldin v. Linderman, 10 Casey, 58. When a check is drawn by 
 A. payable to the order of B., and is then indorsed by C, the legal intend- 
 ment is that C. only meant to become liable as a second indorser. Lester v. 
 Paine, 39 Barbour, 616. A party writing his name on the back of a note for 
 the accommodation of the maker, but not appearing upon its face, is liable 
 to the payee as indorser. Moore v. Cross, 19 New York, 327. See Hahn v. 
 Hull, 4 E. I). Smith, 664. Indorsement by a stranger intending to be surety, 
 held that it bound him to payment in case of default of the maker, provided 
 there was dUe demand and notice. Moore v. Cross, 23 Barbour, 534. 
 One who indorses before the payee, is liable not to the payee, but as in- 
 
238 OF THE TKANSFBR OF BILLS AND NOTES. 
 
 the bill."(o) Therefore, where three persons separately indorsed 
 a bill for the accommodation of the drawer, which was after- 
 wards dishonoured and returned to them, and they paid the 
 amount among them, it, was held, that they might bring a 
 joint action against a previous indorser.(p) But where a bill 
 of exchange was, by the direction of the payee, indorsed iu 
 blank, and delivered to A., B. & Co., who were bankers, on the 
 account of the estate of an insolvent, which was vested in 
 trustees for the benefit of his creditors. Lord EUenborougli 
 held, that A. and B., two of the members of this firm, aud 
 also trustees, could not, conjointly with another trustee who 
 was not a member of the firm, maintain an action against the 
 indorser, without some evidence of the transfer of the bill to 
 them, as trustees, by the firm, by delivery or. otherwise.(g') 
 
 An indorsement in full, besides the signature of the indorser, 
 expresses in whose favour the indorsement is made. Thus, an 
 indorsement in full by A. B. is in this form : " Pay Mr. C. D,, 
 or order, A. B." The signature of the indorser being sub- 
 scribed to the direction, its eflect is to make the instrument 
 
 (o) Ord V. Portal, 3 Camp. 339. 
 
 (p) Low V. Copestake, 3 C. & P. 300 (t4 E. C. L. R.). 
 
 (g) Machell v. Kinnear, 1 Stark. 499 (3 E. 0. L. R.). 
 
 dorser to subsequent indorsers. The Statute of Frauds will not allow parol 
 evidence to show that his engagement was that of a guarantor. Schafer v. 
 Farmers' & Mechanics' Bank, 9 P. F. Smith, 144. 
 
 For other cases bearing upon the same question, see Lester v. Paine, .39 
 Barb. 616 ; Smith v. Kessler, 8 Wright, 143 ; Van Doren v. Tjader, 1 Nevadii, 
 380 ; Houghton v. Ely, 36 Wise. 181 ; Brown v. Butler, 99 Mass. 179 ; Sey- 
 mour v. Mickey, 15 Ohio St. 515; Blatchtord v. Milliken, 35 Illinois, 434; 
 Essex Co. V. Edmunds, 13 Gray, 373; Firman v. Blood, 2 Kansas, 496; 
 Deitz V. Corwin, 85 Missouri, 376 ; Beidraan v. Gray, Ibid. 383 ; Badger t. 
 Barnabee, 17 New Hamp.lSO; Veach v. Thompson, 15 Iowa, 380; Pearson 
 V. Stoddard, 9 Gray, 199 ; Peckliam v. Gilman, 7 Minn. 446 ; Jones v. Good- 
 win, 39 Cal. 493 ; Barkhead v. Williams, 1 Mich. C. C. 38 ; Patch v. Wash- 
 burn, 83 Mass. 82 ; Lincoln v. Hinzey, 51 Illinois, 435 ; Rickey v. Damison, 
 48 Missouri, 61 ; Cason v. Wallace, 4 Bush, 388 ; Kamin v. Holland, 2 Ore- 
 gon, 59 ; White v. Weaver, 41 Illinois, 409 ; Sturtevant v. Randall, 58 Maine, 
 149 ; Bacon v. Burnham, 37 New York, 614 ; Price v. Lavender, 38 Alabama, 
 389 ; Robinson v. Bartlett, 11 Minn. 410 ; Dietrich v. Mitchell, 43 Illinois, 40; 
 Killian v. Ashley, 34 Arkansas, 511 ; Moore v. Folsom, 1^ Minn. 340; Col- 
 lins v. Trist, 20 Louis. Ann. 348. 
 
/ 
 
 OF THE TKANSEEB OF BILLS AND NOTES. 239 
 
 payable to C. D. or his order only ; and, accordingly, CD. can- 
 not transfer it otherwise than by indorsement. The omission 
 of the words, " or order," is not material in a special indorse- 
 ment ; for the indorsee takes it *vyith all its incidents, 
 and among the rest, with its negotiable quality, if it '- ^ 
 were originally made payable to order.(r) 
 
 If a bill be once indorsed in blank, though afterwards in- 
 dorsed in full, it will still, as against the drawer, the payee, the 
 acceptor, the blank indorser, and all indorsers before him, 
 be payable to bearer ;(s) though, as against the special indorser 
 himself, title must be made through his indorsee. 
 
 It is not essential to the validity of these written trans- 
 fers, though called indorsements, that they be on the back ; 
 they may be on the face of a bill of exchange or promissory 
 note.(0(l) 
 
 There is no legal limit to the number of indorsements, and 
 if there be not room to write them all distinctly on the back 
 of the bill, the supernumerary indorsements may be written on 
 a slip of paper annexed to the bill, called, in French, an " al- 
 longe,"{2) The allonge is thenceforth part of the bill, and re- 
 quires no additional stamp. 
 
 A misspelling will not necessarily avoid an indorsement.(?-/,) 
 
 (r) Moore v. Manning, Com. Hep. 311 ; Acheson v. Fountain, 1 Stra. 557 ; 
 Edie V. East India Company, 2 Burr. 1216 ; 1 W. Bl. 395 S. C. ; Cunliffe v. 
 Wliitehead, 3 Bing.' N. C. 829 (32 E. C. L. R.) ; 5 Scott, 31 ; 6 Dowl. 63, 
 S. C. ; Gay v. Lander, 6 C. B. 386 (60 E. C. L. R). 
 
 (s) Smith V. Clarke, Peake, 235; Walker v. M'Bonald, 3 Excli. 527; 17 
 L. J., Exch. 377, S. C. 
 
 (<) Reg V. Bigge, 1 Stra. 18 ; Ex parte Yates, 37 L. J., Bkcy. 9 ; Yarbor- 
 pngli V. Bank of England,, 16 East, 6. 
 
 («) See.Leonard v. Wilson, 3 CT & M. 589 ; 4 Tyr. 415, 8. C. 
 
 (1) Herring v. WoodLull, 39 Illinois, 92. It matters not where the maker 
 or indorsers sign, so it appear from the note what their respective liabilities 
 are. Quin v. Sterne, 36 Georgia, 223 ; Haines v. Dubois, 1 Yroom, 350 ; Her- 
 ring V. Woodhull, 39 Illinois, 93. 
 
 (3) French v. Turner, 15 Indiana, 59. An indorsement or transfer of a 
 promissory note may be on another paper attached to and made a part of tlie 
 note called au allonge, and it is not essential that there should have been a 
 
240 OF THE TRANSFER OF BILLS AND NOTES. 
 
 If two persons, not being partners, are payees of a bill or 
 note, both must indor8e.(a:)(l) 
 
 The indorsee may convert a blank indorsement into a special 
 one in his own favour, by superscribing the necessary words. 
 C. having a bill payable to himself, or orlder, indorsed it in 
 blank, leaving 'a vacant space above, and sent it to J. S., his 
 friend, who got it accepted ; but the money not being paid, C. 
 brought an action against the acceptor, and it was objected 
 that the action should have been brought by J. S. But, per 
 Holt, C. J. : " J. S. had it in his power to act either as servant, . 
 or assignee. If he had filled up the blank space, making the 
 bill payable to him, as he might *have done if he would, 
 ■- J that would have witnessed his election to receive it as 
 indorsee. "(2/) The indorsee may also convert the blank indorse- 
 ment into a special one in favour of a stranger, by superscrib- 
 ing above the indorsement the words " Pay A. B. or order:" 
 and, if he transfer the bill in that way instead of indorsing, he 
 is not liable as indorser.(e)(2) 
 
 (x) Carvick v. Vickeiy, S Doug. 653, n. ; see ante, as to inclorsements by 
 ex-paitners, and by co-executors. 
 
 iy) Clark v. Pigott, 12 Mod. 193 ; 1 Salk. 126, S. C. 
 (z) Vincent v. Horlock, 1 Camp. 442. 
 
 physical impossibility of writing the indorsement or transfer on the note itself, 
 but it may be on another paper attached to the note, whenever necessity or 
 the convenience of the parties require it. Crosley v. Roub, 16 Wise. 616. 
 
 (1) See Snelling v. Boyd, 5 Monroe, 172. Though the indorsement of a 
 bill by one partner in his own name does not pass the legal title, yet as each 
 partner has the com^\ei& jus duponendi tliereof, the. transfer passes the entire 
 equitable right. Alabama Co. v. Brainard, 35 Alabama, 476. 
 ' (3) Where there are several blank indorsements, the holder may fill up the 
 first one of them to himself, or may deduce his title through all of them. Colfe 
 V. Gushing, 8 Pick. 48 ; Emerson v. Cults, 13 Mass. 78 ; Ellsworth v. Brewer, 
 11 Pick. 316. The holder of a note filled, up a blank indorsement, directing 
 payment to be made to a particular person, merely for the purpose of collec- 
 tion, and the agent relumed the note with the protest for non-payment to 
 sucli holder. Held, I hat he might strike out the special mdorsementi and 
 malie it payable to himself, so as to bring the action in his own name against 
 the indorser. Bank of Utica v. Smith, 18 Johns. 330. The holder of a 
 promissory note indorsed in blank may fill it up with any contract coU'' 
 sistent with the character of an indorsement. Mitchell v. Culver, 7 Cowen, 
 336; Riker v. Cosby, 3 Penn. 911; Kiersted v. Rogers, 6 Har. & Johns. 283; 
 Hungerford y. Thomson, Kirby, 893; Rees v. Bank, 5 Rand. 336; Lovell v. 
 
OF THE TRANSFER OF BILLS AND NOTES. 241 
 
 Neither indorsement nor aceeptance(a) are complete before 
 delivery of the bill. Where A. specially indorsed certain bills 
 to B., sealed them up in a parcel, and left them in charge with 
 his own servant to be given to the postman, it was held that 
 the special indorsement did not transfer the property in the bills 
 till delivery, and that delivery to the servant was not suffi- 
 cieut, though it would have been otherwise had the delivery 
 been made to .the po8tman.(i) But where A. and B. carried on 
 busineps in partnership, and being indebted to C, A. who acted 
 as C.'s agent, with the concurrence of B., indorsed a bill in the 
 name of the firm, and placed it amongst the securities which 
 he held for C, but no communication of the fact was made 
 to C. : It was held to be a good indorsement by the firm 
 to C.(c) 
 
 Ilenee the word indorse in the declaration on a bill imports 
 a delivery and transfer to the indorsee, so as to confer title. 
 Therefore under a traverse of the ^indorsement the defendant 
 may show that' the circumstances were such as that the in- 
 dorsement did not eftect a legal delivery of the bill to the in- 
 dorsee,(rf) whether the actual delivery were to a third j>erson, 
 or to the indorsee himself.(e)(l) 
 
 (ffl) Cox V, Troy, 5 B. & Aid. 474 (7 E. C. L. E.) ; 1 D. & Ry. 38, S. C. ; 
 Chapman v. Cotterell, 34 L. J., Exch. 186. 
 
 (J) Rex V. Lambton, 5 Price, 438 ; Adams v. Jones, 4 P. & D. 174 ; 13 Ad. 
 & El. 455 (40 E. C. L. R.) ; Brind v. Hampshire, 1 M. & W. 369 ; Bayley on 
 Bills, 6fh ed. 187. ' 
 
 (c) Lysaght v. Bryant, 9 C. B. 46 (67 E. C. L. R.). 
 
 (d) Marston v. Allen, 8 M. & W. 494 ; Adams v. Jones, 13 Ad. & El. 455 
 (40 E. C. L. R.) ; Lloyd v. Howard, 30 L. J., Q. B. 1 ; 15 Q. B. 995 (69 E. 
 C. L. K.), S. C. ; see Robinson v; Liltle, 18 L. J.f Q. B. 39 ; Green v. Steer, 
 
 I Q. B. 707 (41 E. C. L. R.) ; Denton v. Peters, L. R., 5 Q. B. 475. 
 
 (e) Bell V. Lord Ingestre, 19 L. J., Q. B. 71 ; 13 Q. B. 317 (64 E. C. L. R ), 
 S. C. ; and see Barber v. Ricbards, 6 Exch. 03 ; Lloyd v. Howard, 15 Q. B. 
 995 (69 E. C. L. R.). 
 
 Evertson, 11 Johns. 53 ; Hunter v. Hempstead, 1 Missouri, 67 ; Moies v. Bird, 
 
 II Mass. 436 ; Tenney v. Prince, 4 Pick. 385 ; Nevens v. Degrand, 15 Mass. 
 436 ; Leich v. Hill, 4 Watts, 448 ; Clawson v. Gustin,_3 South. 831 ; Dollfua v. 
 Frosoh, 1 Denio, 367 ; Unicm Bank v. Carr, 3 Humpii. 345 ; Hubbard v. Wil- 
 liamson, 4 Iredell, 366 ; Hance v. Miller, 31 Illinois, 636 ; Bean v. Briggs, 1 
 Clarke, 488. A delivery by the indorser to the indorsee, or that which is 
 equivalent to such delivery, is necessary. Dann v. Norris, 34 Conn. 333. 
 
 (1) Where a note is transferable by indorsement only, the mental Incapacity 
 
 16 
 
242 OF THE TKANSFER OF BILLS AND NOTES. 
 
 Thirdly, as to the liability of an iiidorser. 
 
 Every indorser of a bill is in the nature of a new drawer ;(/) 
 , ■ *and is liable to every succeeding holder in default of 
 '- -' acceptance or payment by the drawee. 
 
 An indorser contracts that if the drawee shall not at matu- 
 rity pay the bill, he, the indorser, will, on receiving due notice 
 of the dishonour, pay the holder the sum which the drawee 
 ought to have paid, together with such damages as the law 
 prescribes or allows as an idemnity.(^) 
 
 He also contracts, in the case of a bill payable at a future 
 date, that if the drawee refuse to accept on presentment, he 
 will in like manner pay.(A) 
 
 But a man may indorse a bill without incurring personal 
 responsibility in several ways. 
 
 First, by expressing in his indorsement that it is made with 
 -this qualification, that he shall not be liable on default of ac- 
 ceptance or payment by the drawee. Such qualified indorse- 
 ment will be made by annexing in French the words "sans 
 recours," or in English, " without recourse to me," or any equiva- 
 lent expreBsion.(i)(l) 
 
 (/) Penny v. Innes, 1 C, M. & R. 441 ; 5 Tyrw. 107, S. C. ; see Allen v. 
 Walker, 2 M. & W. 317 ; SDowl. 460 ; 1 M. & W. 44, S. C. ; see ante, p. 146. 
 
 (fir) Suse V. Pomps, 30 L. J., C. P. 75 ; 8 C. B., N. S. 538 (98 E. C. L. R.), 
 S. C. ( 
 
 (^) Such also is tlie indorser's liability as understood in America (Story on 
 Bills, s. 107). 
 
 (j) The words " at the^dorsee's own risk " have been held in America to 
 exclude the personal responsibility of an indorser. See Rice v. Steam?,' 3 
 Mass. Rep. 225 ; Mott v. Hicks, 1 Cowen, 513. 
 
 of the indorser will be a defence to the maker as against the indorsee! Peaslee 
 V. Robins, 3 Metcalf, 164. An erased blank indorsement of the names of the 
 
 . payees of a note is not evidence of a transfer. Williams v. Smith, 21 Mis- 
 souri, 429. 
 
 If a promissory note was never acluallydelivered, but was put in cirduK- 
 
 •tion by force or fraud and without the fault of the maker; no recovery can lie 
 
 had thereon even by an innocent holder. Burson v. Huntington, 31 Mich. 415. 
 
 (1) An indorsement " without recourse," or at the indorsee's '•' own risk," 
 
 will not expose the indorser to any liability. Rice v. Stearns, 3 MaS8.'235; 
 
 Upham V. Prince, 13 Mass. 14 ; Richardson v. Lmcoln, 5 Metcalf, 201 ; Law- 
 
/ 
 
 OF THE TKANSFEB, OF BILLS AND NOTES. 243 
 
 There may, even without an agreement, be an indorsement 
 which confers title without imposing liability, as in the case of 
 an indorsement by an infant ■,{k) of an indorsement by directors 
 •of a joint stock company not in such a form as to make the 
 company liable. 
 
 And if there be a written or even a verbal agreement be- 
 tween an indorser and his immediate indorsee, that the indorsee 
 shall not sue the indorser, but the acceptor onlj', it has been 
 held, that such an agreement is a good defence on the part of 
 the indorser against his immediate indorsee suing in breach of 
 the agreement.(?) 
 
 Indeed, the contract between indorser and indorsee does not 
 consists exclusively of the writing popularly called an indorse- 
 ment, though that indorsement be a necessary part of it. The 
 contract consists partly of the written indorsement, r*-icoi 
 *partly of the delivery of the bill to the indorsee, and 
 may also consist partly of the mutual understanding and in- 
 tention with which the delivery was made by the indorser and 
 received by the indorsee. That intention may be collected from 
 the words of the parties to the contract, either spoken or written, 
 'from the usage of the place, or of the trade, from the course of 
 dealing between the parties, or from their relative situation.(m) 
 
 ,,'(*) Smith V. Johnson, 37 L. J., Exch. 363 ; 3 H. & N. 232, S. C. 
 
 (() Pike V. Street, M. & M. 226 (22 E. C. L. K.) ; 1 Dans. & L. 159, S. C. ; 
 and see Clark v. Pigolt, 1 Sails. 126 ; 12 Mod. 193; S. C. ; Goupy v. Harden, 
 7 Taunt. 159 (3 E. C. L. E.) ; Soaies v. Glyn, post ; see also Thompson v. 
 Clubly, 1 M. & W. 212 ; Byies on Bills, 5th American edition, 367. 
 ' (m) Kidson v. Dilwonh, 5 Price, 564 ; Castrique v. Baltigieg, 10 Moore, 
 P. 0. Cases, 94. See ante, Chap. VIII. and post, Chap. XIII., and Byles on 
 Bills, 5th American edition, p. 196. 
 
 rence v. Dobyn, 30 Missouri, 196 ; Fitchburg Bank v. Greenwood, 3 Allen, 
 434 ; Craft v. Fleming, 10 Wright, 140 ; Cady v. Shepard, 12 Wisconsin, 639. 
 The indorsee incurs no other obligations than those imposed by the law of 
 the place where tlie indorsement is made, unless a special indorsement shall 
 sjitiject him to the lex lod where the bill is drawn or made payable. There- 
 fore the indorsee of a bill drawn in a French West Indian island on a house 
 in Bordeaux, payable a certain number of days after sight, and transferred in 
 'New Tork, need not present it for payment after protest for non-acceptance, 
 notwithstanding the provisions of the French Commercial Code make a pre- 
 sentment for payment at maturity also necessary. Aymar v. Sheldon, 12 
 Wendell, 439 ; Allen v. Merchants' Bank, 32 Wendell, 215. 
 
244 OF THE TRANSEEE OF BILLS AND NOTES. 
 
 But thoiigh a special contract qualifying the ordinary liabil- 
 ity of au indorser may affect the rights of the immediate 
 indorsee, and those who stand merely on his title, it is plain 
 tbat it cannot restrain the rights of subsequent transferees lor 
 value without notice. 
 
 A party transferring a bill may also (as we have just seen) 
 decline personal responsibility, by converting an existing blank 
 indorsement into a special one in favour of his transferee.(n) ; . 
 
 lA bill may be indorsed conditionally^ so as to impose on the 
 drawee, who afterwards accepts, a liability to pay the bill to 
 the indorsee or his transferees in a particular event onlyi 
 Where a bill was indorsed on such a condition by the payee,, 
 afterwards accepted, then passed through several hands, and 
 was finally paid by the acceptor before the condition was satis- 
 fied, it was held that the acceptor was lialble to pay the bill . 
 again to the payee.(o) But it seems that a bill cannot be in- 
 dorsed with a condition that in a certain event the indorsee 
 shall not retain the power of further indorsing over.{p) And 
 it is clear that parol evidence, or evidence of intention, cannot 
 be allowed to engraft such a condition, so as to affect the title 
 of subsequent holders for value without notice.(g') 
 
 An indorsement admits the signature and capacity of every 
 r*15"?l P'"^°'' P^'i'ty/'') And in an action agaitlst an indorser'*the 
 defendant will not be allowed to plead denying the in- 
 dorsetnent to himself.(s) 
 
 (n) As to the liability of an indorser, after non-payment by the drawee 
 see post. 
 
 (o) Eobertson y. Kensington, 4 Taunt. 30 ; Savage v. Aldren, 2 Stark. 232 
 (3 E. C. L, R.). 
 
 (p) 'Soares v. Glyn, U L. J., Q. B. 313 ; 8 Q. B. 24 (55 E. C. L. R.), S. C. 
 
 (?) In America, also, it has been held that an indorsement of a note paya- 
 ble on a contingency does not impede the negotiability of the instrument, 
 though it will operate as notice to subsequent holders. Byles on Bills, 5tli 
 American edition, p. 268. 
 
 (r) Laimbert v. Oakes, 1 Lord Raym. 443 ; 12 Mod. 244 ; Lambert y. Pack, 
 1 Salk. 127 ; Williams v. Seagrove, 2 Barnard, 82 ; Crichlow v. Parry, 2 
 Camp. 182 ; Free v. Hawkins, Holt, N. P. R. 550 (3 B. C. L. R.) ; Macgre^' 
 V. Rhodes, 25 L. J., Q. B. 818 ; but see East India Company v. Tritton, SB. 
 & C. 280 (10 E. C. L. R.) ; 5 D. & R. 214, S. C. 
 
 («) Macgregor v. Rhodes, 25 L. J., Q. B. 318 ; 6 E. & B. 266 (88 E. C. L. 
 R.), S. C. 
 
OE THE TKANSFER OF BILLS AND NOTES. 245 
 
 The striking out an indorsement by mistake will not disr, 
 charge the indorser,(«) but the striking it out by design will.(M) 
 "Where, in an action by a remote indorsee against the, aeceptor, 
 if traversed, several indorsements are stated in the declaration, 
 though unnecessarily, they must, in strictness, all be provedj(a;) 
 unless the defendant has, by his conduct, admitted them.(y) 
 But the plaintiff may omit to state in his declaration all the 
 indorsements after the fitst indorsement in blank, aijd aver that 
 the first blank ipdorser indorsed immediately to himtelf. In 
 this case, however, all the intervening indorsements should be 
 struck ont.{z){l) Abbott, C. J. : " All the indorsements must 
 be proved or struck out, although not stated in the declaration. 
 I remeniber Bayley, J., so ruling and striking them out him- 
 self on the trial ; and this need not be done before the trial ;(a) 
 but may be done after the plaintiff has finished his case." (h) 
 So, where the action is against an indorser, and there are several 
 indorsements between the payee's indorsement and the defend- 
 ant's, the plaintiff may state in his declaration that the payee 
 indorsed to the defendant.(c) It was formerly, therefore, usual 
 in an action on a bill where there were several indorsements to 
 
 (0 Wilkinson v. Johnson, 3 B. & C. 438 (10 E. C. L. R.) ; 5 D. & R. 403, 
 S. C. Nor the striking out by mistake of the accpptance. Raper v. Birkbeck, 
 15 East, 17 ; Novelli v. Rossi, 2 B. & Ad. 757 (33 E. 0. L. R.). 
 
 (m) Falrclough v. Pavia, 9 Bxch. 690. 
 
 (x) Waynam v. Bend, 1 Camp. 175. 
 
 (y) Bosanqiiet v. Anderson, 6 Esp. 43 ; Sidford v. Chambers, 1 Stark. 336 
 (2E. C. L. R.). 
 
 (s) In an action against an indorser, the plaintift' has no right to strike out 
 indorsements prior to the defendant's, for they constitnto.the defendant's title 
 to indemnity. Byles on Bills', 5th American edition, p. 268. 
 
 (a) Cocks V. Barradale, Chitty, 642, 9lh ed. 
 
 (6) Mayer v. Jadis, 1 M. & Rob. 247. 
 
 (0) Chaters v. Bell, 4 Esp. 210 ; Selw. 806, 9th ed., S. C. 
 
 (1) When the holder of a promissory note brings an action thereon against 
 the first indorser, and sets out in his declaration the various subsequent in- 
 dprsements through which be derives title, he must prove such indwse- 
 ments as laid. Woodruff v. Munroe, 33 Maryland, 146. In a suit by the 
 drawer against the acceptor, if the bill appears to have been indorsed by 
 several persons, it is not necessary for him to prove the indoi'sements. Drew 
 V. Phelps, 18 New Hamp. 572. The holder of a negotiable note, even at the 
 trial 'mny strike out any indorsements which are not stated in the declaration. 
 Merz v. Kaiser, 20 Louis. Ann. 377. 
 
246 OF THE TRANSFER OF BILLS AND NOTES. 
 
 insert two counts : one setting out the indorsements, to avoid 
 the necessity of striking them out ; the other omitting them; 
 so as to prevent a nonsait if they could not be proved. But the 
 wise and ample provisions of the Common Law Procedure Act, 
 as to amendments, now enable a plaintiff to cleclare safely in a 
 general *form, without striking out indorsements, which 
 '• -' act may be attended with risk in many cases. It seems 
 doubtful whether the plaintiff can avail himself of the title of 
 an indorser whose name he has struck o\xt.{il)(l) 
 
 Fourthly, as to the rights of an indorsee. A transfer by in- 
 dorsement vests in the indorsee a right of action against a;l 
 the parties whose names are on the bill, in case of "default of 
 
 '(,d) Davies v. Dodd, 1 Wils. Exch. 110 ; 4 Price, 176, S. C. ; and see Bart- 
 lett V. Benson, 15 L. J., Exoh. 23 ; 3 D. & L. 374 ; 14 M. & W. 733, 8. C. 
 
 (1) In an action by the Jiolder of a note against an indorser, tbe plaintiff 
 cannot be permitted to strike out the name of any indorser prior" to tlie de- 
 tendant. Curry v. Bank of Mobile, 8 Porter, 360. .When a bill is returned 
 to the first indorser after protest, he may strike out his indorsement though it 
 be in full, and maintain an action in his own name. Dugan y. United States, 
 3 Wheat. 183; United States v. Barker, Paine, 156; Picquet v. Curtis, 1 
 Sumner, 480. A holder of a bill, with seyeral indorsements in blank, may 
 strike out all the'indorsers' names alter the first, and write over the first in- 
 dorser's name an assignment to himself. Ritchie v. Moore, 5 Mumford, 388 ; 
 Craig V. Brown, Peter, C. C. Kep. 171 ; Bell y. Morchead, 3 Marsh. 158. 
 
 As to striking out indorsements, see Parks v. Brown, 16 Illinois, 454; 
 Pilkinglon v. Woods, 10 Indiana, 433 ; Bowles v. Wright, 34 Mississippi, 
 409 ; Moore v. Maple, 35 Illinois, 341. Holder may strike out his own in- 
 dorsement in full. Witherell v. Ela, 43 New Hampshire, 395; French T. 
 Jarvis, 29 Conn. 347 ; Mendenhall v. Banks, 16 Indiana, 284 The plaintiff 
 being the payee and in possession, will be presumed to be rightfully so, and 
 the indorsements on the back will be taken to have been properly erased. 
 Goddard v. Cunningham, 6 Clarke, 400. When the plaintiff is the payee of 
 the note sued on, he may strike out the special indorsement, and is not bound 
 to show a transfer back to himself. Cooper v. Cooper, 14 Louisiana Annual, 
 665. The holder of a note, specially indorsed to another person, has no right 
 ti strike out the name of that person and insert his own. Porter v. Cushman, 
 19 Illinois, 572. But see also Ferguson v. Fisk, 38 Conn. 501 ; Naglee v. 
 Lyman, 14 California, 450. As to filling up blank indorsements. Watkins 
 V. Kirkpatrick, 3 Dutcher, 84 ; Webster v. Cobb, 17 Illinois, 459. The holder 
 cannot write a guarantee over the name of an indorser in blank. Clouslon 
 V. Barbiere, 4 Sneed, 336. The plaintiff cannot be required to fill up blank 
 indorsements on the trial. Greenough v. Smead, 3 Ohio (N. S.), 416. 
 
I f r 
 
 OF THE TEAKSFER OF BILLS AND KOTES. 247" 
 
 acceptance or payment; and we have already 8een,(e) that 
 against au innocent indorsee for value, no prior party can set 
 up the defence of fraud, duress, or absence of consideration. 
 But, if the payee of a bill payable to order neglect to indorse, 
 the holder has no remedy in his own name against any person 
 but him from whom he received it.(l) 
 
 If a man have delivered a bill, without indorsing it, where 
 it was upon good consideration agreed or understood that it 
 should be indorsed by him, and afterwards he refuse to indorse, 
 an action may be maintained against him for so refusing.(/) 
 He, or his personal representatives, may also be compelled by 
 bill in equity to indorse. (^) But the transferee of an unin- 
 dorsed bill has no right to sign his transferor's name as in- 
 dorser.(A) Nor can he obtain a good title by an indorsement 
 written after notice to him of a fraud.(i) 
 
 If a bill be re-indorsed to a pi-evious indorser, he has, in 
 general, no remedy against the intermediate parties, for they 
 would have their remedy over against him, and the result of 
 the actions would be, to place the parties in precisely the same 
 situation as before any action at all. (J) But where a holder 
 has previously indorsed, and the subsequent intermediate in- 
 dorser has no right of action or remedy on that previous in- 
 
 (e) Chapter on Consideration. 
 
 (/) Rose V. Sims, 1 B. & Ad. 531 (30 E. C. L. R.). 
 ^ (s) WatUins v. Maule, 3 Jac. & Walker, 343 ; Smith v. Pickery, PeaUe, 
 50 ; Rolleston v. Hibbert, 3 T. R. 411 ; Ex parte Rhodes, 3 Mont. & Ayr. 
 217; Ex parte Greening, 13 Ves. 306 ; Edge v. Rumford, 31 L. J., Ch. 805 ; 
 SlBeav. 347, S. C. 
 
 (A) Harrop v. Fisher, 30 L. J., C. P. 383 ; and see Moxon v. Palling, 
 4 Camp. 50 ; Story on Bills of Exchange, s. 301 ; Rose v. Sims, 1 B. & Ad. 
 521 (20 B. C. L. R.) 
 
 (i) Whistler v. Fowler, 14 C. B., N. S. 248 (108 E. C. L. R.) ; 33 L. J., 
 C. P. 161. 
 
 U) Bishop V. Hay ward, 4 T. R. 470 ; Britten v. Webb, 3 B. & 0. 483 (9 E. 
 C.L. R.) ; 3 D. & R. 650, S. C. 
 
 (1) The purchaser of a negotiable promissory note not indorsed by the 
 payee, has only an equitable interest therein ; and an action upon the same 
 must be brought in the name of the payee. Freeman v. Perry, 33 ConnGcti- 
 cut, 617. f ' 
 
248 OF THE TRANSFER OP BILLS AND NOTES, 
 
 dorsement against the holder, there are cases in *\vhich 
 '- -■ the holder may sue the intermediate indorser.(A) And 
 if the plaintiff declare, as he may do, on an indorsement from 
 the first blank indorser to himself, it will, it seems, he intended 
 that he means to rely on his first title, and it is doubtful 
 whether he can reply any facts arising on the intervening in- 
 dorsements without a departure.(Z)(l) 
 
 But where a bill or note is merely indorsed to another, and 
 deposited with him as a trustee, he can only use it in com- 
 formity with the stipulations on wliich he became the deposi- 
 tary of it,(m) 
 
 If the depositary of the bill indorse it over in breach of trust, 
 the indorsee, with notice of the breach, of trust, can acquire no 
 title to the bill as against the rightful owner, and can neither 
 sue himon the bill, nor hold the bill against him.(ji) There^ 
 fore, where the acceptor of a bill, who had received no value, 
 delivered the bill to the drawer, desiring him to hold it for Ms 
 
 (fc) Wilders v. Stevens, 15 L. J., Exch. 108 ; 15 M. & W. 308, S. 
 Williams v. Clarke, 16 M. '& W. 834 ; Smith v. Marsack, 18 L. J., C. P. 65 
 6 C. B. 486 (60 E. C. L. R.), S. C. ; Morris v. Walker, 19 L. J., Q. B. 400 
 15 Q. B. 5?9 (69 E. C. L. R.), S. C. And to reply the facts is no departure. 
 Ibid., and Story on Promissory Notes, s. 479. 
 
 (0 Bartlett v. Benson, 15 L. J., Exch. 23 ; 14 M. «& W. 733, S. C. 
 
 (m) As to the consideration where the bill is deposited as security for the 
 balance of a running account, see ante,' Cunbidebation. 
 
 (n.) Goggcrly v. Cuthbert, 2 N. R. 170. If the acceptor be compelled to 
 pay, he may sue the depositary. Bleaden v. Charles, 7 Bing. 846 (20 E. C. 
 L. R.) ; and see Osborn v. Donald, 12 W. R. 839. 
 
 (1) It is competent for an indorser of a note on again coming into posses- 
 sion of the note to maintain an action thereon, without producing extrinsic 
 proof of ownership. Earbee v. Wolf, 9 Porter, 366. See Welch y. LindSj 7 
 Cranch, 159 ; Dugan v. The U. S., 3 Wheaton, 172. " After an examinatioa 
 of the cases on this subject (which cannot all of them be reconciled) the court 
 is of opinion, that if any person who indorses a bill of exchange to another, 
 whether for value or for the purpose of collection, shall come to the posses- 
 sion thereof again, he shall he regarded, unless the contrary appear in evi- 
 dence, as the bona fide holder and proprietor of such bill, and shall be 
 entitled to recover, notwithstanding there may be on it one or more indorse- 
 ments in full subsequent to the one to him, without producing any receipt or 
 indorsement back from either of such indorsers, whose names he may stnke 
 from the bill or not, as he may think proper." Ibid. Per Livingston, J. See 
 Bond V. Storrs, 13 Conn. 412. 
 
OF THE TRANSFER OF BILLS AND NOTES. 249 
 
 use, but the drawer indorsed it for value to the defendant, who 
 knew that the drawer had no authority to part with it, the 
 dsefendant, the indorsee, was held liable to the acceptor in 
 trover. "The drawer," says Lord Tenterden, "having put 
 the bill into the defendant's hands, when the defendant knew 
 that the drawer had no authority so to do, the defendant's title 
 is no better than the drawer's. But then, it is said, allowing 
 that the plaintiff had a property in the bill, the defendant had 
 a right to hold it, because he may sue the drawer. I think 
 the defendant had no right to hold it as against the acceptor, 
 the plaintiff, because the. defendant took the bill with the 
 knowledge that the person from whom he took it had no title 
 to it as against the plaintiff. "(o) 
 
 So where the drawer of a bill of exchange deposited it with 
 a creditor, and gave him authority to receive the proceeds and 
 apply them in a specified way, and, the drawer afterwards com- 
 mited an act of bankruptcy, on which a commission 
 *issued,thecreditor having, after the act of bankruptcy, ^ ^ 
 delivered the original bill to the acceptor, and taken in lieu of 
 it another bill, it was held by Tindal, C. J., that the creditor 
 had been guilty of a conversion, and the assignees of the bank- 
 rupt flight recover 'against him in trover.(p) But it would , 
 have been otherwise, if the creditor had merely received the 
 money, for that would not have amounted to a eonversion.(g') 
 Where a bill has been indorsed in blank, and the transferee of 
 the depositary takes it without knowledge of the particular 
 and limited purpose for which the bill was deposited with the 
 trustee, the transferee acquires a title ;(?•) and the transferee's 
 title will not now be affected by proving him guilty of negli- 
 gence, however gross, if there were no fraud. Gross negligence 
 may, however, be evidence of fraud.(s) And it is conceived, 
 
 (») Evans v. Kytner, 1 B. & Ad. 538 (20 E. C. L. R.). 
 
 (p) Robson V. Rolls, 1 M. & Rob. 239. 
 
 (?) Jones V. Fort, 9 B. & C. 764 (17 E. C. L. R.) ; 4 M. & Ry. 547, S. C. 
 
 ()•) Bolton V. Fuller, 1 B. & P. 539 ; Rarnsbottom v. Csitor, 1 Stark. 228 
 (3 E. C. L. R.) ; Collins v. Martin, 1 B. & P. 648 ; Gorgier v. Mieville, 3 B. 
 & C. 45 (10 B. C. L. R.) ; 4 D. & R. 641, S. C. ; Wookey v. Pole, 4 _B. & A. 
 J (6 E. 0. L. R.) ; and see Roberts v. Eden, 1 B. & P. 398. 
 
 (8) Goodman v. Harvey, 4 Ad. & E. 870 (81 B. C. L. R.) ; 6 N.-& M. 372, 
 S. C, ; Uther v. Rich, 10 Ad. & E. 784 (37 E. 0. L. R.) ; 2 Per. & D. 579, 
 8. C. 
 
250 OF THE TRANSFER OF BILLS AND NOTES. 
 
 that if the bill had not become payable to bearer, but was 
 transferable only by indorsement of the trustee^ an indorse^ 
 ment by him in breach of trust to an indorsee for vahie, and 
 without notice, would in general confer a title. 
 
 The trust may be expressed on the bill itself by a restrictive 
 indorsement, or a restrictive direction appended to the payee's 
 name, so that, into whose hands soever the bill may travel, it^ 
 will carry a trust on the face of it.(<;(l) 
 
 The following have been held to be restrictive directions or 
 indorsements : — " The within must be credited to A. B. ;"(«) 
 " Pay to A. B. or order, for my use ; " " Pay to A. B. for my 
 account;" "Pay to' A. B. only." But the words, "Value in 
 account with the Oriental Bank," have been held not to be a 
 restrictive i ndorsemeut.(a;) 
 
 A man who takes a bill, the circulation of which beyond the: 
 restricted indorsee has been restrained by a restrictive direction 
 or indorsement, cannot sue the drawer or acceptor *upon" 
 '- -' it, but holds the bill or the money received by him as 
 the trustee of the restraining party, and is liable to refund the 
 bill or money received upon it to the party making the restric- 
 tive indorsement. For such words cannot be "intended as a 
 mere private direction to the immediate indorsee; seeing that 
 he is bound to account for the bill without any such direction ; 
 not to mention that the most obvious mode of conveying a 
 private direction, would be either by oral communication or by 
 
 (<) Such restrictive indoi'sements are not of very late invention, but they 
 appear to have been well known before the middle of the last century. Snee^ 
 V. Prescot, 1 Atk. 347 ; Edie v. East India Company, S Burr. 1327 ; 1 W. Bl. 
 295, S. C. 
 
 ■ («) Ancher v. Bank of England, Doug. 637 ; Edie v. East India Company,' 
 2 Burr. 1337 ; Evans v. Cramlington, Carlhew, 5 ; Cramlington v. Evnns, 
 2 Vent. 307, S. C. ; Treuttel v. Barandon, 8 Tauut. 100 (4 E. C. L. K.) ; 
 1 Moore, 543, S. C. 
 
 (a;) Murrovir v. Stuart, 8 Moore, P. C. Cases, 367 ; Buckley v. Jackson, 
 L. R, 3 Ex. 185. 
 
 (1) The payee of a note can restrain its negotiability, but a subsequent in- 
 dorser can revive its negotiable quality. Holmes v. Hooper, 1 Bay, l(iO. ' An 
 indorsement, at the time of making a promissory note, rendering it payable 
 on a contingency, does not effect its negotiability ; it is notice of the con- 
 sideration to a subsequent holder. Tappan v. Ely, 15 Wend. 363. 
 
OF THE TKANSFER OF BILLS AND NOTES, 251 
 
 a letter enveloping the bill. Nor can they be a mere direction 
 to the drawee not to pay the original restricted indorsee: for a 
 restrictive indorsement constitntes the restricted indorsee the 
 indorser'a agent to receive the money, and for its misapplica- 
 tion, when so paid, the drawee is not responsible. As between 
 the restraining indorser, therefore, the immediate indorsee, and 
 the drawee, the words " to my use" or the like, are of no elfect. 
 But as between the restraining indorser and a subsequent in- 
 dorser, and the drawee, they are a notification that the re- 
 stricted indorsee has no property in the bill, that he is a mere 
 trustee for his principal, and that he can appoint no 8ub-a;gent, 
 except for the purpose of holding the bill or the money upon a 
 similar trust. The subsequent indorsee, therefore, being a mere 
 agent, can have no action on the bill if it is dishonoured, nor 
 hold it, or the money received upon it, against the principal : 
 and if, instead of paying the money to the principal he chooses 
 to pay it to the intermediate agent, he becomes responsible for 
 its misapplication, and so does any one who paj's it to him. 
 
 A bill was indorsed by the payee in this form : — " Pay A. B., 
 or order, tor the account of C. D. ; " A. B. pledged it with the 
 defendant, who advanced money upon it to A. B. personally. 
 Held, that the diefendant had sufficient notice, from the indorse- ^ 
 ment, that A. B. had no authority to raise money on the bill 
 for his own benefit, and, therefore, could not defend an action 
 of trover for the bill, brought by C. D., his principal. (2/) 
 
 A., a merchant at Boston, in New England, remitted a bill 
 to B., his agent in London, indorsing it in this form : — " Pay 
 B., or his order, for my use." B. discounted it with his bankers : 
 he afterwards failed, and the bankers, to whom he was indebted 
 in more than the amount of the bill, received payment of ^it at 
 maturity from the acceptors. Held, in an action for money 
 had and received, that the bankers were liable to refund the 
 money to A.{z) 
 
 *We have already seen that the omission of the words r*j ko-i 
 '■'•or order" in a special indorsement, will not restrain 
 the negotiability of a bill.(a) 
 
 (y) Treuttel v. Barandon, 8 Taunt. 100 (4 B. C. L. R.); 1 Moore, 543, S. C. 
 
 (z) Sigourney v. Lloyd, 8 B. & C. 622 (15 E. C. L. R.) ; affirmed in the 
 Exchequer Chamber, 5 Bing. 525 (15 E. C. L. R.) ; 3 Y. & J. 220, S. C. 
 
 («) Moore v. Manning, Com. 311; Acheson v. Fountain, 1 Stra. 557; 
 Edie V. East India Company, 2 Burr. 1216 ; 1 W. Bl. 295, S. C. 
 
252 OP THE TRANSFER OF BILLS AND NOTES. 
 
 Fifthly. As to the liability of a person transferring by 
 delivery only. 
 
 A transfer by mere delivery, without indorsement, of a bill 
 of exchange or promissory note made or become payable to 
 bearer, does not render the transferor liable on the instrument 
 to the transferee. 
 
 And it is conceived to be the general rule of the English(J) 
 law, and the fair result of the English authorities, that the 
 transferor is not even liable to refund the consideration, if the 
 bill or note so transferred by delivery without indorsememt 
 turn out to be of no value, by reason of the failure of the other 
 parties to it. For the taking to market of a bill or note paya- 
 ble to bearer without indorsing it, is prima fade a sale of the 
 hill. And there is no implied guarantee of the solvency of the 
 maker, or of any other party.(c) 
 
 If a bill or note, made or become payable to bearer, be 
 delivered without indorsement, 'not in payment of a pre-exist- 
 ing debt, but by way of exchange for goods, for other bills or 
 notes, or for money transferred to the party delivering the bill 
 at the same time, such a transaction has been repeatedly held 
 to be a sale of the bill by the party transferring it, and a pur- 
 r*i Ko-i cbajse of the instrument, with all risks, *by the transferee. 
 " It is extremely clear," says Lord Kenyon, " that, if 
 the holder of a bill send it to market without indorsing his 
 
 (J) In America also it has been repeatedly held, that payment in bank 
 notes after tjie hank has failed, the fact being unknown both to payer and 
 receiver, is gpod, and the loss falls on the receiver. Bayard v. ShunU, 1 
 Watts & Serg. 93 ; Young v. Adams, 6 Mass. 182-185 ; Scruggs v. Gass, • 
 8 Yerger, 115; Lowry v. Murrell, 3 Porter, 283. The contrary, however, 
 has been also held. Lightbody v. Ontario Bank, 11 Wend. 1 ; aflOirmed on 
 error in 13 Wend. 107 ; Harley v. Thornton, 3 Hill, 509 ; Fogg v. Sawyer, 
 9- New Hamp. 365 ; see Story on Promissory Notes, p. 135. It is conceiyed 
 that the confusion has arisen from neglecting to distinguish between the 
 abstract questions of law and questions of fact in the particular case. 
 
 (c) See the observations of Littledale, J. , in Camidge v. Allenby, 6 B. & C. 
 373 (13 E. C. L. R.) ; and Eogers-v. Langford, 1 C. & M. 687, 643. See also 
 the observations of Mr. Baron Bramwell, delivering the judgment of the 
 Court of Exchequer, in Guardians of the Lichfield Union v. Greene, 26 L. J. 
 140 ; 1 H. & N. 884, S. C. ; Smith v. Mercer, L. R., 8 Ex. 51. 
 
Op the transfer oe bills and notes. 253 
 
 name upon it, neither morality nor the laws of this country will 
 compel him to refund the money tor which he sold it, if he did 
 not know at the time that it was not a good bill,"(^) So, 
 where A. gave a bankrupt, before his bankruptcy, cash for a 
 bill, but refused to allow the bankrupt to indorse it, thinking 
 it better without his name, and afterwards, on dishonour of 
 the bill, proved the amount under the commission, the Lord 
 Chancellor ordered the debt to be expunged, observing, that 
 this was a sale of the bill.(e) So, if a party discounts bills with 
 a banker, and receives in part of the discount other bills, but 
 not indorsed by the banker, which bills turn out to be bad, the 
 banker is not liable. " Having taken them without indorse- 
 ment," says Lord Kenyon, " he has taken the risk on himpelf. 
 The bankers were the holders of the bills, and, by not indorsing 
 them, have refused to pledge their Credit to their validity ; and 
 the transferee must be taken to have received them on their 
 own ci'edit only."(/) So, where, in the morning, A. sold B. a 
 quantity of corn ; and, at three o'clock in the afternoon of the 
 same day, B. delivered to A. in paiyraent certain promissory 
 notes of the bank of C, which "had then stopped payment, but 
 which circumstance was not at the time known to either party, 
 Bayley, J., said, " If the notes had been given to A. at the time 
 when the corn was sold, he could have had no remedy upon 
 them against B. A. might have insisted on payment in money, 
 but, if he consented to receive the notes as money, they would 
 have been taken by him at his peril. "(^f) 
 
 Such seems the general rule governing the transfer by 
 delivery, not only of ordinary bills of exchange and promis- 
 
 (d) Fenn v. Harrison, 3 T. R. 759 ; and see Evans v. Wliyle, 5 Bing. 485 
 (15 E. C. L. R.) ; 3 M. & P. 130, S. C. 
 
 (e) Ex parte Shuttleworth, 8 Ves. 368. 
 
 (/) Fydell v. Clark, 1 Esp. 447 ; Bank of England v. Newman, 1 Ld. 
 Raym. 442 ; 12 Mod. 241 ; Com. 57 ; Emly v. Lye, 15 East, 7. But in Ex 
 parte Blackburne, 10 Ves. 204, the Chancellor seemed to think, that, If goods 
 are purchased and paid for at the time by bills not indorsed, the vendee is 
 liable, if the bills turn out to be bad. See Jones v. Ryde, 5 Taunt. 487 (1 E. 
 C. L. R.) ; 1 Marsh. 157, S. C. ; Owenson v. Morse, 7 T. R. 64. 
 
 (.g) Camidge v. AUenby, 6 B. & C. 373 (13 E. C. L. R.) ; 9 D. & R. 391, 
 S. C. ; see Robson v. Oliver, 10 Q. B. 704 (59 E. C. L. R.) ; and see Ward 
 V. Evans, 2 Ld. Raym. 928, and Rogers v. Langford, 1 0. & M. 687. 
 
254 OP THE TEANSFEB OI' BILLS AND NOTES, 
 
 sory notes, bnt also of bank notes.(A) !N"or is there any 
 
 r*1601 *'^^i'<iship in such a rule, for the remedy against, the 
 
 transferor may always te preserved by indorsement, or 
 
 by special contract. The rule, however, is not without excep- 
 
 .tions. 
 
 If a banker's note be given on account of a pre-existing debt, 
 the note is not to be considered as sold.(t) But if the banker 
 fail and if the not? be duly presented, and due notice be given 
 of the dishonour, the remedy for the antecedent debt revives. 
 " I agree," says Holt, C. J., " the difference taken by my brotheir 
 Darnell, that taking a note for goods sold is a payment, becaase 
 it was a part of the original contract, but paper is no paymen't 
 •where there is a precedent dtbt. For when such a note is given 
 in payment, it is always taken to be given under this condition 
 ■to be payment, if the money be paid thereon in convenient 
 time."(_;"). The principle of the exception may be this. A 
 creditor is entitled to cash. If, instead of cash, he consent to 
 take notes, not being a legal tender, that is a favour to the 
 debtor, and it will thence be inferred, in the absfence of evidence 
 ,to the contrary, that the notes were not to be payment, it, with- 
 out the fault of the creditor, they turn out to be of no value. 
 
 • And it is conceived, that as an express contract would make 
 the transferor liable without indorsement, so there are other 
 circumstances from which a jury may infer that the intention. 
 
 (h) Though they be country bank notes, issued by the payer himself, when 
 the question arises in favour of sureties. Guardians of Lichfield Union v, 
 Greene, 26 L. J., Exch. 140 ; 1 H. & N. 884, S. C. 
 
 (0 See as to this exception, however, the language of Lord Campbell, in 
 Timmins v. Gibbins, infra.' 
 
 . 0') Ward V. Evans, 3 Ld. Raym. 938 ; Camidge v. Allenby; 6 B. •& 0. 373 
 (13 E. C. L. E.). So held also by Pratt, C. J., in Moore v. Warren, 1 Stra. 
 415, and by King, 0. J., in Holme v. Barry, 1 Stra. 415. In the case of a 
 pre-existing debt paid by notes, if the notes be not paid, and the debtor is 
 held liable, there is no doubt as to the oiiginal debt for which he is so liable, 
 and there is no need to invent or imply any contract to make out that debt. 
 But where goods are exchanged against money, if the payer is held liable, it 
 is difficult to imply a contract for goods sold and delivered^ to be paid for on 
 request. 
 
or THE TRANSFER OF BILLS AND NOTES. 255 
 
 and implied contract of the parties was, that the notes were uot 
 to he payment, if dishonoured,(/i) 
 
 If, for example, a man ask another to change a hank note for 
 him as a favour, and the banker fail, it is conceived that a jury 
 would be justified in inferring an implied contract to refund the 
 change, if the note were duly presented and dishonoured, and 
 due notice given ;(?) and it has been *held thatif a cus- rsioi-j 
 tomer pay to his account w'lth his banker notes of a 
 bank which has failed, and the banker is guilty of no laches ; the 
 loss falls on the customer.(m) And if a banker cashes a check 
 on another bank which has failed, he may recover back his 
 inoney.(n) In all cases where the receiver of the notes seeks to 
 return them he must do so within a reasonable time (o) 
 
 The sellers of bills on the London market do not, prima facie, 
 trust the foreign principal of the English \)ujer.{p) 
 
 A transferor, by delivery, though he does not impliedly 
 ■warrant the solvency of the parties to a promissory note or bill 
 of exchange, does warrant that the bill or note is not forged or 
 lictitious.(g')(l) And if the bill or note does not in this respect 
 
 (k) See Van Wart v. Woolley, 3 B. & C. 446 (10 B. C. L. E.) ; and post, 
 Ch. XXII. There is no warranty that the stamp on a foreign bill has been 
 cancelled. Pooley v. Browne, II C. B.,N. S. 566 (103 E. C. L. E). 
 
 (0 See Eogers v. Langford, 1 C. & M. 637 ; Turner v. Stones, 1 D. & L. 
 122 ; Ex paite Isbester, 1 Rose, 33 ; Woodland v. Fear, 7,E. & B. 523 (82 
 E. C. L. E.). 
 . , (m) Timmins v. Gibbins, 18 Q. B. 732 (83 K C. L. E.). 
 
 (n) Woodland v. Fear, 26 L. J., Q. B. 202 ; 7 B. & B. 519 (90 B. C. L. R.), 
 8. C. 
 ^ (o) See Rogers T. Langford, 1 0. & M. 643. 
 
 (p) Poirier v. Morris, 3 E. & B. 103 (75 B. C. L. E.). 
 . (2) Jones v. Ryde, 5 Taunt. 487 (1 B. C. L. R.) ; 1 Marsh. 157, S. C. ; 
 YoHug V. Cole, 3 Bing. N. C. 734 (32 B. C. L. E.) ; Bruce v. Bruce, 1 Marsh. 
 165 ; 5 Taunt. 495 (1 E. C. L. R.) ; Fuller v. Smith, Ryan & M. 49 (31 E. C. _ 
 L. R.) ; Gurney v. Womersley, 4 E. & B. 133. So it has been repeatedly 
 •held in America. Ellis t. Wild, 6 'Mass. 321 ; Young v. Adams, Ibid. 182 ; 
 
 (1) The doctrine of implied warranty in sales, applies to the sale of a note ; 
 so that one wlio sells an indojsed note gives an implied warranty that the in- 
 •dorsement is a genuine one. Strange v. EUis<m, 3 Bailey, 385; McNeil v. 
 Knott, 11 Georgia, 142 ; Swanzey v. Parker, 14 Wright, 441 ; Thompson v. 
 McCuUough, 31 Missouri, 224 ; Terry v. Bissell, 26 Conn. 23 ; Aldrich v. Jack- 
 
256 OF THE TRANSFER OF BILLS AND NOTES. 
 
 fully answer the warranty (though some signatures be genuine), 
 yet the cousideration entirely fails and the money given for the 
 bill may be recovered haekj{r) provided it be claimed within a 
 reasonable time.(s) 
 
 Markle v. Hatfield*, 2 Johns. R 455 ; Eagle Bank of Newhaven v. Smilb, 5 
 Conn. R. 71 ; Strange v. Ellison, 2 Bayley, 385 ; though the instrument lie 
 solil, Byles on Bills, 5th American edition, p. 278. Mr. Justice Story lays it 
 down that there is also a warranty of the title of the transferor. Treatise oa 
 Promissory Notes, p. 123. But it is conceived that that is not so. Indeed, an 
 lionest transferee by delivery needs no such warranty. See further as to 
 transfer of a forged or altered bill, the Chapters on Fobgeet and Altbka- 
 TioN. He also warrants that a bill purporting to be a foreign bill, and there- 
 fore not, till negotiated here, requiring a stamp, was really made abroad. 
 Qompertzv. Bartlett, 23 L. J., Q. B. 65 ; 3 E. & B. 854 (75 E. C. L. R.J. 
 See too 38 & 34 Vict. c. 27, s. 63. 
 
 (r) In re Barringtou, 2 Sch. «fc Lef. 112. 
 
 (8) Pooley v. Browne, 31 L. J., C. P. 135. 
 
 son, 5 Rhode Island, 318 ; Cabot Bank v. Morton, 4 Gray, 156 ; Lyons v. 
 Divelbis, 10 Harris, 185. An indorser guarantees the genuineness of the sig- 
 natures, and the competency to contract of all the prior parties. Ogden v. 
 Blydenburgh, 1 Hilton, 183 ; Erwin v. Downs, 15 New York, 575. There is 
 no implied warranty of the past or future solvency of the maker of. a note 
 from a mere exchange of \it, without indorsement, for merchandise. Burgess 
 V. Chapin, 5 Rhode Island, 225 ; Beckwith v. Farnum, Ibid. 230. Where one 
 sells a check of a third person without communicating to the purchaser the 
 fact, known to the seller, that the maker of the check had failed to pay another 
 check presented to him tor payment on the day of the sale, he cannot recover 
 upon a note given in payment for the check. Brown v. Montgomery, 30 New 
 Tork, 287 ; Long v. Spruill, 7 Jones (Law), 96. Where a party negotiates 
 commercial paper payable to bearer, or under a blank indorsement, he war- 
 rants that he has no knowledge of any facts which prove 'the paper to be 
 ■worthless. Delaware Bank v. Jarvis, 20 New York, 226 ; Brown v. Mont- 
 gomery, Ibid. 287. A party selling a bill is not bound to communicate to the 
 purchaser the fact of the insolvency of the parties to it, even if within his own 
 knowledge. Bartle v. Saunders, 2 Grant's Cases, 199. 
 
 There is an implied warranty of title by transfer without indorsement. Fake 
 v. Smith, 7 Abbott P. C. (N. S.) 106 ; Wynn v. Poynter, 3 Bush, 54; Barton 
 V. Trenton, 3 Head, 167 ; Plynn v. Allen, 7 P. P. Smith, 482 ; McCay v. Bar- 
 ber, 37 Geo. 423. The liability of an indorser without recourse is the same as 
 that of a transferor by delivery merely of a note payable to bearer ; he is under 
 the same implied guaranty. Watson v. Chesire, 18 Iowa, 202. 
 
 The maker of a certificate of deposit paid the same to a holder, who indorsed 
 it ; the payee having proved his indorsement a forgery, recovered the amount 
 of the makers. In tin action by the makers against the holder, held that his 
 indorsement was a guaranty of the genuineness of the payee's indorsement. 
 Mills V. Barney, 22 Cal. 340. 
 
OF THE TRANSFBE OF BILLS AND NOTES. 257 
 
 A transferee, by delivery, cannot be liable in any case to a 
 subsequent transferee, either on the instrument or the consider- 
 ation. And therefore it has been held that such subsequent 
 transferee cannot prove for the value in the event of the first 
 transferor's bankruptcy.(<) 
 
 *But, in all cases, if notes or bills are transferred as 
 vahd, when the transferor knows they are good for '- "'-' 
 nothing, the suppression of the truth is a fraud, and he is liable. 
 " If," continues Mr. Justice Bayley, in the case before referred 
 to, "A. could show fraud or knowledge of the maker's insol- 
 vency in the payer, then it would be wholly immaterial 
 whether the notes were taken at the time of sale or after- 
 wards."(w) 
 
 Sixthly, as to the rights of transferee by delivery. 
 
 Bills and notes payable to bearer circulate as money, and 
 are considered as such. The bona fide possessor is, therefore, 
 the true owner. For it is essential to the currency of money 
 that property and possession should be inseparable.(a;) We 
 have already seen that the indorsee of a bill payable to order, 
 and not made payable to bearer by a blank indorsement, has 
 no right to, the bill, either so as to retain it against the real 
 owner, or to sue any party upon it, unless the indorser had a 
 right to indorse.(2/) Whereas, if the check, bill, or note be 
 originally made or have since duly become payable to bearer, 
 the title of the holder, both as against a former owner on the 
 one hand, and against the maker, acceptor, or indorser on the 
 other, is not aft'eeted by any infirmity in the title of the trans- 
 feror, provided the holder took it bona fide for value.(l) 
 
 (0 Gnrney v. Womersley, 4 B. & B. 133 (83 E. C. L. R.). 
 (ti) Camidge v. AUenby, 6 B. & C. 873 ^13 E. C. L. R.) ; 9 D. & R. 391, 
 S. C. ; Feiin v. Hariison, 3 T. R. 759. 
 (X) See Foster v. Green, 31 L. J., Exch. 108. 
 (,y) Mead v. Young, 4 T. R. 28. 
 
 (1) A note payable to A. or bearer, may be negotiated by delivery only, 
 even if indorsed by A, Wilbour v. Tinner, 5 Piclt. 526 ; Dole v. Weeks, 4 
 Mass. 451. A note or bill with a seal to it is not a negotiable instrument ; but 
 in Georgia it has been held that a bond payable to bearer is. Porter v. Mc- 
 
 17 
 
258 OP THE TRANSFER OF BILLS AND NOTES. 
 
 It was formerly considered that the transferee's title would 
 be aftected by want of due caution on his part, and that he 
 would be liable in trover to the real owner, and unable to 
 enforce payments against the parties to the instrument, if he 
 were guilty of negligence in taking it. Thus, 'where a banker, 
 in a small market town, changed a 500Z. Bank of England note 
 for a stranger, without any further inquiry than merely asking 
 his name, he was held liable, in trover, to a party from whom 
 the note had been unlawfully obtained ; Best, 0. J., observing, 
 " The party's caution should increase with, the amount of the 
 note which he is called upon to {ihangej{z) A man may change 
 a 201. note without asking a single question, but would that be 
 right as to *one of several thousands ? More caution is 
 ^ J required in the case of a diseouncer than of a payer."(a) 
 
 But it is now settled, that if a man takes honestly an instru- 
 ment made or become payable to bearer, he has a good title to 
 it, with whatever degree of negligence he may have actpd, 
 unless his gross negligence induce the jury to find fraud. "I 
 believe," says Lord Denman, ^' we are all of opinion that gross 
 negligence only would not be a sufficient answer by the 
 defendant where the plaintiff has given consideration for the, 
 bill. Gross negligence may be evidence of mala fides, but it is 
 
 ■ (z) Snow V. Peacock, 3 C. & P. 231 (13 E. C. L. R.) ; and see Gill v. 
 Cubitt, 3 B. & C. 466 (10 E. C. L. H.) ; 5 D. & R. 334, S. C. ; Egan T. 
 Threlfall, 5 D. &R. 836 (16 E. C. L. R ). 
 
 (a) Query, ■whether this last proposition is not now incorrect ? 
 
 Collum, 15 Georgia, £29. A sealed instrument in the form of a negotiable 
 note is not negotiable. Helper v. Alden, 3 Minnesota, 333. A note under 
 seal is not entitled to days of grace. Skidmore v. Little, 4 Texas, 301. Printed 
 letters "L. S." in brackets Is a seal. Giles v. Mauldin, 7 Richardson, U. 
 Affixing a seal to a bill of exchange does not deprive it of its commercial char- 
 acter. Bain v. Wilson, 10 Ohio (N. S.), 14. 
 
 Indorsement of a note payable to bearer, renders the indorser liable as such. 
 Davis V. Wilson, 31 Texas, 136. 
 
 As to assignment by delivery without indorsement or by separate assign- 
 ment. See Crosley v. Roub, 16 Wise. 616 ; Burnap v. Cook, 82 Illinois, 168; 
 Franklin v. Twogood, 18 Iowa, Ciq ; Williams v. Norton, 3 Kansas, 295; 
 Borum v. King's Adm., 37 Ala. 606 ; Vansant v. Arnold, 31 Geo. 210; Childs 
 V. Davidson, 38 Illinois, 437 ; Taylor v. Reese, 44 Miss. 89 ; Eckford v. Hogam 
 Ibid. 398 ; Redmond v. Stansbury, 3 Mich. C. C. 124. 
 
OF THE TRANSFER OF BILLS AND NOTES. 259 
 
 not the same thing. We have shaken off the last remnant of 
 the contrary doctrine."(6) 
 
 If the party presenting a bill or note payable to bearer be 
 the mere agent of another, the agent's title is infected with the 
 infirmity of his principal's title, although the principal is in the 
 agent's debt ; and the agent consequently cannot enforce pay- 
 ment of the maker.(e) 
 
 It makes no difference that the bill or note is only pledged, 
 and not absolutely transferred ; the pawnee acquires a property 
 in '\t,{d) and is not liable in trover, to the real owner, as in the 
 case of goods improperly pliedged.(e) 
 
 Exchequer bills, which are payable to bearer before the blank 
 is filled up,(/) bonds of foreign princes and states *pay- 
 able to bearer,(^) and East India bonds, (A) resemble '- -* 
 money apd bills of exchange payable to bearer, in the necessary 
 
 (J) Goodman v. Harvey, 4 Ad. & El. 870 (31 E. C. L. R.) ; 6 N. & M. 
 372, S. C. ; Ulhei- v. Bicli, 10 Ad. & B. 784 (37 E. C. L. R.) ; 2 P. & D. 579, 
 , B. 0. In the case of Goodman v. Harvey, the bill bore on it, when dis- 
 jSQUhtec^, the notarial mark of non-acceplance. To use the words of the Lord 
 Chief Justice, "the plaintiff received the hill with a death wound apparent 
 on it." See also Baclihouse v. Harrison, 5 B. & Ad. 1098 (27 E. C. L. R.) ; 
 3 N. & M. 188 ; Crook v. Jadis, 5 B. & Ad. 909 (27 E. C. L. R.) ; 3 N. & L, 
 357, S. C. ; Foster v. Pearson, 1 C. M. & R. 855 ; 5 Tyr. 355, S. C. ; Wills 
 V. Bank of England, 4 A. & E. 31 (31 E. C. L. R) ; Raphael v. Bank of 
 England, 17 C. B. 161 (84 E. C. L. R.) ; Carlon v. Ireland, 5 E. & B. 765 (85 
 E. 0. L. R.) ; Bank of Bengal v. Fagan, 7 Moore, P. G. C. 73. 
 
 (c) Solomons v. Bank of England, 13 East, 135 ; 1 Rose, 99, S. C. As to 
 agent transgressing his authority, see Watson v. Russell, 34 L. J., Q. B. 93. 
 
 id) Barber v. Richards, 30 L. J., Exch. 135. 
 
 («) Collins V. Martin, 1 Bos. & Pul. 648 ; 3 Esp. 520, S. C. See as to lien 
 of banker, post. 
 
 (/) Wookey v. Pole, 4 A. & Aid. 1 ; see as to dividend warrants. Part- 
 ridge V. Bank of England, 13 L. J., Q. B. 381, and 9 Q.'B. 434 (58 E. C. L. 
 K.), in error ; and see further as to Exchequer bills, Barnett v. Brandao, 6 M. 
 & G. 630 (4.6 E. C. L. R.) ; Brandao v. Barnett, 3 C. B. 519 (54 E. C. L. 
 R.). In the State of Georgia it has been held, that any bond payable to 
 bfeareris a negotiable instrument. Byles on Bills, 5th American edition, p. 
 381. 
 
 ig) Gorgier V. Mieville, 3 B. & C. 45 (10 E. 0. L. R.) ; 4 D. & R. C41, S. 
 C. ; Jones v. Peppercorn, 38 L. J., Ch. 158; 1 Johnston, 430, P. C. 
 
 (A) 51 Geo. 3, 0. 64. 
 
260 OF THE TRANSFER OF BILLS AND NOTES. 
 
 union of possession and property. Honest acquisition confers 
 title.(i) 
 
 A metallic token, like an I U, should seem at common law 
 to be only evidence of a debt. Though intended for circulation 
 it can therefore at common law give no right of action to a 
 transferee. 
 
 But the issuer of tokens made of mixed metals, com- 
 pounded partly of gold or silver, was formerly liable to the 
 holder.(A) 
 
 The issuer of a token, made wholly or in part of copper, is 
 liable only to the original taker.(i) 
 
 The issuing of tokens made partly of gold or silver was 
 restrained by the 53 Geo. 3, c. 114 (now repealed by the 24 & 
 25 Vict. c. 101), and the issuing of tokens made wholly or 
 partly of copper by the 57 Geo. 3, c. 46. 
 
 Tokens into the composition of which neither the precious 
 metals or copper enter, seem left to the common law. 
 
 Wages of artificers, however, cannot in certain trades, even 
 by consent, be paid in tokens.(m) 
 
 Seventhly, as to transfer under peculiar circumstances. 
 
 An indorsement may be made even before the bill or note 
 itself, and so render the indorser liable to subsequent parties 
 to any amount warranted by the stamp.(l) The plaintiffs were 
 
 (i) The embezzling of bills by agents, or pledging them beyond their lien, 
 is a misdemeanor punishable by penal servitude or imprisonment, 24 & 25 
 Vict. c. 96, s. 75. As to lost bills, see the Chapter on that subject. 
 
 (ft) 53 Geo. 3, c. 114, s. 3. This statute is repealed by 24 & 25 Vict. c. 101. 
 
 to 57 Geo. 3, c. 46. 
 
 (m) 1 & 2 Will. 4, c. 37. 
 
 (I) An indorsement of commercial paper, blank as to date, time or place of 
 payment, amount or name of payee, and its delivery to the maker, gives au- 
 thority to the holder to fill the blanks in general conformity to the character 
 of the paper. Spitler v. James, 82 Ind. 203 ; Dunham v. Clogg, 30 Maryland, 
 284. The indorser of a note in blank cannot deny that the blanks were prop- 
 erly filled in a suit against him by an indorsee for value. Faimers' Bank v. 
 Garten, 34 Mo. 119. When a note is indorsed in blank, a mistake made by 
 ■writing over the signature a contract not authorized by the circumstances, will 
 not discharge the indorser, no fraud being intended. Seymour v. Mickey; 15 
 Ohio St. 515. 
 
I 
 
 OF THE TRANSFER OF BILLS AND NOTES. 261 
 
 bankers, with whom one G. had dealings. They refused to let 
 him have more money, unless he procured them the indorse- 
 ment of a third person. G. accordingly induced the defendant 
 to sign his name across the back of four blank forms of prom- 
 issory notes. G. then filled them up, and delivered them to 
 the plaintiffs, who knew the notes were blank at the time of 
 the indorsement. The notes were not paid by G., the maker, 
 and the plaintiffs called on the defendant as indorser. Lord 
 Mansfield : " Nothing is so clear, as that the indorsement on a 
 blank note is a letter of *credit for an indefinite sum. pigc-i 
 The defendant said, ' Trust Gr. to any amount, and I 
 will be his security.' It does not lie in his mouth to say the 
 indo;sements were not regular.''(n)(l) 
 
 An indorsement may be made either before or after accept- 
 ance.(2) If a bill be indorsed after refusal to accept, and 
 notice thereof to the indorsee, or after it is due, these are cir- 
 cumstances which may reasonably excite suspicions as to the 
 liability or solvency of the antecedent parties. An indorsee, 
 therefore, of a bill dishonoured or after due, with notice thereof, 
 has not all the equity of an indorsee for value in the ordinary 
 course of negotiation. He is held to take the bill On the credit 
 of his indorser, and has no superior title against the other 
 parties.(o) 
 
 (») Russell V. Langstaife, Doag. 498 ; aod this seems to be the law m 
 America, though the amount' of liability is not there limited by any stamp 
 laws. Byles on Bills, 5lh American edition, pp. 282 and 307 ; Usher v. 
 Dauncy, 4 Camp. 97. A bill may be indorsed before the day of its date. 
 Passmore v. North, 13 East, 517; and see Smith v. Mihgay, 1 M. & Sel. 87; 
 Cruchley v. Clarence, 2 M. & Sel. 90 ; and see 17 Geo.,3, c. 80, s. 1; and 
 SchuUz V. Astley, 3 Biiig. N. C. 544 (29 E. C. L. R.) ; 8 Scott, 815 ; 1 Hodges, 
 525, 8. C. See acceptance on a blank stamp, post. Chapter on Acceptance. 
 
 (fl) But as to a bill payable to bearer, see Goodman v. Harvey, 4 Ad. & El. 
 870 (31 B. C. L. R.) ; 6 N. & Man. 872, S. C. ; Raphael v. Bank of England, 
 17 0. B. 161 (84 E. C. L. R.) ; Carlon v. Ireland, 5 E. & B. 765 (85 B. C. 
 L. R). 
 
 (1) A blank indorsement, upon a blank piece of paper, with intent to give 
 a person credit, is in effect a letter of credit ; and if a promissory note is after- 
 "wards written on the paper, the indorser cannot object that the note was writ- 
 ten after the indorsement. Violett v. Patton, 6 Cranch, 142. 
 
 (2) Indorsement on the last day of grace is good. Crosby v. Grant, 36 New 
 Hampshire, 373. The iudorsemcnts on a note, if not dated, must be taken to 
 
262 OF THE TRANSFER OF BILLS AND NOTES. 
 
 Drawer requested defendaht to indorse two bills for his, the 
 drawer's accommodation. He accordingly drew two in favour 
 of the defendant, which defendants indorsed and gave np to 
 him. These bills the drawer then gave to A., and A. signed 
 an agreement with defendant, that if one of the bills were paid, 
 the defendant shotild be exonerated from the other. One of 
 them the defendant accordingly did pay. The other was pre- 
 sented for acceptance and dishonoured : it was, after this, in- 
 dorsed by A. to the plaintiffs, with notice of the dishonour. 
 On payment being refused, plaintiffs sued defendant. Held, 
 that the plaintiff's, having taken the bill after notice of dis- 
 honour, took thfi title of their indorser, and that, as the agree- 
 ment would have been a defence to an action at the suit of A., 
 it was a defence also against the p]aintifts.(^) 
 
 But if the indorsee had no notice of the dishotiour, he is not 
 prejudiced by it. Payee presented a bill for acceptance, which 
 was refused. He neglected to advise the drawer, and thereby 
 discharged the drawer as between the drawer *and him- 
 '- J self. He then indorsed the bill without informing his 
 indorsee of the dishonour. Held, that the discharge to the 
 drawer exfetided only to an action at the suit of the party 
 guilty of the neglect, and that the indorsee having had no 
 notice of the dishonour, the same defence was not available 
 against him as against his indorser.(5') 
 
 " After a bill or note is due,"(r) says Lord EUenborough, 
 
 (p) Grossley v. Ham,- 13 East, 498. 
 
 (g) O'Keefe y. Dunn, 6 Taunt. 305 (1 E. U. L. R.) ; 1 Marsh, 613, S. C. ; 
 afiiimec' in the K.'^., 5 M. & S. 383 ; and see Whitehead v. Walker, 11 L. 
 J., Exdi. 168 ; 9 M. & W. 506 ; 10 M. & W. 696 ; and Bartlett v. Benson, 14 
 M. & W. 738 ; 3 D. & L. 374 ; 15 L. J., Exch. 23, S. 0. 
 
 (r) II is apprehended that wherever it is alleged that a bill was endorsed 
 when overdue, or under any other peculiar circumstances, it lies on the piirly 
 averring the fact to prove it on the general principle, " Ei ineumbil probalio 
 qui dicit." See post. 
 
 1)6 of the same date as the note. Snyder v. Oatman, 16 Indiana. 265 ; Stewart 
 V. Smith, 28 Illinois, 397 ; Bates v. Prichett, 5 Indiana, 22. When the in- 
 dorsement is without date, and is sliown not to have been made until after 
 the date of the note, the burden is upon the holder to show that the indorse- 
 ment was made before sitit. Parker v. Tuttle, 41 Maine, 349. •- 
 
OF THE TRANSFER OF BILLS AND NOTES. 263 
 
 ** it comes disgraced to the»indorsee, and it is his duty to make 
 inquiries concerning it. If he take itj though, he give a full 
 consideration for it, he takes it on the credit of the indorser, 
 and subject to all the(s) equities with which it may be incum- 
 bered." Thus, where the defendant made a pro'nissory note for 
 the accommodation of the payee, and the payee indorsed it, 
 overdue to A., and A. indorsed it to the plaintiff, it was for- 
 merly held that as the absence of consideration would have 
 been a good defence aga'nst the payee, it was also available 
 both against A. and the plaintiff.(Z)(l) 
 
 (i) In Slurtevant v. Ford, 4 M. & G. 101 (43 E. C. L. R.) ; CressweM, J., 
 says, " Perhiips the butter expression would be, that he takes the bill subject 
 to all its equities." In equity it has been held that where an overdue bill of 
 exchange was bought with stolen money, the claim of the person willi whose 
 money it had been bought was an equity attacliing to the bill. In re European 
 Bank, L. R., 5 Chan. Ap. 359. QuoBre, as to there not having been here some 
 groOnd for constructive notice. 
 
 (0 Tinson v. Francis, 1 Camp. 19 ; Brown v. Davies, 3 T. R. 80 ; 7 T. R. 
 429-; sed vide Charles v. Marsden, 1 Taunt. 234; Atwood v. Crowdie, 1 
 Stark. N. P , 4H3 (3 E. C. L. R.) ; Bayley, 6ih ed. 161 ; Chitty, 9th ed. 318 ; 
 Boscoe, 386. Qvmre, whether this were at any time the law, supposing a bill 
 to have been aeeepted atler it became due. See Stein v. Yglesias, 1 C, M. & 
 R. 565 ; 3 Dowl. 353 ; 1 Gale, 98, S. C. So stood the authorities till very 
 lately. But the Court of C. P., in Sturtevant v. Ford, and the Court of Q. 
 B. in Lazarus v. Cowie, and perhaps the Court of Exch. in Stein v. Yglesias, 
 ante, have recently upheld the authority of Charles v. Marsden, and it should 
 now seem that an original absence of consideration in the case of an accom- 
 modalioH bill, is not one of those equities which attach on the instrument and 
 defeat the title of an indorsee for value of an overdue bill, although with no- 
 tice of the fact. See Caruthers v. West, 11 Q. B. 143 (63 E. C. L. R ), and 
 Ex parte Swan, L. R., 6 Eq. 345. Some inclination to reconsider the modern 
 rule seems, however, to have been evinced bj' the Exch. Chamber in Jewell v. 
 Parr, 16 C. B. 684 (81 E. C. L. R.). • • 
 
 (1) The indorsement of a promissory note after it is due, is equivalent to 
 drawing a new bill payable at sight, and it must be proceeded with as such. 
 Bishop V. Dexter, 3 Conn. 4 9 ; Bank v. Burriew, 1 Yeates, 360. A negotia- 
 ble instrument will be presumed, if in the hands of a third person, to have 
 been transferred before maturity. Smith v. Clopton, 4 Texas, 109. Posses- 
 sion is jwima/acje evidence that the note was transferred to the plaintiff before 
 the commencement of the action, and before the maturity of the note. Bar- 
 rick V. Austin, 21 Barbour, 241. Indorsement is presumed to have been made 
 before the maturity of the note, if not at the day of its date. McDowell v. 
 Goldsmith, 6 Maryland, 319. , An indorsee of a note after maturity, takes the 
 same iutferest that the indorser had, and his claim is subject to the same de- 
 
264 OF THE TRANSEEE OF BILLS AND NOTES. 
 
 *It now, however, seems that the original absence of 
 '- ^ consideration, in the case of accommo'lation acceptances, 
 the object of which is to raise monej-, will not defeat the title 
 
 lence. Folsom v. Bartlett, 2 California, 163 ; Wlieeler v. Barret, 20 Missouri, 
 573 ; Glasscocls v. Sinilli, 35 Alabama, 474 ; Watson v. Flanagan, 14 Texas, 
 354 ; Bowen v. Tluall, 2 Williams, 383 ; Miller v. Bingham, 3 Ibid. 82 ; Bower 
 V. Hastings, 13 Casey, 285 ; Southard v. Porter, 43 New Hampshire, 379 ; 
 Little V. Copper^ 3 Stockton, 234 ; Farris v. Catlett, 33 Missouri, 469 ; Lord v. 
 Favorite, 39 Illinois, 149 ; Kurz v. Holbrook, 13 Iowa, 563. A note payable 
 by instalments, is overdue when the first instalment is overdue and unpaidi 
 and he who lakes it afterwards, takes it subject to all equities between the 
 original parties. Yinlon v. King, 4 Allen, 563. A note is not overdue till 
 the days of grace have expired. Goodpaster v. Voris, 8 -Clarke, 334. A note 
 sold and delivered by payee before maturity, but not Indorseditiil overdue, 
 was held to be open to equities. Southard v. Porter, 43 New Hampshire, 379! 
 One who takes after maturity, has all the riglits of his assignor who took be- 
 fore maturity, Britton v. Hall, 1 Hilton, 538 ; Stamper v. Hayes, 35 Georgia, 
 646. As to when a note payable on demand is considered ns overdue, see 
 Freeman v. Ross, 15 Georgia, 253 ; Carlton v. Bailey, 7 Foster, 230 ; Uennen 
 v. Haskell, 45 Maine, 430 ; Sackett v. Spencer, 29 Barbour, 180 ; Barbour v. 
 FuUerton, 12 Oa^ey, 105; Stewart v. Smith, 28 Illinois, 397. When a note is 
 indorsed after maturity, it must be demanded of the maker within a reasonable 
 time, and immediate notice given of non-payment. Tyler v. Young, 6 Casey, 
 143 ; Beebe v. Brooks, 13 California, 308 ; St. John v. Roberts, 6 Boswell, 593 ; 
 Goodwin v. Davenport, 47 Maine, 113. It is not necessaiy that the holder of 
 a note, which has been negotiated after it has been dishonored, should make 
 a new demand upon the maker for payment, and give notice of non-payment 
 to the indorsees. The original demand and notice enures to the benefit of all 
 subsequent holders. French v. Jarvis, 29 Conn. 347. Where an indorser of 
 a cote past due, has delayed for twenty-five days after the iudorseinent mak- 
 ing a demand of payment from the maker, and giving notice to the indorser, 
 all the parties residing in the same town, the indorser will be discharged. 
 Levy V. Drew, 14 Arkansas, 334. 
 
 A note indorsed on the last day of grace is taken dishonored. Pike v. 
 Smith, 11 Gray, 38. The principle, that in an action by a subsequent pur- 
 chaser of a note given without consideration, against the maker, the onus lies 
 on the defendant to show that the plaintifl' took the note after maturity, does 
 not apply in the case of a note payable only one day after date. Beall v. 
 Leverett, 33 Georgia, 105. A note drawn payable one day after date is due - 
 and may be sued on the second day after its execution without demand ; and 
 one who acquires it thereafter, takes it subject to equities. Baucom v. Smith, 
 66 North Car. 537. A note payable on demand is not open to any defence 
 existing between the original parties, when in the handsof a bona fide holder, 
 although indorsed to him when it had run nearly three months. Herrick v. 
 Woolvcrton, 42 Barb. 50. A note payable on demand with interest, and ne- 
 gotiated ten mouths after date, will be pre.sumed to have been negotiated 
 when overdue. Marcy v. Wakefield, 41 Yerm. 24. A note payable on de- 
 
OF THE TRANSFER OF BILLS AND NOTES. 265 
 
 of an indorsee for value of an overdue bill or note, even al- 
 though the indorsee had notice of the fact when he took the 
 bill, unless there were an agreement, express or implied, re- 
 straining tbe negotiation of the bill or note after it should 
 become due.(M) 
 
 A bill or note assigned in due time on the day of payment 
 is to be considered as assigned before it is due.(a;) 
 
 The assignee of an overdue bill or note is not afl'ected by an 
 infirmity in the title of an original or antecedent party, if his 
 immediate assignor could have maintained an action. A bill 
 was accepted on a smuggling transaction, indorsed before it 
 was due to a bona fide holder for value, and by the latter in- 
 dorsed, after due, to the plaintiff". Held, that as the indorser 
 might have sustained an action against the acceptor, so could 
 his indorsee.(!/) 
 
 An indorsee of an overdue bill or note is liable to such equi- 
 ties only as attach on the bill or note itself, and not to claims 
 
 (v.) Sturtevant v. Ford, 4 M. & G. 101 (13 E. C. L. R.) ; Lazarus v. Cowie, 
 3 Q. B. 459 (43 E. C. L. R.) ; and see Stein v. Yglesias, 1 U., M. & R. 565. 
 (x) Byles on Bills, 5th American edition, p. 2s5. 
 (y) Chalmers v. Laniuu, 1 Camp. 388 ; Fairclough v. Pavia, 9 Exch. 690. 
 
 mand, transferred three months after date, must be considered as transferred 
 overdue. Herrick v. Woolverton, 41 New York, 581. When demand note 
 is to be considered as overdue. Tomlinson Co. v. Rinsella, 81 Conn. 3(i8. 
 
 If a note before maturity is sold and delivered in good faith and for value, 
 but it is not indorsed by the payee until after it becomes due, or until after the 
 purchaser has notice of a defence, it will be open to equities, Clark v. Whit- 
 aker, 50 New Hamp. 474. Maker in suit by holder cannot set off claim on 
 payee, if he was present when the note was delivered to the indorsee, though 
 . it was not indorsed until afterwards. Flint v. Fl^t, 6 Allen, 84. If a note 
 is taken before maturity, but not indorsed by the payee till after, it does not 
 relate to the time of taking. Lancaster National Bank v. Taylor, 100 Mass. 
 18. Note sold before maturity, but not indorsed until after, is open to equi- 
 ties. Southard v. Porter, 43 New Hamp. 379. As to indorsement of overdue 
 paper. Parker v. Stallings, 1 Phill. (N. C.) Law, 590. 
 
 As to defences in paper Indorsed when overdue, see Marcal v. Melliet, 18 
 Louis. Ann. 323 ; Butler- v. Munson, Ibid. 368 ; Newell v. Gregg, 51 Barb. 
 263 ; Marsh v. Marshall, 3 P. F. Smith, 396 ; Livermore v. Blood, 41 Mo. 48 ; 
 Stannus v. Stannus, 80 Iowa, 448 ; Reichart v. Koerner, 54 Illinois, 306 ; 
 Wynn v. Patrick, 38 Louis. Ann. 204 ; Bissell v. Gowdy, 31 Conn. 47 ; Mat- 
 toon V. McDaniel, 34 Mo. 138 ; Chester v. Dorr, 41 N. York, 379 ; Stafford v. 
 Fargo, 35 Illinois, 481 ; Staley v. Matheny, 80 Geo. 937. 
 
266 OF THE TRANSFER OF BILLS AND NOTES. 
 
 arising out of collateral matter8.(^) Therefore the indorsee of 
 an overdue note is not liable to a set-ofi" due from the payee 
 to the maker.(a)(l) And although the indorsee had notice, 
 gave no consideration, and took the bill on purpose to defeat 
 the set-oft.(6) Yet it should seem, that where a negotiable in- 
 Btrnment is deposited as a security for the balance of accounts^ 
 and is afterwards indorsed overdue, in an action by the in- 
 dor.-ee against the party originally liable, the state of the ac- 
 couDt may be gone into.(c) And where there has been an 
 
 (2) Holmes v. Kidd, in error, 28 L. J. 113 ; 3 H. & N. 891. 
 
 (as) Burrousrh v. Moss, 10 B. & C. 558 (31 E. C. L. R.) ; 5 M. & R. 396,, S. 
 C. ; Stein v. Yglesias, 1 C, M. & R. 565 ; 3 Dowl. 353 ; 1 Gale, 98, S: C. It 
 has been thought that the indorsee would be affected by the set-off if he have 
 notice of it at the time he talses the bill. Goodall v. RSy, 4 Dowl. 76. But 
 it is now clear that notice makes no difference. Whitehead v. Walker, 11 L. 
 J., Exch. 168 ; 9 M. & W. 506 ; 10 M. & W. 696; and Ex parte Swan, h. 
 p., 6 Eq 845. 
 
 (6) Oulds V. Harrison, 24 L. J., Exch. 66 ; 10 Exch. 573. S. 0. 
 
 (c) Collenridge v. Farquharson, 1 Stark. 259 (3 E. C. L. R.) ; and see the 
 observations of Mr. Burori Parke on this case in Oulds v. Harrison, ubi 
 supra. 
 
 (1) Hughes V. Lartre, 3 Barr, 103; Gullett v. Hoy, 15 Missouri, 399; 
 Wilkinson v. Jiffers, 30 Geo. 153. 
 
 The maker of a note, assigned afior mnturitv, can only set up such defences 
 as are connected with the note, and not such as grow out of distinct and inde- 
 pendent transactions. Arnot v. Woodburn, 35 Mo. 99. A set off against flie 
 liolder of a note, is not an equity whicli attaches to it so as to affect subses- 
 quent holders, whether the paper is indorsed before or after maturity. 15 
 Iowa, 79. The equities which affect a negotiable note, indorsed after matu- 
 rity, must be such as attach to the particular note, and not such as arise out 
 of independent transactions. Unseld v. Stepliensson, 33 Mo. 16'. 
 
 The defendant indorsed the note of a debtor for the accommodation. of the 
 creditor, to whom the note was given, waiving protest. The note was iiidorsad 
 by the creditor to the plaintiff for value, after maturity. Held, that the de- 
 fendant was liable to an action on the note. Harrington v. Dorr, 3 Robert- 
 son, 275. While a note received overdue is subject to all subsisting cquiti* 
 between the maker and the payee, it cannot be subjected to equities only subi 
 sisting between the maker and an intermediate holder. Hayward v. Stearnsj 
 39 Cal. 58 
 
 Where S. held a note of P., and this by agreement was to be paid by tli6 
 return to S. of a note of the same amount, and due at the same time, held by 
 P. against him, and P. failed to do so, and S. transferred the note held by 
 him after it was due to A. ; it was held that the agreement constituted no de- 
 fence to the note in A.'s hands, as P. had no equity after the maturity of the 
 note. Fields v. Stuuston, 1 Coldwell, 40. 
 
OF THE TRANSFER OF BILLS AND NOTES. 267 
 
 aoreement for a set-off, the transfer of the hill overdue will not 
 defeat it.(<^) 
 
 *Wherethe bill is deposited as a security for the bal- p^^„Q-, 
 ance of a running account, but at the time when the ^ -' 
 bill becomes due the balance is in favour of the depositor, and 
 the bill is not withdrawn by him, and afterwards the balance 
 shifts in favour of the depositary, the depositary is not to be 
 considered as the transferee of an overdue bili.(f) 
 
 This rule also applies to bankers' checks, transferred a long 
 time after they are issued. The owner of a check on a banker 
 for 5W., having lost it, the check was paid five days after its 
 date to a shopkeeper, who received the amount at the bank. 
 Held, that the shopkeeper was liable to refund the money to 
 the owner of the check; for, having taken it after due, he 
 acquired no better title than the party from whom he took it, 
 and that it lay on him to show that his assignor had a title. 
 " A check," says Mr. Justice Holroyd, " is payable immediately, 
 the holder of it keeps it at his peril, and a person taking it 
 after it is due takes it also at his peril."(/) 
 
 But a distinction has been taken between the transfer of a 
 hill or note payable at a fixed period and overdue, and the 
 transfer of a check some days old. For, in the case of such a 
 bill or note, there is a fixed time for payment, after which it 
 cannot possibly circulate without some suspicion ; but there is 
 no such fixed tinie in the case of a cheek. And, therefore, it 
 has been held, that though the taking of a check six days old 
 is a circumstance from which the jury may infer fraud, it is not 
 Conclusive evidence, so as to prevent the party taking the 
 check from suing on it, or retaining it, or the money re- 
 ceived upon it.(5')(l) 
 
 ((?) Such an agreement being in fact a satisfaction of the bill indepen- 
 dently of the Statute of Set-off. Oukis v. Harrison, supra. 
 
 (c) Alwood V. Crowdie, 1 Stark. 483 (3 E. C. L. R.). 
 
 (/) Down V. Hailing, 4 B. & C. 330 (10 E, 0. L. R.) ; 6 D. & R. 445; 3 
 C. &P. 11 (13 E. C. L. R.),S. C. 
 
 (?) Rothschild v. Uorney, 9 B. ifc C. 388 (17 E C. L. R.) ; 4 M. & R. 411 ; 
 
 (1) The indorsee of a check, dated the day after he receives it, will not 
 tnke it subject on that account to want of consideration between the drawer 
 and indorser. Walker v. Geisse, 4 Whart. 853. 
 
268 OF THE XKANSFER OF BILLS AND NOTES'. 
 
 A note payable on demand is not to be considered as over- 
 due, without some evidence of payment having been demanded 
 and refused.(A) Although it be several yeai-s old, and no inter- 
 est has been paid on it. " A promissory note," says Mr. Baron 
 Parke, " payable on demand, is intended" to be a continuing se- 
 curity ; it is quite unlike a check, which is intended to be pre- 
 sented speedily. "(«X1) 
 
 J it: 
 
 *The fact that a note is overdue must distinctly, ap- 
 L J pear in pleading. (A) ' > 
 
 Though the maker of a bill or note assigned when overdue 
 may resist payment at law, equity has a concurrent jurisdic- 
 tion, and may, when justice requires,, order the instrument to 
 be delivered up to be cancelled, and restrain the holder from 
 proceeding at law. {I) 
 
 The law, in the absence of any evidence on the subject^ 
 presumes a transfer to have been, made before the bill was 
 due.(?7i)(2) 
 
 Danp. & L. 335, S. C. See Serrell v. Derbyshire Railway Company, 9 C. B. 
 311 {67 E. C. L. R.), and the Chapter on Checks. 
 
 (h) Baron.sh v. White, 4 B. & C. 337 (10 E. C. L. R.) ; 6 D. &R. 379; 2 
 C. & P. 8 (13 E. C. L. R.), 8. C. ; see Good.ill v. Ray, 4 Dowl. 76. 
 
 (0 Broolis V. Mitchell, 9 M. & W. 15 ; Cripps v. Davis, 13 M. & W. 165 ; 
 see Bartrum v. Caddy, 9 Ad. & E. 375 (86 E. C. L. R.). In America it liiis 
 been held that such a note, unless transferred within a reasonable time after 
 date, is to be considered as overdue. Byles on Bills, 5th American edition, p. 
 2S7. 
 
 (k) Cripps V. Davis, 13 M. & W. 159. 
 
 (?) Hodgson V. Murray, 3 Sim. 515; v. Adams, Tounge, 117. 
 
 (to) Parkin v. Moon, 7 C. & P. 40S (33 E. C. L. R.) ; Lewis v. LadyPar- 
 ker, 4 Ad. & E. 838 (31 E. C. L. R.) ; 6 N. & M. 394; 3 Ear. & W. 46, S. 
 C. ; Cripps v. Davis, 13 M. & W. 165. So also repeatedly iheld in Americ^ 
 See Byles on Bills, 5th American edition, p. 338. ,r 
 
 (1) A promissory negotiable note payable on demand, unless transferred 
 within a reasonable time, will be considered overdue and dishonored, the Eng- 
 lish rule being modified in this country. Carll v. Brown, 3 Michigan,- 401. ' 
 
 (3) It seems that in the absence of all proof as to the time when a note was 
 indorsed, the court will presume that it was indorsed while current. Wash- 
 burn V. Ramdsell, 17 Vermont, 299 ; Burnhara v. Webster, 1 App. 232 ; Burn- 
 ham V. Wood, 8 N. Hamp. 334 ; Mobley v. Byan, 14 Illinois, 51 ; Leland' v. 
 Faruham, 35 Vermont, 553 ; Andrews v. Chadbourne, 19 Barbour, S. 0. Kcp' 
 
 V 
 
OFTHB TRANSFER OF BILLS AND NOTES. 269 
 
 Where a banker on whom a check is drawn, is also the 
 banker of the bearer, and tlie check is paid in, there are two 
 oharacters in which the banker may have received it : he may 
 have received it merely as agent of the bearer, like any other 
 securities which the bearer may have paid in on account ; or 
 he may have received it as drawee, and so by receiving it have 
 paid it. Prima facie, he must be taken to have received ir, as 
 agent of the bearer,{n) and will discharge himself by giving 
 timely notice of non-payment to the bearer ;(o) but if, while he 
 keeps the check, the drawer pays in money, the banker is 
 bound to appropriate that money to the payment of the check, 
 though a larger balance is due to him from the d rawer. (/?) 
 
 Where a man, to whom a bill is transferred, sends it back as 
 useless, that is an abandonment of his right as transferee, and 
 he cannot, by getting the bill again into his hands, acquire a 
 right to sue without a new transfer.(j) 
 
 (») Boyd V. EmersoD, 2 Ad. & E. 184 (29 E. C. L. R.) ; 4 N. & M. 99, 
 S. C. 
 (») Ibid. 
 
 (p) Kilsbyv. Williams, 5B. & Al. 810 (7 E. C. L. R.) ; 1 D. &R. 476,S. 0. 
 (q) Carlwright v. Williams, 2 Stark. 340 (3 E. C. L. R.). 
 
 147. The indorsement of a note, in presumption of law, is contemporaneous 
 Willi tlie making of it, or at all events antecedent to its becoming due ; and if 
 the defendant, in a suit by the indorsee,, wishes to avail himself of payment 
 to the original holder, it is incumbent on him to show that the indoi-sement 
 was subsequent to the payment. Pinkerton v. Bailey, 8 Wend. 600. A note 
 assigned on the day of payment is assigned before it has become due. ^yalier 
 v. Kirk, Ibid. 55. 
 
 The law will presume transfer before maturity. Johnston v. Jorey, 34 
 Texas, 533 ; Rliode v. Alley, 27 Texas, 443 ; Webster v. Calden, 56 Maine, 
 204; Richards v. Betzer, 53 Illinois, 4«6 ; Ruddell v. Landers, 35 Ark. 238. 
 Assignment is presumed to be of the date of the note. Hayward v. Munger, 
 14 Iowa, 516. An indorsement without date is presumed to have been made 
 at the date of the instrument. Stewart v. Smith, 38 Illinois, 397 ; Whit v. 
 Weaver, 41 Ibid. 409. Where a note is indorsed in blank, the presumption is 
 that it was transferred on the day of its date, unless the defendant shows that 
 it was indorsed after maturity, or remained the property of tlie payee after the 
 indorsement. Noxon v. De Wolf, 10 Gray, 343. Title to an indorsed note 
 vests in the holder Irom the time it is mailed to his address. Ku-kman v. Bank 
 of America, 2 Coldwell, 397. It will be presumed that indorsements were 
 made in the order in which they appear on the note. Price v. Lavender, 38 
 Ala. 389. 
 
 / 
 
270 OP THE TRANSFER OF BILLS AND NOTES. 
 
 Ait(}r payment at maturity, by the acceptor or maker, bills or 
 
 notes are extinguished and cannot be tran8ferred,(r) except 
 
 promissory notes payable to bearer on demand, re-issued 
 
 L ' -J *by the Original maker, having taken out a license for 
 
 that purpose.(s) 
 
 And an accommodation bill paid by the drawer at maturity 
 cannot be re-issued by him.(<) 
 
 And a note payable on demand, which has been paid, can- 
 not be re-issued by the maker, although the indorsee have no 
 notice that the note has ever been paid, or that payment has 
 ever been demanded.(i4)(l) 
 
 (r) 55 Geo. 3, c. 184, s. 19. 
 
 (») 55 Geo. 3, c. 184, ss. 14, 24 ; and now 33 & 34 Vict. c. 97, s. 46. Until 
 a bill or note has been paid by tlie maker or acceptor, or on their behalf, it has 
 not discharged its functions, and does not require a new stamp, though re-is- 
 sued after due, and after it has been paid by an indorser. Callow v. Lawr 
 'rence, 3 M. & Sel. 95. 
 
 (0 Lazarus v. Cowie, 3 Q. B. 464 (43 E. C. L. R.) ; Parr v. Jewell, 16 C. 
 B. 684 (81 E. C. L. R.). 
 
 (u) Bartrum v. Caddy, 9 Ad. & E. 275 (36 E. C. L. R.) ; 1 Per. & D. 207, 
 S. C. 
 
 (1) Where a note has been once paid, it ceases to be negotiable, as against 
 those who would be prejudiced by the transfer. Cochran v. Wheeler, 7 If. 
 Hamp. 202 ; Rockingham Bank v. Claggett, 9 Foster, 292. Where a bill of 
 exchange, payable to A., is taken up by the drawer, and the indorsement of 
 A. striken out, it becomes dead to all intents and purposes as a negotiable 
 instrument. Price v. Sharp, 2 Iredell, 417. A bill of exchange, promissory 
 note, or order, made payable to a particular person, which has been paid by 
 one whose duty it was to make the payment, without any right to call upon 
 another party to repay the amount, is no longer a valid contract. It has per- 
 formed its office and ceases to have a legal oiistence. But this principle does 
 not hold good as to a bank note, which is not a contract with any particular 
 person, but with any one who may become the bearer or holder of it. Bal- 
 lard V. Greenbush, 24 Maine, 336. Recovery of ju.dgment against the maker 
 of a note, destroys its negotiable quality, and it cannot be afterwards trans- 
 ferred so as to enable the holder to maintain an action in his name against an 
 indorser. Brown v. Foster, 4 Alabama, 283 ; Sawyer v. Bradford, 6 Ibid. 
 572. An indorser paying the note has the same right to an assignmentofa 
 judgment against the maker on the note that he has to the note itself. State 
 Bank v. Wilson, 1 Dev. 484. A promissory note may be reissued by an in- 
 dorser after it is due, after it has been discounted in bank, and paid by him at 
 maturity. Kirksey v. Bates, 1 Alabama, 303. The indorsement of a bill by 
 the payee to the acceptor operates to discharge the liabilities of all parties to 
 it ; and no action can afterwards be maintained upon it as a bill of exchange* 
 
OP THE TRANSFER OF BILLS AND NOTES. 271 
 
 " But a bill of cxehangc," says Lord Ellenborough, " is nego- 
 tiable, ad inftnitum, until it has befen paid by or discharged on 
 behalf of the acceptor. If the drawer has paid the bill, it 
 seems that he may sue the acceptor upon the bill ; and if, in- 
 stead of suing the acceptor, he put it into circulation on his 
 own indorsement only, it does not prejudice any of the other 
 parties who have indorsed the bill, that the holder should be 
 at liberty to sue the acceptor." (x) The drawer of a bill pay- 
 able to his own order, indorsed it over, and, on the bill being dis- 
 honoured, paid it to the holder, and afterwards indorsed it 
 again. Held, that this last indorsee might recover against the 
 acceptor.(2/) But, where the bill is drawn payable to a third 
 person, is indorsed by him, dishonoured and taken up by the 
 drawer, who (the payee's indorsement still remaining) indorsed 
 it to the plaintiff, it was held, that the plaintiff could not re- 
 cover against the acceptor ; for in this case^Ae drawer had no title 
 to indorse, and the payee could not be rendered liable.(2) 
 
 *If a bill or note be paid before it is due, and is after- p^^ — . , 
 wards indorsed over, it is a valid security in the hands 
 oi a, bona Jide indorsee. "I agree," says Lord Ellenborough, 
 "that a bill paid at maturity cannot be re-issued, and that no 
 action can afterwards be maintained upon it by a subsequent 
 
 («) Callow V. Lawrence, 3 M. & Sol. 95 ; and see Roberts v. EJen, 1 B. & 
 Pul. 398, and the observations of Patteson, J., on that case In Bartrum v. 
 Caddy, 9 Ad, & E. 275 (36 E. C L. R.) ; 1 Per. & D. 307, S. C. Where the 
 inilorser had paid the amount, and the acceptor the costs, it was held that the 
 vitality of the bill was not extinguished. Woodward v. Pt^Il, 37 L. J., Q. B. 
 41 ; L. R., 4 Q. B. 55 (45 E. C. L. R.), S. C. 
 
 (y) Ibid. ; Hubbard v. Jackson, 3 C. & P. 134 (14 B. C. L. R.) ; 4 Bing, 
 3SiO (13 E. C. L. R.) ; 1 M. & P. 11, S. C. In this last case, the holder had 
 recovered at law against the drawer, and then the drawer, without considera- 
 tion, indorsed the bill over to the plaintiff; but Best, C. J., held, and the 
 Conrt of C. P. confirmed his judgment, that the plaintiff might recovei-. 
 
 (2) Beck V. Robley, 1 H. Bl. 89, n. 
 
 Its negotiability is destroyed, and cannot be revived by the acceptor indors- 
 ing it tQ a third person. Beede v. Real Estate Bank, 4 Pike, 546. Where the 
 payee of a note having indorsed it, atlerwards comes fairly to the possession 
 of it again, he will be regarded, at least prima fapie, as the proprietor of it, 
 and may even at the trial strike out all subsequent indorsements, and recover 
 upon it in his own name without a reindorsement to him. Bond v. Storrsj, 
 13 Conn. 412. 
 
272 OF THE TRANSFER OF BILLS AND NOTES. 
 
 indorsee. A payment before it becomes due, however, I think, 
 does not extinguish it any more than ifit were merely discounted. 
 A contrary doctrine would add a new clog to the circulation of 
 bills and notes ; for it would be impossible to know whether 
 there had not been an anticipated payment of them. It is the 
 duty of bankers to make some memorandum on bills and notes 
 which have been paid, and if they do not, the holders of such 
 securities cannot be affected by any payment made before they 
 are due. "(a) 
 
 After a partial payment, at maturity, by the acceptor, or any 
 other party really the principal debtor, the holder cannot recover 
 of the acceptor more than the balance.(6) 
 
 A question sometimes arises whether a bill have been paid or 
 transferred. Though the holder give to a person taking up the 
 bill a general receipt, importing that he has received payment, 
 evidence is admissible to show that such person taking up the 
 bill paid the money, not as agent for the acceptor or drawer, 
 but as indorsee.(c) 
 
 A transfer to the acceptor before maturity does- not extinguifl^<? 
 the bill ; the acceptor may re-issue it before it is due, and the 
 parties whose names are on the bill will be liable to a subsequent 
 holder.(rf) 
 
 A bill or note cannot be indorsed for part of the sum remain- 
 ing due to the indorser upon it, if the limitation of the sura for 
 which it is indorsed appear on the indorsement itself. Such an 
 indorsement is not warranted by the custom of merchants, and 
 would be attended with this inconvenience to the prior parties, 
 that it would subject them to a plurality of actions.(e) It is 
 conceived, that the effect of such an indorsement, when 
 
 (a) Burbidge v. Manners, 3 Camp. 193 ; Attenborough v. Mackenzie, 25 
 L. L., Exch. 244. 
 (6) See the Chapter on Payment. 
 
 (c) Graves v. Key, 3 B. & Ad. 813 (33 E. C. L. R.)- See Hubbard v. 
 Jackson, 4 Bing. 890 (13 E. C. L. R.) ; 1 M. & P. 11, S. C, and Pollard v. 
 Ogden, 2 E. & B. 459 (75 E. C. L. R.). 
 
 (d) Atlenboiough v. Mackenzie, 25 L. L., Exch. 244. But see Bylesoa 
 Bills, 5th American edition, p. 291. 
 
 (e) Hawkins v. Cardy, 1 Lord Raym. 360. 
 
OF THE TRANSFER OF B-ILLS AND NOTES. 273 
 
 attempted, is to give the indorsee *a lien on the bill, rxi^o"! 
 but not to transfer a right of action, except in the in- 
 dorser's name.(/") 
 
 But if a bill or note be indorsed or delivered for a part of the 
 sum due on it, and the limitation of the transfer do not appear 
 on the instrurhent, the transferee is entitled to sue the maker 
 or acceptor for the whole amount of the bill, and is a trustee of 
 the surplus for the transferor.(^)(l) 
 
 If the bill have been partly paid, either by the acceptor or 
 by the drawer, who for this purpose is the agent of the acoep- 
 tor,(A) the bill may be indorsed for the part remaining due.(i) 
 
 A release at maturity, like a payment at maturity, operates 
 as a complete extinction of the bill. But a premature release 
 to a party liable on the bill will not discharge the releasee as 
 against an indorsee for value before maturity of the bill and 
 without notice.(A) 
 
 The holder cannot transfer after action brought, so as to ena- 
 ble his transferee to sue also, provided the latter were aware 
 that the first action had been commenced.(^) But if the trans- 
 feree had no notice, the transfer is good.(m) 
 
 (/) So held in America. See Byles on Bills, 6th American edition, p. 291. 
 
 W Eeid V. Furnival, 1 C. & M. 538 ; 5 C. & P. 499 (34 E. C. L. B.), S. C. 
 
 (7i) Bacon v. Searles, 1 Hen. Bl. 88. 
 
 (i) Hawkins v. Oardy, 1 Lord Kaym. 360 ; Carth. 466, S. C. ; and see 
 Jojinson T. Kennion, a Wils. SOS. 
 
 (k) Dod V. Edwards, 2 C. & P. 60S (IS E. C. L. E.). 
 
 (0 Marsh v. Newell, 1 Taunt. 109 ; Jones v. Lane, 2 Y. & C. 231. But it 
 should seem from a recent decision in the Queen's Bench, that this defence 
 cannot be raised by plea, and that the defendant's course is to apply to the 
 equitable jurisdiction of the court, although Mr. Baron Alderson, in Jones v. 
 Lane, seems to have thought otherwise. Deulers v. Townshend, 33 L. J., Q. 
 B, 801. In America it has been held that a judgment extinguishes the nego- 
 tiable quality of a note. Byles on Bills, 5th American edition, p. 37S. 
 
 (w) Colombier v. Slim, K. B., T. T., 12 Geo. 3 ; Chit. 9th ed. 217. 
 
 (1) A.moiety of a promissory note cannot be assigned so as to enable the 
 assignee to maintain an action in his own name for his portion of the note. 
 Miller v. Bledsoe, 1 Scam. 530. 
 
 18 
 
274 OF THE TRANSFEE OF BILLS AND NOTES. 
 
 Where a negotiable instrument is transferred abroad, by a 
 mode of transfer valid here, but invalid there, or vice versa, a 
 question may arise as to the validity to be attributed to such a 
 transfer in our Courts. The general rule of law on this subject 
 is, that a contract is to be governed by the law of the country 
 where it is made or where it is to be performed, but the remedy 
 r* I TQi ^^ ^'^ ^® moulded by the law of the *country where it is 
 sought.(n) A bill is to be considered as made in thfe 
 country where it is to be paid. 
 
 This subject, however, will be considered more in detail in 
 the subsequent Chapter on Fokeign Bills and Foreign Law.(o) 
 
 After the death of the holder his personal representatives 
 should transfer.(p) But where indorsement is necessary, /and 
 the testator has only written his name on the bill without de- 
 livery, the executor cannot complete the indorsement by mere 
 delivery.(g')(l) 
 
 After the holder's bankruptcy his assignees should transfer, 
 unless the bankrupt were merely agent or trustee. For the 
 Bankrupt Laws have no operation on any property in the pos- 
 session of the bankrupt, unless he have therein a beneficiaL 
 interest.(r") 
 
 The husband of a married woman, who acquires a right to 
 a bill or note given to the wife, either before or during mar- 
 riage .should endorse.(s) 
 I 
 
 (n.) See the authorities collected in Trimby v. Vignier, 1 Bing. N. C. 151 
 (27 E. C. L. R.) ; 4 M. & S. 695 ; 6 C. & P. 35 (35 E. C. L. B.), S. C. 
 
 ((?) Chapter XXXI. 
 
 (p) See ante, Chapter V., Exkcutoks, and as to the question whether one 
 of several executors can indorse. , 
 
 (j) Bromage v. Lloyd, 1 Exch. 33. 
 
 (r) See the Chapter on Bankruptcy. 
 
 (s) See Chapter V., Married Womeh. 
 
 (1) An assignment of a promissory note payable to the testator may be 
 made by one of several co-executors. Dwight v. Newell, 15 Illinois,,333. 
 
 The executor of the payee of a note payable to order, cannot recover upon 
 it when it has not been indorsed by the payee or by himself in his i 
 capacity. "Woodbury v. Woodbury, 47 New Hamp. 11. 
 
OF THE TRANSFER OF BILLS' AND NOTES. 275 
 
 Bankers have a general lien on all securities for money which 
 are deposited with them, as bankers in the way of their busi- 
 ness, and therefore a lien even as against the true owner, on 
 bills and notes payable to bearer, or on Exchequer bills, al- 
 though the customer who deposited them was not the real 
 owner, and had no authority to give a lien ;(<) but not on Ex- 
 chequer bills which may happen to be delivered to them merely 
 for the purpose of receiving the interest and exchanging theiii 
 for new ones.(M) 
 
 A doubt has been raised as to the responsibility of a banker 
 for securities intrusted to him by a customer for safe keeping, 
 on the ground that the banker being a gratuitous bailee is 
 only liable for gross negligence.(?;) 
 
 But it is conceived that a banker in such cases can hardly 
 be regarded as acting gratuitously for his customer, such 
 *custody being an inducement held out to attract custo- 
 mers, by the use of whose balances the banker is paid. '- ^ 
 This view seems, moreover, to be in accordance with the most 
 recent case on this subject. (w) 
 
 "Where chattels are pledged as security for a debt payable 
 at a day prefixed, the pledgee has at common law on default of 
 his debtor, and after giving notice to redeem, a right to sell the 
 pledge and reimburse himself (a:) 
 
 This power of sale extends not only to a pledge of chattels, 
 but to a pledge of stock or anuuities.(y) 
 
 The rule of the civil law is in substance the same. " Ven- 
 
 (0 Baraett v. Brandao, 6 M. & G. 630 (46 B. C L. R.). 
 
 («) Brandao v. Bainett, 3 C. & B. 519 (54 E. C. L. E.), Dom. Pioc. 
 
 («) Giblin v. McMiiUen, L. R., 3 P. C. 317, where, however, it should be 
 observed that the customer himself kept the key. 
 
 (w) Johnstone's Case, 40 L. J., Chan. 386; Brandao v. Barnett, 6 M. & G. 
 630 (4!i E. C. L. R.) ; 3 C. B. 519 (54 E. C. L. R.), Dom. Proc. ; which last- 
 mentioned case, it may be observed, was not brought^ before the notice of the 
 Coun in Giblin v. McMullen, supra. 
 
 Bankers are, of course, responsible for the honesty and care of their own 
 clerks and servants. 
 
 (ic) Tucker v. "Wilson, 1 P. "Wms. 261 ; 1 Bro. P. C. 494, S. C. in error ; 
 Pigott V. Cubley, 15 C. B., N. S. 701 (109 E. C. L. R.) ; 3 Kent's Com. 805; 
 Martin v. Reed, 31 L. J., C. P. 126. 
 
 (.y) Tucker v. Wilson, ubi sup. ; Lockwood t. Ewer, 3 Atkins, 303. 
 
276 OF THE TRANSFER OF BILLS AND NOTES. 
 
 duntur pignora simul atque solutionis dies venit, et debitor 
 legitime mode interpellatus, sine justa causa eessat."(2;) 
 
 But a mere pledge of negotiable paper does not, it is con- 
 ceived, confer a power of sale. Eor the pledgee is trustee of 
 the rights and obligations of the holder. He cannot transfer 
 his trust, but must preserve his remedies and collect pay- 
 ment from the parties liable at maturity. , His transfer, though 
 it may confer title, ■will not exonerate himself.(a^) 
 
 The words goods and chattels, or either of them, in a testa- 
 mentary instrument, will pass all the personal estate of tlie 
 testator, including choses in action, such as bills and notes. 
 But, where the bequest is of all goods and chattels in a par- 
 ticular place, bills and notes in general do not pass. But it has 
 been considered, that such notes as are commonly treated.as 
 money will pass.(6) 
 
 It may not be useless^to subjoin a few words as to the extent 
 to which bills or notes may be the subjects of a donatio moHii 
 causa.{c) 
 
 The law on this subject is entirely derived from the civil 
 P^^ _^n ^^^'' ^^^ ^^^ Digest and the commentators distingaish 
 '- -' *between several species of donatio mortis causa, and in 
 a manner very unsatisfaetory,(c?) A donatio mortis causa is thus 
 defined in the Institutes : Mortis causa donatio est, qum propter 
 mortis Jit suspicionem, cum quis ita donat, ut si quid humanitus. ei 
 eontigisset. haheret is qui aecipit ; sin autem supervixisset, is qui 
 donavit reeiperet, vel si cum donationis poenituisset, aut prior de- 
 cesserit is, cui donatum sit. ***** j?< in gumma, mortis 
 causa donatio est, cum magis quis se velit habere, quam cum cui 
 donat, magisque eum cui donat, quam heredem suum. Bat, as 
 now understood in the law of England, a donatio mortis causa 
 
 (s) Doctrina paiidectaruni, cap. 6, s. 318. 
 
 (a) See 2 Kent's Com. 802, 805; Appleton v. Donaldsoa, 3 Bur. 381; 
 Browne v. Ward, 3 Duer. 360. 
 
 (J) Stuart V, Bute, 11 Yes. 662 ; S. C, in Dom. Proc, 1 Dow. 73 ; see 1 
 Roper on Leg. 234, 3d ed. ; 2 Wms, on Exors., 648 and 942, 3d ed. 
 
 (c) See further on this subject the profound work of Mr. Justice ■Williaiiis 
 on Executors. 
 
 ((?) See tlie judgment of Lord Hardwicke, in Ward v. Turnev, 3 Ves. 431, 
 anduf Lord Roslyn, in Tate v. Hilbert, 3 Ves, jun. HI. 
 
OF THE TRANSFER OF BILLS AND NOTES. 277 
 
 is a conditional gift by the donor in contemplation of dealh(e) 
 to take efl'ect in the event of death.(/) The result of the cases 
 seem to be, that a bond(^) or a policy of insuranGe,(A) or a bank 
 note, or bill of exchange, or promissory note, specially indorsed 
 to the donee or made or become payable to bearer, may be the 
 subjects of a donatio mortis causa,{i) and that the delivery of a 
 bond with mortgage deeds will impose a trust upon the real 
 and personal representatives in favour of the donee.(A) But a 
 check drawn by the donor upon his own banker cannot be the 
 subject of a donatio mortis causa, because the death of the 
 drawer is a revocation of the bankers' authority to pay.(Z) 
 No more, it is conceived, would be the gift of an I U (m) 
 *And negotiable instruments, which are commonly r^-iyf.-! 
 treated as money for other purposes, may like 
 money, pass as donatio mortis causa.(^n) The Courts lean against 
 this sort of disposition. "Improvements in the law," says 
 Lord Eidon, "or some things which have been considered im- 
 
 (e) Duffleld v. Elwes, 1 Blii?h, N. 8. 530 ; Miller v. Miller, 3 P. "Wras. 356. 
 Seethe opinion of Eyre, C. B., in Blount v. Barrow, 1 Ves. jun. 546 ; but 
 the qualification as to last illness is not found in the report of the case ; 4 Bro. 
 C. (3. 72. See 1 Roper on Legacies, Bd ed., and 'Williams on Executors, 3d 
 ed., 609. 
 
 (/) Delivery to an agent of the donee will be good, but not to a mere agent 
 of the donor ; Farquharson y. Cave, 2 Coll. 356 ; Powell v. Uellicar, 28 L. J., 
 Chan. 355; 26 Beav. 261, S. C. A mere symbolical delivery will not sufiBce. 
 Ward v. Turner, supra. There must be an actual delivery. Bunn v. Mar- 
 Uiam, 7 Taunt. 227 (2 E. 0. L. R.) ; 2 Marshall, 532, S, C. ; Tate v. Hilbert, 
 2 Ves. jun. 120 ; Irons v. Smallpiece, 2 B. & Al. 553. 
 
 (ff) Snellgrove v. Baily, 3 Atk. 30. 
 
 (.h) Witt V. Amiss, 30 L. J., Q. B. 318. 
 
 (J) Drury v. 8:nith, 1 P. Wms. 405 ; Miller v. Miller, 3 P. Wms. 356. 
 
 (4) Duffield V. Elwes, 1 Bligh, 409. 
 
 (0 Unless cashed, or it seems presented for payment, in the lifetime of the 
 donor. Bromley v. Brunton, L. R., 5 Eq. 275 ; Bouts v. Ellis, 17 Beav 121 ; 
 4 Dl- G., M. & G. 249 ; Powell v. Hellicar, 28 L. J., Chan. 355 ; 26 Beav. 
 261, S. n. ; Hewitt v. Kaye, L. R., 5 Eq. 198 ; Beak v. Beak, L. R. 13 Eq. 
 489; 41 L. J. 470 ; Byles on Bills, 5th American edition, p. 101. 
 
 (m) Tate v. Hilbert, 2 Ves. jun. Ill ; 4 Bro. C. C. 286. For a check im- 
 ports immediate payment; but a Check to buy mourning has been held to be 
 the subject of a do7iaiJ3 mortis causa. Lawson v. Lawson, 1 P. Wms. 441; 
 but see 2 Ves. jun. 121 ; see also as to checks. Bouts v. Ellis, 4 De G„ M. & 
 G. 249. 
 
 («) See Ranklin v. Weguelin, 27 Beav. 309; 29 L. J., Chan. 323, S. C. ; 
 "Veal y. Veal, 27 Beav.' 303 ; 29 L. J. Chan. 321, S. C. 
 
278 OF THE TKANSEBR OF BILLS AND NOTES. 
 
 provements, have been lately proposed , and if, among those 
 things called improvements, this donatio mortis causa was struck 
 out of our law altogether, it would be quite as well."(o) Yet 
 it has since been twice held that a promissory note payable to 
 order and not indorsed may pass as a donatio mor is causa..(p)[l) 
 A donatio mortis causa may be made subject to a condition or 
 trust.(9') 
 
 (o) Dnffleld v. Elwes, 1 Bligh, 633, A. D. 1837 ; 7 Taunt. 221 (3 E. 0. L. 
 K.,) S. C. 
 
 (j>) Veal V. Veal, 29 L. J., Chan. 321 ; 37 Beav. 803, S. C. ; Ranklin v« 
 Weguelin, supra. 
 
 (g) Blount v. Burrow, 4 Bro. C. C. 72 ; Hills v. Hills, 10 L. J., Exch. 440; 
 8 M. & W. 401, S. C. 
 
 (1) A promissory note expressed to be for value received, but stated by an 
 accompanying writing to be made and delivered as a gift, to be used after llie 
 maker's decease, for charitable purposes, cannot be sustained. Phelps v. Pond, 
 23 New York, 69. 
 
 It is settled by a concurring train of decisions in the American Courts, thnt 
 a promissory note of a third person held by the donor, is a good subject of a 
 gift cnvsa mortu. Grover v. Grover, 24 Pick. 361 ; Brown v. Brown, 18 Conn, 
 410 ; McConnell v. McConnell, 11 Vermont, 890 ; Sessions v. Moseley, 4 Cash- 
 ing, 87 ; Jones v. Deyer, 16 Alabama, 221 ; Constant v. Schuyler, 1 Paige, 
 316. A promissory note, however made by the donor, in favor of the donee, 
 cannot be the subject of such a gift. The want of consideration may be taken 
 advantage of in an action by the donee against the executors or administrai 
 tors of the donor. Bowers v. Hnrd, 10 Mass. 427; Parrish v. Stone, 14 Pick. 
 198; Holly v. Adams, 16 Vermont, 216; Smith v. Kittridge, 21 Ibid. 238; 
 Bradley v. Hunt, 5 Gill & Johns. 54; Parker v. Marston, 27 Maine, 196. 
 The contrary was indeed held in Wright v. Wright, 1 Cowen, 598. But that 
 case has been expressly overruled. Craig v. Craig, 3 Barbour, Ch. Rep. 76; 
 Harris v. Clark,-3 Comstock, 93. 
 
 Choses in action not negotiable, and negotiable paper not indorsed may be 
 subjects of a gift, and a delivery which vests in the donee, the equitable 
 title is sufficient without a complete transfer of the legal title. Camp's Ap- 
 peal, 36 Conn. 88. The delivery of a savings bank pass book, containing the 
 entries by the bank officers of moneys deposited by a deceased wife, with a 
 parol gift of the same by the surviving husband when in extremis, held to be 
 a valid donatio causa mortis. Tillinghast v. Wbeaton, 8 Rhode Island, 536. 
 A promissory note may pass as a gift causa mortis without actual delivery to 
 the donee, when such note is in possession of a third party as trustee fur the 
 equitable owner. Southerland v. Southerland, 5 Bush, 591. Delivery of a 
 clieck for money in bank is a good gift of the amount. Otherwise of a 
 promissory note. Succession of De Pouilly, 22 Louis. Ann. 97. A check by 
 donor himself, not a good donatio mortis causa without acceptance. Second 
 
OF THE TRANSFER OFBILLS AND NOTES. 279 
 
 A donatio mortis causa resembles a legacy in these respects, 
 that it is revocable during the life of the donor, that it is 
 subject to debts on a deficiency of assets,(r) that it is liable to 
 legacy duty',(s) and that it may be made to the donor's wife. 
 
 It differs from a legacy in these other respects ; that it does 
 not require probate, and that although it be of a specific chat- 
 tel, yet the executors' assent is not nece8sary.(<) 
 
 A donatio mortis causa differs from a gift inter vivos in these 
 respects. It is revocable. It may be made to a man's wife ; 
 and it may be of a bond or mortgage deed, though neither the 
 debt would have passed at law, nor equity have converted the 
 donor into a trustee. 
 
 The "Wills Act, Vict. c. 26, has not abolished donaiiones mortis 
 caiisa.{u) 
 
 Bills or notes could not at common law be taken in execu - 
 tion, at the suit of a subject ; nor, if taken, could the sheriff 
 or his assignee acquire a title against the other parties to the 
 instrument, they being only assignable by the custom of mer- 
 chants, in the way of ordinary mercantile transfer. 
 *And such as more nearly resemble money than securi- '- ^ 
 ties, as bank notes, were, like money, not subject to be taken 
 in execution. (a;) 
 
 But now by the 1 & 2 Vict. c. 110, s. 12, money, bank notes, 
 checks, bills, and .promissory notes, with all other securities 
 for money, may be seized under a writ of fieri facias. The 
 sheriff is to deliver the money and bank notes to the execution 
 creditor, and is to receive payment, or to sue in his own name, 
 being indemnified by the plaintiff, on the checks, bills, or 
 . notes. 
 
 (»•) Smith V. Caren, 1 P. Wms. 406. 
 («) 8 & 9 Vict. c. 76. 
 (0 Thompson v. Hodgson, 3 Stra. 777. 
 (m) Moore v. Darton, 4 De G., & Smale, 519. 
 
 («) Francis v. Nash, Rep. temp. Hardwicke, 53 ; Knight v. Criddle, 9 East, 
 48; Fieldhonse v. Croft, 4 East, 510. 
 
 National Banli v. Williams, 13 Michigan, 282. Gift of a receipt for money on 
 deposit held to be a good donatio mortis causa. Champney v. Blanchard, 39 
 New York, 111. 
 
280 OF THE TRANSFER OF BILLS AND NOTES. 
 
 But if the creditor, before receiving payment', proc^da 
 against the person of the defendant, he forfeits the benefit of 
 the security.(3/) 
 
 Bills and notes are liable to be seized uoder an extent.(2) 
 
 Bills Qr notes are not the subjects of larceny at the common 
 law ; for it is said, that bills or notes are choses in action, and 
 a chose in action cannot be stolen.(a) But by the 24 & 25 
 Vict. c. 96, s. 27, the stealing of any bill, note, warrant, or 
 order for the payment of money, is made felony, of the same 
 nature, and in the same degree, and punishable in the same 
 manner, as larceny of any chattel of like value with the money 
 due on the security. 
 
 The embezzlement of bills or notes by clerks or servants is 
 felo.ny.(6) 
 
 The embezzlement of bills or notes by agents, not being 
 clerks or servants, or the selling, negotiatiwg, or pledging them, 
 r*i7Ql "' violation of the purpose for which, by a written 
 L J *direetion, they were intrusted, and the disposing of 
 them for the agent's own benefit, is a misdemeanor subjecting 
 
 to penal aervitudej(c) 
 
 « 
 
 Where a man is both entitled and liable on the face of a bill, 
 or liable to contribute, though his liability do not appear on 
 
 {y) Sect. 16. 
 
 (s) West, 27, 28 ; 164-5. 
 
 (a) As a general rule a piece of paper or parcliment, whether blank or in- 
 scribed with any characters, is the subject of larceny. But there are at com- 
 mon law two exceptions, first, a muniment of title to land, which, it is Iield, 
 savours of the realty. Secondly, a written paper, which is mere evidence of 
 a right, resting in contract only, like a bill, note, bond, or executory agtse- 
 ment. A reason given in both these cases, is this, that the documents are of 
 no use to any but the owner, and thereiore are not in danger of being stolen. 
 On which it has been well remarked, that " if I steal a skin of parchment 
 worth Is. it is felony, but when it has £ 10,000 added to its value by what is 
 written upon it, then it is no offence to take it away."' Rex v. Westbeer, 
 2 Stra. 1133. These. exceptions are palpably capricious and unreasonalble, 
 and are not to be extended. Therefore, it has been held, that a pawnbroker's 
 ticljet may be the subject of larceny. Reg v. Morrison, 28 L. J., 210, Mag. Ca. 
 
 (J) 34 & 25 Vict. c. 96, s. 68. 
 
 (c) 24 & 25 Vict. 0. 96, s. 75. 
 
OF THE PRESENTMENT FOR ACCEPTAKCE. 281 
 
 the face of the instrument, he cannot sue. But the technical 
 difficulty may be removed by indorsement or tran8fer,(6/) be- 
 fore the bill is due. 
 
 Eighthly, as to the circumstances under which equity will 
 restrain negotiution. A Court of Equity will interpose to 
 restrain the negotiation of a bill unduly obtained ; for the de- 
 fence at law may not be available as against an innocent in- 
 dorsee for value, or time may destroy the evidence ;(e) and 
 will, on equitable terms, decree a bill void in its creation, or 
 unduly obtained, to be delivered up to be cancelled.(/) 
 
 ^CHAPTER XII. 
 
 [*179] 
 
 OF THE PRESENTMENT FOR ACCEPTANCE. 
 
 ADVISABLE IN ALL CASES, . . 179 
 
 KECESSABY WHEBE BILL IS 
 
 DRAWN AT. OR AFTER SIGHT, 179 
 WHEN TO BE MADE, . . . ISO 
 
 BANK HOLIDAYS 181 
 
 AT WHAT HOTTR, . . . .181 
 
 EXCUSED BY PUTTING BILL INTO 
 
 CIRCULATION, .... 181 
 OB BY OTHER REASONABLE 
 
 CAUSE, 182 
 
 TO WHOM IT SHOULD BE MADE, 183 
 WHAT TIME MAY BE GIVEN TO 
 
 THE DRAWEE, .... 183 
 
 CONSEQUENCE OP NEGLIGENCE 
 IN PARTY itRESBNTING, . . 183 
 
 PROPEK COURSE FOB HOLDER 
 WHEN DRAWEE CANNOT BE 
 FOUND, OR IS DEAD, . . 183 
 
 PLEADING, 183 
 
 It is in all cases advisable for the holder of an unaccepted 
 bill to present it for acceptance without delay ; for, in case of 
 
 (d) See Steele v. Harmer, 15 L. J., Excli. 217 ; 14 M. & W. 831, S. C, 
 and 4 Bxch. 1, in error, and ante. 
 
 (e) Bromley V. Hollaml, 7 Ves. 30, 413 ; Bishop ofWinchester v. Founiier, 
 3 Ves. jun. 483 ; 3 Ves. 757 ; 9 Ves. 355. As to tlie parties to the suit, see 
 Toley V. Carton, 1 Younge, 373. But the Court will not order a bill to be 
 delivered up unless the plaintiff has a right to the possession, and the defend- 
 ant's detention of the bill is inequitable. Jones v. Lane, 3 Y. & C. 381. In 
 Tlirelfall v. Lunt, 7 Sim. 627, a demurrer was allowed to a bill for the delivery 
 up of a bill of exchange, the amount of which the defendant had recovered 
 at law, and had received from the plaintiff; but see Pinkus v. Peters, 6 
 Jurist, 431. 
 
 , (/) 2 Ves. jun. 488 ; 7 Ves. 413 ; 3 Ves. & Beam. 302 ; Mackworth v. Mar- 
 
282 OP THE PRESENTMENT FOR ACCEPTANCE. 
 
 acceptance, the holder obtains the additional security of the 
 acceptor, and, if acceptance be refused, the antecedent parties 
 become liable immediately. It is advisable, too, on account of 
 the drawer, for, by receiving early advice of dishonour, he may 
 be better able to get his effects out of the drawee's hands. 
 
 But presentment for acceptance is not necessary in the ease 
 of a bill payable at a certain period after date.(l) It is said, 
 however, that it is incumbent on a holder who is a mere agent, 
 and on the payee, when express!}' directed by the drawer so to 
 do, to present the bill for acceptance as soon as possible ; and 
 "that, for loss arising from the neglect, the payee must be re- 
 sponsible, and the agent must answer to his principal. (a) 
 
 Presentment for acceptance is necessary, if the bill be drawn 
 payable at sight, or at a certain period after sight.(2) Till 
 
 / 
 shall, 3 Sim. 368 ; Oslialdiston v. Simpson, 13 Sim. 513. So where tlie name 
 of the payee, as indorser, was forged, a bona fide holder was restrained from 
 suing the acceptor, and the Court directed the bill to be delivered up to be 
 cancelled. Esdaile v. La Nauze, 1 Y. & C. 394 ; Jones v. Lane, 3 Y. & C. 
 281. 
 
 (a) Chit. 9th ed. 237 ; Poth. 128 ; Marius, 46. 
 
 (1) A bill payable at a given time after date need not be presented for ac- 
 ceptance ; payment may be at once demanded at its maturity. Bank of 
 Washington v. Triplett, 1 Peters, S. C. 25 ; Townsley v. Sumrall, 2 Ibid. 
 170; Walker v. Stetson, 19 Ohio St. 400; Plato v. Reynolds, 27 N. york, 
 586 ; House v. Adams, 12 Wright, 261. A bill of exchange payable at a 
 time certain, need not be presented for acceptance until maturity ; but if it is 
 dishonored, notice and protest is necessary. Carmicbael v. Pennsylvania 
 Bank, 4 Howard, Miss. 567 ; Bank of Bennington v. Raymond, 12 Vermont, 
 401 ; Glasgow v. Copeland, 8 Missouri, 268. The holder is not bound to pre- 
 sent before maturity ; but if he does, and acceptance is refused, he is bound 
 to give immediate notice. Landrum v. Trowbridge, 2 Metcalfe, 281. Upon 
 protest for non-acceptance of a sight bill and notice given to the drawers and 
 iudorsers, they are immediately liable to the bolder without again presenting 
 the bill on the last day of grace. Lucas v. Laden, 28 Missouri, 342. Upon 
 non-acceptance and notice, the holder may sue the drawer without waiting 
 for the maturity of the bill. Watson v, Tarpley, 18 Howard (3. C), 517. 
 Whenever it is incumbent on the holder to present, if he fails to do so, lie 
 will lose not only his remedy on the bill, but also on the consideration or debt 
 in respect of which it was given or transferred. Adams v. Darby, 28 Mis- 
 souri, 162. 
 
 (2) When the words "acceptance waived," are embodied in a bill, the 
 
OF THE PRESENTMENT FOR ACCEPTANCE. 283 
 
 such presentment there is no right of action against any party : 
 and unless it be made within a reasonable time.(6) the holder 
 loses his remedy against the antecedent parties. 
 
 * What is a reasonable time depends on the ciroum- 
 stances of each particular case, and is a mixed question '- -' 
 of law and fact ;(c) although reasonable time in general, and 
 reasonable time for giving notice of dishonour in particular, is 
 clearly a question of law. Plaintiff on Friday, the 9th, at 
 Windsor, twenty miles from London, received a bill on Lon- 
 don, at one month after sight, for 100^. There was no post on 
 Saturday. It was presented on the Tuesday. The jury 
 thought it was presented within a reasonable time, and the 
 Court concurred.((^)(] ) 
 
 (5) So also hekl in America ; Byles on Bills, 5th Araeiican edition, 300. 
 
 Now, however, by 34 & 35 Vict. c. 74, a bill or note payable at sight is 
 payable on demand. 
 
 ■(c) Muilman v. D'Eguino, 3 H. Bl. 565 ; Fry v. Hill, 7 Xannt. 395 (3 E. 
 C. L. R.) ; Shnte v. Robins, 1 M. & M. 183 (85 E. C. L. R.) ; 8 C. & P. fcO 
 (14 E. C. L. R.), S. C. Mellish v. Rawdon, 9 Bmg. 416 (23 E. 0. L. R.) ; 
 2 M. & Sc. 570, S. C. ; Mullick v. Radakissen, 9 Moore, P. C. Cases, 46. 
 
 (d) Fry v. Hill, 7 Taunt. 395 (3 E. C. L. R.). 
 
 ordinary proceedings on acceptance are dispensed with, and merged into 
 those of payment or non-payment. Webb v. Mears, 9 Wright, 333. 
 
 The waiver of acceptance by the drawer, has the eft'ect of putting him in 
 the same situation as if it had been presented, and acceptance refused. Car- 
 son's Adm. V. Russell, 36 Texas, 453. 
 
 (1) There is no fixed rule for the presentment of a bill payable at sight or a 
 certain number of days after sight ; but the holder must use due diligence to 
 put the bill into circulation, and it must be presented within a reasonable time. 
 Robinson v. Ames, 30 Johns. 146 ; Wallace v. Agry, 4 Mason, 336 ; S. C, 5 
 Mason, 118 ; Aymar v. Beers, 7 Cowen, 705 ; Bachellor v. Priest, 13 Pick. 
 399. A bill payable on demand must be presented within a reasonable time, 
 or the drawer will be discharged. Etting v. Shook, 2 Hall, 459 ; see Dnmont 
 V. Pope, 7 Bliickford, 867. An order for money not drawn on time, is paya^ 
 ble on presentment, and must be presented within a reasonable time, and if 
 not paid the payee may have the draft protested and sue the drawer at once. 
 Gallagher v. Raleigh, 7 Indiana, 1. That a draft or check must be presented 
 within a reasonable time, see Veazie Bank v. Winn, 40 Maine, CO ; Hooker v. 
 Franklin, 3 Bonsall, 500; East River Bank v. Godney, 4 E. D. Smith, 583; 
 Wesk v. Mad River Valley Bank, 8 Ohio (N. S.), 301 ; Phoenix Ins. Co. v. 
 Allen, 11 Michigan, 501 ; Vantrot v. McOullough, 3 Hilton, 373. An order 
 ty the secretary on the treasurer of a private corporation must be presented 
 Tvithin a reasonable time. English y. Trustees, 6 Indiana, 438. Laches of 
 
284 OF THE PRESENTMENT FOR ACCEPTANCE. 
 
 A bill drawn by bankers in the country on their correspond- 
 ents in London, payable after sight, was indorsed to the 
 traveller of the plaintiffs. lie transmitted it to the plaintifls 
 after the interval of a week, and they, two days afterwards, 
 transmitted.it for acceptance. Before it was presented to the 
 drawees, the drawer had become bankrupt; the drawee^, 
 consequently, refused to accept. Had the bill been sent by 
 the traveller to the plaintiffs, his employers, as soon as be 
 received it, they would have been able to get it accepted 
 before the bankruptcy. "This is," says Lord Tenterden, "a 
 mixed question of law and fact ; and, in expressing my own 
 opinion, I do not wish at all to withdraw the case from the 
 jury. Whatever strictness may be required with respect to 
 common bills of exchange, payable after sight, it does not 
 seem unreasonable to treat bills of this nature, drawn by 
 bankers on their correspondents, as not requiring immediate, 
 presentment, but as being retainable by the holders foir the pur- 
 pose of using them, within a moderate time (for indefinite delay, 
 of course, cannot be allowed), as part of the circulating medium 
 of the country." The jury concurred with his Lordship, that 
 the delay was not unreasonable, (e) Where the purchaser of a 
 bill on Rio Janeiro, at sixty days' sight, the exchange being 
 against him, kept it nearly fi.ve months, and the drawee failed 
 before presentment, it was held, that the delay was not un- 
 reasonable. " The bill," says Tindal, 0. J., " must be forwarded 
 within a reasonable time under all the circumstances of the 
 case, and there must be no unreasonable or improper delay. 
 Whether there has been, in any particular case, reasonable 
 diligence used, or w^hether unreasonable delay has occurred, 
 is a mixed question of law and fact, to be decided by the 
 *jury, acting under the direction of the Judge, upon 
 *- -^ the particular circumstances of each case."(/) 
 
 (e) Shute v. Robins, 1 M. & M. 133 (^2 E. C. L. R.) ; 8 C. & P. 80 (U E. 
 C. L. R.), S. C. 
 (/) Hellish V. Rawdon, 9 Bing. 416 (^3 E. C. L. R.) ; 3 M. & Se. 570, S. C. 
 
 ^___ \ ^— ^ 
 
 the holder in presenting a check, will not discharge the drawer unless he is 
 injured thereby. Morrison v. McCartney, 30 Missouri, 153. 
 
 What is a reasonable time within which a draft must be presented to the 
 drawee, depends upon the circumstances of the case. Knott v. Venablft, 4? 
 Alabanja, 180; Fugitt v. Nixon, 44 Missouri, 395 ; Salisbury v. Renick, Ibid, 
 554 ; Walsh v. Dart, 23 Wise. 334. 
 
OP THE PRESENTMENT FOR ACCEPTANCE. 285 
 
 But where a bill, payable after sight, was drawn in duplicate 
 on the 12tb of August, in Newfoundland, and not presented 
 for acceptance in London till Noveraber 16, and no circum- 
 stances were proved to excuse the delay, it was held unreason- 
 able,(^) the Court laying some stress on the fact that the bill 
 was drawn in sets. 
 
 ,, When the day on which a bill or note would otherwise be 
 presented for acceptance is a bank holiday, it is sufficient to 
 present it on the morrow.(A) 
 
 Presentment should be made during the usual hours of 
 business. (i)(l) 
 
 The holder may, however, put the bill into circulation with- 
 out presenting it. " If a bill drawn at three days' sight," says 
 Mr. Justice Buller, " be kept out in circulation for a year, I 
 cannot say that there would be laches; but if, instead of putting 
 it into circulation, the holder were to lock it up for any length 
 of time, I should say that he woiald be guilty of laches."{j) 
 "But this cannot mean," says Tindal, C. J., " that keeping it 
 in hand for any time, however short, would make him guilty 
 of laches. It can never be required of him instantly on receipt 
 of it, under all disadvantages, to put it into circulation. 
 To hold the purchaser bound by such an obligatioin would 
 impede, if not altogether destroy, the market for buying and 
 selling foreign bills, to the great injury, no less than to the 
 inconvenience, of the drawer himself. "(A) Two bills, one for 
 
 ig) Striiker v. Graham, 4 M. & W. 731. 
 
 (h) 34 Vict. c. 17. The bank holidays in ^England are Easter Monday, 
 Whit Monday, first Monday in August, 26th December (if a week day). 
 
 (t) Mar. 113 ; Parker v. Gordon, ,7 East, 385 ; 6 Esp. 41, S. C. ; Leflley 
 V. Bailey, 4 T. R. 170. In America it is held that business hours (except in 
 the case of bankers) range through the whole day, down to the hours of rest 
 in the evening. See Byles on Bills, 5th American edition, p. 301. 
 
 0') Muilman v. D'Eguino, 3 H. Bl. 565. 
 
 (ft) Mellish V. Rawdon, 9 Bing. 416 (33 B. C. L. R.) ; 3 M. & Sc. 570, S. 0. 
 
 (1) Business hours, except in the case of banks, range through the whole 
 day down to the hours of rest in the evening. Cayuga Bank v. Hunt, 3 Hil), 
 635 ; Nebon v. Fotteral, 7 Leigh, 179. 
 
286 OF THE PRESENTMENT FOR ACCEPTANCE. 
 
 iOOl., the other for 600^., were drawn from Lisbon, on May 12, 
 at thirty days after sight, indorsed to G. at Paris, and by G-. to 
 R. at Genoa, and by R. indorsed over. They were not pre- 
 sented for acceptance till 22nd August. The jury found, and 
 the Court concurred, that the bills were, under the circum- 
 stances, presented within a reasonable time.(Z) 
 
 *Illness or other reasonable cause not attributable to 
 L -^ the misconduct of the holder will excuse. But the 
 holder must present, even should the drawer have desired the 
 drawee not to accept,(?7i) though, as we shall see, the drawer ia 
 that case need have no notice ot non-acceptance.(l) 
 
 The presentment must be made either to the drawee himself, 
 or to his authorized agent.(2) The holder's servant called at 
 the drawee's residence, and showed the bill to some person in 
 the drawee's tan-yard, who refused to accept it; but the wit- 
 ness did not know the drawee's person, nor could he swear that 
 the person to whom he offered the bill was he, or represented' 
 himself to be so. Lord Ellenborough : " The evidence here 
 offered proves no demand on the drawee, and is therefore, in- 
 sufficient, "(n) 
 
 When the bill is presented, it is reasonable that the drawee 
 should be allowed some time to deliberate whether he will 
 accept or no. It seems that he may demand twenty-four hours 
 for this purpose (and that the holder will be justified in leaving 
 the bill with him for that period) ; at least, if the post do not 
 
 (0 Goupy V. Arden, 7 Taunt. 160 (3 E. C. L. R) ; 2 Marsh. 454, S. C. In 
 America it is held, that though put Into circulation it must still be presented 
 within a reasonable time. Byles on Bills, 5th American edition, p. 303. 
 
 (TO) Hill V. Heap, D. & R., N. P. C. 57 (16 E. C. L. R.). 
 
 (ra) Cheek v. Roper, 5 Esp. 175. 
 
 (1) One partner may waive the presentment of a bill, drawn by the part- 
 nership without special authority. Bank v. Lonergan's Adm., 31 Missouri, 
 46. When the words "acceptance waived " are embodied in a bill, the ordi- 
 nary proceedings on acceptance are dispensed with, and merged into those of 
 payment or non-payment. "Webb v. Mears, 9 Wright, 333. 
 
 (3) Sharpe v. Drea, 9 Indiana, 381. 
 
OF THE PRESENTMENT FOR ACCEPTANCE. 287 
 
 go out in the interini,(o) or unless, in the interim, he either 
 accepts or declart's his resolution -not to accept.(p) If more 
 than twenty-four hours be given, the hold'er ought to inform 
 the antecedent parties of it.{q){l) 
 
 If the owner of a bill who leaves it for acceptance, by his 
 negligence, enable a stranger to give such a description of it as 
 to obtain it from the drawee, without negligence on the 
 drawee's part, the owner cannot maintain trover for.it against 
 the drawee.(r') 
 
 In case the bill is directed to the drawee at a particular 
 place, it is to be considered as dishonoured if the drawee has 
 absconded.(s)(2) But, if he have merely changed his residence, 
 or if the bill is not directed to him at any particular place, 
 *it is incumbent on the holder to use due diligence to 
 find him out. And due diligence is a question of fact '- ^ 
 for the jury.(<) If the drawee be dead, the holder should in- 
 quire after his personal representativej and, provided he live 
 within a reasonable distance, present the bill to him.(M) 
 
 In an action against the drawer for non acceptance, it is not 
 sufficient to allege mere non-acceptance; presentment for 
 acceptance must be alleged.(a:;) 
 
 (0) Marius, 15 ; Com. Dig. Mercli. I". 6 ; Bellasis y. Hester, 1 Ld. Raym. 
 281. See the observations of Lord Cairns, Van Diemen's Bank v. Victoria 
 Banli, L. E., 3 Pr. C. 526 ; 40 L. J., Pr. C. 8. 
 
 (p) Bayley, 194, 6th ed. 
 
 (?) Ingram v. Foster, 2 Smith, 343. 
 
 (?■) Morrison v. Buchanan, 6 C. & P. 18 (35 B. C. L. R.). 
 
 (s) Anon., 1 Ld. Raym. 743. 
 
 (0 Collins V. Butler, 2 Stra. 1087 ; Bateman v. Joseph, 12 East, 433. The 
 general question is, did the parties use reasonable diligence, under the circum- 
 stances for the purpose of getting the bill accepted and paid ? Per L. J. 
 Hellish in Smith v. Banls of New South Wales, L. R., 41 L. J., Pr. C. 26. 
 
 (m) Chitty, 9th cd. 357. 
 
 (X) Mercer v. Southwell, 3 Show. 180. 
 , » 
 
 (1) Drawee is entitled to twenty-four hours before acceptance or refusal. 
 Case T. Burt, 15 Mich. 82. 
 
 (8) Eatcliff V. Planters' Bank, 2 Sneed, 435 ; Union Bank v. Fowlkes, Ibid. 
 555. Where the bill is addressed to the drawee at a particular house, the 
 presentment there is sufficient, unless the holder knows the true residence or 
 place of business. Pierce y. Struthers, 3 Casey, 349. 
 
288 
 
 OF ACCEPTANCE. 
 
 [*184] 
 
 *CHAPTER XIII. 
 
 OF ACCEPTANCE. 
 
 MEANING OF THE WORD, . .184 
 
 IiIABIIiITT OF DBAWBK BEFORE 
 
 ACCEPTANCE, .... 184 
 A DRAFT DISPENSING WITH AC- 
 CEPTANCE, .... 185 
 LIABILITY OF A BANKER AT 
 WHOSE BANE A BILL IS MADE 
 PAYABLE BY THE ACCEPTOR, . 185 
 LIABILITY TO THE CUSTOMER, . 185 
 LIABILITY OF THE BANKER TO 
 
 A HOLDER, .... 185 
 
 BY WHOM IT MAY BE GIVEN, . 186 
 NOT BY A SERIES OF ACCEPTORS, 186 
 
 WHEN, 187 
 
 BEFORE BILL FILLED UP, . . 187 
 
 HOT BEFORE BILL IN EXISTENCE, 188 
 AFTER DUB, OR AFTER PRIOR 
 
 REFUSAL TO ACCEPT, . . 189 
 
 PRESUMPTION AS TO TIME OF 
 
 ACCEPTANCE, .... 189 
 ACCEPTANCE OF INLAND BILLS 
 MUST BE IN WRITING ON THE 
 
 BILL, 189 
 
 WHAT WILL AMOUNT TO AN AC- 
 CEPTANCE IN WRITING ON THE 
 
 BILL 189 
 
 WHAT WILL AMOUNT TO AN AC- 
 CEPTANCE OF FOREIGN BILL, . 190 
 A PROMISE TO PAY, . . . 190 
 TO WHOM IT MAY BE MADE, . 190 
 IS IRREVOCABLE, . . . 191 
 WHAT ELSE AMOUNTS TO AC- 
 CEPTANCE OF A FOREIGN 
 BILL, 191 
 
 WHAT ENGAGEMENT HOLDER 
 
 MAT REQUIRE OF ACCEPTOR, 193 
 WHAT SHOULD BE HIS CONDUCT 
 IN CASE OF QUALIFIED AC- 
 CEPTANCE, . . . .193 
 QUALIFIED ACCEPTANCE, . . 193 
 CONDITIONAL ACCEPTANCE, . 193 
 PARTIAL OR VARYING ACCEPT; 
 
 ANCE, . . . . . 194 
 
 PAYABLE AT PARTICULAR PLACE, 194 
 PRESENTMENT FOR PAYMENT 
 
 THERE, 195 
 
 EFFECT OF TWO ACCEPTANCES 
 
 ON THE SAME BILL, . .195 
 
 DELIVERY OR NOTICE NECESSARY 
 
 TO COMPLETE ACCEPTANCE, . 195 
 CANCELLATION OF ACCEPTANCE 
 
 BY DRAWEE, . . . .195 
 
 BY BANKER, . . . .196 
 
 BY OTHER PARTIES, . . .196 
 
 LIABILITY OF ACCEPTOR, . . 196 
 
 HOW DISCHARGED, . . .196 
 
 BY WAIVER, . . . .196 
 
 CANCELLATION BY THE HOLDER, 19 ■( 
 SECURITY BY SPECIALTY, . . 198 
 
 PLEADING, 199 
 
 WHAT ACCEPTANCE ADMITS, . 199 
 
 WHERE DRAWEE PRECLUDED 
 FROM DISPUTING ACCEPTANCE, 300 
 
 FORGERY, 30" 
 
 OBLIGATION TO ACCEPT, . . 200 
 
 Acceptance, in its ordinary signification, is an engageWieiit 
 by the drawee to pay the bill when due,(a) in money.{b) 
 
 (a) Clark V. Cock, 4 East, 72. 
 
 (ft) Rassell v. Phillips, 19 L. J., Q. B. 297 ; 14 Q. B. 891 (68 E. C. L. RJ, 
 S. 0. 
 
or ACCEPTANCE. 289 
 
 Before aceeptanoe the drawee is not liable to the holder.(c)(l) 
 
 *An instrument drawn by A. upon B., requiring him r*ioc-] 
 to pay to the order of C. a certain sum at a certain 
 time " without acceptance," is still a bill of exchange, and may 
 be so described in an indictment for forgery.(dI) 
 
 A bill is often by the acceptor made payable at a banker's. 
 By such a direction on a bill the banker incurs liabilities to his 
 cqstomer, and may incur a liability to the holder. 
 
 "We have already seen that, without acceptance, a banker 
 may be liable to his customer, if, having sufficient funds, he 
 neglect to pay his checks. So a banker, at whose house a cus- 
 tomer accepting a bill makes it payable, is liable to an action 
 at the suit of that customer, if he refuse to pay it, having at 
 the time of presentment funds sufficient, and having had those 
 funds a reasonable time, so that his clerks and servants might 
 know it,(e) 
 
 Yet if he do pay a holder whose title depends on a forged 
 indorsement, he cannot charge his customer with the pay- 
 menL{f) But it has ibeen said by the Court of Exchequer 
 Chamber, that he is protected if he pay any one who can give 
 a valid discharge.(^) Yet, notwithstanding this, it may well 
 be doubted whether, in the case of a bill made or become paya- 
 ble to bearer, he is in as good a situation as-an ordinary trans- 
 feree, whose title is not affected by mere negligence. For the 
 banker, as agent for the customer, undertakes to conduct him- 
 
 (c) See Frith v. Forbes, 31 L. J., Chanc. 793 ; 33 L. J., Chanc. 10, S. C. 
 
 (d) Miller v. Thomson, 3 M. & G. 576 (43 E. C. L. R.) ; Reg v. Kinnear, 
 2 M. & Rob. 117. 
 
 («) See Whitaker v. The Batik of England, 6 C. & P. 700 (25 E. C. L. R.) ; 
 and 1 C, M. & R. 744 ; 1 Gale, 54, S. 0. ; Rolin v. Steward, 14 C. B. 59.3 
 (78 E. p. L. R.) ; Robarts v. Tucker, 16 Q. B. 560 (71 E. C. L. R). 
 
 (/) Robarts v. Tucker, 16 Q. B. 560 (71 B. C. L. R.). 
 
 ig) Ibid. 
 
 (1) The holder for value of a bill drawn in pursuance of a promise to ac- 
 cept by the drawee, and taken on the faith of such promise, may maintain an 
 aolion in his own name against the drawee on his refusal to accept. Barney 
 V. Newcomb, 9 Gushing, 46. 
 
 19 
 
290 OF ACCEPTANCi!, 
 
 Belf with reasonable care. An honest but negligent payment, 
 which may entitle the banker to the bill as against the true 
 owner, may be insufficient to enable him to charge his custoijier. 
 
 Where a bill is accepted payable at a banker's, though money 
 had been remitted by the acceptor to the banker for the express 
 purpose of paying the bill, the banker is not liable to the bolder 
 in an action for money had and received, unless he have 
 assented to hold the money for the purpose for which it was 
 remitted.(/i) But where there is anything in the conduct or 
 r*18«1 '^it'^^tion of the banker which amounts to *an assent to 
 hold the remittance upon trnst to discharge the bill, he 
 is liable to the holder.(2) 
 
 A bill can only be accepted by the drawee,(A) and not by a 
 stranger, except for honour.(^) Where, indeed, the bill was not 
 addressed to any one, but only indicated the place of payment, 
 the acceptor was held liable as having admitted himself to be 
 the party pointed out by the place of paymeut.(m) But this 
 decision goes to the very verge of the law.(«) 
 
 If the drawee be incompetent to contract, as, for example; by 
 reason of infancy or coverture,(o) the bill may be treated as 
 dishonoured. 
 
 We have already seen(p) that one partner may, by his accept- 
 ance, bind his co-partners. But, if a bill be drawn upon several 
 
 (h) Williams v. Everett, 14 East, 583 ; Yates v. Bell, 3 B. & Aid. 643 (5 
 E. C. L. E.) ; WcdlaUe v. Hurley, 1 C. & J. 83. 
 
 (0 De Bernales v. Puller, 14 East, 590, n. ; 3 Camp. 426 ; and see the 
 observations of Abbott, C. J., on this case, in Yates v. Bell, 3 B. & Aid. 643 
 (5 E. C. L. R.). 
 
 (A) Nichols V. Diamond, 9 Exch. 157. Unless he have recognized the 
 acceptance as his. See Lindus v. Brad well, 5 C. B. 588 (57 E. C. L. R) ; 
 and p. 37. 
 
 to Polhill v. Walter, 3 B. & Ad. 114 (23 E. C. L. R.) ; 1 L. J., K. B. 92; 
 Eastwood v. Bain, 38 L. J., Ex. 74 ; 3 H. & N. 788, S. C. ; Davis v. Clarke, 
 13 L. J., Q. B. 305 ; 6 Q. B. 16 (51 E. C. L. R.), S. C. ; see Jenkins T. 
 Hutchinson, 18 L. J., Q. B. 274 ; 13 Q. B. 744 (6') E. C. L. R.), S. C. 
 
 (to) Gray v. Milner, 8 Taunt. 739 (4 E. C. L. R.). 
 
 (ra) See the observations of Patteson, J., in Davis v. Clarke, supia, and of 
 Martin, B., in Peto v. Reynolds, 9 Exch. 410, 
 
 (o) Chit. 9th ed. 283. 
 
 (p) Chapter V. 
 
OF ACCEPTANCE. 291 
 
 persons not in partnership, it should be accepted by all, and, if 
 not, may be treated as dishonoijred.(j) Acceptance will, how- 
 ever, be binding upon such of them as do accept.(r) 
 
 There cannot be two or more separate acceptors of the same 
 bill not jointly responsible. A. refused to supply B. with goods, 
 unless 0. would become his surety. C. agreed to do it. Goods 
 to the value of 157^. were accordingly sold by A. to B. For 
 the amount A. drew on B., and the bill was accepted both by 
 B. and C, each writing his name on it. Lord Ellenborough : 
 "If you had declared that,inconsequenceof A. selling the goods 
 to B., C. undertook that the bill should be paid, you might have 
 fixed C. by this evidence. But I know of no custom or usage 
 of merchants according to which, if a bill be drawn upon one 
 man, it may be accepted by two ; the acceptance of the defend- 
 ant is contrary to the usage and custom of merchants. . A bill 
 must be accepted by the drawee, or, failing him, by some one 
 for *the honour of the drawer. There cannot be a r*iDy-| 
 series of acceptors. The defendant's undertaking is 
 clearly collateral, and ought to have been declared upon as 
 8ueh."(s) But, although there can be no other acceptor after a 
 general acceptance of the drawee, it is said that, when a bill lias 
 been accepted supra protest^ for the honour of one party, it may, 
 by another individual, be accepted stipra ■protest, for the honour 
 of another.(<) We shall, hereafter, consider the subject of 
 acceptance supra protest in a distinct Chapter. A bill may, as 
 we have 8een,(M) be addressed to the drawer himself and accepted 
 by him; but it is then rather a promissory note than a bill of 
 exchange. 
 
 We have already seen that the signature of a drawer, maker, 
 or indorser, on a blank form, delivered to be filled up as a nego- 
 tiable instrument, will bind them respectively ; so an acceptance, 
 written on the paper before the bill is made, and delivered by 
 
 (j) Mar. 16 ; Dupays v. Shepherd, Holt's R. 397 ; Marius, 64. 
 
 (r) B. N. P. 270 ; Bayley, 58 ; Owen v. Von Uster, 10 C. B. 318 (70 E. C. 
 I" R.) ; Nichols v. Diamond, 9 Excb. 151. 
 
 («) Jackson v. Hudson, 2 Camp. 447. 
 
 (0 Jackson v. Hudson, 3 Camp. 447, n. ; Beawes, 42. 
 ' fa) Chapter VII. 
 
292 OF ACCEPTANCE. 
 
 the acceptor, will also charge the acceptor to the extent war- 
 ranted by the 8tamp.(a;)(l) It is not even necessary that th# 
 bill should be drawn by the same person, to whom the acceptor 
 handed the blank acceptance.(2/) And where a blank acceptance 
 was filled up after the. lapse of twelve years, and^.as the jUry 
 found, after the lapse of a reasonable time, the acceptor wa& 
 held liable to a bona fide indorsee.(e) But it is conceived that- 
 the case of a blank acceptance not delivered at all, but lost ori 
 stolen, at least without any negligence of the writer, is dis-, 
 tiHguishable,(a) 
 
 (a) Though the hill he ante-dated, Armfleld v. Annport, 27 L. J., Exch., 
 42 ; and in America, where there is no stamp, the amount for which the blank 
 may he filled up is unlimited. Byles on Bills, 5th American edition, p. 307. 
 No liability attaches before delivery. In re Hayward, L. R., 6 Chau. Ap. 546;. 
 40 L. J., Bank. 49. 
 
 (y) Schullz V. Astley, 2 Bing. N. C. 544 (39 E. C. L. R.) ; 3 Scott, 815 ; 
 1 Hodges, 535; 7 C. & P. 99 (33 E. C. L. R.), S. C. The acceptor is 
 estopped as against a transferee for value lo deny the regularity of the accepk' 
 ance. In America it is held, that if the blank paper come into the hands of 
 a holder wJthout. notice, he may fill up the blank with a largei'snm than thg,. 
 original holder was authorized to insert. See Byles on Bills, 5th American, 
 edition, p. 308. 
 
 (g) Montague v. Perkins, 33 t. J., C. P. 188. 
 
 (a) See the question put by Cresswell, J., to counsel in Montague v. Per- 
 kins, 33 L, J., C. P. 189, to which the answer of counsel does not appear 
 satisfactory. See, however, the observations of the Court of C. P. in Ingbain^ 
 V. Primrose, 38 L. J., C. P. 295 ; 7 C. B., N. S. 82 (97 E. C. L. B.), S. C. 
 Perhaps the obligation created by blank makings, acceptances and indorse- 
 ments of bills, checks or notes depends on the principle of estoppel, and not 
 on any peculiarity of negotiable paper. On this ground it is put by Lorfl 
 Mansfield in Russell v. Lanstaflfe, and by Lord Chief Justice Tindal in Schultz 
 V. Astley, ubi supra ; but see the observations of Williams, J., in Ex parte 
 Swan, 7 C. B. 447 (63 E. C. L. R.) ; and Martin, B., and Channell, B., in 
 Swan V. North British Australian Company, 81 L. J., Exch. 435. On the 
 question whether the principle of estoppel can be applied to a deed improperly 
 filled up, the Courts of Common Pleas and of Exchequer weiig equally dividejl,; 
 Ibid, in the Exchequer Chamber it was held that it could not. 33 L. J., 
 Exch. 373. 
 
 ^ , ^ — j^, 
 
 (1) A person signing his name on a blank paper, and delivering it to another,j' 
 authorizes him to fill up the blank with any sum. Bank of Limestone v. 
 Penick, 5 Monr. 25 ; Van Duzer v. Howe, 21 New York, 531. Where a note 
 is signed and delivered, with a blank left for the sum payable, though the first. 
 holder is restricted as to the amount to be inserted, yet, if the note comes into 
 the hands of another, who, without notice of the restriction, fills the blank 
 with a larger sum, the maker will be bound by it. Bank of Commonwealth 
 v. Curry, 2 Dana, 143 ; Moody v. Threlkeld, 13 Georgia, 55. 
 
OF AOCBPTANOB. 293 
 
 *An acceptance for value, before the bill is filled up, r*iQQ-| 
 is irrevocable. JSTotice that the acceptance was in blank 
 should put the holder on inquiry. (6) 
 
 It was formerly held (in cases where an acceptance in writing 
 on the bill was not necessary), that a promise to accept, given 
 before the hill was made, amounted to an acceptance. Thus, a 
 promise by the defendants, that they would accept such bills as 
 the plaintiff should, in about a month's time, draw on the 
 defendant for 800^. , has been held an acceptance of such bill 
 subsequently drawn .(e) But it was said that a subsequent 
 holder could not avail himself of such an engagement, unless it 
 was communicated to him at the time he took the bill. "A 
 promise to accept," says G-ibbs, C. J., "not communicated to 
 the person who takes the bill, does not amount to an accept- 
 ance ; but, if the person be thereby induced to take a bill, he 
 gains a right equivalent to an actual acceptance, against the 
 party who has given the promise to accep,t."(rf) But it is now 
 settled that there cannot be an oral acceptance of a non-existing 
 bill,(e) although the bill be discounted by the drawer on the 
 faith of a promise to accept. (/) It has been decided, since 1 & 
 '2 Geo. 4, c. 78, that an acceptance may be written before the 
 bill is drawn, though that statute makes it essential to the 
 acceptance of an inland bill, that it should be in writing on 
 such bill ; and it will be no variance, though the declaration 
 etate the drawing to have been first and the acceptance after- 
 ■wards.(^)(l) 
 
 (5) Hatch V. Searles, 2 Sm. & G. 147 ; 34 L. J., Cli. 33, S. C. 
 
 (c) Pillans v. Van Mierop, 3 Burr. 1663 ; Piersqn v. Dunlop, Cowp. 571 ; 
 Mason v. Hunt, Doug. 284, 387. 
 
 \d) Milne v. Prest, 4 Camp. 393 ; Holt, N. P. 181 (3 B. C. L. R.), S. C, 
 evidently an inaccurate report in Holt, see 11 M. & W. 390 ; Jolinson v. 
 Collings, 1 East, 98. 
 
 (e) Jolinson v. Ceilings, 1 East, 98 ; Bank of Ireland v. Archer, 11 M. & 
 W. 383. But in general this is otherwise in America. Byles on Bills, 5th 
 American edition, p. ,309, et seq. 
 
 '(f) Ibid. 
 
 (g) Molloy V. Delves, 7 Bing. 438 (30 E. C. L. K.) ; 5 M. & P. 275 ; 4 C. 
 ,& P. 492 (19 B. C. L. R.), S. C. And it is probable the same interpretation 
 
 (1) A promise in writing made before a bill is drawn to accept the bill, will 
 not be held to amount to an actual acceptance, unless the bill is clearly de- 
 
294 OF ACCEPTANCE. 
 
 *A Lill may be accepted after the period at which it 
 '- -^ is made payable has elapsed, and the acceptor will then 
 
 will be put on tlie present act 19 & 20 Vict. c. 97, which requires the signa- 
 ture of the,acceptor. 
 
 scribed and identified from other bills. Ulster County Bank v. McFurlan, 3 
 Denio, 553. A letter written by the drawee of a bill of exchange, before or 
 after the drawing of the bill, promising to accept or protect the bill, may 
 operate as an acceptance, although the holder may not be apprised of such 
 letter, and thereby induced to receive the bill. Read v. Marsh, 5 Monroe, 8. 
 A letter written within a reasonable time before or after the date of a bill, in- 
 telligibly describing it, and promising to accept it, is, if shown to one who 
 takes it on the credit of tTie letter, a virtual acceptance, binding on the promi- 
 sor. Payson v. Coolidge, 3 Gallison, 233 ; S. C, 2 Wheaton, 66 ; Goodrich 
 V. Gordon, 15 Johns. 6 ; Schimmelpennicic v; Bayard, 1 Peters, 265 ; Tows. 
 Jey V. Sumrall, 2 Peters, 181 ; Wilson v. Clements, 8 Mass. 1 ; Slorer v. Logan, 
 9 Mass. 55 ; McKim v. Smith, 1 Hall's Law Journal, 486 ; Parker v. Grule, 
 2 Wendell, 545 ; 5 Wendell, 414; Boycev. Edwards, 4 Peters, 111 ; Williams 
 V. Winans, 2 Green, 339 ; Russel v. Wiggin, 2 Story, 818 ; Bayard v. Lathy, 
 2 McLean, 462 ; Kennedy v. Geddes, 8 Porter, 263 ; 3 Alabama,. 581 ; Ulster 
 Bank v. McFarlan, 5 Hill, 483. An authority given by A. to B. to draw bills 
 on him, is virtually an acceptance of any bills drawn in conformity with such 
 authority. Van Reimsdyk v. Kane, 1 Gallison, 630; Banorger v. Hovey, 5 
 Mass. 23 ; Mayhew v. Prince, 11 Mass. 55 ; Wallace v. Agry, 4 Mason, 336; 
 Bissell V. Lewis, 4 Michigan, 450. Where one gave written authority to 
 another as his agent to adjust certain business, and draw on him for tlie 
 moneys necessary, it was held to amount to an aceptance by the principal of 
 drafts drawn with the assent of the agent upon him. Gates v. Parker, 43 
 Maine, 544. When an implied acceptance, based on an authority to draw, 
 previously given, is relied on, a recovery cannot be had against a party as ac- 
 ceptor by virtue of such authority, unless it be proved that the party discount- 
 ing the bill, before or at the time of so doing, saw or knew of the authority, and 
 discounted on the faith thereof. Lewis v. Cramer, 3 Maryland, 265. A bill 
 drawn by one upon himself is to be regarded as an accepted bill. Cunning- 
 ham V. Warden, 3 Fairfield, 466. No formal acceptance of a bill of exchange 
 drawn by a corporation on itself is necessary, the act of drawing being deemed 
 an acceptance of it. Hasey v. White Pidgeon Beet Sugar Company, 1 Doug- 
 las, 193, The act of drawing a bill by one partner, in his own name, on the 
 firm of which he is a member, for the use of the partnership, is in law an ac- 
 ceptance by the drawer in behalf of the firm, and an action may be maintained 
 against tie firm as on an accepted bill. Dougal v. Cowles, 5 Day, 511. By 
 the Revised Statutes of New York, an acceptance is void unless, made in writ- 
 ing. But prior to this provision, a parol agreement to accept a bill to be drawn 
 in futuro, could not be enforced by an indorsee who did not take the bill on 
 the faith of such agreement. Ontario Bank v. Worthington, 12 Wendell, S93i 
 McBvers v. Mason, 10 .Johns. 207; Goodrich v. Gordon, 15 Johns. 6. See 
 Martin v. Bacon, 2 Rep. Const. Court, 182. 
 A mere verbal promise to accept a bill of exchange not yet drawn, isnot 
 
OF ACCEPTANCE. 295 
 
 he liable to pay on demand ; yet, if the declaration state the 
 acceptance to be according to its tenor and effept, those words 
 
 sucli an acceptance as will in law bind the acceptor, even if made to the person 
 in whose favor the bill is drawn. Kennedy v. Geddes, 8 Porter, 263. By the 
 English law, a promise to accept a non-existing bill of exchange, even though 
 it be taken by the holder upon the faith of that promise, does not amount to 
 ,aii acceptance of the bill, when drawn in favor of the holder ; but it has been 
 held otherwise by the Supreme Court of the United States. Yet if the bill be 
 payable after sight, and not after date, such a promise has never been held, in 
 either country, to be an acceptance of a non-existing bill. Coolidge v. Payson, 
 2 Wheaton, 66 ; Wildes v. Savage, 1 Story, 23 ; Russell v. Wiggin, 3 Story, 
 213. In the former of these cases. Judge Story said : " It is, perhaps, to be 
 lamented that the doctrine of such virtual acceptances ever was established ; 
 and if the question had been entirely new, I am well satisfied that it would 
 not have been recognized as fit to be promulgated, it being at once unsound 
 in policy and full of inconvenience. But the Supreme Court yielded, as did 
 the Judge who decided that case in the Circuit Court, to what seemed at thiit 
 time the true result of the English authorities upon an important practical 
 commercial question. I am not sorry to find that professional opinion has 
 now settled down in England against the doctrine ; although there is no pre- 
 tence to say, that, up to this very hour, there has been any formal decision in 
 •Westminster Hall against it. But it does not appear to me that the doctrine 
 pver was applicable or could be applied to any bills of exchange except such 
 as were payable on demand or at a fixed time after date. Where bills arc 
 drawn payable at so many days after sight, it is impracticable to apply the 
 doctrine ; for there remains a future act to be done, the presentment and sight 
 of the liill, before the period for which it is to run, and at which it is to be- 
 come payable, can commence, whether it be accepted or be dishonored. How 
 can the time be calculated on such a bill before it is presented ? If a letter is 
 written, promising to accept a non-existing bill, to be thereafter drawn, at six 
 months' sight, when is the acceptance to be deemed mide ? At the date of the 
 bill ? Certainly not ; . for that would be at war with the obvious intent of the 
 parlies, which plainly is, that the acceptance shall be on a future sight of the 
 bill. If it is said tlj^it the acceptance is to be treated as made when the bill is 
 actually presented for acceptance and it is dishonored by the drawee, it is.as 
 plain that we set up a prior intent or promise against the fact. Upon what 
 ground can a court say, when a party promises to do an act in future, such for 
 example, as to accept a bill when it shall be drawn and presented to him at a 
 future time, that his promise overcomes his act at that time ? That his refusal 
 to perform his promise amounts to a performance of it ? It is quite another 
 question whether the holder, who has taken such a bill upon the faith of such 
 a promise, may not have some other remedy, either at law or in equity, for 
 the breach of it, against the promisor. My judgment is, that the doctrine of a 
 virtual acceptance of a non-existing bill, by a prior promise to accept it, when 
 drawn, has no application to a bill drawn payable at some fixed period after 
 sight ; for it then amounts to no more than a promise to do a future act. I have 
 looked into the authorities, and do not find in any one of them, that the bill 
 d;awn, and to which the doctrine was applied, was a bill drawn payable at or 
 
296 OF ACCEPTANCE. 
 
 will be but surplu8age.(A)(l) It may also be acoejited after a 
 previous refusal to aceept.(2)(2) 
 
 It sometimes becomes material to iuquirp at wbat time the 
 bill was accepted. The presumption is that it was aceep'ed be- 
 fore maturity and within a reasonable time of its date.(A:) 
 
 The statute 3 & 4 Anne, c. 9, s. 6, expressly enacts, that no 
 
 (A) Jackson v. Pigott, 1 Ld. Raym. 364 ; Mutford v. Walcol, 1 Ld. Raytn. 
 574 ; 1 Salk. 139, S. C. ; Slein v. Yglesias, 5 Tyr. 172 ; 1 C, M. & R. 565 ; 
 
 1 Gale, 98, S. C. 
 
 (j) Wynne v. Raikes, 5 East, 514 ; 2 Smith, 89, S. 0. 
 l,S) Roberts v. Bethell, 13 C. B. 778 (74 E. C. L. R.). 
 
 after sight." A parol promise to accept a draft, founded on no new consid- 
 eration, is not binding, either as an acceptance or a binding promise to accept. 
 Strohecker v. Cohen, 1 Speers, 349. A promise to accept a bill is equivalent 
 to an acceptance, not only as to the drawer, but as to every party who takes 
 the bill on the faith of the promisor. Steman v. Harrison, 6 Wright, 49. A 
 promise to accept without more, covers only bills payable at the payee's or 
 driiwer's place of business. Michigan State Bank v. Leavenworth, 2 Wil- 
 liams, 308. A parol promise to pay a bill when it matures is an acceptance. 
 Spaulding v. Andrews, 13 Wright, 411. Authority to draw "on us or either 
 of us," "and we hereby jointly and severally hold ourselves accountable for 
 the acceptance and payment of such drafts," binds the signers, jointly and 
 severally, to the payment of acceptances made by. either. Michigan Stale Bank 
 V. Pecks, 3 Williams, 200. 
 
 As to when a verbal or written promise to accept is an acceptance of an ex- 
 isting or non-existing bill, see Crowell v. Van Bibber, 18 Louis. Ann. 637; 
 Steman V. Harrison, 6 Wright, 49 ; Plummer v. Lyman,, 49 Maine, 229; Burns 
 V. Rowland, 40 Barbour, 368; Spaulding v. Andrews, 12 Wright, 411; Nelson 
 V. First National Bank, 48 Illinois, 36 ; Exchange Bank v. Rice, 98 Mass. 288 ; 
 Cook V. Mittenberger, 23 Louis. Ann. 877 ; Harrison v. Smith, 2 Sweeney, 
 609. 
 
 The measure of damages for non-performance of an agreement to accept a 
 draft for the drawer's accommodation, which is still in his hands, is the in- 
 convenience and loss thereby occasioned to him, and not the amount of tlie 
 draft. Ilsley v. Jones, 12 Gray, 360. 
 
 (1) Acceptance after time of payment is binding. Williams v. Winans, 
 
 2 Green, 189. The fact of a bill's leaving been protested does not prevent its 
 being afterwards accepted by the drawee. Slockwell v. Bramble, 3 Indiana, 
 428. A drawee who accepts after the bill has been indorsed over is liable to 
 the indorsee. Bank of Louisville v. Ellery, 84 Barbour, 630. 
 
 (2) If on protest for non-acceptance of a bill payable at so many days after 
 sight, the drawer accepts the next day and fails before the day of payment, 
 the drawer is not ]ial)le, if he had no notice of the non-acceptance. Mitchell 
 V. De Grund, 1 Mason, 176. 
 
OF ACCEPT AN CE. 297 
 
 acceptance of any inland bill of exchange shall be sufficient to 
 charge any person whatever, unless it be underwritten, or in- 
 dorsed in writing on the bill. This statute, however, seems to 
 be very loosely and obscurely drawn. Two Chief Justices ac- 
 cordingly held, on considering the whole of the act, that a 
 verbal acceptance was binding, notwithstanding these words ; 
 which decision was finally settled to be law by Lord Hard- 
 wicke.(Z)(r) It had often been lamented by the Judges, that 
 anything short of a writing on the bill should have been con- 
 sidered as an acceptance ; and at length, in accordance with the 
 opinions of the Bench, and, perhaps, of the Legislature, in 
 framing the last-mentioned act, the 1 & 2 Geo. 4, c. 78, s. 2, 
 enacted, that no acceptance of any inland (m) bill of exchange 
 shall be sufficient to charge any person, unless such acceptance 
 be in writing on such bill, or, if there be more than one part of 
 such bill, on one of the said parts. This statute, however, does 
 not apply to foreign bills, and does not require the acceptance 
 to be signed. Finally, the 19 & 20 Vict. c. 97, s. 6, enacts, 
 that no acceptance of a bill, inland or foreign, made after the 
 year 1856, shall charge any person, unless in wi'iting on the 
 bill, and signed by the acceptor, or some person duly authorized 
 by him. 
 
 The usual mode of making such an acceptance on the bill 
 was, even before the last-mentioned statute, by writing the 
 *word " accepted," and subscribing the drawee's name.(2) 
 Signature was not essential to a written acceptance '- -' 
 
 (I) Lumley v. Palmer, 3 Str. 1000 ; Rep. temp. Hardwicke, 74, S. C. 
 (m) As lo what is an inland and what a foreign bill, see the Chapter on 
 FoEEiQN Bills. 
 
 (1) Arnold V. Sprague, 34 Vermont, 402. 
 
 If the drawee having the bill in possession procures another to discount or 
 advance money upon it, tliat will be an acceptance. Bank of Rutland v. 
 Woodruff, 34 Vermont, 89. Keeping notes sent as collateral security when 
 evidence of ac'ceptance. See Phcenix Insurance Co. v. Sholes, 30 Wise. 35. 
 
 (8) If one refuses to accept an order, and his refusal is understood between 
 liim and the payee, yet if he write on the order what may fairly be construed 
 as an acceptance, he is bound as an acceptor against a bona fide holder for 
 value. Gallagher v. Black, 44'Maine, 99. The liability of the acceptor arises 
 from and is limited by the terms of his acceptance. As the language of such 
 acceptance is his own, it is to be taken most strongly against him. Sylvester 
 
298 OF ACCEPTANCE. 
 
 within the statute 1 & 2 Geo. 4, c. 78, but it was a question for 
 the jury, whether the acceptance was conip]ete.(n) If the bill 
 be payable after sight, the day when accepted should also be 
 expressed. But the drawee's name alone, written on any part 
 of the bill, was a sufficient acceptance; so, without any name^ 
 the word " accepted," " presented," " seen," the day of the 
 month, or a direction to a third person to pay it,(p) Where 
 one banker held a check drawn on another banker, presented 
 it after four o'clock, find it was not paid, but, according to the 
 practice of the Londop bankers, a mark was put on it, to show 
 the drawer had effects, and that it would be paid ; this mark- 
 ing was held to amount to an acceptance payable- next day at 
 the clearing-hou8e.(_p) It is not necessary, in pleading the ac- 
 ceptance of an inland bill, to aver that the acceptance was in 
 writing, or signed.(g') 
 
 It will be observed, that the 1 & 2 Geo. 4, c. 78, so far as it 
 relates to acceptances in writing, does not extend to foreign 
 bills, and the late statute, 19 & 20 Vict. c. 97, s. 6, extends only 
 to foreign bills after the year 1856, and probably not to foreign 
 bills accepted abroad, where, by the law of the place, a written 
 acceptance may not be necessary. It is proper, therefore, to 
 consider the state of the law previously to the late enactments 
 in respect of acceptances not on the bill, as the former law may 
 still apply to acceptances of many bills drawn or accepted 
 abroad. 
 
 We have already seen,(?-) that a promise to accept a bill, not 
 drawn, will not be available as an acceptance; but, a promise, 
 
 (») Dufaur v. Oxenden, 1 M. & R. 90. 
 
 (o) Anon., Comb. 401 ; Powell v. Monnier, 1 Atk. 611 ; Moore v. Witby, 
 B. N. P. 370 ; Dufiiur v. Oxenden, 1 M. & R. 90. 
 (p) Robson v. Bennett, 2 Taunt. 38S. 
 
 (?) Chalie v. Belshaw, Bing. 539 (19 E. C. L. R ) ; 4 M. & P. 275, S. C. 
 (r) Note (e), p. 188. 
 
 V. Staples, 44 Maine 496. A receipt of part of tlie sum drawn for, indorsed 
 on an order in the handwriting of the drawee; and signed by tlie payee, only 
 relates to the amount received, and implies no acceptance of the order for the 
 balance. Bassett v. Haines, 9 California, 260. 
 
OF ACOJIPTANCE. 299 
 
 written or oral, to pay or accept an existing foreign bill, is, at 
 common law, of itself an acceptance.(s)(l) 
 
 And such an acceptance might be given to the drawer, or 
 any other party to the bill, after it had been indorsed away, 
 *and even alter it had become due.(/) It might even 
 be given to a person by whose direction and on whose ^ -I 
 account the bill was drawn, though he were no party to the 
 bill, and although the bill had been previojsly indorsed.(M) 
 
 (s) Clarke v Cock, 4 East, 57 ; Cox v. Coleman, Bayley, fith ed. 176 ; 
 Wynne v. Raikcs, 5 East, 514 ; Mendizabal v. Macliado, 6 C. & P. 218 (35 E. 
 C. L. R.) ; 3 Moore & S.-841, S. C. ; see the American authorities to the same 
 effect, Byles on Bills, 5th American edition, 313. As to what amounts to a 
 promise to accept, see Nicholson v. Ricketts, 29 L. J., Q. B. 55. 
 
 (0 Powell V. Monnier, 1 Atk. 611 ; Wynne v. Raikes, 5 East. 514. 
 . («) Fairlee V. Herring, 3 Ring. 635 (11 B. C. L. R.) ; Grant v. Hunt, 14 
 L. J., C. P. 106, and 1 C. B. 44 (50 E. C. L. R.), S. C. 
 
 (1) A parol acceptance will bind the acceptor. Leonard v. Mason, 1 Wen- 
 dell, 523 ; Williams v. Winans, 3 Green, 339 ; Walker v. Lide, 1 Richardson, 
 249; Ward v. Allen, 3 Metcalfe, 53 ; Barnet v. Smith, 10 Foster, 356 ; Stock- 
 well V. Bramble, 3 Indiana, 428 ; Bird v. McElwaine, 10 Ibid. 40 ; Lannan v. 
 Smith, 7 Grsy, 150 ; Arnold v. Sprague, 34 Vermont, 403. Acceptance may 
 he implied. Bank of Rutland v. Woodruff, 34 Vermont, 89. A creditor drew 
 oil his debtor, and upon settlement allowed the amount thereof thougli the 
 draft had never Ijeen accepted ; the drawee was held liable to the holder of 
 the hill. Bank v. Hill, 34 Texas, 155. Adrawer of a bill of exchange may 
 charge himself as acceptor by writing his name over the face of the bill. Spear 
 V. Pratt, 3 Hill, 583. There is no rule requiring that the bill should be actually 
 shown to the drawee in order to a valid and binding acceptance ; it is enough 
 if when applied lo for acceptance, he is enabled, by seeing the bill or other- 
 wise, to give an intelligent answer. Fisher V. Beckwith, 19 Vermont, 31. The 
 drawee of an order for a seaman's share of the proceeds of a whaling voyage 
 declined to accept it, but took the bill and promised to try to save the amount 
 for the payee, if the drawer consented. The drawer on his return refused to 
 assent. Held, that the bill had not been accepted. Parkhurst v. DIckerson, 
 21 Pickering, 807. A promise to "accord a credit" for £3000 on the usual 
 terms and conditions, which were to accept bills at ninety days' sight, was 
 held not to amount to an acceptance. Carniger v. Morrison, 3 Metcalfe, 381. 
 A verbal promise to pay a bill accompanied by a refusal lo accept it, is no ac- 
 ceptance, though the drawer have funds in his hands. Luff v. Pope, 5 Hill, 
 ' 413. 
 
 Where an order was presented for acceptance, and the drawee refused to 
 accept, but proniis"d to pay the person in whose favor it was drawn by a given 
 day, it was held, that the latter could maintain no action against the drawee, 
 though he had funds of the drawer in his hands at the time, and ought in jus- 
 tice to have accepted. ~ Pope v. Luff, 7 Hill, 577. 
 
300 OF ACCKPTANCB. 
 
 Such a promise would have enured to the benefit of the in- 
 dorsee and of all other parties. 
 
 It could not, therefore, be revoked by the drawee, though 
 the party to whom it was given consented to the revocation, 
 and though neither the indorsee nor any other party to the bill 
 had notice of the acceptance.(a:) 
 
 Where the drawee answered an application to accept the bill, 
 , by saying, "the bill should have attention," it was held that 
 these words were ambiguous, and did not amount to an ac- 
 ceptance •,{%/) so, an answer by the drawee, " there is your bill, 
 it is all right," is no acceptance.(2:) The mere detention of a 
 bill by the drawee would not, it seems, amount to an accept- 
 ance.(l) "In support of this' doctrine," says Abbott, C. J., 
 " have been cited the opinions of some great and learned per- 
 sons, entitled, undoubtedly, to the highest respect. It is not, 
 however, supported by the authority of any decided case ; for 
 the cases have all been decided upon very special circumstan- 
 ces, "(a) Drawee kept a bill drawn on him which he was re* 
 quested to accept and forward, a considerable time after he 
 had been told by the payee that he should consider his deten- 
 tion of the bill as tantamount to an acceptance. He afterwards 
 admitted that he had neglected to write an acceptance iJpon it, 
 thinking it of no consequence, as he meant to pay it. Held, 
 that, under the circumstances, the detention amounted to an 
 
 (a) Grant v. Hunt, Ibid. 
 
 (y) Reesv. Warwick, 2 B. & Aid. 113 ; 2 Stftvk. 411 (3 E. C. L. R.), 8. C.j 
 unless by the course of dealings it has been usually considered such. 
 
 (g) Powell V. Jones, 1 Esp. 17. See Anderson v. Hick, 3 Camp. 179; 
 Anderson v. Heath, 4 M. & Sel. 303 ; Hoare v. Dresser, Dom. Proc. 7 House 
 of Lords Cases, 290 ; Reynolds v. Peto, 1 1 Exch. 418. 
 
 (0) Mason v. Barff, 2 B. & Aid. 26. 
 
 (1) "When retention of the bill amounts to an acceptance, see Rousch v. Duff, 
 35 Mo. 312. A failure to return a check by the drawee is not of necessityi'an 
 acceptance of it. The circumstances of the case must determine whether tlie 
 retention of the check amounted to an acceptance. Overman v. Hobobeu 
 City Bank, 1 Vroom, 61. Keeping a' check by bank on whom draWn twenty' 
 four hours is not an acceptance. Overman v. Hoboken City Bank, 3 Vroom, 
 563. As to what amoauta to an aGceptanoe, Hunter W Cobb, 1 Bush, 239. 
 
OF ACCEPTANCE. 301 
 
 aceeptance.(6) Where a bill, being presented ,and left for ac- 
 ceptance, was refused acceptance by the drawee, but remained 
 afterwards for a considerable time in his hands, and was ulti- 
 mately destroyed by him, held by three Judges *{clissen 
 tiente, Lord Ellenborough, C. J.), that the drawee '- -' 
 was not thereby liable as the acceptor of the bill.(c) But 
 if the drawee had not previously retused acceptance, then, it- 
 seems, destroying the bill would have been such an act of 
 ownership as would have amounted to acceptance.((^) On the 
 whole, it should seem that any conduct of the drawee, by 
 \7hich he intended the holder should understand that he meant 
 to accept or pay, would hav? amounted to an acceptance of any 
 existing foreign bill.(e) A letter written by the dr£twee to the 
 drawer might amount to an acceptance, though the drawer 
 bavebeen dead, and the drawee unacquainted with the fact.(/) 
 
 The holder is now entitled to require from the drawee an 
 absolute engagement in writing, duly signed, to pay in money 
 according to the tenor and effect of the bill, unincumbered 
 with any condition or qualifications. A general acceptance, 
 without any express words to restrain it, will be such an abso- 
 lute acceptance. 
 
 If the drawee offer a qualified acceptance, the holder may 
 either refuse or accept the ofter. If he mean to refuse it, he 
 may note the bill, and sVjould give notice of the dishonour to 
 the antecedent parties. If he intend to acquiesce in it, he must 
 give notice of the nature of the acceptance to the previous 
 parties, and, it should seem, must obtain their consent,(gr) or 
 
 (J) Harvey v. Martin, 1 Camp. 435 ; Bayley, Otli ed. 193 ; and see Trimmer 
 V. Oddie, tliere cited. 
 
 (c) Jeune v. Ward, 1 B. & Aid. 653 ; 2 Stark. 326 (3 E. C. L. R.), S. C. 
 
 (d) Ibid. 
 
 (e^ Billing v. Devaux, 11 L. J.. C. P. 38 ; 3 M. & G. 565 (42 E.. C. L.. R ), 
 S. G. 
 
 (/) Ibid. 
 
 (ff) Perhaps it might not be necessary to obtain the consent to an accept- 
 ance for part of the amount. 
 
 It has been doubted whether an acceptance payable at a particular place, 
 and not otherwise or elsewhere, can be safely taken without the consent of 
 the prior parties since 1 .it 2 beo 4, c. 78. 
 \ 
 
302 OF ACCEPTANCE. 
 
 they will be discharged ;(A) but he must not protest or note 
 the bill, or give a general notice of dishonour, *for he 
 '■ -I would thereby preclude himself from recovering against 
 the acceptor.(j)(l) 
 
 Qualified acceptances are of two kinds: first, conditional: 
 and, secondly, partial or varying from the tenor of the bill. 
 
 Whether an acceptance be conditional or not, is a question 
 of law.(A) Acceptances, " to pay as remitted for,"(^) " to pay 
 when in cash for the cargo of the ship Thetis,"(m) " to pay 
 when goods consigned to him (the drawee) were sold,"(n) an 
 answer that a bill would not be accepted till a l^avy bill was 
 paid, have respectively been held to be conditional acceptances. 
 iSo where, on the presentment of bills for acceptance, the 
 drawee said he would have accepted them if he had had 
 
 (7i) Cbitty on Bills, 9th ed. 300 ; Marius, 68, 85 ; and see the observations 
 of Baylcy, J., in Sebag v. Abitbol, 4 M. & Sel. 463 ; 1 Stark. 79 (8 E. C. I. 
 R.), S. 0.-; and the answers of the Judges to the third question put to them 
 in Rowe v. Young, 3 B. & B. 344 (6 E. C. L. R) ; 3 Bligh, 391, S. C. ; Outli- 
 ■waite V. Lnntley, 4 Camp. 179. Acquiescence in an acceptance at a longer 
 date destroys the remedy against the prior parties according to the Scotch 
 law. Glen, 3d ed. 115. So it did according to the old French law. Poth. 49. 
 The Code de Commerce, Art. 134, avoids conditional acceptances, but allows 
 acceptances for part of the sum and'acceptances varying in the place of pay- 
 ment. Art. 123. A varying acceptance, though void as to other parlies, 
 ■would be binding between the contracting . jjarties. Nouguier, Lettres d,e 
 Change, vol. 1, p. 334. 
 
 (i) Sproat v. Matthews, 1 T. R. 183 ; Bentinck v. Dorrien, 6 East, 200 ; 2 
 Smith, 336, S. C. ; Chit. 9lh ed. 301. 
 
 (fc) Sproat V. Matthews, 1 T. R. 183. 
 
 (0 Banbury v. Lissett, 2 Stra. 1311. 
 
 (ni) Julian v. Shobrooke, 3 Wils. 9. 
 
 (71) Smith V. Abbott, 2 Stra. 1153. 
 
 (1; Where a bill addressed to the drawees at their place of residence is ac- 
 cepted payable, at a different town, this is a material variation, and a pr^ent- 
 ment at that other town will not charge the drawers. Kiagara Bank v. Fair- 
 man Co., 31 Barbour, 403. When a bill is made payable at a particular place, 
 a general acceptance is in legal effect aa acceptance to pay at the place. Alden 
 V. Barbour, 3 Indiana, 414. A bill addressed generally to the drawee in a 
 city, may be accepted payable at a particular bank in the same city. Meyers 
 V. Standart, 11 Ohio (N. S.), 39 ; Niagara Bank v. Fairmau Co., 31 Barbour, 
 403 ; Troy City Bank v. Lauman, 19 New York, 477, 
 
OF ACCEPTANCE. 303 
 
 certain funds which he had not heen able to obtain from 
 France, but that when he did obtain them he would pay the 
 bill, this was held to amount to a conditional acceptance.(o) 
 The words " accepted payable on giving up a bill of lading," 
 constitute a conditional acceptance, but not a further condition 
 to the acceptor's liability, that the bill of lading shall be given 
 upon the day of maturity of the bill.(p) When the acceptance 
 is in writing, and absolute, it may be suspended on a condition 
 by another contemporaneous writing.(g') 
 
 But a mere oval condition (at least, if contemporaneous with 
 the acceptance) is inadmissible .in evidence to qualify the 
 absolute written engagement, even between the original parties. 
 " This would be," says Lord Ellenborough, " incorporating 
 with a written contract an incongruous parol condition, which 
 is contrary to first principles."(r)(l) -And though the condition 
 be written on a distinct paper, it cannot be available against an 
 indorsee ignorant of the existence of such a paper.(s) 
 
 *Though, when the condition is performed, a condi- 
 tional acceptance becomes absolute, yet, in pleading, it '- -' 
 should be declared on as a conditional acceptance, with an 
 averment that the condition has been fulfilled.(i)(2) 
 
 (0) Mendizabal v. Machado, 6 C. & P. 218 (25 E. 0. L. R.) ; 3 M. & Scott, 
 841, S. C. 
 
 {p) Smith V. Vertue, 30 L. J., 0. P. .56; 9 C. B., N. S. 214 (99 E. C. L. 
 K.), S. C. 
 
 (?) Bowerbank v. Monteiro, 4 Taunt. 844 ; but see 1 & 2 Geo. 4, c. 78, s. 
 2; 19 & 20 Vjct. c. 97, s. 6 ; and see Spiller v. Westlake. 2 B. & Ad. 157 (22 
 E. C. L. R.) ; Gibbon v. Scott, 2 Stark. 286 (3 E. C. L. R.). 
 
 (r) Hoare v. Graham, 3 Camp. 57 ; Adams v. Wordley, 1 M. & W. 374 ; 2 
 Gale, 89 S. C. ; Besant v. Cross, 10 C. B. 896 (70 E. C. L. R.). And see 
 ante, Chap. VIII., p. 100, n. (to). 
 
 (») Bowerbank v. Monteiro, 4 Taunt. 844. See Chapter VII. on Ibeegtj- 
 
 LAK InSTKUMBNTS. 
 
 (0 Langston v. Corney, 4 Camp. 176 ; 1 Marsh. 176 ; 1 D. & R., K. P. C. 
 
 (1) An acceptance of a bill is an absolute contract to pay, and it cannot 
 therefore be shown by parol that it was not absolute. Haveriu v. Donnell, 7 
 Smedes and- Marshall, 244. The acceptor is bound to pay the bill according 
 to its terms, a stipulation therein for attorney's fees not excepted. Smith v. 
 Mtincie Bank, 29 Indiana, 158. 
 
 A conditional acceptance docs not render the acceptor liable till the fulfil- 
 ment of the condition. Liggett v. Weed, 7 Kansas, 273. 
 
 (2) If a bill is accepted "to be paid when in funds," and the payee does 
 
304 OF iCCBPTANCE. 
 
 A. partial or varying acceptance varies from the tenor of the, 
 bill, as where it engages to pay part of the sum. Drawee 
 accepted a foreign bill for 1.2.71. \ 8s. id., aa far as 100^. part 
 thereof : he was sued on the acceptance, and it was held good, 
 pro tanto, within the custom of merchants.(M) Or, to pay at a, 
 different time from that at which the bill is made payable by 
 the drawer.(«;) A bill was accepted in this form, "Accepted on 
 the condition of its being renewed till 28th Nov., 1844." This 
 was held to be a varying acceptance on which the holder 
 might insist against the acceptor, and that the word renewed. 
 might be read to mean an extension of the time when the bill 
 was to become payable.(a;) An acceptance which unnecessarily 
 and inaccurately states the time of maturity is not a varyiffg. 
 acceptance.(2^) 
 
 Before the 1 & 2 Geo. 4, c. 78, it was a point much disputedj 
 whether, if a bill payable generally was accepted payable at a 
 
 83 (16 E. 0. L. R.) ; Ralli v. Sanell, 1 D. & R., N. P. C. 33 ; see a form, 
 Swann v. Cox, 1 Marsh. 176 (4 E. C. L. R.). 
 
 («) Wegersloffe v. Keene, 1 Stra. 214. 
 
 (d) Molloy, 283 ; Walker v. Atwood, 11 Mod. 190. In tliis case the accep- 
 tance was lield good within the custom of merchants, but the case is no au- 
 thority to show that the prior parties would not be discharged if such a;n ac- 
 ceptance were taken without their consent. 
 
 (x) Russell V. Phillips, 19 L. J., Q. B. 297; 14 Q. B. 891 (68 E. C. L. B.), 
 S. 0. 
 
 (^) Fanshawe v. Peat, 26 L. J., Ex. 314; 2 H. & N. 1, S. C. 
 
 not except to such acceptance, he cannot resort to the drawer till the acceptor 
 refuses to pay, after he has funds. Andrews v. Baggs, Minor, 173 ; Campbell 
 V. Pettengill, 7 Greenl. 136 ; see Knox v. Reeside, 1 Miles, 294 ; Gallery v. 
 Prindle, 14 Barbour, 186. Where one accepts an order payable out of a cer- 
 tain note, when collected, but dies before the money is collected; and it is 
 afterwards received by his personal representatives, they are liabte'in their 
 representative character upon the contract of their testator. Swansey v. 
 Brack, 10 Alabama, 533. The addition of the word "administrator" to the 
 name of the acceptor of a bill of exchange, does not qualify his liability or 
 make his acceptance a conditional one. Tassey v. Church, 4 Watts. & Ser- 
 geant, 346. W hen a factor accepts a planter's order payable " when in funds," 
 it amounts to a promise to pay out of the first funds of the planter, which shall 
 come into his hands, deducting the necessary advances for plantation expenses; 
 and he cannot defend himself against an action on the acceptance by showing 
 that he has never been in funds over and above the amount of a debt due him 
 by the planter at the time of the acceptance. Hunter v. Ingraham,,l Strob- 
 h9,rt, 271. • 
 
OF ACCEPTANCE. 305 
 
 particular place, sucli au acceptauce was a qualified one. That 
 statute, however, has now settled, tha,t an acceptance, payable 
 at a banker'sjor other particular place,js, as agadnst theaceeptor, 
 a general acceptance, unless the acceptor express, in his accep- 
 tance, that the bill is payable there only ,(>?): and raofc other- 
 wise or.elsewhere.(a)(l) 
 
 If the customer of a banker accept a bill, and make it pay- 
 able at his banker's, that is of itself a sufficient authority 
 *tQ the banker to apply the customer's funds in paying [-^^qc-, 
 the biir.(*) ^ -' 
 
 As to the manner in which a bill drawn or accepted payabla 
 at a particular place should be presented for payment, and as ta 
 the "form of pleading, see the next Chapter on Presentment 
 FOE Payment. 
 
 Although, as we have seen, there cannot be two acceptances 
 on the same bill, except for honour,(c) yet if such a second 
 acceptance be on the bill, it may amount to a guarantee. (c?) 
 
 If the drawee of a foreign bill, drawn in sets, accept both 
 sets, and they are afterwards in the hands of two difi'erent 
 holders, he may become liable to each.(e) 
 
 The liability of the acceptor, though irrevoca;ble when com- 
 
 (2) An acceptance omitting tlie word only, and stating tlie bill to be paya- 
 ble at a parlioular place, and not elsewhere, is a special acceptance. . Siggers 
 V. Nichols, Q. B., H. T. 1839 ; 3 Jurist, 34, S. C. 
 
 (a) It will be observed, that this part of the statute applies to all bills, for- 
 eign as well as inland. See as to the effect of the statute, cap. 14, 
 
 (5) Keymer v. Laurie, 18 L, J., Q. B. 218. 
 
 (c) As to which see Accbptance sdpra Pbotbst. 
 
 (.d) Jackson v. Hudson, 3 Camp. 447. 
 
 (e) See Holdsworth v. Hunter, 10 B. & C. 451 (31 E. C. L. K.) ; Perreira 
 T. Jopp, Ibid. 
 
 (1) When the drawee of a bill accepts payable at a particular place, he is 
 considered the principal debtor, and a suit, as in other cases of a precedent 
 debt or duty, is a sufficient demand ; it will be a good defence, however, to show 
 that he was at the place ready to pay according to the acceptance. Green v. 
 Soings, 7 Barbour, Sup. Ct. 652. When the drawee of a bill payable at sight, 
 accepted it "if it. be presented at a particular time," he will be liable on it, 
 although not presented at that time. Clarke v. Gordon, 3 Richardson,. 311. 
 
 20 
 
306 OF ACCEPTANCE. 
 
 plete,(/) does not attach by merely writing his name, but upon 
 the subsequent delivery of the bill, or upon communication to 
 some person interested in the bill, that it has been so accepted. 
 "La raison est," saj's Pothier, "quele concours devolont^s,qui 
 forme un contrat, est un concours de volbnt^s que les parties se 
 sont r^ciproquement d^clar^s ; sans cela, la volenti d'une'partie 
 ne peut acqu^rir de droit k I'autre partie, ni par consequent Stre 
 irrevocable. Suivant ces principes pour que le contrat entre le 
 proprietaire de la lettre et celui sur qui elle e8ttir6esoitparfait'; 
 il ne suffit pas que celuici ait eu pendant quelque temp's la 
 volonte d'aecepter la lettre, et qu'il ait ^crit au bas qu'il raecep- 
 tait; tant qu'il n'a pas declare eette volonte, le contrat n'est 
 pas paffait ; il peut changer de volonte et rayer son acceptation." 
 
 Hence it follows, that if the drawee has written his name on 
 the bill, with the intention to accept, he is at liberty to cancel 
 his acceptance at any time before the bill is delivered, or at least 
 before the fact Of acceptance is communicated to the holder.(y)' 
 
 r*1 QR1 *^^ ^ banker, with whom a bill is made payable by 
 the acceptor, cancel the acceptance by mistake, without 
 any want of due care, and return the bill so defaced, refusing 
 to pay it, he does not thereby necessarily incur any legal lia- 
 bility .(A) But if the banker, in so doing, be guilty of want of 
 due care, an action lies against him at the suit of the holder, 
 for the special damage actually sustained by the cancellation of 
 the bill. Where an acceptance has been cancelled by mistake, 
 it is the usage in the city of London to return the bill with the 
 words " cancelled by mistake " written on it. The proper and 
 safer mode of cancelling is to draw the pen through the name, 
 so as to leave it legible.(i) 
 
 (/) Thornton v. Pick, 4 Esp. 270 ; Trimmer v. OdOie, Bayley, 6tli ed. 204., 
 
 (g) Cox V. Troy, 5 B. & AW. 474 (7 E. C. L. K.) ; 1 D. & R. 38, S. C. ; see 
 Bentinck v. Dorrien, 6 East, 199 ; 3 bmitli, 337, S. C. ; Mariiis, 30; and see 
 Rrtlli V. Dennistoun, 6 Excli. 483 ; Chapman v. Cottrel, 84 L. J. 186 ; Van 
 Diemen's Bank v. Victoria Bank, L. R., 3 Pr. C. 586 ; 40 L. J., Pr. 0. 28.' 
 
 (7t) Novelli V. Rossi, 8 B. & Ad. 757 (38 E. C. L. R.) ; Warwick v. Rogers, 
 5 Man. & G. 340 (44 E. C. L. R.). 
 
 (i) See the observations of Abbott, C. J., in Wilkinson v. Johnson, 3 B. & 
 C. 438 (10 E. C. L. R.) ; and see Ingham v. Primrose, 38 L. J., C.*P. 3M; 7 
 C. B , N. 8. 83 (97 E. C. L. R.). 
 
OF ACCEPTANCE. 807 
 
 And upon the same principle it has been held that a cancel- 
 lation of the acceptance by mistake made by other parties does 
 not destroy the bill.(A) 
 
 The acceptor is now considered in all cases, as the party pri- 
 marily liable on the bill. He. is to be treated as the principal 
 debtor to the holder, and the other parties as sureties liable on 
 his default.(^) The acceptor of a bill stands for most purposes 
 in the same situation as the maker of a note, and therefore 
 most of the following observations will apply to the latter 
 also.(l) 
 
 (k) Raper v. Birkbeck, 15 East, 17 ; quasre, as to the effect of the decision in 
 Davidson v. Cooper, 11 M. & "W. 778, on some cases ot cancellation. 
 (0 Fentum v. Pocock, 5 Taunt. 193 (1 E. C. L. R.) ; 1 Marsh 14, S. C. 
 
 • (1) The presumption is that the acceptor of a bill of exchange has funds of 
 the drawer in his hands to meet it ; and the possession of such accepted bill 
 hy the drawers is sufficient to entitle them to recover the amount of the ac- 
 ceptor ; and it makes no difference that the drawers took up the hill by giving 
 a new note. Byrne v. Schwing, G B. Monroe, 199. An acceptance is an ad- 
 mission that the acceptor has funds of the drawer. Jordan v. Tarkingdon, 4 
 Devereux, 858 ; Rayborg v. Peyton, 2 Wheat. 385 ; Kendall v. Galvin, 8 Shep- 
 ley, 131 ; Kemble v. Lull, 8 McLean, 278 ; Byrd v. Bertiand, 2 English, 331. 
 An acceptance of a bill is not a collateral engagement to pay another's debt, 
 and is thcrelore not within the statute of frauds ; and when made without con- 
 ditions, it is an absolute engagement to pay the money to the holder. Raborg 
 V. Peyton, 3 Wheaton, 385 ; Storer v. Logan, 9 Mass. 60. Tlie acceptor of a 
 bill is the principal debtor ; he cannot assume the attitude ol a surety, though 
 only an accommodation acceptor, and the equitnble doctrine respecting sure- 
 ties does not apply to him ; and if it did it would not avail him in a suit at law 
 upon a written acceptance, for which by the law merchant there is a sufficient 
 consideration implied. Anderson v. Andeison, 4 Uana, 353. An accommo- 
 dation acceptor of a bill of exchange is a surety as to the drawer, but a prin- 
 cipal as to the holder, although the holder knew him to be tin accommodation 
 acceptor. In re Babcock, 8 Story, 393. An acceptance of a bill by parol is 
 not void for want of consideration, when it appears that there was then a debt 
 due from the acceptor to the drawer, on account of which the bill was drawn. 
 Fisher v. Beckwith, 19 Vermont, 31 ; Walker v. Sherman, 11 Metcalf, 170. 
 The acceptor cannot defend against the payee, on the ground that the accept- 
 ance was withopt consideration (an accommodation acceptance), and so 
 known to the payee. Grant v. EUicott, 7 Wendell, 387; Towsley v. Sumrall, 
 2 Peters, 183 ; Warder v. Tucker, 7 Mass. 458. To entitle the holder of a 
 bill to recover the amount of one who accepted without consideration, he 
 must be an innocent bona fide holder for value in the usual course of business 
 ■without hotice. -Boggs v. Lancaster Bank, 7 Watts & Sergeant, 331. But 
 this case does aot show that the burden of proving this is in the first instance 
 
308 OF ACCEPTANCE. 
 
 The acceptor's liability can only be- diBcbarged by payment, 
 or other satisfaction, by release, or by waiver. 
 
 Payment, satisfaction , and release, we shall consider hereafteij. 
 
 It- is a general rule of law, that a simple contract may, hefwe 
 breach, be waived or discharged, \yitliout a dEse4 and withonjt 
 consideration ; but after br>each there can be no discharge, except 
 by deed, or upon sufficient cousideration,(m) To thisrulfiithas 
 
 (ot) Cora. Dig. Action on the Case in Assumpsit, G ; Fitch v. Button, 5 
 Bast, 230 ; Dobson v. Efepie, 26 L. J., Ex. 241 ; 3 H. & N. 79, S. C. 
 
 on the holder, or that proof of the fact, that the defendant was an accommo- 
 dation acceptor, is enough to cast the burden on him. The mere acceptance 
 of a draft does not give the acceptor a right of action against the drawer- 
 Snydnm v. Coombs, 3 Green, 133. Wliere tlie drawer has paid the bill tp Ihe 
 payees, after the acceptoi-s have refused to pay it, he has the right to sue llie 
 acceptors, in the name of the payee, for his own benefit. Davis v. MeOonnell, 
 8 McLean, 391. If the acceptor of a bill of i exchange, after i^ has come to his 
 hands, put it again in circulation, lie admits it to be a subsisting bill, and can- 
 not be allowed to allege in an action against him, that it was paid before that 
 time. Hinton v. Bank of Columbus, 9 Porter, 463. 
 
 On the acceptance of a bill, the presumption of law is that the drawee is in 
 funds to pay it, and the drawer, if obliged to pay it, may maintain an action 
 against the acceptor on this legal presumption. But when, the eviden(ie.shpws 
 that the acceptance was made without funds, the presumption is on theotli^r 
 side, and there is an implied promise that the drawer put the drawee in funda, 
 Thurman v. Van Brunt, 19 Barbour, 409. The drawer of a bill, not negotia- 
 ble on its face, to whom it has been relumed in default of payment by the 
 acceptor, may maintain an action thereon against the acceptor in his own 
 name without the indorsement or assignnient of the payee. The acceptance 
 is an admission of funds of the drawer in the hands of the acceptor, Coursin 
 V. Leddie's Adm'r, 7 Casey, 506, The drawer, after presentment and refusal 
 by acceptor, may maintain an action against him. Kinney v. Heald, 17 Ar- 
 kansas, .397 ; Pilkington v. Woods, 10 Indiana, 433. An accommodation ac- 
 ceptor who has paid a bill for wliich no funds were provided by the drawer, 
 may recover from him the amount on an implied contract of indemnity. De 
 Barry v. Withers, 8 Wright, 336. Acceptance without payment gives the 
 acceptor no right of aption against the drawer. Planters' Bank v. Douglass, 
 3 Head. 699. 
 
 Although the legal presumption is that the acceptor had fundsof the drawer, 
 and, therefore, that he was the prime debtor ; yet, where bills of exchange are 
 drawn upon letters of credit to enable a party to purchase and ?hip. merchan- 
 dise, this (iresumption is rebutted, and th<j drawer b(:eomes tlie primary debtor, 
 and is liable to the acceptor for his advances. But if the acceptor lias notice 
 that one of two joint drawers of such a bill has merely loaned his name to give 
 currency to the bill, such drawer is no more liable to the acceptor than if he 
 had merely indorsed the bill. Turner v. Browdel-, 5 Bush, 316. 
 
OP ACCEPTANCE. 309 
 
 been repeatedly held that contracts on bills of exchange form an 
 exception, and that the liability *ot' the -acceptor or rsKiq^-i 
 other party remote or immediate, thongh complete, mcy 
 be discharged by an express rennnciation of his claim on the part 
 of the holder(n), without consideration. This exception seems 
 at first sight to violate a fundamental rule, but the reason may 
 be that the distinction between a release under seal and a re- 
 lease not under seal is quite unknown in most foreign countries. 
 An express and complete renunciation by the holder of his 
 claim on afly 'party to the bill is therefore according to the law 
 merchant equivalent to a release under seal. And as it would 
 be highly inconvenient to introduce nice distinctions and nice 
 questions of international law, all the contracts on a foreign 
 bill, though negotiated or made in England, and all the con- 
 tracts on an inland bill, depending, as they do, oil the same law 
 merchant, may be so released. And such a relaxation of the 
 general rule in the case of bills of exchange is not unreasonable 
 on another ground. The money due at the maturity of a bill 
 of exchange is in practice expected to be paid immediately, 
 and, in many cases, with remedies over in favour of the debtor. 
 Parties liable, who are expressly told that recourse will not, in 
 any event, be had to them, are almost sure, in consequence, to 
 alter their conduct and position. Joint indorsees against ac- 
 ceptors : — It was proved that the plaintiffs knew the accept- 
 ance was for the accommodation of the drawer, and that they 
 had said, at a meeting of the defendant's creditors, " that they 
 looked to the drawer, and should not come upon the aceptors." 
 They had at this time goods of the drawer in their hands, which 
 tfterwards turned out of little value. Lord Ellen iiorough di- 
 rected the jury to consider, "whether the language employed 
 by the plaintiffs amounted to an absolute unconditional renun- 
 ciation by .them, as holders of the bill, of all claims in respect 
 of it upon the defendants, as acceptors. In that case the ac- 
 
 (n) TliB law seems now to be so settled in accnrdauce with prior decisions 
 and with the law pf France and other countries, where the distinction between 
 simple contracts and contracts under seal is unknown. " Le cifiancier, peut 
 Iwioncer a son droit d'exiger le pavement de ce que lui doit son dfiiiiteur ; c'est 
 ce qu'on appelle faire remise." (P&rdessus, Droit Commercial, vol. 1, p. 272, 
 6th ed., Paris.) See the judgment of Parke, B., in Foster v. Dawber, 6 
 Exch. 851 ; see also Nouguier des Lettres de Clinnge, vol. 1, p. 353. See also 
 Dobson V. BSfiie, 26 L. J., Ex. 340 ; 2 H. & N. li, S. C. 
 
310 OF ACCEPTANCE. 
 
 ceptors were discharged from their liability ; the holders had 
 made their election, and could now openly proceed against the 
 drawer. On the other hand, if the words only imported that 
 they looked to the drawer in the first instance, that it was not 
 , then necessary to come upon *the acceptors, and that 
 
 L -' they should not resort to them if satisfaction could be 
 obtained in another quarter, they did not waive their remedy 
 by this conditional promise, and the acceptors still continued 
 liable until the bill should be actually paid."(o) Receiving 
 interest from the drawer will not discharge the acceptor, 
 Nothing short of an express discharge will do.(p) Where the 
 discharge is entirely in writing, its interpretation and effect 'm 
 for the Court, where it is not, the question is for the jury. If 
 the renunciation be not express, and for the whole amount, 
 there must be a consideration. ((^Xl) 
 
 (0) Whatley v. Tricker, 1 Camp, 35. 
 
 (p) Dingwall V. Dunster, Doug. 235; and Black v. Peel, and Wolpole v. 
 Pnlteny, there cilert ; Anderson v. Cleveland, 13 East, 480, n. ; Farquliaxv. 
 . Southey, M. & M. 14 (33 E. C. L. R.) ; 3 0. & P. 497 (13 E. C. L. R.), S. 
 C. ; Adams v. Gregg, 3 Stark. 531 (3 E. C. L. R.) ; Stevens v. Tliacker^ 
 Peake, 187. So it lias been held, that a riehl to sue the drawer may be 
 waived. Delatorre v. Barclay, 1 Stark. 7 (3 E. C. L. R.) ; see Cartwrlglit vl 
 Williams, 3 Stark. 340 (3 E. C. L. R.), ante ; Adams v. Gregg, 2 Stark. 531 
 (3 B. C. L R.) ; see Story on Bills, s. 253 ; see also Sterle v. Harmer, 15 L. 
 J., Exch. 217 ; 14 M. & W. 831, S. C., and 4 Exch. 1, in error. As to plead, 
 ina a waiver, see Steele v. Benham, 3 D. & L. 506. 
 
 ig) Parker v. Leigh, 2 Stark. 228 (8 E. C. L. R.) ; Farquhar v. Southey, 2 
 C. & P. 497 (13 B. C. L. R.) ; Owen v. Pizey, 11 W. R., 0. P. 31. 
 
 (1) Judge Story has nut laid down the law so broadly as it is assumed in 
 the text. He says : " Where the renunciation is clear, and the intention to 
 discharge unquestionable, there, if there be a sufficient consideration, or an 
 act done on the part of the acceptor, which might not otherwise liave been 
 done, which affects his interest, the acceptor will be discharged.''' Story on 
 Bills, 8 366. There can be no hesitation in assenting to this statement of the 
 law. But there is nothing peculiar in this doctrine to bills of exchange, It is 
 the application only of principles well settled in all other classes of contract, 
 It is to be observed, also, that bills or notes are not within the rule that simple, 
 contracts may be discharged by parol before breach ; it would be more accu- 
 rately expressed, to say that executory contracts may be discharged or varied 
 by parol before breach, and tlien I am not aware of any principle or cases 
 which would confine it to simple contracts. If A. agreed to build a house for 
 B., or to sell him certain materials, whether by articles under seal or not, A. 
 ^nd B. may before breach vary such agreement by parol. But if the con- 
 sideration on either side is executed, or just so far as it is executed, it is no 
 
OF ACCEPTANCE. 311 
 
 The cancellation of the acceptor's name by the holder is a 
 vaiver of the acceptance. Where a third person cancels, it is 
 a question for the jury whether that cancellation were with the 
 assent of the holder.(r) 
 
 ' *rhe liability of the acceptor, as such, will also be extin- 
 guished, by taking from him a co-extensive security by 
 specialty .(s) But if the new security recognize the bill or note 
 as still existing, it is not extinguished. (<) Where one of three 
 partners, after a dissolution of partnership, undertook, by deed 
 made between the partners, 'to pay a particular partnership 
 debt on two bills of exchange, and that was communicated to 
 the holder, who consented to take the separate notes of the one 
 partner for the amount, strictly preserving his right against all 
 three, and retained possession of the original bills, it was held 
 that, the separate notes having proved unproductive, he migbt 
 still resort to his remedy against the other partners, and that 
 the taking, under these circumstances, the separate notes, and 
 even afterwards renewing them several times successively, did 
 *not amount to satisfaction of the joint debt.(u) But, 
 in general, the taking a separate bill of one of two joint '- -■ 
 acceptors of a former bill is a relinquishment of all claim on 
 the former security .(x) 
 
 A plea of waiver must state that the party waiving was the 
 holder of the bill at the time of the waiver.(2/) 
 
 (r) Sweeting v. Halse, 9 B. & C. 365 (17 E. C. L. R.) ; 4 M. & R. 287, 
 S.C. 
 
 (») Ansell V. Baker, 15 Q. B. 30 (69 B. C. L. R.). 
 
 (t) Twopenny v. Young, 3 B. & C. 308 (10 E. C. L. R.) ; 5 D. & R. 35!), 
 S. C. 
 
 («) Bedford v. Deakin, 3 B. & Aid. 310 ; 3 Stark. 178 (3 E. 0. L. R.), S. C. 
 
 (!») Evans v. Drummond, 4 Esp. 89 ; Reed v. White, 5 Esp. 133 ; Thomp- 
 son V. Pereival, 5 B. & Ad. 935 (37 E. C. L. R.) ; 3 N. & M. 667, S. C. 
 
 iy) Steele v. Harmer, 15 L. J., Bxch. 217 ; 14 M. & W. 136, S. C. As to 
 Ibis point affirmed in error, 4 Excli. 1. 
 
 longer an executory, but an executed contract, and an accord without satis- 
 faction is no bar. A bond, a bill, a note, the price to be paid for making a 
 coat, building a house, or selling a barrel of flour, if the service has been per- 
 fV'i'ined, or the merchandise delivered, though a credit is given, are debita in 
 present% solvenda in future, and cannot be released, unless by an instrument 
 under sea), or an agreement founded upon sufficient consideration. 
 
312 OF ACCEPTANCE. 
 
 By acceptance, the drawee admits the signature and capac- 
 ity of the drawer, and cannot, after thus giving the hill 
 cu-rreney, be admitted to prove that the drawer's signature was 
 forged.(2;)(l) He moreover admits, and so does the maker of a 
 promissory note, the then capacity of the payee, to whose order 
 the bill or note is made payable, to indorse. Hence the accep- 
 tor is estopped from saying that the payee being a bankrupt 
 could not indorse,(a) and even from saying that a second bank- 
 ruptcy before the acceptance precluded him from indorsing, 
 though the effect of such second bankruptcy be(6) to vest, ipso 
 facto, all the bankrupt's property in his assignee8.(c) iN'either 
 can the acceptor be allowed to defeat the indorsement by set- 
 ting up the infancy of the payee.(ri) Ifor can the acceptor plead 
 that the drawer to whose order the bill was made payable, 
 being a corporation, had no authority to indorse ;(e) nor that 
 the drawer was a married woman, although as tjie husband 
 
 (2) Priee v. Neal, 3 Burr. 1354 ; 1 W. Bl. 390, S. C. ; Portlionse v. Parker, 
 1 Camp 83 ; Prince v. Brunatte, 1 Bing. N. C. 435 (37 E. C. L. R.) ; 1 Scott, 
 842; 3 Dowl. 383, S. C. ; Wilkinson v. Lutwidge, 1 Stra. 648; Jenys t. 
 Fawler, a Stra. 946 ; and see Bass v. Clive, 4 M. & Sel. 13 ; 4 Camp. 78, S. 
 C. ; Phillips V. Ifli Tliurn, L. R., 1 C. P. 463 ; 35 L. J: 220, S. 0. 
 
 (a) Drayton v. Dale, 2 B. & (J. 293 (9 E. C. L. R.) ; 3 D. & Ry, S84, S. C. ; 
 Braithwaite v. Gardiner, 8 Q. B. 473 (55 E. C. L. K.). 
 
 (J) 6 Geo. 4, c. 16, s. 127. 
 
 (c) Pitt V. Chappelow, 8 M. & W. 616. 
 
 (,d) Taylor y. Crocker, 4 Esp. 187 ; Jones v. Darch, 4 Price, 300. 
 
 («) Halifax v. Lyle, 19 L. J., Exch. 197 ; 3 Exch. 446, S. C. 
 
 (1) An acceptor is bound to know tUe drawer's handwriting, and cannot 
 resist payment to a bona fide holder, though the bill be a forgery. Bank of 
 United States v. Bank of Georgia, 10 Wheaton, 338 ; Levy v. Bank of ithe 
 United atates,- 1 Binney, 27 ; S. 0. 4 Dallas, 234. The acceptance of a bill is 
 an admission of its execution by the drawee. Peoria & Oquawha Railraad 
 Co. V. Neill, 16 Illinois, 269. Acceptance of a liill admits the signature of Ibe 
 drawer, but not of the payee, whether it be payable to the drawer's own order 
 or to that of another person. Williams v. Drexel, 14 Maryland, 566; Claflin 
 V. QriflBn, 8 Boswortli, 689. An acceptance is an admission of funds. Gil- 
 lilan V. Myers, 31 Illinois, 525. The drawee is bound lo know the handwrtk 
 ing of the drawer, and if the drawer's name is forged, he must bear the loss. 
 But if the draft has been altered to a larger sum, he can recover hack the ex- 
 cess over the amount of the genuine draft. National Park Bank v. Ninth 
 National Bank, 46 New York, 77 ; 55 Barbour, 87; 7 Abbott, Pr. N. S. 130; 
 see Hoffman v. Bank of Milw^iukee, 12 Wallace, 181. 
 
OF ACCEPTANCE. 313 
 
 may sue or indorse, the conseqaence may be that the acceptor 
 may possibly be compelled to pay the bill twice.(/") Nor that 
 the drawing and first indorsing were in the name of a dfe- 
 eeased person. (^) But the acceptance of a bill drawn .and 
 indorsed in the name of a really existing person is no Ad- 
 mission of the handwriting of the indorser,{h) unless at '- -■ 
 the time of the acceptance the drawee knew of the forgery, 
 and intended that the bill should he put into circulation by a 
 forged indorsement.(i) And the acceptance of a bill purporting 
 to be already indorsed 'by. the payee, not being the drawer, is 
 no admission of the genuineness or validity of the indor3ement,(j) 
 and it is conceived that the law is the same though the bill be 
 payable to the drawer's own order,(/c) So where the drawing 
 is by procuration, the authority of the agent to draw is admit- 
 ted, but not his authority to indorse.(^) Bat where the bill is 
 drawn in s.fictilious wame, the acceptor undertakes to pay to an 
 indorsement by the same hand.(?ri.) 
 
 A forgery is incapable of ratification,(n) but if the drawee 
 has once admitted that the acceptance is in his own hand- 
 writing, and thereby given currency to the bill, he cannot 
 
 (/) Smith V. Maisack, 18 L. J., C. P. 68 ; 6 G. B. 486 (60 E. C. L. E.). 
 
 {g) Ashpitle v. Bryan, 32 L. J., Q. B. 91 ; 3 Best & S. 474 (113 E. C, L. 
 E.) ; affirmed in error, 33 L. J., Q. B. 338. 
 
 (7i) Smith V. Chester, 1 T. R. 655 ; Carvick v. VIckery, Doug. 2d ed. 658, 
 n. 134. 
 
 (j) Beeman v. Dnck, 11 M. & W. 251. 
 
 (i) Tucker v. Robarts, 18 L. J., Q. B. 1G9 ; 23 L. J., Q. B. 270 ; in error, 
 16 Q. B. 560 (71 E. C. L. R.), S. C. 
 
 (ft) Story on bills, p. 489 ; bat see a dictnm of Patteson, J., in Tucker v. 
 Robarts, supra ; Beeman v. Dijck, supra ; Garland v. Jacomb, L. R., 8 Exoh. 
 216. 
 
 (0 Robinson v. Yarrow, 7 Taunt. 455 (3 E. C. L. R.) ; 1 Moore, 150 ; See 
 ante, p. 33. 
 
 (m) Cooper v. Mayer, 10 B. & C. 468 (21 E. C. L. R.) ; 5 M. & R. 387, 
 S. C. ; Beeman v. Dnck, 11 M. & W. 351 ; and see Taylor v. Croker, 4 Esp. 
 187; Bassv. Clive, 4 M. & S. 18 ; 4 Camp. 78, S. C. See Phillips v. Im 
 Thnrn, 35 L. .T., C. P. 320 ; L. R., 1 C. P. 463, Si 0. It seems that a bill 
 drawn and indorsed in a fictitious or forged name, to the knowledge of the 
 drawer, shnnlil be declared on as payable to bearer. See Phillips v. Im Thurn, 
 ante, and Beeman v. Duck, 11 M. & W. 251. 
 
 (») Brook V. Hook, L. R., 6 Exch. 89 ; 40 L. J. 50. 
 
314 OF ACCEPTANCE. 
 
 afterwards exonerate himself hy showing that it was 
 forged.(o)(l) 
 
 By paying one forged acceptance a man is not estopped 
 from setting up that defence in the case of another similar 
 bill.(p) 
 
 When goods or bills of lading are sent to the consignee ac- 
 companied by a bill ,of exchange for his acceptance, he must 
 accept the bill before he can acquire or transfer any property 
 in the goods or bills of lading.(5') 
 
 (0) Leach v. Buchanan, 4 Esp. 236, so held by Lord BUenborougb, . ^ 
 (ij) Monisv. Beihell, L. 1{.,5C. P. 47. "' ' 
 (g) Shepherd v. Harrison, L. R., 5 H. L. 116 ; 40 L. J., Q. B. 149. 
 
 (1) Where the maker of a note draws it payable to a real person and forges 
 his indorsement, and puts the note into circulation, in an action by a bonajMe 
 holder against the maker, proof of the indorsement is nnnecesssiry ; tlic maker 
 •will be estopped from saying that it is not genuine. Meacher v. Fort, 3 Bill 
 (South Carolina), 227. A party indorsing a pronfiissory note impliedly afBrms 
 its genuineness, as well as that of all previous indorsements ; and though hi; 
 indorsee in declaring against him, may, in usual form, allege the making of 
 the note' and its indorsement to the defendant, yet he cannot he requiredto 
 prove it. Woodward v. Harbin, 1 Alabama, 104. If the maker of a note 
 makes it payable to a fictitious person, and puts it in circulation with the fic- 
 titious name written on it, or if he makes it payable to a real person and forgfs 
 his indorsement or procures it to be done, and then puts it in circulation, lie 
 is estojjped to say that it is not genuine. Fort v. Meacher, Kiley,. 248. A 
 note payable to the order of a real person, and indorsed in a handwriting rer 
 sembling and intended to pass for his, cannot be considered as payable to a 
 fictitious payee, and so negotiable without being indorsed.. Dana v. Uniler- 
 wood, 19 Pick. 99. A paper purporting to be a bill of exchange, having a 
 blank for tlie payee's name, may be filled up at any time by a bona fide hoHet ; 
 but until it is so filled up, a suit will not lie on it against the acceptoi> GreeBr 
 how v. Boyle, 7 Blackford, 56. 
 
 The maker of a note cannot defend an action brought by an indorsee upon 
 the ground that the payee was an infant. Garner v. Cook, 30 Indiana, 331. 
 An acceptor of a bill cannot plead that tlie drawer is a married woman, and 
 he is estopped from denying or disputing her competency, , Cowlon v. Wick- 
 ersham, 4 P. F. Smith, 303. 
 
OF PRESENTMENT FOR PAYMENT. 
 
 315 
 
 *CHAPTER XIV. 
 
 OF PRESENTMENT FOR PAYMENT. 
 
 [*201] 
 
 HOW MADE, 201 
 
 IN CASE OF BANKBOPTCT OK IN- 
 SOLVENCY, .... 203 
 nNMBCESSAIlY TO CHAKGB A 
 
 GUAKANTOB 203 
 
 WHBKE DRAWEE ABSCONDS, . 203 
 
 IN CASE OF drawee's DEATH, . 203 
 
 OF holder's death, . . . £03 
 
 WHEN TO BE MADE, . . . 203 
 
 TIME, HOW COMPUTED, . . 203 
 
 MONTHS, ..... 204 
 
 DAYS 304 
 
 BILLS AND NOTES AT SIGHT, . 204 
 
 USANCE, 204 
 
 OLD AND NEW STYLE, . . 203 
 
 DAYS OF GRACE, .... 205 
 WHAT IN DIFFERENT COUNTRIES, 205 
 HOW RECKONED, .... 206 
 SUNDAYS AND HOLIDAYS, HOW 
 
 RECKONED, .... 206 
 
 BANK HOLIDAYS, .... 206 
 PIIESENTMENT BEFORE EXPIRA- 
 TION OF DAYS OF GRACE, . 207 
 ON WHAT INSTRUMENTS DAYS OF 
 
 GRACE ALLOWED, . . . 207 
 
 OP A BILL PAYABLE AFTER 
 
 SIGHT, 207 
 
 OP A BILL OP EXCHANGE PAYA- 
 ABLE ON DEMAND, . . . 307 
 
 GENERAL RULE 20-' 
 
 DIFFERENT SORTS OP INSTRU- 
 MENTS PAYABLE ON DEMAND, 308 
 OF A COMMON BILL OF EXCHANGE 
 
 PAYABLE ON DEMAND, . . 209 
 OF A CHECK 209 
 
 OF A COMMON PROMISSORY NOTE 
 
 PAYABLE ON DEMAND, . . 209 
 
 OF A BANK NOTE, . . .210 
 
 OP OTHER BANKERS' PAPER, . 210 
 WHEN NO TIME OP PAYMENT IS 
 
 SPECIFIED, .... 210 
 
 AT WHAT HOUR, . . . .211 
 
 WHERE, WHEN A BILL IS MADE 
 PAYABLE AT A PARTICULAR 
 
 PLACE, 211 
 
 IN AN ACTION AGAINST INDOR- 
 
 SER, 213 
 
 PLEADING, 213 
 
 WHEN A NOTE IS MADE SO PAY- 
 ABLE 214 
 
 SUPPLEMENTARY MEMORANDUM, 214 
 CONSEQUENCE OP NOT DULY PRE- 
 SENTING, 315 
 
 PRESENTMENT NOT NECESSARY 
 
 TO CHARGE ACCEPTOR, . .315 
 
 WHEN NEGLECT TO PRESENT EX- 
 CUSED, . . . . / . 315 
 OP BILL SEIZED UNDER EXTENT, 215 
 BY CIRCULATING, . . . 316 
 BY THE ABSCONDING OF THE 
 
 DRAWEE, 316 
 
 BY Ji-BSBNCE OP EPPECTS IN THE 
 
 drawee's HANDS, . . . 216 
 
 NOT BY DECLARATION OF AC- 
 CEPTOR THAT HE WILL NOT 
 PAY, .... .316 
 
 BY RETURNING NOTES, . .216 
 
 ADVANTAGE FROM NEGLECT, HOW 
 
 WAIVED 217 
 
 PLEADING, 217 
 
 EVIDENCE OP PRESENTMENT, . 217 
 
 A PERSONAL demand on the drawee or acceptor is not iieces- 
 sary.(a) It is sufficient if the bill be exhibited and *pay- r^onoi 
 inent be demanded at his usual residence or place of 
 
 (a) And it has been held in America, that if made by a notary on the drawee 
 in the street, away from his place of business, it is insufficient. Byles on Bills, 
 5lh American, edition, p. 828. 
 
316 OP PRBSENTMEST FOR PAYMENT. 
 
 business, of his wife or other agent ; for it is the duty of an 
 acceptor, if he is not himself present, to leave provisipn f ir the 
 payinent.(6)(l) And it is sufficient if payment be demanded of 
 
 CJ) Matthews v. Haydon, 2 Esp. 509 ; Brown v. M'Dermot, 5 Bsp. 265. If 
 the bill be payable at a particular place, see post. 
 
 (1) A demand by a notary in the street, upon the acceptor of a bill pnyable 
 generally, is not a suflBcient demand. It should be made at his place of busi'- 
 neas. King V. Holmes, 11 Pcnna. State Rep. 465. The general rule is, (hat 
 where a bill is accepted by partners, the presentment for payment should be 
 at their place of business, or at the dwelling-house of either of them. And 
 if a draft is addressed to the acceptors at a particular place, that will be pre- 
 sumed to be their place of business. The Otsego County Bank V. Weaver, 
 18 B'arbour, S. C. Rep. 290. Demand must be made on all the makers of 
 a joint note. Arnold v. DreSser, 8 Allen, 435 ; Blake- v. McMiHen, 32 Iowa, 
 358. Refusal by a dlerk at the counting house of -drawee, is snflScient without 
 evidence of his authority. Stainbaek v. The Bank of Virginia, 11 Graltan, 
 260. When demand is made the liill itself must be exhibited. Freeman v. 
 Boynton,'7 Mass. 483 ; Masson t. Lake, 4 Howard, U. S. Rep. 263 ; Draper 
 V. Clemens, 4 Missouri, 53. See Posey v. Decatur Bank, 12 Alabama, '803; 
 Bank of VeTgennes v. Cameron, 7 Barbour, Sup. Ct. 143 ; Whitwell v. John- 
 son, 17 Mass. 499 ; Smith v. Gibba, 2 Sniedes & Marshall, 479 ; Nailer v. 
 Bowie, 3 Maryland, 251. A demand of payment of a lost note or present- 
 ment of a copy is sufiBcient, and satisfies the usual averment of due present- 
 ment, Hinsdale v. Miles 5 Conn. 331. It is sufficient to constilfute a demand 
 and refusal to pay a note that the maker, on the day it becomes due, calls on 
 the holder at his store where the note is, and informs him that he cannot and 
 shall not pay it, and desires him to give nolice to the indorser, though the 
 note is not produced. Gilbert v. Dennis, 3 Mete. 495. A notice sent the 
 maker of a note through the post oflSce, where his residence is known, that 
 his note is overdue and unpaid, is not a sufBcient demand to charge the in- 
 dorser. Stuckert v. Anderson, 3 Wharton, 116 ; Barnes v. Vaughan, 6 Bhodp 
 Island, 259 ; Hartford Bank v. Green, 11 Iowa, 476. 
 
 On the day a bi'l was due a notary went with it several times to the office 
 of the acceptor, but found the doors closed and no person there to answer his 
 demand. Tliis was held a gtiod demand although one of the firm resided in 
 the place. Wiseman v. Chiapella. 28 Howard (S. C), 368 ; Bank of Louisi. 
 ana v. Satteifleld, 14 Louisiana Annual 80. Where inquiry was made bothrat 
 the maker''s last place of business and his last place of residence, from which he 
 had recently removed and he could not be found, it is sufBcient, and the com- 
 plaint in a suit against the indorser properly avei's presentment. Patoj T. 
 Lent, 4 Duer, 331. As to what diligence in seeking the maker or acceptor 
 will excuse dfemaftd, see Gage v. Dubuqufe Railroad Co , 11 Iowa, 310; Graf- 
 ton Bank *. Cox, 13 Gray, 503 ; Baura^rdner v. Beeves, 11 Casey, 850 ; 
 Laughlinv. Marshall, 19 Illinois, 390; Sa^er v. Whitley, 10 Maryland,, 98; 
 PlaklO V. Pntbhin, 36 Missouri, 389 ; Packard v. Lyoti, S Dtier, 83 ; Benedict 
 T. Caffe, Ibid. 236. 
 
 Although a bill payable at a particular battk is iin point of fact in te 
 
or PRESENTMENT FOR PAYMENT. 317 
 
 an agent who has been authol'ized to pay, or has usually paid 
 bills for the drawee. 
 
 Where a promissory note is payable at either of two places, 
 presentment at either of them will suffice. Thus, where a 
 country bank note was made payable both at Tunbridge, and 
 in London, presentment in London was held sufficient, though 
 it was proved that, had it been presented at Tunbridge, the 
 nearest place, it would have been paid.(c) But it is conceived 
 thgt presentnieut of a check to the Loudon bankers of the 
 drawee, though described on the check as agents, is insufficient, 
 for the obligation to pay a check must in general depend on 
 the state of the drawer's account, which the London agents 
 may not know.(c?) The bill or note ought to be exhibited,(f) 
 for it should be then and there delivered np. The party pre- 
 senting should also be ready and authorized to receive the 
 money, and has "no right (^.t least, unless, usage requires it) to 
 impose on the drawee any trouble or risk iij remitting the 
 mpney elsewhere.(/) 
 
 The bankruptcy or insolvency of the drawee is no excuse for 
 a neglect to present for payment ; for many means may i;emain 
 of obtaining payment, by the assistance of friends or otherwiBe.(^) 
 It has been held in the King's Bench, that the shutting up of a 
 bank, when any demapd there made would have been inaudi- 
 ble, is substantially a refusal by the bankers to pay their notes, 
 to all the world.(A) But it was decided in the same case, on 
 
 (c) Beecliing v. Gower, Holt, N. P. C. 313 (3 E. C. L. R). 
 
 (d) Bailey v. Bodeuham, 33 L. J., C. P. 353. 
 
 («) See the American authorities, Byles on Bills, 4h American edition. 
 
 (/) See Biiiley y. Bodenham, 83 L. J., C. P. 255. 
 > (jg) Russell v. Lsingstaffe, Doug. i% ; Warrington v. Furbor, 8 East, 245 ; 
 Nicholson v. ©outhit, 2 H. Bl. 609 ; Bxparte Johnslonej 1 Mont. & Ayr. 633 ; 
 8 Deac. & Chitty, 433, S. C. ; Esdaile v. Sowerby, 11 East, 114 ; LaflBtte v. 
 Slatter, 6 Bing. 633 (19 E. C. L. R.) ; 4 M. & P. 457, S. C. ; Camiilge v. 
 AUenby, 6 B. & C. 378 (13 E. C. L. R.) ; 9 D. & R. 891. 
 
 (A) Howe V. Bowes, 16 East, 113. 
 
 bank, but the bank is wholly ignorant of the fact ; as where a bill was sent 
 in a letter, ai^d thp postman laid the letter on the cashier's desk, but it slipped 
 through a crack and was not seen ; the fact that the bill was thusreally in the 
 bank, does not constitute a presentment. Chicopee Bank v. Philadelphia 
 Bank, 8 Wallace, 641. 
 
318 OF PRESENTMENT FOE PAYMENT. 
 
 error in the Exchequer Chamber, that an allegation in the 
 declaration, that the makers became insolvent, and ceased, and 
 wholly declined and refused, then and thenceforth to pay, at 
 the place specified, any of their notes, is insufficient, not being 
 r*9n<?1 *6C[uivalent to an allegation of pre8entment;.(?) But it 
 is conceived, notwithstanding the observations of the 
 Court in the l^st case, that it cannot be necessary for the holders 
 of the notes of a bank which has notoriously stopped payment, 
 and is shut up, to go through the empty form of carrying their 
 notes up to the bank dOors, and then carrying them ' homji 
 again. (A) 
 
 A presentment for payment is now decided not to be neces- 
 sary in order to charge a man who guarantees the due payment 
 of a bill or note.(^) And it had before been held that where a 
 party was a guarantee for the vendee of goods, who had 
 accepted a bill for the amount, and then became bankrupt, the 
 notorious insolvency of the vendee was sufficient so far to excuse 
 the drawer as to enable him to charge the guarantee, unless it 
 could have been shown that the bill would have been paid if 
 duly presented, though it would have been otherwise in an 
 action on the bill.(?n) 
 
 If the drawee has shut up his house, the holder must inquire 
 after him, and attempt to find him out.(l) 
 
 (0 5 Taunt. 30 (1 E. C. L. R.) ; S. C. in error. 
 
 (fc) Since the above observations were -written, I observe that the point has 
 been so ruled at Nisi Prius and afterwards at Chambers. See Hendersoav. 
 Appleton, Chitty, 9th ed. 356, and Rodgers v. Langford, 1 C. & M. 637, wliere 
 Lord Lyndhurst says, " It is possible, if yon had returned the notes in due 
 time, that miglit.hitve done instead of presentment." See also Turner v. 
 Stones, 1 Dow. & L. 133 ; Sands v. Clarke, 19 L. J., 0. P. 84 ; Main's Case, 
 5 Rep. 31a; Robson v. Oliver, 10 Q. B. 704 (59 E. C. L. R.). 
 . (0 Hitchcock v.. Hnmfrey, 5 M. & G. 559 (44 E. C. L. R.) ; Walton v. Mas- 
 call, 13 M. & W. 453, 
 
 (w) Warrington v. Furbor, 8 East, 343.; 6 Esp. 89, S. C. 
 
 (1) Want of demand is excused when the drawee cannot be found. Stewart 
 V. Eden, 3 Cainea, 131 ; Galpin v. Hard, 3 McCord, 394; Porter v. Jiidson, 
 1 Gray, 175; McKee v. Boswell, 33 Missouri, 567. Where the dwelling- 
 house of place of business of the drawee of the bill is shut up, inquiry 
 should be made in the neighborhood in orv.ler to excuse pre8entinemt.ifl Ellis 
 
OP PRESENTMENT JOE PAYMENT. 319 
 
 If the drawee be dead, presentment must be made to his 
 personal representatives ; and, if he have none, then at his 
 house.(n)l 
 
 If the holder die, presentment should be made bj his personal 
 representatives. 
 
 (n) Chitty, 9th ed. 357. 
 
 V. Commercial Bank, 7 Howard, Miss. 294. "Where the maker of a promis- 
 sory note has absconded from his usual place of residence before the time of 
 payment, it is not necessary to prove an Inquiry for him there, and an effiut 
 to obtain payment, in order to charge the indorser. Lehman v. Jones, 1 Watls 
 & Serg. 126. Oontra. Wyman v. Adams, 12 Cushing, 210. If the drawee 
 of a bill remove from his usual place of residence to another in the same State 
 orltingdom, the holder is bound, in order to charge the indorser, to use rea- 
 sonable diligence in finding the latter, and if he succeed, jaresent the bill for 
 payment. Reid v. Morrison, 2 Watts & Serg. 401 ; see Gilmore v. Spies, 1 
 Barb. 158. Where the malier of a promissory note abandons his business and 
 residence, and removes intt) another State, before the maturity of the note, 
 the holder, if it be not proved that he received the note after the maimer's re- 
 moval,, is not bound, in order to charge the indorser, to demand payment of 
 llie malier in the Male to which he has removed ; but he is bound to demand 
 payflicnt at the maker's last residence or place of business within the Slate 
 where he made the note, if he can find it by the use of due diligence. Wheeler 
 V. Field, 6 Mule. 290. A change of residence by the maker to a diflercnt 
 State, dispenses with demand at his last place of residence in the State from 
 ivhicli he removed. Foster v. Julien, 24 New York, 28. Where at the matu- 
 rity of a draft, the firm on which it was drawn in the city of JSTew Orleans had 
 ho place of business, and could not be Ibund there, and had then ceased to 
 exist as a firm, it was held that a protest was unnecessary to bind the drawer. 
 Nelson v. Middleton, 14 Louisiana Annual, 484. The known bankruptcy or 
 insolvency of the acceptor or maker, will not excuse demand and notice. 
 Benedict v. Cafi'e, 5 Duer, 220. 
 
 (1) The death of the maker of a note, and the insolvency of his estate, do 
 not dispense with the necessity of demand and notice in order to charge an 
 iridorser. Johnson v. North, 1 Bailey, 482 ; Juniata Bank v. Hale, 16 Serg, 
 & Hawle, 1.' 9. But, where the maker of a negotiable note is dead at the time 
 of indorsement, no demand is necessary to charge the indorser. Davis v. 
 Francisco, 11 Missouri, 572. To make a demand on the personal representa- 
 tive of the acceptor good, proof must be made of the death of the party and 
 of the appointment of the administrator or executor. Wtems v. Farmers' 
 Bank, 15 Maryland, 231. Demand may be made by any one authorized by 
 the holder, and pnssession of tlie note is suflScient evidence of autliority. 
 Cole V. Jessup, 10 New York, 96. A notary cannot present a bill or note by 
 deputy unless authorized by statute or usage of the place where presentinent 
 is made. Cribbs v. Adams, 13 Gray, 597; Locke v. Huling, 24 Texas, 311. 
 Deliiand on foreign bill must be by notary. Meltonberger v. Spaukling, 33 
 Missouri, 421. 
 
320 OF PRESENTMENT FOR PAYMENT. 
 
 In treating of the time when preseDtment is to be made, it 
 will be peet'ssary to consider, first, how, on the various sortsof 
 bills, time is computed, and then on what bills, and to whaili 
 extent, days of grace are allowed. 
 
 In Acts of Parliament passed before the end of the year 
 1850,(o) in de^ds, in other contracts and written instruments, 
 r*204-l *'i"^ ^° legal, proceedings, the word month is taken to 
 I mean a lunar, and not a calendar, month, unless there 
 
 be something in the context to indicate the latter sense •,(p) but 
 in matters ecclesiastical, in Acts of Parliament passed after the 
 year 1850,(5') and by the custom of trade, in bills and notes, a 
 month is deemed to be a calendar or solar month.(r) 
 
 The inequality in the length of the respective months may 
 sometimes occasion a difficulty, but it is said to be a rule not 
 to extend the time at which the bill. falls due beyond the month 
 in which it would have fallen due, had that month been of the- 
 length of thirty-one days. Thus, if a bill at one month be drawn 
 on the 31st of January, it will be due on the 28th of February, 
 and, with the days of grace, payable on the 3d of March.(^)(l) 
 
 (o) 13 & 14 Vict. c. 21, 8. 4. 
 
 (p) Lang V. Gale, 1 M. & Sel. Ill ; Barksdale t. Morgan, 4 Mo. 385 ; Jocer 
 lyn V. Hawkins, 1 Stra. 446, ■whicli, however, seems overruled by Tilus v. 
 Lady Preston, 1 Stra. 653. In a contract for purchase of lands, months are 
 said to be prima facie calendar mouths. Hipwell v. Knight, 1 Younge & C. 
 401 ; and see Webb v. Fairmaner, 3 Mees. & W. 474; see 1 Sug. Veni <Sb 
 Pur. 402. The meaning of the word " month " in a charter-party has been 
 left as a question for the jury. Jolly v. Young, 1 Esp. 186; Beg. v. Cliaw- 
 ton, 1 Q. B. 247,(41 E. C. L. R.) ; see the authorities fully collected in Simp- 
 son V. Margitson, 11 Q. B. 23 (63 E. C. L. R.), and 2 Exch. 116. 
 
 (2) 13 & 14 Vict. c. 21, s. 4. 
 
 (r) Cockell v. Gray, 8 B. & B. 186 (7 E. C. L. K.).. 
 
 (s) Marius, 75 ; Kyd. 4. 
 
 (1) February commercially speaking never has more than twcnly-( 
 days. Kobler v. Montgomery, 17 Indiana, 220. A noted dated Feb. 25, 1848 
 (leap year), was made payable ninety days after date, held that it was not due 
 till Mfiy 29. Craft v. State Bank, 7 In^diana, 219, The computation of a note 
 or bill, payable so many months after date, is made by the calendar, and it 
 falls due, without counling the days of grace, on the day of the month correi 
 spending with the day of date ; a suit thereon will not lie on the day of Dialu- 
 rity. Campbell v. Lane, 25 Texas (Suppl.), 93. 
 
OF PRESENTMENT FOR PAYMENT. 321 
 
 When a bill is drawn at a certain number of days after date 
 or after sight, those days are reckoned exclusively of the day 
 on which the bill is drawn or accepted, and inclusively of the 
 day on which it falls due.(<)(l) 
 
 We have already observed, that on a bill the words " after 
 sight" are > equivalent to "after acceptance;" for sight must 
 appear in a legal way. If a note be made payable at sight, it 
 must formerly have been presented before an action could be 
 brought against the maker,(M) but now by 34 & 35 Vict. c. 74, 
 at sight is equivalent to on demand, and action is sufficient 
 demand, (t;) 
 
 Usance is the period which, in early times, it was usual to 
 appoint between different countries for the payment of bills. — 
 When usance is a month, half usance is always *fifteen r^nn-T 
 days,(2;) notwithstanding the unequal length of the 
 months. -An usance between London, Aleppo, Altona, and 
 Amsterdam, Antwerp, Erabant, Bruges, Flanders, Geneva, 
 
 {t) So if a bill te drawn payable so many days after a certain event. Bay- 
 ley on Bills, 6th ed. 245 ; Coleman y. Sayer, 1 Barnard, 303. 
 
 («) Dixon V. Nutall, 1 C, M. & B. 307 ; 6 C. & P. 330 (25 B. C. L. R.) ; 
 B.C. 
 
 (b) Qumre; as to costs in such a case, see M'Intosh v. Hay don, 1 R. & M. 
 362 (21 E. C. L. R.) ; 1 M. & M. 392 (33 E. C. L. R.). 
 
 (ic) Marius, 93. 
 
 .(1) The maker of a promissory note due "one day after date," has the 
 ■whole of the next day after date witliin which to pay it ; an action will not 
 lie thereon against him till the second day after date. In Texas, by statute, 
 days of grace are not allowed, except in bills and notes between merchant and 
 merchant, their factors or agents. Moore v. Hollaman, 35 Tdxas (Suppl:), 
 8!. 
 
 Of the day and hour of d'emand, and of days of grace, and when suit may 
 be commenced, see First National Bank v. Owen, 23 Iowa, 185 ; Lamkin v. " 
 Kye, 43 Miss. 341 ; National Newark Bank v. Second National Bank, 13 P. 
 F. Smith, 404; Craig v. Price, 33 Ark. 634; Swan v. Hodges, 3 Head, 351 ; 
 Gordon v. Parmelee, 15 Gray, 413 ; Bell v. Sachett, 38 Cal. 407; Estes v. 
 Tower, 103 Mass. 65 ;. Coffin v. Loring, 5 Allen, 153 ; Pierce v. Jackson, 21 
 Cal. 636; Kelsey v. Hibbs, 13 Ohio (N. S.), 340; Cothout v. Ballard, 41 
 Barb. 33; Smith v. Aylcsworth, 40 Ibid. 104 ; Eastman v. Turman, 34 Cal. 
 379 ; McMiillen v. Abbott, 1 Oregon, 358 ; Barlow v. Gregory, 31 Conn. 36 1 ; 
 Gaines v. Dorsett, 18 Louis. Ann. 563 ; Strong v. King, 35 Illinois, 9 ; Bell 
 v. Sackett, 38 Cal. 407. 
 
 21 
 
322 OF PRESENTMENT FOR PAYMENT. 
 
 Germany, Hamburg, Holland, and the Netherlands,, Lisle, 
 Middleburg, Paris, or Amsterdam, Rotterdam, and Rouen, is 
 one calendar month ; between London and the Spanish or Por- 
 tuguese towns, two calendar months ; between London and 
 Genoa, Venice, or places in Italy, it is three calendar month8.(y) 
 
 It is said that aU the countries with which the English are 
 in the habit of negotiating bills, compute th^ir time l|y th^. 
 new style, with the single exception of Russia.(je) In the case, 
 of bills drawn in a place using one style, apd, payable in a, 
 place using another, if drawn paya,ble at a, certain period after 
 date, they fall due as they would have done in the country in 
 which they were drawn. Thus, a bill drawn Feb. 1, in Lon- 
 don, on St. Petersburg, at ope month, would be, payable, with- 
 out the days of grace, on March 1, in our calendar; and, as it, 
 was di-awn on Jan. 21, old style, it would fall due on Fel^, 21, 
 in the Russian calendar. But, if the bill were drawn payable, 
 at a day certain, or at a certain, period after sight, the time 
 must then be reckoned according to the style of the place ou 
 which it is drawn. (a) 
 
 Days of grace are so called, because they were formerly al- 
 lowed the drawee as a favour : but the laws of commercial^ 
 countries have long since recognized them as a right. The 
 number of these days varies, in difl'erent places, Mr. Kyd, in 
 his Treatise on Bills of Exchange, gives the following table, 
 which, however, has been altered in many places since his day, 
 by the substitution of the French code, and other circum- 
 stances: — 
 
 " Great Britian, Ireland, Bergamo, and Vienna, three days. 
 
 " Frankfort,(6) out of the fair-time, four days. 
 
 " Leipsic, Naumburg, and Augsburg, five days. 
 - "Venice,(e) Amsterdam,(rf) Rotterdam,(rf) Middleburg, 
 
 (y) Chitty, lOth ed. 254 ; Bayley, 203. 
 
 (a) Bayley, 201. 
 
 (a) Beawes, 444 , Bayley, 203. 
 
 (J)' i. e., on the Maine. 
 
 (c) Not including Sundays and liolidays. 
 
 id) Abolished by the French Code. " Tons delais de grace, de faveur, 
 d'usage, ou d'habitude locale pour le paiement de lettres de change, sont, 
 abrog§s." Code de Commerce, liv. i., tit. 8, 185. 
 
OF PRESENTMENT FOR PAYMENT. 323 
 
 *Antwerp,(<^) Cologne, Breslau, Nuremberg, and Portu- 
 
 gal,(«) six days. '- ^ 
 
 " Dantzic, Konigsberg, and ¥rance,{d) tea days. 
 
 " Hamburg and Stockholm, twelve days. 
 
 " Naples,((i() eight ; Spain, fourteen,; (/) Eome, fifteen ; and 
 Genoa, thirty days. 
 
 "Leghorn,(^) Milan, and some other places in Italy, no fixed 
 number. 
 
 "Sundays and holidays are included in the respite days, at 
 London, N'aples,((^) Amsterdam,(c?) Rotterdam,((f) Antwerp,(ti) 
 Middleburg, Dantzic, Konigsberg, and France ; {d) but not at 
 Venice, Cologne, Breslau, and Nuremberg. At Hamburg, the 
 day on which the bill falls due makes one of the days of grace ; 
 but it is not so elsewhere." 
 
 Three days of grace are allowed in North America, at Ber- 
 lin, and in Scotland. (A) 
 
 At Rio de Janeiro, Bahia, and other parts of Brazil, fifteen 
 days. 
 
 At St. Petersburg, ten days on -bills after date, three days on 
 bills at sight, ten days on bills received and presented after 
 they are due. 
 
 At Trieste and Vienna, three days on bills after date.(j) 
 
 Three days' grace allowed in this country are reckoned ex- 
 clusive of the day on which the bill falls due, and inclusive of 
 the last day of grace. 
 
 Where there are no days of grace, and the bill falls due 
 on a Sunday, Christmas-day, Good Friday, public fast or 
 thanksgiving day, or where the last of the days of grace 
 happens on such a day, the bill becomes payable on the 
 
 ((?) See note (d) preceding page. 
 
 (e) Now, it is believed, In Lisbon and Oporto fifteen- days on domestic, and 
 six on foreign bills. 
 
 (/) But eight days of grace only are allowed on inland bills. At Cadiz 
 only six days are allowed. 
 
 (?) Now none. 
 
 (A) See Ferguson v. Douglas, 6 Bro. P. C. 376. 
 
 (0 See Freese's Cam. Comp. Part 2. 
 
324 OP PRESENTMENT FOR PAYMENT. 
 
 •day preceding ; and if not then paid, must be treated as dis- 
 lionoured.(A)(l) 
 
 When a bill falls due on a bank holiday it is presentable, 
 payable, protestable, &c., on the morrow.(^) 
 
 *A presentment for payment before the expiration of 
 ^ J the days of grace is premature, and will not enable the 
 holder to charge the antecedent parties.(m)(2) 
 
 Days of grace are allowed on promissory notes as well as on 
 bills,(n) They are allowed, whether the bill or note be made 
 payable on a certain event, or at a certain day,(o) or at a 
 certain number of years, months, weeks, or days, after date or 
 after sight, or at usance, or by )nstalmeiits.(jo) But they are 
 not allowed on bills or notes payable on deraand.(5') Whether 
 days of grace were at common law allowed on bills payable^ai 
 sight was undecided. The weight of authority had been con- 
 sidered to incline in favour of such an allowance ;(r) but now 
 
 (ft) Tassell v. Lewis, 1 Ld. Raym. 743 ; 39 & 40 Geo. 3, c. 43; 7 & 8 Geo. 
 4, c. 15. " Si I'eclieance d'une leltre de cliange est a un jour IMe l^gal, clle 
 est payable la veille." Code de Commerce, liv. 1, tit. 8, 134. 
 
 (Z) See page 182, and 34 Vict. c. 17, Appendix. 
 
 {m) Wiffen v. Roberta, 1 Esp. 361. 
 
 (w) Brown v. Harradon, 4 T. R. 148. 
 
 (o) Ibid., and so held in America. Griffin v. Goff, 12 Johns. Rep. 423. 
 
 ip) Oridge v. Sherborne, 11 M. & W. 874 ; Carlon v. Kenealy, 12 M. & W. 
 139. If the ■whole be payable on default of payment of any one instalment the 
 note is still a good promissory note. Ibid., and see Miller v. Biddle, Exch., 
 M. T. 1855. Are three u.ore days of grace to be allowed ? 
 
 (g) Bayley, 241 ; Chilty, 10th ed. 281. 
 
 (r) Beawes, 356 ; Kyd. 10 ; Bayley, 198 ; Dehers v. Harriott, 1 Show. 163; 
 Coleman v. Sayer, Barn. R. 303 ; 3 Stra. 829, S. C. ; Janson v. Thomas, Bay-, 
 ley, tith ed. 341 ; 3 Doug. 421 (26 E. C. L. R.), S. C. ; Dixon v. Nuttall, 1 C, 
 M. & R. 307 ; 6 C. & P. 320 (35 E. C. L. R.), S. C, and see Selwyn, N. P. 
 7ih ed. 344. 
 
 (1) Whaley v. Houson, 13 Louisiana Annual, 505. 
 
 (2) In order to charge the drawer or indorser, demand must be made of 
 the drawee on the last day of grace. Piatt v. Eads, 1 Blackford, 83; Eldridge 
 V. Rogers, Minor, 893 ; Bussard v. Levering, 6 Wheat. 1 03 ; Mitchell v. Be 
 Grand, 1 Mason, 176 ; Ontario Bank v. Petrie, 3 Wendell, 456. 
 
 A demand may be made upon the acceptor on third day of grace, and, 
 upon refusal to pay, notice may be given to the indorser of the non-payB*"' 
 
"W 
 
 OF PRESENTMENT FOR PAYMENT. 325 
 
 by 34 & 35 Vict. c. 74, ss. 2, 4, bills and notes drawn after 
 August 14th, 1871, payable at sight or on presentation, are 
 payable on demand, and therefore no days of grace are 
 allowed. 
 
 We have already seen that the time which bills payable after 
 sight have to run is computed from the date of the accept- 
 ance ;(s) a note payable at a certain period after sight is pay- 
 able at that period after presentment for sight.(<) So, if some- 
 time after a refusal to accept, a bill payable after sight be 
 . accepted supra prot.esf, the time is calculated, not from the date 
 of the exhibition of the bill to the drawee, but from the date 
 of the acceptance supra protesi.[u) 
 
 Bills and notes payable on dendand, and checks, must be pre- 
 sented within a reasonable time. "What is a reasonable time 
 seems to be a question of law.(a;)(l) And such a decision 
 
 (s) Campbell v. French, 6 T. R. 200 ; 2 H. Bl. 163, S. 0. 
 
 (<) Sturdy v. Henderson, 4 B. & Aid. 593 (6 B. C. L. R.). 
 
 (») Williams v. Germaine, 7 B. & C. 468 (14 E. C. L. R.) ; 1 M. & R. 394, 
 S. C. 
 
 (x) Tindal v. Brown, 1 T. R. 168 ; Darbyshire v. Parker, 6 East, 3 ; 2 
 Smith, 195, S. C. ; Parker v. Gordon, 7 East, 885 ; 3 Smith, 858, S. C. ; 
 Haynes v. Birks, 3 Bos. & Pul. 599 ; Appleton v. Sweetapple, Bayley, 6th ed. 
 234; 3 Doug. 187 (36 B. 0. L. R), S. C. 
 
 on the same day, and after such notice on the same day, suit may be imme- 
 diately commenced against the indorser. Manchester Bank v. Fellows, 8 
 Foster, 303. A bill at sight has days of grace. Walsh v. Dart, 12 Wiscon- 
 sin, 635. 
 
 (1) Lockwood T. Crawford, 18 Conn. 361 ; Carleton v. Bailey, 7 Foster, 
 230; See Lancaster Bank v. Woodward, 18 Penna. State Rep. 362; Goodwin 
 T. Davenport, 47 Maine, 112 ; Jerome v. Stcbbins, 14 California, 457 ; Parker 
 T. Tattle, 44 Maine, 459 ; Weeks v. Pryor, 27 Barbour, 79. A note on de- 
 mand expressed to bear interest is a continuing security, and no delay in pre- 
 sentment is of itself sufficient to discharse the indorser. Merrill v.' Todd, 23 
 New York, 28. As between a bona fide holder and the drawer of a dishonored 
 check, no delay in demanding its payment is deemed to be so unreasonable 
 as to bar a recovery by the holder, unless it appears that it worked an actual 
 injury or loss to the drawer. Harbeck v. Craft, 4 Duer, 133 ; Farmers' Bank 
 V. Butchers' Bank, Ibid. 219. 
 
 In -case of an indorser after maturity, demand and notice within a reiison- 
 aWe time are necessary to charge him. Norvell v. Hittle, 23 Indiana, 346 ; 
 McCall V. Witkouskic, 16 Louis. Ann. 179 ; Hart v. Eastman, 7 Minn. 74 ; 
 
326 OF PRESENTMENT FOR PAYMENT. 
 
 *is conformable with the principles of law. " Reason- 
 ^ -' ^ able time," says Lord Coke, " shall be adjudged by the 
 discretion of the justices before whom the cause dependeth ; and 
 so it is of reasonable fines, customs and services, upon the true 
 state of the case depending before them : for reasonableness in 
 these cases belongeth to the knowledge of the law ; and there- 
 fore to be decided by the justices. Quam longum esse debet non 
 definitur in jure, sed pendet 'ex discretione justiciariorum. And 
 this being said of time, the like may be said of things incer- 
 taine, which ought to be reasonable ; for nothing that is con- 
 trary to reason is consonant to law."(y) Besides, the opinions 
 of jurors have been so various, that there can be no certainty 
 on the subject, unless it be held to be a question of law. Yet 
 we have set-n, that what is a reasonable time within which to 
 present for acceptance a bill drawn payable after, sight has been 
 held a question of fact for the jury, and the same point has 
 teen ruled as to the time of presentment for payment of a note 
 payable on demand.(2) 
 
 A man taking a bill or note payable on demand, or a check, 
 is not bound, laying aside all other business, to present or 
 transmit it for payment the very first opportunity. It has 
 long since been decided, in numerous cases, that, though the 
 party by whom the bill or note is to be paid live in the same 
 place, it is not necessary to present the instrument for payment 
 till the morning next after the day on which it was received.(a) 
 And later eases have established, that the holder of a check 
 
 (y) Co. Litt. 56, b. 
 
 («) Manwa-ring v. Harrison, 1 Stra. 508 ; Hankey v. Trotman, 1 W. Bl. 1 ; 
 see ante, p. 179, as to Presentment for Acceptance. 
 
 (a) Ward v. Evans, 2 Ld. Eaym. 928 ; 6 Mod. 36, S. C. ; Moore v. War- 
 ren, 1 Stj;a. 415 ; Fletcher v. Sandys, 2 Stra. 1248 ; Turner v. Mead, 1 Stra. 
 416 ; Hqjjrv. Da Costa, 2 Stra. 910; Appleton v. Sweetapple, Bayl?y, 6t)j 
 ,ed. 234 j 3 Doug. 137 (26 E. C. L. R.), S. C. 
 
 Jones V. Middleton, 29 Iowa, 188; Bemis v. McKeazie, 18 Florida, 553; 
 Guild V. Goldsmith, 9 Ibid. 212 ; Montgomery Railroad Co. t. Trebles, 4'4 
 Ala. 255 ; Armstrong v. Armstrong, 36 Mo. 225 ; Roquestv. Pickett, 20 Louis. 
 Ann. 546. 
 
OF PRESENTMENT FOR PAYMENT. 327 
 
 Las the whole of the banking hours of the next day within 
 which to present it for payment.(6)(l) 
 
 Negotiable instruments, payable on demand, may be dis- 
 tributed into several classes, and the time within which they 
 ought to be presented for payment, and the consequences of a 
 ■failure to make due presentment, are not precisely the same in 
 every class. 
 
 *Negotiable instruments payable on demand, are y.^q^^-. 
 common commercial bills of exchange, checks, common '- J 
 promissory notes, bank notes, and bankers' cash notes and 
 bankers' bills. 
 
 It is conceived that a common bill of exchange,(c) payable 
 on demand, ought, if the parties live in the same place, to be 
 presented the next day after the payee has received it. If the 
 bill must be sent by post to be presented, it ought to be posted 
 on the day next after the day on which it was received, and 
 
 (6) Pocklington v. Sylvester, Chitty, 9th ed. 385; Rolison v. Bennett, 3 
 Taunt. 388 ; Rickford v. Ridge, 2 Camp. 537 ; Maule v. Brown, 4 Bing. N. 
 C. 266 (33 E. C. L. R.) ; 5 Set). 694, S. C. ; Hare v. Sehty, 30 L. J., C. P. 
 302. A s to checks, see ante. 
 
 (c) The rule may be otherwise in respect of paper intended for circulation, 
 and some descriptions of bankers' paper. Shute v. Rollins, M. & M. 133 (22 
 E. 0. L. R ) ; 3 C. & P. 80 (14 E. C. L. II.), S. C. Or where peculiar diffi- 
 culties interpose. See James v. Houlditch, 8 D. & R. 40 (16 E. C. L. R.). 
 
 (1) When a note or check is payable at sight or on demand, it must be pre- 
 sented within a reasonable lime. Keyes v. Fensterraakel-, 24 Cal. 329 ; 
 Phoenix Ins. Co. v. Allen, 11 Mich. 501 ; Bridgeford v. Simonds, 18 Louis. 
 Ann. 121 ; Case v. Burt, 15 Mich. 83 ; Chambers v. Hill, 26 Texas, 473 ; 
 Nichols V. Blaokmoie, 27 Ibid. 586 ; Willetts v. Paine, 43 Illinois, 433 ; 
 Smith V. Miller, 6 Robertson, 157 ; Kelty v. Second Bank, 53 Barb. 338. 
 
 The plaintiffs, holders of a draft, drawn by the defendant, presented the 
 sSme for paymeiit the day they received it. The drawers gnve their check to 
 the plaintiffs, receiving the draft from them, and charged the amount to the 
 defendant. On the following day, the check was presented in the ordinary 
 course of business through the clearing house, and was dishonored, the drawers 
 having that day failed. Tlie plaintiffs thereupon, returned the check and re- 
 filaimed the draft, which they caused to be again presented, and payment 
 being refused, protested, notice of protest beitig mailed the next day. Held 
 that the defendant was liable on the draft. Burkhalter v. Second National 
 Bank, 42 N. T. 538 ; 40 Howard, Pi-. C. 334. 
 
328 OF PRESENTMENT FOR PAYMENT. 
 
 then the person who receives it by post, that he may present 
 it, should do so on the day next following the day on whiuh 
 he receives it. 
 
 Such, also, are the general rules regulating the presentmeut 
 of bankers' checks, which are really bills of exchange ; but, as 
 checks on bankers are now extremely common, it has been 
 thought convenient to discuss the presentment of checks more 
 in detail in the Chapter relating to Checks.(rf) 
 
 A common promissory note, payable on demand, differs from 
 'a bill payable on demand, or a check, in this respect; the bill 
 and check are evidently intended to be presented^ and paid , 
 immediately, and the drawer may have good reasons for 
 desiring to withdraw his funds from the control of the drawee, 
 without delay ; but a common promissory note,(e) payable on 
 demand, is very often originally intended as a continuing 
 security, and afterwards indorsed as such. Indeed, it is not 
 uncommon for the payee, and afterwards for the indorsee to 
 receive 'from the maker interest periodically for many years on 
 such a note. And sometimes the note is expressly made pay- 
 able wiih interest, whith clearly indicates the intention of the 
 parties to be, that though the holder may demand payment 
 immediately, yet he is not bound to do so. It is, therefore,, 
 conceived, that a common promissory note payable on demand, 
 especially if made payable with interest, is not necessarily to 
 be presented the next day after it has been received, in order 
 to charge the indorser ; and that, when the indorser defends 
 himself on the ground of delay in presenting the note, it will 
 F*21 m ^^ ^ *(luestion for the jury, whether, under all the cir- 
 '- -■ cumstances, the delay of presentment was or was not 
 unreasonable.(/) 
 
 Bank notes and bankers' cash notes differ again from other 
 promissory notes in this, that they are intended to pass from 
 hand to hand, and are issued that they may circulate as 
 money, returning to the bank as seldom as possible; but they 
 
 (d) Ante, Chap. III. on Checks, where some peculiariiies distinguishing 
 checks from bills of exchange payable on demand are pointed out. , 
 
 («) Brooks V. Mitchell, 9 M. & W. 15. 
 '(/) Bank of India v. Dickson, L. E., 3 Pr. C. 574. 
 
OF PRESENTMENT FOR PAYMENT. 329 
 
 are not intended as a continuing security in the hands of any- 
 one holder. Therefore, a man who takes bank notes or 
 bankers' cash notes in payment must present them,(^) or 
 forward thera for presentment, the day after he receives them, 
 in order to enable him, in the event of the bank failing, to sue 
 the person from whom they were received on the consideration 
 that was given for them.(A) But, as it would be inconsistent 
 with the very nature and design of such notes, that every man 
 who takes them should present them for payment, it is suffix 
 cient to exonerate the taker from the charge of laches, if he 
 circulated them wiihin the time within which he ought other- 
 wise to have presented them.(i) 
 
 And v<^ithout circulating them, it should seem that, if 
 according to the course of business it be usual to retain such 
 notes a reasonable time, that may be an excuse for omitting 
 instant presentment.(_/ ) Moreover, the transmission of notes 
 payable to bearer being attended with risk, the sender will, it 
 seems, be allowed to cut the notes in halves, and send one sot 
 of halves on the next day, and one set the day after, or to send 
 one set by coach and one by post.(/i:) And it may make a differ- 
 ence in the time allowed for presentment if the notes be received 
 by a servant or agent.(^) 
 
 The same rules which govern the presentment and circu- 
 lation of bank notes also apply to such bankers' paper as may 
 be fairly considered part of the circulation medium of the 
 country. Such are the bills of a country banker on his London 
 correspondent.(m) 
 
 (g) Vide the Chapter on Thansfer. 
 
 (A) Camidge v. Allenby^ 6 B. & C. 373 (18 E. C. L. E.) ; 9 D. & R. 391, 
 S. 0. 
 
 (i) Ibid. ; Robinson v. Hawksfoid, 15 L. J., Q'. li. 377 ; 9 Q. B. 53 (58 B. 
 C. L. R.),S. C. 
 
 (j) See Schute v. Robins, M. & M. 138 (23 E. C. L. R.) ; 3 Car. & P. 80 
 (14 E. C. L. R.), 8. C. 
 ; (it), Williams v. Smith, 3 B. & Aid. 496. 
 
 (0 James v. Houldilch, 8 D. & R. 40 (31 E. C. L. R.). 
 
 (m) Shute V. Robins, M. i& M. 133 (23 E. C. L. R.) ; 3 C. & P. 80 (14 E. C. 
 L.R.),S. C. 
 
3^0 OF PRESENTMENT FOR PAYMENT. 
 
 A bill or note on which no time of payment is specified is 
 payable on demand.(n)(l) 
 
 *Presentment for payment should be made during 
 L J the usual hours of business, and, if at a banker's, within 
 banking hours.(o) If the party who is to pay the bill be not a 
 banker, presentment may be made at any time of the day, 
 when he may reasonably be expected to be found at his place 
 of residence, or business; though it be six, seven, or eight 
 o'clock in the evening.(p) And even though there be no per- 
 son within to return an answer .(j) Lofd Tenterden, 0. J.: 
 "As to bankers, it is established, with reference to a well- 
 known rule of trade, that a presentment, out of houts of busi- 
 ness, is not suiBicient ; but, in other cases, the rule of law is, 
 that the bill must be presented at a reasonable hour. A pre- 
 sentment at twelve o'clock at night, when a person had retired 
 to rest, would be unreasonable; but I cannot say that a pre- 
 sentment between seven and eight in the evening is not a 
 ■presentment at a reasonable time." (r)(2) 
 
 (m) Bstyley, 6th ed. 115 ; Wliitlock v. Underwood, 2 B. & C. 157 (9 B. C. 
 L. R ) ; 3 D. & R. 356. Aud those words may be added without avoiriingthfe 
 bill. Aldous V. Cornwall, L. R., 3 Q. B. 573 ; 37 L. J. 301 ; 9 B. & S. 607 ; 
 and see the Chapter on the Form op Bills. 
 
 (0) Packer v. Gordon, 7 East, 385 ; 5 Smith, 358, S. C. ;, Elford v. Teed, 1 
 M. & Sal. 28 ; Jameson v. Swinton, 3 Taunt. 324 ; WhitaUer v. Bank of Ens- 
 land, 1 C, M. & R. 744 ; 6 0. & P. 700 (25 E. C. L. R.), S. C. In tliiscnse 
 the bill had been presented at 11 a. m., and payment had been refused for want 
 of assets ; it was afterwards, on the same day, presented after banking houfs', 
 at 6 p. M., assets having in the meantime been received. It was intimated by 
 Lord Abinger, that the bank ought to have apprised the notary who pre- 
 sented the bill of the receipt of assets. 
 
 (p) Barclay v. Bayley, 2 Camp. 527 ; Morgan v. Davison, 1 Stark. 114 (3 
 E. C. L. R.). 
 
 (?) Wilkins v. Jadis, 3 B. & Ad. 188 (32 E. 6. L. R.) ; 1 M. & Ky. 41, 
 S, C. 
 
 (r) Ibid. ; and see Triggs v. Newnham, 10 Moore, 349 (17 E. C. L. K.) ; 
 1 C. & P. 631 (13 E. C. L. R.), S. C. 
 
 In America it is held, that business hours, except in the case of banks, 
 range through the whole day, down to the hours of rest in the evening. 
 Where a note was made payable at a bank, a demand made at the bank upon 
 
 (1) Green v. Drebilbis, 1 G. Greene (Iowa), 553. 
 
 (3) Business hours, except in the case of banks, range through the whole 
 day down to the hours of rest in the evening. Cayuga Bank v. Hunt, 3 Hill, 
 
OE PRESENTMENT FOE PAYMENT. 331 
 
 . Where a bill or note was made or accepted payable at a par- 
 ticular place, it was formerly a point much disputed, whether 
 a presentment at that place was necessary, in order to charge 
 the acceptor, maker, or other parties. At length, as we have 
 already seen, it was decided in the House of Lords, that an 
 acceptance, payable at a particular place, was a qualified ac- 
 ceptance, rendering it necessary, in ati action against the ac- 
 ceptor, to aver and prove presentment at such place. (s) This 
 decision occasioned the passing of the 1 & 2 Geo. 4, e. 78, by 
 which it is enacted, that an acceptance, payable at a particular 
 place, is a general acceptance, unless *expressed to be p^g^p, 
 payable there only, and not otherwise or elsewhere. '- -' 
 On ^his statute it has been decided, that an acceptance is 
 general, though the bill be made payable at a particular place 
 by the drawer, and not by the accepto'.(<) A declaration in 
 an action against the acceptor, alleging a bill to be accepted 
 payable at a banker's, need not aver presentment at the house 
 of that banker.(M) "Since the statute," says the Court of 
 Error, "a bill drawn generally on a party may be accepted in 
 three different forms, i. e., either first, generally ; or, secondly, 
 payable at a particular banker's ; or, thirdly, payable at a par- ^ 
 
 the proper day after banking hours, the oflScprs beins; there, and a refusal, the 
 cashier stalinjj that no funds were deposited for the purpose ; held that the 
 demand was sufHcient. See Byles on Bills, 5th American edition, p. 341. 
 
 («) Rowe V. Young, 8 B & B. 165 (6 E. C. L. R.) ; 2 Blisrh. 391, S. C. 
 
 (0 Selliy V. Eden, 3 Bing. 611 (11 E. C. L. R.) ; 11 Moo. 511, S. C. ; Fayle 
 T. Bird, 6 B. & C. 531 (13 E. C. L. R.) ; 9 Dowl. & R. 639 ; 3 C. & P. 303 
 (12 E. C. L. R.), S. C. ; Roach v. Johnston, Hayes & Jones, 246. 
 
 (w) Halstead v. Skelton, 5 Q. B. 93 (48 E. C. L. R.). 
 
 634 ; Nehan v. Fotterall, 7 Leigh, 179 ; Dana v. Sawyer, 9 Shepl. 244. 
 Where a note was made payable at a bank, a demand made at the bank upon 
 ■the proper day after banking hours, the officers being there, and a refusal, the 
 cashier statins that no funds wei-e deposited for the purpose, held that the 
 demand was sufficient. Cohen v. Hunt, 2 Smedes & Marshall, 337 ; The 
 Bank v. Hamer, 7 Howard (Miss.), 448 ; Flint v. Rogers, Shepl. 67 ; Thorpe 
 V. Peeks, 2 Williams, 127. A demand at the bank, where the note is made 
 ■payable, when the maker had no funds, after banking hours, held to be suffi- 
 cient. Bank of Syracuse y. HoUister, 17 New York, 46. Contra, if he had 
 funds. Kewark India Rubber Go. v. Bishop, 3 E. D. Smith, 48. See Shep- 
 herd T. Chamberlain, 8 Gray, 225. As to demand or presentment after busi- 
 ness hours, see Farnsworth v. Allen, 4 Gray, 453 ; Allen v. Avery, 47 Maine, 
 287 ; Barbarous v. "Waters, 3 Metcalfe (Ky.), 304. 
 
332 OF PRESENTMENT FOB PAYMENT. 
 
 ticular banker's and not elsewhere. If the drawee accepts in. 
 the second form, payable at a banker's, he undertakes, since 
 the statute, to pay the bill at maturity when presented fo,r pay- 
 ment, either to himself or at the banker's. Here the bill was 
 accepted according to the second of these three form8."(a;) 
 
 In an action against the drawer, or other, indorser, if the bill 
 be accepted, and payable at a particular place named by the 
 acceptor, it is still necessary to prove presentment there.(^) So 
 if the bill be drawn, payable at a particular place, presentmpnt 
 must be made there in order to charge, the drawer. " The 
 doubt," says Tindal, 0. J., " which had been formed before the 
 statute, as to the effect of an acceptance, payable at a par- 
 ticular place, was confined to the case where the question, arose 
 between the holder and the acceptor : in cases between the in- 
 dorsee and the drawer, upon a special acceptance by the 
 drawee, no doubt appears to have existed, but that a present- 
 ment at a place s|ecially designated in the acceptance was neces- 
 sary, in order to make the drawer liable upon the dishonpnr.iof 
 the bill by the acceptor. Still less did the doubt ever extend 
 to cases where the drawer directed, by the body of the bill, 
 that the money should be paid in a particular place. Such, 
 then, being the state of the drawer's liability at the time the 
 statute was passed, it must still remain the same, unless that 
 statute has made an alteration therein. But it appears to us 
 that the statute neither intended to alter, nor has it in any 
 manner altered, the liability of drawers of bills of exchange, 
 but that it is confined in its operation to the case of acceptance 
 alone."(^Xl) 
 
 {x) Ibid. 
 
 (y) Gibb v. Mather, 8 Bing. 214 (31 E. C. L. R.) ; 1 M. & Sc. 387 ; 2 C. & 
 3. 254, S. C. ; Saul v. Jones, 38 L. J., Q. B. 37 ; 1 E. & E. 59 (102 E. C. L. 
 B.), S. C. 
 
 (z) Gibb V. Matlier, ubi supra. See Parks v. Edge, 1 C. & M. 429 ; 3 
 Tyrw. 364, S. C. ; Harris v. Parker, 3 Tyrw. 370 ; Waller v. Cubley, 2 C. & 
 M. 151 ; 4 Tyrw. 87, S. C. ; Boydell v. Harkness, 3 C. B. 168 (54 E. C. h.B..). 
 
 (1) It is unnecessary -when a bill or note is made payable at a particular 
 place, to aver demand at such place in order to charge the maker or acceptor'. 
 Dockray v. Dunn, 37 Maine, 443 ; Carter v. Smith, 9 Gushing, 321 ; Nicholls 
 V, Pool, 3 Jones (Law), 23 ; Hubbell v. Lord, 9 Texas> 473 ; Middletori v. 
 
OF PKESENTMENT EOR PAYMENT. 333 
 
 *If the bill be made payable at a banker's, a present- ^^p. „-■ 
 ment there will 8uffiee.(a) And if the bill be accepted 
 payable at a banker's, which banker happens to become the 
 holder at its maturity, that fact alone amounts to presentment, 
 and no other proof is necessary.(6) If a bill be made payable 
 in a particular town, a presentment afh-U the banking houses 
 there will suffice ;(c) if at one of two towns a presentment at 
 either ;(a() if a particular house be pointed out by the bill as the 
 
 (a) Saunderson v. Judge, 2 H. Bl. 509 ; Harris v. Parker, 3 Tyrw. 370. 
 
 (6) Bailey v. Porter, 14 M. & W. 44. 
 
 (c) Hardy v. Woodvoofe, 2 Stark. 319 (3 E. C. L. R.). 
 
 id) Beeching v. Gower, Holt, N. P. C. 313 (3 E. C. L. E.). 
 
 Boston Locomotive Works, 2 Casey, 257; McKenzie v. Durant, 9 Richard- 
 son (law), 61 ; Martin v. Hamilton, 5 Harrington, 314, 329 ; Reeve v. Pack, 
 6 Micliigiin, 240 ; Terbell v. Downer, 1 Williams, 509. See Wild v. Van 
 ValUenbufg, 7 California, 166 ; Montgomery v. Tult, 11 Ibid, 307. Unless lie 
 can shovf that by failure to make such demand he has been injured. McC'alop 
 V. Fluker, 12 Louisiana Annual, 551 ; Freeman v. Curran, 1 Minnesota, 169; 
 Nicholls v. Pool, 2 Jones (Law), 23. Presentment of a note payable at a par- 
 ticular place must be made at that place, in order to charge the indorser, and 
 no further presentment need be made. Lawrence v. Dobyns, 30 Missouri, 
 196 ; Ferner v. Williams, 37 Barbour, 9. When a note is payable at a par- 
 ticular place, a personal demand is unnec ssary. Troy Bank v. Grant, Hill 
 & Denio, 119. When the bill is addressed to the drawee at a particular 
 house, and is accepted generally by him, the address indicates the place 
 ■where it is to be presented for payment, and a presentment there is sufficient 
 «s against the drawer and endorsers. Struthers v. Kendall, 5 Wright, 214. 
 When no particular place of jDayment is fixed by the note itself, the place of 
 execution is the place of payment without regard to the residence of the par- 
 ties or the place at which the note is dated. Blodgett v. Durgin, 32 Vermont, 
 3C1. The presumption is that a note is payable at the place where it is 
 dated. Richetts y. Pendleton, 14 Maryland, 320. A demand not on the 
 maker but at a bank where the note was not made payable is insufficient iu 
 the absence of a special agreement. Farmers' Bank v. Allen, 18 Maryland, 
 475. A note not on its face payable at any particular place, was dated at Wash- 
 ington, where the maker, who resided in Maryland, had no place of business. 
 It was held that a presentment at a bauk in Washington was sufficient. Sel- 
 den V. Washington, 17 Maryland, 379. A presentment at any bank in Boston 
 of a note, payable " at bank in Boston " or "at either bank in Boston," is 
 sufficient. Maldin Bank v. Baldwin, 13 Gray, 154; Hampden Insurance 
 Company v. Davis, Ibid. 156, note ; Allen v. Avery, 47 Maine, 287 ; Brick- 
 ett v. Spaulding, 33 Vermont, 107. One who for the drawee's accommodation 
 indorses a bill accepted in blank as to the place of payment, thereby author- 
 izes the drawee to name any reasonable place of payment. Rogers v. Porter, 
 1 Metcalf, 643. 
 
334 OF PRESENTMENT FOR PAYMENT. 
 
 acceptor's residence, a presentment to any inmate,(e) or, if the 
 house be shut up, at the door -will suffice.(/) 
 
 But where a bill is accepted, payable at a particular place,(^); 
 it is not necessary in an action against the drawer(^) to state 
 the acceptance in the declaration, 'and, therefore, not necessary 
 to state it to be at a particular place, nor to allege presentmeijlt 
 at that place. Such a, presentment as the acceptance requires) 
 is merely matter of evidence.(i) But if the special acceptance 
 be alleged in the declaration, it may be necessary to state in an 
 action against a drawer or indorser such a presentment as the 
 acceptance requires, though a general allegation may suffice 
 after verdict.(A;) If a bill be made payable at a particular place, 
 r*2141 '^^ '^^ °°* necessary to state a presentment to the ^acceptor 
 there; it is sufficient to state a presentment at that 
 place.(Z) An averment that a bill was presented to the acceptor 
 will be satisfied by proof that it was presented at the place 
 
 (c) Buxton V. Jones, 1 M. & G. 83 (39 E. C. L. H,.). 
 
 if) Hine v. Allely, 4 B. & Ad. 624 (34 E. C. L. R.) ; 1 N. & M. 433, 
 S. C. 
 
 ig) In an action against the acceptor, the bill may be described as payable': 
 at a particular place, though not accepted payable there only. Blake v. Beau- 
 mont, 4 M. & G. 7 (43 E. C. L. R.). 
 
 (Ji) See further as to the pleadings in an action against the acceptor, the 
 Chapter on Pleading. 
 
 (i) Parks^v. Edge, 1 C. & M. 429 ; 3 Tyrw. 364, S. C. ; Harris v. Parker,, 
 8 Tyrw. 370 ; Hine T. Allely, 4 B. & Ad. 624 (24 E. C. L. R.) ; 1 N. &M. 
 433, S. C. ; and see Hawkey v. Berwick, 4 Bing. 135 (13 E. C. L. R.) ; Hardy 
 V. Woodroofe, 2 Stark. 319 (3 E. C. L. R.). 
 
 (&) Lyon V. Flolt, 5 M. & W. 350. The sufl3ciency, however, of such a 
 general a.llegation, even after verdict, does not seem to be perfectly clear, at 
 all events where no issue is taken on the presentment. In an action against 
 the drawer, where the bill was drawn and accepted payable in London, but 
 there was no traverse of the general allegation of presentment, it was held 
 that the statement of the venue London in the margin of the declaration cured 
 the defect. Wilraot v. Williams, 14 L. J., C. P. 33 ; 7 M. & Gr. 1017 (49 B. 
 C. L. R.), S. 0. ; and .seeBoydell v. Harkness, 15 L. J., C. P. 333 ; 3 0..B. 
 168 (54 E. C. L. R.), S. 0. 
 
 (0 Shellon v. Braithwaite, 8 M. & W. 253 ; Hawkey v. Berwick, 1 T. & 
 .1. 376; 4 Bing. 135 (13 E. C. L. R.) ; 12 Moore, 478, S. C. ; Philpotv. 
 Bryant, 3 C. & P. 244 (14 E. C. L. R.) ; 4 Bing. 717 (13 B. C. L. B.) ; 1 M. 
 & P. 754, S. C. ; and see Bush v. Kiunear, 6 M. & Sel. 310 ; Huflam v. Ellis, 
 3 Taunt. 415 ; Ambrose v. Hopwood, 3 Taunt. 61 ; De Bergareche v. Pillin, 
 3 Bing. 476 (11 E. C. L. R.) ; 11 Moore, 850, S. C. 
 
OE PKBSENTMENT FOR PAYMENT. 335 
 
 where it was made payable, though no person were there in 
 attendauce,(m) and though the acceptor did not live there.(n) 
 
 The statute 1 & 2 Geo. 4, c. 78,(o) does not extend to promis- 
 sory notes. Ifjtherefore, a note be,m the body of it, made paya- 
 ble at a particular place, it is still necessary to aver and to prove 
 presentment there,(p) though the mention of the place be in a 
 distinct sentence preceded by a full stop.(g') 
 
 But if the place of payment be merely mentioned in a memo- 
 randum, that is held to be only a direction, and not to quality 
 the contract; and, consequently, a presentment there is not 
 essential.(r) And an averment in the declaration that the 
 
 (m) Hine v. Allely, 4 B. & Ad. 624 (84 B. C. L. R.) ; 1 N. & M. 483, S. C, 
 and see Hardy v. Woodroofe, 2 Stark. 319 (3 E. C. L. R.). So where a bill 
 was drawn on an acceptor at 38 Minlo-street, accepted generally, and when 
 due, the acceptor haying changed his residence, was presented to a lodger at 
 No. 38, the presentment was held sufficient. Buxton v. Jones, 1 M. & Gr. 8 
 (39 E. C. L. R.) ; 1 Scott, N. R. 19, S. C. 
 
 (») Hardy v. Woodroofe, 2 Stark. 319 (3 E. C. L. R.). 
 
 (o) But notwithstanding this act, and independently of the decision in 
 Gibb V. Mather, 8 Bing. 214 (31 E. C. L. R.) ; 2 Moo. & Scott, 387, S. C. 
 if a bill be accepted, payable at a particular place (though not expressed to be 
 li»yable there only, and not otherwise or elsewhere), the addition of the place 
 where payable is not surplusage ; for, upon default made at that place, the 
 right of the holder to sue the previous parties to the bill is complete. Mack- 
 intosh V. Haydon, Ryan & Moody, 362 (31 E. C. L. R.) ; Hawkey v. Berwick, 
 4 Bing. 135 (13 E. C. L. R.) ; 13 Moo. 478, S. C. ; Harris v. Parker, 3 Tyrw. 
 370; Smith V. Bellamy, 2 Stark. 328 (3 E. C. L. R.). Before the act, the 
 holder must have presented there, and could present nowhere else. Now, he 
 may present effectually there ; but, as was supposed, until the decision in Gibb 
 V. Mather, may also present to the acceptor himself. 
 
 (p) Saunderson v. Bowes, 14 East, 500 ; Howe v. Bowes, 16 East, 113 ; 
 Eowe V. Young, 3 B. & B. 165 (6 E. C. L. R.) ; Williams v. Waring, 10 B. 
 &C. 2 (31 E. C. L. R.) ; Emblin v. DartnelJ, 13 M. & W. S30; Spindler v. 
 Grellett, 17 L. J., Exch. 6 ; 1 Exch. 384, S. C. ; but see Nichols v. Bowes, 3 
 Camp. 498. 
 
 (?) Vanderdonckt v. Thelluson, 19 L. J., C. P. 13 ; 8 C. B. 813 (65 E. C. 
 L. R.), S. C. 
 
 (r) Price v. Mitchell, 4 Camp. 300 ; Williams v. Waring, 10 B. & C. 3 (21 
 E. C. L. R.) ; 5 M. & R. 9, S. C. But in a case where the body of the note 
 was printed, except the sum, the names of the parties, and the date, and the 
 memorandum of the place at which the note was payable, was also printed. 
 Lord EUenbprough held a special presentment there necessary. Trecothick 
 V. Edwin, 1 Stark. 468 (2 E. C. L. R.) sed qvcere. The memorandum is no 
 
336 OF PRESENTMENT FOR PAYMENT. 
 
 r*9i'n *note was made payable there, has even been held a 
 fatal misdescription. (s)(l) 
 
 part of the note, though it be preceded by the words "payable at." Masters 
 V. Barretto, 19 L. J., 0. P. 50 ; 8 C. B. 433 (6 E. C. L. R.), S. C. 
 («) Exon V. Kussell, 4 M. & Sel. 505. 
 
 (1) If a bill is accepted payable at a particular place, and such acceptance 
 is acquiesced in by the holder, he mutt demand payment at such place in 
 order to charge the drawer. Tuckerman v. Hartwell, 3 Greenleaf, 147. 
 Where a bill is made payable at a particular place, presentment for payment 
 at that place is sufficient to hold the drawer. Evans v. St. John, 9 Porter, 
 186. Where a note is payable afa given time and place, no demand of pay- 
 ment at such time and place is necessary. Where, the maker is, however, 
 ready at such time and place with the means of payment, such readiness is 
 equivalent to tender. Otis v. Barton, 10 N. Hamp. 433 ; Brabston v. Gibson, 
 9 Howard, U. S. 263 ; Lyon v. Williamson, 37 Maine, 149 ; Bradford v. 
 Cooper, 1 Louis. Annual Rep. 835 ; New Hope Delaware Bridge Co. v. 
 Perry, 11 Illinois, 467. Demand at the place specified is not necessary 
 to charge the maker. To charge the indorser, such demand is necessary, 
 but if no place is named, the demand must be made of the maker, or 
 at his place of business, or dwelling. Holtz v, Boppe, 37 N. York,, 
 634 ; McCullough v. Cook, 34 Indiana, 390 ; Hills v. Place, 48 K. Y. 520 ; 
 Thiel V. Conrad, 31 Louis. Ann. 214 ; Letchford v. Starns, 16 Louis. Ann. 
 353 ; .Bank of Newbury v. Richards, 35 Vermont, 281 ; Slate Bank v. Fox,. 
 3 Blatchf. C. C. 431 ; Howard v. Boorman, 17 Wise. 459 ; Gay v. Haseltine, 
 18 N. Harap. 530 ; Rust v. Reives, 34 Ark. 359 ; Magoun v. Walker, 49 Maine, 
 419 ; Struthers v. Kendall, 5 Wright, 314 ; Smith v. Philbrick, 10 Gray, 252; 
 People's Bank v. Brooke, 31 Md. 7 ; Moore v. Brittain, 32 Louis. Ann. 64; 
 Etheridge v. Ladd, 44 Barb. 69 ; Bank of Commonwealth v. Mudgutt, 45 
 •Barb. 663; Bateson v. Clark, 37 Mo. 31; Simms v. Larkin, 19 Wise. 390; 
 Adams v. Leland, 30 New York, 309 ; Simmons v. Belt, 35 Mo. 461 ; Ococe 
 Bank v. Hughes, 2 Coldwell, 53; People's Bank v. Keech, 36 Md. 521; 
 Eason v. Isbell, 43 Ala. 456. When a note is made payable at a particular 
 place, the maker has the whole of the day in which to make payment, but 
 after demand and refusal, he must seek the holder for that purpose. Ether- 
 idge V. Ladd, 44 Barb. 69. A note payable "on demand at a particular 
 place," demand at that place must be sUewii as against the maker. Bing- 
 ham V. Smith, 16 N. Hamp. 374. Where a note is made payable at a particu- 
 lar place, it is in all respects to be treated as if made there, without regard to 
 the place where it is dated or delivered. Ball v. Consolidated FrankliniteCo., 
 3 Vroom, 103. When a note is payable at a certain bank, it is sufficient to 
 charge the indorser that the note is there at maturity to be delivered if paid 
 without a special demand. Folger v. Chase, 18 Pick, 63; Jenks v. Doyles- 
 town Bank, 4 Watts and Serg. 605; State Bank v. Napier, 6 Humpli. 370; 
 Goodloe V. Godley, 13 Smedes & Marshall, 333; Roberts v. Mason, 1 Ala. 
 373. In such a case in an action against the indorsers, it is not necessary 
 lor the holder to prove that the cashier was at the bank during all the business 
 hours of the day of payment. The presumption is that he did his duty. 
 
OF PRESENTMENT FOR PAYMENT. 337 
 
 The consequence of not duly presenting a bill or note is that 
 all the antecedent parties are discharged from their liability, 
 whether on the instrument, or on the consideration for which 
 it was given. 
 
 . The acceptor or maker, however, still continues liable. And, 
 indeed, presentment is not in general necessary for the purpose 
 of charging him: the action itself being held to be a sufficient 
 demand, and that though the instrument be made payable on 
 demand.(<) But if a bill or note be payable (at or) after sight, 
 it must be presented in order to charge the acceptor or maker.(M) 
 So must a note payable at a particular place, as we have just 
 Been.(a;) But though the absence of demand be in general no 
 defence, yet if the acceptor or maker pays on action brought 
 without any previous demand, it seems the Court would, where 
 they have the power, take the question of costs into considera- 
 .tioD.(2/) 
 
 There are circumstances, however, which will excuse the 
 neglect to present for payment.(^)(l) 
 
 (() Bnmball v. Ball, 10 Mod. 38 ; Frampton v. Coulson, 1 Wils. 33 ; Nor- 
 ton v. EUam, 2 M.& "W. 461. 
 
 (m) Dixon V. Nuttall, 1 C. M. & R. 307 ; C. C. & P. 330 (35 E. C. L. R.). 
 As to bills and notes payable at sight, see 34 & 35 Vict. e. 74. Appendix, 
 and pp. 180, 304 and 307. 
 
 (icj Rhodes v. Gent, 5 B. & Al. -344 (7 E. C. L. R.). Qucere, as to the effect 
 , of flpn-piesentment of a bill at a particular place, if the drawee had lodged 
 money there and lost it by the holder's delay. 
 
 (y) M'Intosh v. Haydon, 1 R. & M. 363 (21 E. C. L. R). 
 
 (s) An impossibility to present a bill for. payment on the day it falls due, 
 
 Brittain t. The Doylestown Bank, 5 Walts & Serg. 87. It is sufficient evi- 
 dence of demand of payment and of refusal to pay a note payable at a par- 
 ticular place, if the note is left there, and no funds are provided to take it up. 
 Nichol V. Goldsmith, 7 Wend. 160 ; Wooden v. Foster, 16 Barbour, 146 ; 
 Merchants' Bank v. Elderkin, 25 New York, 178 ; Hallowell v. Curry, 5 
 Wright, 333. The want of funds of the drawee at the bank will excuse the 
 demand there, but this must be averred. Bank of Wilmington v. Cooper, 1 
 Harrington, 10 ; Gillett v. Averill, 5 Denio, 85 ; Allen v. Smith, 4 Harrington, 
 234. A note made negotiable at a bank is not therefore payable there. Bar- 
 rett V. Wills, 4 Leigh, 114. If a note is made payable at a particular bank, 
 and if such bank before maturity ceases to exist, a demand in order to hold 
 an iindorser is excused. Roberts v. Mason, 1 Alabama, 373 ; Central Bank v. 
 A.IJen, Siiep]. 41. 
 (1) An impossibility to present a bill for payment on the day it falls due, 
 
338 OF PRESKNTMENE FOR PAYMENT. 
 
 Where a bill is seized under an extent, the indorsers are not 
 discharged by non-presentment, for laches is not imputable to 
 the Crown.(a) 
 
 r*21P1 *N'eglect of presenting for payment is, as we have 
 seen, excused in the case of a bank note payable on 
 demand, and perhaps of other paper meant for circulatioi, if 
 the holder, within the period at which he should have pre- 
 sented it, puts it into circulation. (6) 
 
 where the holder is in no fault, may rendera suhsequent presentment sufficient 
 to charge the drawer ; aliter of negligence or OTersight in the Post Office, by 
 which a bill miscarries, so that it cannot be presented till after it is due. The 
 fact that a bill is lost is an excuse for delay in making demand, but for no 
 more than a reasonable delay. See Byles on Bills, 5th American edition, p. 
 846. 
 
 (as) "West on Extents. 29, 30. 
 
 (ft) Oamidge v. AUenby, 6 B. & C. 373 (13 E. C. L. R.) ; 9 Dowl. & E. 
 391, S. C. 
 
 where the holder is in no fault, may render a subsequent presentment suffi- 
 cient to charge the drawer; aliter of oversight or negligence in the post- 
 offlce, by which a bill miscarries so that it cannot be .presented till after it is 
 due. Schofield v. Bayard, 3 Wendell, 488. A bill of exchange was deposi- 
 ted by the holder in the iJOSt-ofiSce, in season to reach the place where it 
 was payable before it fell due by the regular course of the next mail; end 
 there was no reason to believe that it would not be there duly delivered. It 
 was actually sent by that mail ; but by mistake of the postmaster where it 
 was mailed, the package containing it was misdirected, and in consequence 
 thereof, was carried beyond its place of destination" The mistake being dis- 
 covered, the bill was returned, and reached the place where it was payable 
 on the day after it became due, which was Sunday. On the morning of the 
 following day, the bill was delivered from the post-offlce to the agent of the 
 holder, and payment demanded of the acceptor. Held, that the holder was 
 not chargeable with a want of reasonable diligence. Windham Bank v. Nor- 
 ton, 23 Connecticut, 213. The fact that a bill is lost is an excuse for delay 
 in making demand, but for no more than a reasonable delay. Aborn v. 
 Bosworth, 1 Rhode Island, 401. As to what will excuse demand or pre- 
 sentment, see Bell v. Hall's Ex'rs, 2 Duvall, 388 ; Berry v. Southern Bank 
 of Kentucky, Ibid. 379 ; Jex v. Tureaud, 19 Louis. Ann. C4; Union Bank v. 
 Robertson, Ibid. 73 ; Polk v. Spenk, 5 Coldwell, 431 ; McKee v. Boswelj, 33 
 Mo. 567; Wilson v. Senier, 14 Wise. 380 ; Caldwell v. Porter, 17 N. Hamp. 
 27 ; Jamison v. Copher, 35 Mo. 488 ; Hall v. Jones, 32 Illinois, 38 ; ArnolAv. 
 Dresser, 8 Allen, 435 ; Simmons v. Belt, 35 Mo. 461 ; Adams v. Leland, 30 
 N. York, 309 ; Deel v. Berry, 31 Texas, 463 ; Benton v. Martin, 31 N. York, 
 382 ; Phoenix Ins. Co. v. Gray, 13 Mich. 191 ; Taylor v. Sip, 1 Vroom, 384; 
 Staylor v. Ball, 24 Md. 183. In the case of the death of the holder, Us 
 
OF PRESENTMENT FOE PAYMENT. 339 
 
 « 
 
 If the acceptor or maker abscond, and his house be shut up, 
 the bill or note may be treated as dishonoured ; but not if he 
 have merely remov6d.(c)(l) If the drawee cannot be found, it 
 will be sufficient to plead that fact, without averring that due 
 search was made for h\m.{d) Under an allegation that the bill 
 was presented, evidence that the drawee could not be found is 
 iuadmissible.(<;) 
 
 Absenc^of effects in the drawee's hands will, as against the 
 drawer, dispense with the necessity of presenting for pay- 
 ment,(/) but not as kgainst a subsequent indorser.(^) 
 
 A declaration by the acceptor, before a bill is due, that he 
 will not pay, though made in the drawer's presence, does not 
 
 (c) Anon, 1 Ld. Raym. 743 ; Hardy v. "Woodmofe, 2 Stark. 319 (3 E. C. L. 
 E.) ; Hine v. Allely,4 B. & Ad. 634 (24 B. C. L. R.) ; 1 N. & M. 438, S. C. ; 
 Collins V. Butler, 2 Stra. lt)87. See also Sands v. Clarke, 19 L. J., C. P. 84 ; 
 8 0. B. 751 (65 E. C. L. R.), S. C. 
 
 Where the maker of a note is a seaman without a domicil in the State, who 
 goes a voyage about the time the note falls due, no demand on him is neces- 
 sary to charge the indorser. Absence of the maker of a note on a voyage at 
 sea, his family still residing jn the State, will not excuse a demand of pay- 
 ment so as to discharge an indorser. See Byles on Bills, 5th American edi- 
 tion, p. 346. 
 
 (d) Starke V. Cheeseman, Carthew, 509 ; 1 Ld. Raym. 538, S. C. 
 
 (e) Leeson v. Piggett, 1788 ; Bayley, 6th ed. 409 ; and see Smith v. Bel- 
 lamy, 8 Stark. 223 (3 E. C. L. R.) ; Burgh v. Legge, 5 M. & W. 421. 
 
 (/) Terry v. Parker, 1 Nev. & Perry, 752 ; 6 Ad. & E. 503 (38 E. C. L. 
 R.), S. C. See Prideaux v. Collier, 2 Stark. 57 (3 B. C. L. R.) ; Hill v. Heap, 
 D. & E., N. P. C. 57 (16 E. C. L. R.) ; De Berdt v. Atkinson, 2 H. Bl. 336. 
 But see the observations (m this last case in Sands v. Clarke, 19 L. J., C. P, 
 87; 8 C. B. 751 (65 E. C. L. R.), S. C. ; and Maltass v. Siddle, 28 L. J., C. 
 P. 358; 6 C. B. (N. S.) 494 (95 E. C. L. R.), S. C. ; Ex parte Bignold, 1 
 Deacon, 728 ; 3 Mont. & Ayr. 683, 8. C. 
 
 (g) Saul V. Jones, 28 L. J., Q. B. 37 ; 1 B. & E. 59 (102 B. C. L. R.), S. C. 
 
 executor must make demand at the earliest practicable time. Wilson v. 
 Senier, 14 Wise. 880. 
 
 (1) Where the maker of a note is a seaman, without a domicil in the State, 
 who goes a voyage about the time the note falls due, no demand on him is 
 necessary to charge the indorser. Moore v. Coffleld, 1 Dev. 247. Absence of 
 the maker of a note on a voyage at sea, his family still residing in the' State, 
 will not excuse a demand of payment so as to charge an indorser. Dennie 
 V. Walker, 7 N. Hamp. 199. 
 
340 OP PRESENTMENT FOR PAYMENT. 
 
 dispense with presentment to the acceptor and' notice to the 
 drawer.(A)(l) 
 
 ih) Ex parte Bignold, 1 Deac. 728 ; 3 Mont. & Ayr. 633, S. C, 
 
 (1) Where a note made payable at a bank, is not at the bank when it falls 
 due, and no demand is then made on the maker, the indorsee cannot charge 
 the indorser by giving him reasonable notice of non-payment, althougli'the 
 maker had previously told the indorsee that it would be useless to send the 
 note to the bank, because he could not pay it. See Bank v. Spencer, 5 Mete. 
 808 ; Lang v. Young, 8 English, 401. Tlie holder of a note need not demand 
 payment and give notice, when the indorser, a few days before the maluiity 
 of the note, writes to him that the maker has failed, and asks indulgence until 
 funds can be realized from security given by the maker. Spencer v. Harvey, 
 17 Wend. 489. One who indorses a prornissory note, inserting over his sig- 
 nature a waiver of cleman.d and notice, is not entitled to any demand and 
 notice.' Woodman v. Thurston, 8 Gushing, 157. So an oral waiver at that 
 time. Barclay v. Weaver, 19 Penna. State Eep. 396. An agreement with 
 the maker by the payee, after he had negotiated it, that he would pay it and 
 take it up, amounts to a waiver of demand and notice, and such agreement 
 enures to the benefit of the indorsee. Marshall v. Mitchell, 35 Maine, 331. 
 Beceiving from the maker a sum sufficient to meet the note, or taking, ample 
 security as indemnity for the same, amounts to a waiver, by the indorser, of 
 due presentment. Lewis v. Kramer, 3 Maryland, 265. When copa,rtnevs 
 purchase goods together, and give a promissory note therefor, with one of 
 them as maker and the other as indorser, the latter is not liable on his indorse- 
 ment unless he be duly notified of the dishonor of the note. Foland v. Boyd, 
 22 Penna. State Eep. 476. 
 
 As to when want of funds in the hands of the drawee will excuse demand, 
 see Brower v. Rupert, 24 Illinois, 182; Mobley v. Clark, 28 Barbour, 390; 
 Healy v. Gilman, 1 Bosworth, 235 ; Case v. Morris, 7 Casey, 100; Carson v. 
 Alexander, 84 Mississippi, 538 ; Wood v. Gibbs, 35 Ibid. 559 ; Wobd v. 
 McMeans, 23 Texas, 481 ; Dickerson v. Turner, 13 Indiana, 323 ; Sherer t, 
 Easton Bank, 9 Casey, 134 ; Coyle v. Smith, 1 E. D. Smith, 400; Whalpyv. 
 Houston, 13 Louisiana Annual, 585 ; Miser v. Trovinger, 7 Ohio (H. S,), 
 381 ; Blankenship v. Rogers, 10 Indiana, 833 ; Spangler v. McDaniel,,3 In- 
 diana, 375. An admission by the indorser of a check, that the drawer cannot 
 pay, dispenses with demand and notice. Taylor v. French, 4 B. D. Smith, 
 450. It is presumed that the drawee has funds until the contrary appear^, and 
 this presumption is not changed by a waiver or want of acceptance. Galla- 
 day V. Bank, 2 Head. 57. Taking security by the indorser of the maker after 
 maturity supposing himself to be liable, is not a waiver of demand land 
 notice. Otsego County Bank v. Warren, 18 Barbour, 391. Security held 
 by. indorser to indemnify him against liability does not dispense with demand 
 and- notice. Moses v. Ela, 43 New Hampshire, 557; Wilson'v. Senier, U 
 Wisconsin, 380. That a payee included the amount of an unpaid draft in an 
 account sent to the drawer, to which no objection was made, dispenses WiW 
 the necessity of proving demand and notice. Carson v. Alexander, .34 Mis- 
 sissippi, 538. Where a note is made for the accommodation. of the pajec, 
 
OF PRESENTMENT FOR PAYMENT. 341 
 
 It has been held, that neglect to present banker's cash notes, 
 the banker having failed, will be excused by returning them in 
 due time.(i) 
 
 ♦Advantage from such neglect is waived by any ante- 
 cedent party who subsequently, with notice of the laches, '- -' 
 promises to pay the bill, or makes, or promises to make, a 
 partial payment on account of \t.{k) 
 
 As to the proper mode of pleading, where the plaintiff relies 
 on any dispensation with presentment, see the Chapter ou 
 
 PliEADINe. 
 
 The defendant's part payment or promise to pay, made after 
 the bill or note is due, is prima facie evidence of present- 
 ment.(0{l) 
 
 (i) Henderson v. Appleton, Chit. 10th ed. 246 ; Eogers v. Langfoid, 1 C. 
 & M. 637 ; Robson v. Oliver, 10 Q. B. 704 (59 E. C. L. R.). See ante. 
 
 (*) Vanghan V. Fuller, 3 Stra. 1346; Hopley v. Dufresne,.15 East, 375; 
 Haddock v. Bury, 7 East, 236 ; Hodge v. Fillis, 3 Camp. 463. See Goodall 
 T. Dolly, 1 T. R. 712 ; Anson v. Bailey, B. N. P. 276. 
 
 {I) Croxon v. Worthen, 5 M. & W. 5 ; Ltiudie v. Robertson, 7 East, 333 ; 
 Campbell v. Webster, 15 L. .T., C. P. 4 ; 3 C. B. 258 (53 B.C. L. R.), S. C. ; 
 Gteenway v. Hindley, 4 Camp. 52. 
 
 with the understanding that the maker is not to pay it, demand and notice ia 
 not necessary to hold the payee as indorser. Torry v. Foss, 40 Maine, 74. 
 Where a bill is acctpted for the accommodation of the drawer, he is not disr 
 charged by want of demand or notice. Ross v. Bydell, 5 Duer, 463. When 
 the payee wrote on the note, " I assign this note to A. and indorse the 
 ))rompt payment of it," it was held that demand and notice were not neces- 
 sary: Tatem v. Bonner, 27 Mississippi, 760. A waiver of notice of protest 
 will not excuse want of demand. Scull v. Mason, 7 Wright, 99. The words 
 "protest and notice waived " — waive also demand. Gordon v. Montgomery, 
 19 Indiana, 110. The holder may prove by oral testimony that, at the time 
 of the indorsement of a negotiable note, it was agreed between the maker, 
 indorser and holder, that payment should not be demanded at the maturity of 
 the note. Barclay v. Weaver, 7 Harris, 396. Sickness of bolder wlien an ex- 
 cuse for demand and notice. Wilson v. Senier, 14 Wisconsin, 380. 
 
 (1) A drawer's promise to pay an overdue check, without knowing the 
 fact that it had not been duly presented, is not binding upon him. Kelley v. 
 Brown, 5 Gray, 108. Indorser discharged for want of demand, is not liable 
 on his subsequent promise made in ignorance of the fact. Low v. Howard, 
 11 Cashing, 268. 
 
342 
 
 OE PAYMENT. 
 
 [*218] 
 
 *OHAJ:'TER XV. 
 
 OF PAYMENT. 
 
 TO WHOM IT SHOULD BE MADE, 318 
 TO A WRONGFCTL HOLDER OF 
 INSTRUMENTS PAYABLE TO 
 
 BBAREB, 219 
 
 OF INSTKDMENTS NOT PAYABLE 
 
 TO BEAREB 330 
 
 EFFECT OF PAYMENT BY AC- 
 
 CBPTOK, 330 
 
 BY DRAWER, .... 330 
 MEANING OF THE WORD "RE- 
 TIRE," 333 
 
 BY A STRANGER 333 
 
 BY ONE, WHO IS BOTH AGENT 
 FOR THE ACCEPTOR AND ALSO 
 INDORSEB, .... 332 
 
 WHEN TO BE MADE, . . . 333 
 
 AT WHAT TIME OF DAY, . . 332 
 
 SUBSEQUENT TENDER, . . 333 
 
 PREMATURE PAYMENT, . . 323 
 
 AFTER ACTION BROUGHT, . . 324 
 
 PAYMENT BY BANKER'S NOTES 
 
 OR CHECKS, . . . .234 
 
 WHAT AMOUNTS TO PAYMENT, . 224 
 
 LEGACY, 235 
 
 APPROPRIATION OF PAYMENTS, . 225 
 RATABLE APPROPRIATION, . 327 
 
 PART PAYMENT 228 
 
 WHEN PAYMENT WILL BE PRE- 
 SUMED, 228 
 
 EVIDENCE OF PAYMENT, . . 228 
 
 OF DELIVERING UP THE BILL, . 229 
 OF GIVING A RECEIPT, . . 229 
 
 EFFECT OF RECEIPT, . . .229 
 
 TENDER OF PART PAYMENT, . 230 
 PLEA OF PAYMENT, . . .230 
 
 RETRACTATION OP PAYMENT, . 230 
 PAYMENT UNDER MISTAKE OF 
 
 FACT OR LAW, . . . .230 
 WHEN PAYMENT IS DEEMED COM- 
 PLETE 230 
 
 Payment should be made to the true holder of the bill ;(a) 
 for payment to any other party is no discharge to the acceptor; 
 unless, indeed, the money paid finds its way into the holder's 
 hands, and the holder has treated it as received in liquidation 
 of the bill. A. drew a bill upon defendant, which defendant 
 accepted ; A. then indorsed it to the plaintiffs, his bankers, who 
 entered it to the credit of plaintiffs' account, and, at maturity, 
 presented it to the defendant for payment, and it was dis- 
 honoured. The plaintiffs then debited A. with the amount, 
 hilt did not return him the bill. A few days afterwards 
 defendant paid the amount to A. ; A. still continued his bank- 
 ing account with the plaintiffs, and, at different times paid in 
 more money than was sufficient to cover the amount of the bill, 
 and all the preceding items which stood above it in the account, 
 *though there was always a balance against him larger 
 
 [*219] 
 
 than the amount of the bill. A. failed, and the plain- 
 
 (a) See the definition of the woi-d holder, ante, Chapter I. 
 
OF PAYMENT. 343 
 
 tiffs proved for the whole of their balance under his commission. 
 They then brought this action on the bill against the defend- 
 ant, the acceptor. Best, C. J. : " The payment to A. would 
 not of itself have discharged the defendant, the plaintiffs 
 having been at that time the holders, and entitled to the 
 amount of the bill ; but the ground on which the defendant 
 is discharged is, that the plaintitt's not only entered the 
 bill to the credit of A., but treated it as having been paid.(6) 
 
 There are some cases in which payment to a wrongful 
 holder is protected, and others in which it is not.(c) If a bill 
 or note, payable to bearer, either originally made so, or become 
 BO by an indorsement in blank, be lost or stolen, we have seen 
 that a bona fide holder may compel payment, ^ot only is the 
 payment to a bona fide holder protected, but payment to the 
 thief or finder himself will discharge the maker or acceptor,((i;) 
 provided such payment were not made with knowledge or sus- 
 picion of the infirmity of the holder's title, or under circum- 
 stances which might reasonably awaken the suspicions of a 
 prudent man.(e) " For it is a general rule, that where one of 
 two innocent persons must suffer from the acts of a third, he 
 who has enabled such third person to occasion the loss must 
 sustain it."(/) And supposing the equity of the loser and 
 payer precisely equal, there is no .reason why the law should 
 interpose to shift the injury from one innocent man upon 
 another. But, if snch a payment be made under suspicious 
 circumstances, or without reasonable caution, or out of the 
 usual course of business, it will not as between all parties and 
 
 (i) Fields v. Carr, 5 Bing. 13 (15 B. C. L. R.) ; 8 Moo. & P. 46, S. C. 
 Where money is paid into a bank on the joint account of persons not partners 
 in trade, the banlters are not discharged by payment of the check of one of 
 those persons, drawn without the authority of the others ; Innes v. Stephen- 
 son, 1 Moo. & Rob. 145 ; Stone v. Marsh, R. & M. 369 (21 E. C. L. R.) ; 
 unless one aloue afterwards becomes entitled to receive it. Stewart v. Lee, 
 Mood. & M. 160 (33 E. C. L. R.) ; see ante. 
 
 (o) As to payment of a forged bill, see post, the Chapter on Fobgeky of 
 Bills. 
 
 (d) Smith T. Sheppard, Sal. Ca. 243 ; MS. of Mr. Serjeant Bond, Chitty, 
 10th ed. 180. 
 
 (e) We have seen that nothing short of fraud will affect the title of a trans- 
 feree for value. 
 
 (/) Lickbarrow v. Mason, 2 T. R. 70. 
 
344 OP PAYMENT. 
 
 for all purposes discharge the payer.(^)(l) Payment before the' 
 bill or note is *due, or long after it is due, or, in case of 
 L -'a check, long after it is drawn, or when the marks of 
 cancellation are on the instrument, are examples of payment 
 out of the usual course of business. 
 
 And, therefore, though a check be really drawn by a banker's 
 customer, but torn in pieces before circulation by the drawer, 
 with intention of destroying it, and a stranger, picking up the 
 pieces, pastes them together, and presents the check soiled and 
 so joined together to the banker, and he pays it, the banker 
 cannot charge his customer with this payment, for the instru- 
 ment was cancelled, and carried with it reasonable notice that 
 it had been cancelled.(A) 
 
 If the bill or note be not payable to bearer, but transfer- 
 able by indorsement only, and be paid to a party whose title 
 is made through the torged indorsement, the payer is not 
 discharged.(i ) 
 
 ig) There is at present no decided case establisliing tliat a party lionestly 
 paying is in as good a situation as a party lionestly discounting. See, how- 
 ever, the observations of Best, C. J., in Snow v. Peacock, 2 C. & P. 221 (13 
 E. C. L. E.), and the observations of Parke, B., in Robarts v. Tuclier, 16. Q. 
 B. 575 (71 B. C. L. E.). The question as to the validity of a payment 
 usually arises between a customer and his banker. But a banker paying i 
 bill made payable at his bank must, it is conceived, exercise due caution. 
 
 (/j) Schpley v. Ramsbottom, 3, Camp. 485. 
 
 (i) It has been contended, that each indorsement is a warranty of the 
 validity of the prior indorsements, and that an indorser, who has been paid 
 by the acceptor, is liable, if the indorsements to him turn out invalid, to be 
 sued by the acceptor on an implied undertaking that he, as holder, was 
 entitled to receive the amount of the bill. East India Company v. Tritton, 
 3 B. & C. 380 (10 E. C. L. B.) ; 5 Dowl. & R. 214, S. C. ; Smith v. Mercer; 
 6 Taunt. 76 (1 B. C. L. E.) ; 1 Marsh, 453, S. C. L'endosseur est garantsoli- 
 daire avec les autres signataires de la verit6 de la lettre ainsi que du paiement 
 a l'6oh6ance. Pardessus, 376. Tous ceux qui ont sign6, accept^, ou endoss^ 
 une lettre de change, sont tenus a la garantie solidaire envers le porteur. 
 Code de Commerce, 140 ; Lovell v. Martin, 4 Taunt. 799. See McGregor 
 V. Rhodes, 35 L. J., Q. B. 318; 6 B. & B. 266 (88 B. C. L. R.), S. C; 
 Robarts v. Tucker, 16 Q. B. 575 (71 B. C. L. R). 
 
 (1) A payment made to the party who was holder at the time of -protest, 
 without notice of his Tiaying subsequently transferred it, is no defence. Davis 
 v. Miller, 14 Grattan, 1. The drawee of a bill is bound at his peril to ascer- 
 tain that the person to whom he makes payment Is the person entitled. He 
 
OK PAYMENT. 3-15 
 
 A bill is not discharged, and finally extinguished, until 
 paid by or on behalf of the acceptor ; nor a note until paid 
 by or on behalf of the maker.(l) 
 
 It was long an unsettled question, whether payment in part 
 or in full by the drawer to the holder will discharge the ac- 
 ceptor -pro tanto, or whether the holder may, nevertheless, 
 recover the whole amount from the acceptor, and hold an 
 equivalent to the amount received from the drawer, as money 
 received of the acceptor to the drawers use.(A) It has been 
 *thought that the holder can only recover of the ac- ^^^^-i t 
 ceptor the amount of the bill minus the sum paid by the '- -■ 
 
 {k) In Johnson v. Kennion, 3 Wils. 263, recognized in Walwyn v. St. Quin- 
 tin, 1 J3. & P. 658, it was held that the holder was entitled to recover the 
 whole amount ; but in Bacon v. Searles, 1 H. Bl. 88, it was considered 
 that he could recover only the difference, and the report of the case of 
 Johnson v. Kennion, was reflected on. See Pierson v. Dunlop, Cowp. 571 ; 
 Reid V. Furnival,. 1 C. & Mees. 538 ; 5 C. & P. 499 (34 B. C. L. R ), S. 
 C. ; Browne v. Rivers, Dougi 445. To the doctrine that a payment by a 
 subsequent parly operates as a satisfaction of the bill to the amount of the 
 payment, it may be objected, that if the bill be satisfied, the party making 
 the payment can maintain no action on the bill against a prior party, but 
 must sue such prior party for money paid to his use. Whereas it is the 
 constant practice for an intermediate party, who has paid the bill, to sue 
 prior parties on the MIL See Callow v. Laurence, supra. The answer to 
 this objection might have been, that such a payment is as to the rights and 
 liabilities of parties, subsequent to the party paying, a satisfaction, but as 
 to the rights and liabilities of prior parties, it may, at the election of the 
 party paying, merely operate to place him in the position of a party to whom 
 a negotiable instrument is assigned a second time. 
 
 cannot defend against the payee on the ground that he has paid the amount of 
 Ihe bill to another person of the same name, in good faith, and in the usual 
 course of business, with nothing to excite suspicion. Graves v. The American 
 Exchange Bank, 17 New York, 305. • 
 
 (1) A payment made by a joint proraissor on a note due cannot, by an 
 arrangement with the payee, be revoked so as to revive the debt against the 
 other parties. Frost v. Martin, 6 Foster, 423. As a general rule, the acceptor 
 cannot be dPscharged except by payment or release. Cronin v. Kellogg, 30 
 Illinois, 11. The payee of a note, in her last sickness, handed the note to a 
 person to be given to Ihe maker in payment of board and nursing, held to be 
 a valid cancellation of the note. Edwards v. Campbell, 33 Barbour, 433. 
 The mere pToduction of a bill by an accommodation acceptor is not even 
 prima facie evidence of payment by him ; it must be shown to have been in 
 circulation after acceptance. Qurry v. Kurtz, 33 Mississippi, 34. 
 
346 OF PAYMENT. 
 
 drawer.(Z) The acceptor being the principal, and the drawer 
 the surety, it might seem that a payment by the drawer dis- 
 charges the acceptor's liability to the holder fro tanto, and 
 makes the acceptor liable to the drawer for money paid to his 
 ■use, and that if. the drawer pay the whole bill, nominal dam- 
 ages only can be recovered by the holder of the acceptor.(m) 
 The better opinion, however, seems to be, that to an action 
 against the acceptor, payment by the drawer is no plea, hut 
 only converts the holder into a trustee for the drawer when the 
 holder afterwards recovers of the aeceptor.(n) But payment 
 by the drawer of an accommodation bill is a complete discharge 
 of the bill.(o)(l) 
 
 (0 Lord Abinger appears to have so ruled at nisi prius. Hemming v. 
 Brook, 1 Car. & M. 57. 
 
 (ot) Mais comme ces diff^rents debiteurs sont dfibitenrs envers lui de la 
 meme chose, le paiement qui lui est fait par I'un d'eux libere d'aulant envers 
 lui les autres. Poth. 106 ; see Hemming v. Brook, 1 Oar. & M. 57. 
 
 (71) Jones V. Broadhurst; 9 0. B. 173 (67 E. C. L. E.) ; Randall v. Moon, 
 12 0. B. 261 (74 B. C. L. R.) ; but see Williams v. James. 19 L. J., Q. B. 
 445 ; 15 Q. B. 498 (69 E. C. L. R.), S. 0. ; Jewell v. Parr, 13 C. B. 909 (CO 
 B. C. L. R.) ; 16 C. B. 684 (71 B. 0. L. R.) ; Kemp v. Balls, 10 Exch. 607; 
 Belshaw v. Bush, 11 C. B. 191 (63 E. C. L. R.) ; James v. Isaacs, 13 C. B. 
 791 (64 B. C. L. R.). In an action by indorsee against acceptor, where the 
 consideration for the acceptance had failed, except as to an ascertained 
 amount, for which there was a set-off, and the drawer had paid the indoisee 
 in full, an equitable plea- stating these facts was held good. Ae;raandMas- 
 terman v. Leighton, L. R., 3 Ex. 56 ; 36 L. T. 83. S. C. 
 
 (o) Lazarus v. Cowie, 3 Q. B. 459 (43 E. C. L. R.). Of bills not strictly 
 accommodation bills. Cook v. Lister, 32 L. J., C. P. 121. Mr. Justice 
 Willes has expressed an opinion that payment or satisfaction by a sU'anger is 
 prima facie good, and that the assent of the debtor will be presumed. That 
 very learned judge refers to the rule of the civil law, " Debitorem ignaruin 
 seu etiam inviium solyeudo liberare possumus." See the- observations of 
 Willes, J., in Cook v. Lister, 32 L. J., C. P. 126, and in Manchester Ware- 
 house Company v. Bertie, C. P., T. T. 1866. But this presumption may be 
 rebutted. Walter v. James, L. R., 6 Ex. 124 ; 40 L. J. 104. 
 
 (1) When A. draws a bill on B., who accepts, payable to the order of C.,, 
 ■who indorses it to D., and D. indorses it back to C, C. can maintain no ac- 
 tion thereon against D. Palmer v. Whitney, 21 Indiana, 58. The drawer of 
 a protested draft, which has been taken up by the indorser, and returned to 
 him with the indorsement uncancelled, has no right to put it in circulation 
 again, and the acceptor is not liable to a subsequent holder. Gardner v. 
 Maynard, 7 Allen, 456. 
 
OF PAYMENT. 347 
 
 *The verb " retire " in its application to .bills of ex- r-^nnni 
 change is an ambiguous word. In its ordinary sense it '- "-' 
 is used of an indorser who takes up a bill by handing the 
 amount to a transferee, after which the indorser holds the in- 
 strument with all his remedies intact. But it is sometimes 
 used of an acceptor, by whom when a bill is taken up or re- 
 tired at maturity it is in effect paid, and all the remedies on it 
 extinguished. (;o) 
 
 Payment by a stranger of the amount of a bill to the 
 bankers, at whose house the bill is made payable by the ac- 
 ceptor, the party paying obtaining possession of the bill, is not 
 a payment by the aeceptor.(5')(l) 
 
 If a banker at whose house a bill is made payable happen 
 also to be indorser of the bill, and on the bill being brought to 
 him when it becomes due he takes it up without observation, 
 it is a question of fact for a jury whether he paid it as agent 
 of the acceptor or merely retired it as iudorser.(r) 
 
 The acceptor of a bill, whether inland or foreign, or the 
 maker of a note, should pay(s) it on a demand made, at any 
 
 (p) Elsam V. Denny, 15 C. B.-87 (80 E. C. L. R.). 
 
 (j) Deacon v. Stodhart, 2 Man. & Gr. 317 (40 E. C. L. R.). As to pay- 
 ment by a stranger, see Jones v. Broadhuist, supra ; Simpson v. Egginton, 10 
 Exch. 845 ; 24 L. J., Exch. 312, S. 0. ; Kemp v. Balls, 10 Excb. 607 ; note 
 {0), p. 221. 
 
 (r) Pollard v. Ogden, 2 E. & B. 459 (75 E. C. L. K.). 
 
 (s) If a banker who has funds in bis hands refuse to pay a check, be thereby 
 subjects himself to an action at the suit of his customer, the drawer. Mar- 
 zetti V. Williams, 1 B. & Ad. 415 (20 E. C. L. R.) ; 1 Tyrw. 77, S. C; Rollin 
 V. Steward, 14 C. B. 595 (78 E. C. L. R.), ante, 19, note (ic) ; Gumming v. 
 
 (1) Where the holder of a bill of exchange accepted for the acconjmodation 
 of the drawer sends it to the banls for collection, and the bank, when the bill 
 comes to maturity, passes the amount thereof to the credit of the holder, this 
 is not such a payment as discharges the acceptor ; but the bank succeeds to the 
 rights of the holder, and may maintain an action on the bill against the ac- 
 ceptor. Pacific Bank v. Mitchell, 9 Metcalf, 2£f7. 
 
 A person who, though not a regular party to a note, voluntarily pays it 
 for the honor or credit of an indorser, without request, does not thereby 
 acquire a right to repayment from any prior party. Smith v. Sawyer, 55 
 Maine, 139, 
 
3-18 OF PAYMENT. 
 
 time within business hours, on the day it falls due. And, if it 
 be not paid on such demand, the holder may instantly treat it 
 as dishonoured .(<) 
 
 But the acceptor has the whole of that day within which to 
 make payment; and though he should, in the course X)f that 
 day, refuse payment, which refusal entitles the holder 
 r*22'?1 *^° S^^® notice of dishonour, yet if he subsequently, on 
 the same day, makes payment, the payment is good, 
 and the notice of dishonour becomes of no avail. (m) 
 
 A plea of tender,(a;) by the acceptor after the day of pay- 
 ment, is insufficient.(y) 
 
 If a bill or note be paid before it is due, and is afterwards 
 indorsed over, it is a valid security in the hands of a bona fide 
 indorsee. " I agree-," says Lord EUenborough, " that a bill 
 paid at maturity cannot be re-issued, and that no action can be 
 afterwards maintained upon it, by a subsequent indorsee. A 
 payment before it becomes due, however, I think, does not ex- 
 tinguish it any more than if it were merely discounted. A 
 contrary doctrine would add a new clog to the circulatiofi.of 
 
 Shand, 29 L. J., Exch. 139. So, if he refuse to pay a bill of his customer, 
 made payable at the banking house ; but in order to charge the banker, the 
 presentment must be within banking hours. Whitaker v. The Bank of Eng- 
 land, 1 C, M. & R. 744; 6 C. & P. 700 (35 B. C. L. R.) ; 1 Gale, 54, S. C. 
 See the Chapter on Pebsbhtment por Payment. 
 
 (0 Ex parte Moline, 1 Rose, 303; Bnrbidge v. Manners, 3 Gamp. 193; 
 Leftley v. Mills, 4 T. R. 170 ; Hayues v. Birks, 3 B. & P. 599. 
 • (w) Hartley v. Case, 1 C. & P. 555 (13 B. C. L. R.) ; 4 B. & C. 339 (TO 
 E. C. L. R.) ; 6 D. & R. 505, S. C. 
 
 (x) As to payment where there are nominal damages, see Beaumont v. 
 Greathead, 3 C. B. 494 (53 B. C. L. R.). 
 
 (y) Hume v. Peploe, 8 -East, 168. But a drawer or indorser is not bound to 
 pay till notice and request ; and, therefore, a plea of tender, after the bill became 
 due, may be good, if pleaded by a drawer and indorser. And, as a drawer 
 or indorser has a reasonable time to pay, he may, it should seem, plead atender 
 even after request, and of principal only, without interest. Walker v. BarnoSi 
 
 5 Taunt. 340 (IE. C. L. R.) ; 1 Marsh. 36, S. C. ; Soward v. Palmer, 8 
 Taunt. 377 (4 B. C. L. R.) ; 3 Moo. 374 ; but see Siggers v. Lewis, 1 G., M. 
 
 6 R. 370 ; 4 Tyrw. 847 ; 3 Dowl. 681, S. C. ; where a plea that the action was 
 commenced before a reasonable time had elapsed for the defendant, the indor- 
 ser to pay the bill, was held ill. 
 
OF PAYMENT. 349 
 
 bills and notes ; for it would be impossible to know whether 
 there had not been an anticipated payment of them."{z) 
 
 If an acceptor discounts his own acceptance, he may transfer 
 it, and the indorser will be liable to a subsequent holder, even 
 with notice.(a) But if the acceptor is the holder w^hen the bill 
 falls due, it is extinguished. (6) 
 
 If the holder constitutes any one of the parties liable to him 
 his executor, and die, the appointment, is equivalent to pay- 
 ment and a re!ease.(c) A premature release will not, any more 
 than a premature payment, protect the releasee from liability 
 to a subsequent holder without notice.((i) 
 
 *But the payment of a note payable on demand will p^~„ .-, 
 be a defence, even against an indorsee for value with- L - J 
 out notice ;{e) for the statute, which imperatively prohibits the 
 re-issuing of such a note, dispenses with notice. 
 
 A payment after action brought will not prevent the holder 
 from jproceedin^ for his costs. (/) 
 
 If the bill be paid, the payer has a right to insist on its be- 
 ing delivered up to him ; but if it be not paid, the holder 
 should keep it. Yet it has been held, that an agent is justi- 
 fied, by the usage of trade, in delivering it up on receiving a 
 check, though that check is afterwards dishonoured.(^) But 
 .the drawers or indorsers, in such a case, would be discharged, 
 for they have a right to insist on the production of the bill, 
 and to have it delivered up on payment by them.(/i) If the 
 
 (s) Burbidge v. Manners, 3 Camp. 193 ; Morley y. Culverwell, 7 M. & W. 
 174. See Harmer v. Steele, 4 Exeh. 1; Lazarus v. Cowie, 3 Q. B. 459 (48 
 E. C. L. R.) ; Jewell v. Parr, 13 C. B. 909 (76 E. C. L. R.) ; AttenborQugh 
 V. Mackenzie, 25 L. J., Excli. 244. 
 - (a) Attenborough v. Mackenzie, 25 L. J.; Exch. 244. 
 
 (b) Byles on Bills, 4th American edition, p. 236. 
 
 (c) Freakley v. Fox, 9 B. & C. 130 (17 B. C. L. R.) ; 4 M. & Ry. 18, S. C. 
 See the law on this point more fully discussed in Chapter V., tit. Executoks. 
 
 (d) Dod V. Edwards, 2 0. & P. 602 (12 E. C. L. R.). 
 
 (e) Bartrum v. Caddy, 9 Ad. & E. 275 (36 E. C. L. R.) ; 1 Per. & Dav. 
 207, S. C. 
 
 (/) Toms V. Powell, 6 Esp. 40 ; 7 East, 536, S. C. 
 
 (ff) Russell V. Hankey, 6 T. R. 12. 
 
 (A) Powell V. Roche,. 6 Esp. 76; vide ante. 
 
350 OF PATMENT. 
 
 holder of a check receive bank notes instead of cash, and the 
 banker fail, the drawer is discharged.(i) If bonds be accepted 
 in payment, the payment is good even though they prove to be 
 
 A set-off does not amount to payment, unless it be mutually 
 agreed that one demand shall be set off against the other. 
 Such ail agreement amounts to payment.(A:) And au agree- 
 ment, even by one of several partners, with a debtor to the 
 firm, that a separate debt due from the partner shall be set off 
 against a joint debt due to the firm, binds the firm.(i) Credit 
 given to the- holder of a bill by the party ultimately liable is 
 tantamount to payment.(m) Where a banker takes from a 
 customer and his surety a promissory note, intended to secure 
 a running balance, and makes advances on the faith of the note, 
 it is not discharged by subsequent unappropriated repayments 
 made by the customer to the banker, but still continues as a 
 security for the existing balance.(n)(l) 
 
 r*99'ii *There are many circumstances under which a legacy 
 by a debtor to his creditor, of equal or greater amount 
 than the debt, will be considered a satisfaction of the debt. 
 But a legacy to the holder of a negotiable bill or note can never 
 be considered as a satisfaction of the debt on that instrument; 
 
 (i) Vernon v. Bouverie, 2 Show. 296. And see Guardians of tlie Liclifleld 
 Union v. Green, 1 H. & N. 884. 
 
 (j) Schroeder's Case, L. R, 11 Eq. 131. 
 
 (k) Callander v. Howard, 19 L. 3., C. P. 312 ; 10 C B. 390 (70 E. C. L. 
 R.), B. C. 
 
 • (0 Wallace v. Kelsall, 7 M. & W. 264 ; See Gordon v. Ellis, 7 M. & G. 607 
 (49 E. C. L. R.) ; 2 C. B. 821 (62 E. C. L. R.), S. C. 
 
 (m) Atkins v. Owen, 4 Nev. & Man. 123 ; 2 Ad. & El. 83 (29 E. C. L. K.). 
 S. C; Bell v. Buckley, 11 Exch. 631. 
 
 («,) Pease v. Hirst, 10 B. & C. 122 (21 E. C. L. R.) ; 5 M. & By. 88, 
 S. C. 
 
 (1) Payment in spurious bills is no discharge. BaUer v. Bonesteel, 3 Hil- 
 ton, 397 ; Ware v. Street, 2 Head. 609 ; Ramsdale v. Horton, 3 Barr, 330. 
 Payment in notes of a broken bank is good. Ware v. Street, 3 Head. 609. 
 Oontra, Townsend v. Bank of Racine, 7 Wisconsin, 185 ; Westfall v. Braley, 
 10 Ohio (N. S.), 158. One who receives a counterfeit note in payment from 
 an innocent person, must return it within a reasonable time, after disobvery 
 of its character. Raymond v. Baar, 13 Sergeant & Rawle, 318. [ 
 
OF PAYMENT. 351 
 
 For a legacy is a satisfaction when it may be presumed to have 
 been the intention of the testator that it should so operate ; but- 
 that cannot be presumed, when, from the assignable nature of 
 the debt, the testator could not tell whether or no the legatee 
 was at the time of the bequest his creditor.(o) 
 
 Where a man is iudebted to another in several items, and 
 makes a partial payment, it often becomes a question, important 
 uot only to the parties themselves, but to third persons, to 
 ■which of the items the payment shall be imputed. 
 
 The rule of the Roman law^, and therefore in general of Con- 
 tinental law, is, that a payment shall be appropriated, first, 
 according to the intention of the debtor at the time of making 
 it ;(p) but if that be unknown, then, secondly, at the election 
 of the creditor,(g') signified to the debtor. at the time of receiv- 
 ing it.(r) If the intention of neither be known, payment must 
 then be appropriated according to the presumed intention of 
 the debtor, and it will be presumed that he meant to discharge 
 such debts as were most burdensome: as, a debt carrying -interest, 
 rather than one which carries none ; a debt secured by a penalty, 
 rather than one resting on a simple stipulation ; a debt, on which 
 he may be made a bankrupt, rather than one which will not 
 subject him to such a liability. If all the debts are equal in 
 degree, the pa,yment must then be imputed to them according 
 to their respective priority in the order of time.(s) Such is 
 *the rule of the civil law, from which, in some particu- r*oo«n 
 lars, the common law differs. 
 
 Wherever, according to the English law, the transactions 
 
 (o) Can- V. Eastabrook, 3 Yes. 561. 
 
 (p) Qnotiens quis debitor ex pluribus causis unum debilum solvit, est in 
 ai'biuio solventis dicere quod potius debilum voluerit solutura, et quod dixerit, 
 id erit solulnm. D. 46, 8, 1. Vide etium Cod. 8, 43, 1. , 
 
 (?) Qnotiens veio iion dicimus ad quod solulum sit, in arbitrio est acci- 
 pientis eui potius debito accepluin ferat. D. 46, 3, 1. Uod. 8, 43, 1. 
 
 (r) Dum in re agenda (in re pisesenti hoc est statim atque solutum est) hoc 
 fiat • ut vel creditor! liberum sit non accipere vel debitori non dare, si alio 
 nomine exsoiutum quiseorum velit : cseterum postea non peimittitur. D. 46, 
 3, 1, 2, 3. 
 
 (s) D. 46, 3. If all the debts were equal and alike in every respect, the 
 sum paid was applied to a ratable reduction of them all. A ratable appro- 
 priation is also sometimes made by the English law. See an example ia 
 Faveno v. Bennett, 11 East, 36. See further, post, 227. 
 
352 OT PATMEXX. 
 
 between the two parties form one general account current, or 
 are treated by them as such, payments arc to be imputed to 
 debts in the order of time, and the balance is to be struck at 
 the foot of the account.(<) But, if an unappropriated payment 
 be made on account of several distinct insulated debts, which 
 cannot be considered in the light of a running account between 
 the parties, the common law then differs from the civil law and 
 gives the creditor a right of appropriating it at any time before 
 action,(M) as he pleases,(a;) provided a prior appropriation have 
 not been comniunicated to the debtor. 
 
 An appropriation which would have the effect of paying one 
 man's debt with another man's money will not be allowed.(y) 
 Nor can there be an appropriation which would deprive a debtor 
 of a benefit, such as the taxation of costs.(^) And it seems that 
 an appropriation by -the creditor, without the knowledge or 
 consent of the debtor, will not of itself afford sufficient groiind 
 for raising against the debtor a new promise to pay.(a) 
 
 A payment may be imputed to a demand for which the 
 creditor' could not recover at law.(6) But where a payment' is 
 made by a debtor on account generally, the court will not 
 
 (0 Clayton's case, 1 Meriv. 604 ; Geake v. Jackson, 36 L. J.,C. P. 108. 
 
 (M) Simpson v. Ingham, 3 B. & C, 65 (9 B. C. L. R.) ; 3 D, & Ry. 249; • 
 Mills V. Fowkes, 5 Blng. N. C. 455 (85 E. 0. L. R.) ; 7 Scott, 444, S. C. 
 
 («■) Clayton's Case, 1 Meriv. 604 ; Bodenham v. Purchas, 2 B. & Aid. 39 ; 
 Stoveld V. Bade, 4 Bing. 12 (13 B. C. L. R.) ; 12 Moo. 370; Field v. Carr, 
 3 Moo. & P. 46 (,17 E. C. L. R.) ; 5 Bing. 13 (15 E. C. L. R.) ; Goddard 
 v. Cox, 2 Stra. 1194; Bosanquet v. Wray, 6 Taunt. 597 (1 E. C. L.,E.); 
 3 Marsh. 819, 8. 0. ; Kirby v. Duke of Mailborongh, 3 M. & Sel 18; Plomer 
 V. Long, 1 Stark. 153 (3 B. C. L. R.) ; Woodroffe v. Hayne, 1 C. & P. 600 
 (12 E. C. L. R.) ; Shaw v. Picton, 4 B. & C. 715 (10 E. C. L. R.) ; 7 Dowl. 
 & R. 201, S. C. ; Marsh v. Houlditch, Cbitty, 9th ed. 404 ; Haramersley v. 
 Knowlys, 2 Esp. 666 ; Birch v. Tebbutt, 3 Stark. 74 (3 E. C. L. R ) ; Many- 
 atts V. "White, 3 Stark. 101 (3 E. C. L. R.) ; Meggott v. Mills, 1 Ld. Raym. 
 386 ; Dawe v. Holdsworth, Peake, 64 ; Peters v. Anderson, 5 Taunt. 596 (1 
 E. C. L. R.) ; Wright v. Laing, 3 B. & C. 165 (10 B. C. L. R.) ; 4 Dowl. 
 & R. 783 ; Gough v. Davis, 4 Price, 300 ; Strange v. Lee, 3 East, 484; Simp- 
 son V. Ingham, 2 B. & C. 65 (9 E. C. L. R.) ; 3 Dowl, & R. 249; Mills v. 
 Fowkes, 5 Bing. N. C. 455 (35 E. C. L. R.) ; 7 Scott, 444, S. C. 
 
 iy) Thompson v. Brown, 1 M. & M. 40 (2S E. 0. L. R.). 
 
 (z) James v. Child, 2 Tyrwh. 785 ; 2 C. & J. 352, S. C. 
 
 (a) Nash v. Hodgson, 6 De G., M. & G. 474 ; 25 L. J., Chan. 186 ; 23 L. 
 J., Chan. 780, S. C. 
 
 (5) Crookshanks v. Rose, 1 M. & R. 100 ; 5 C. & P. 19 (24 E. 0. i. B)- 
 S. C. 
 
r 
 
 OF PAYMENT. 353 
 
 *refer it to a debt barred by the statute, if it can be r*207-| 
 attributed to any debt not so barred. (e) The law will . 
 ascribe a payment to a legal debt, rather than to an illegal one.{d) 
 A party receiving money for the use of another from a third 
 person, which is not properly a payment hut a set-off, cannot 
 appropriate the money without the knowledge or consent of 
 him for whom it has been received.(e) It has been held, that a 
 payment may be appropriated to a disputed debt, if it be really 
 agooddebt.(/)(l) 
 
 (c) Nash V. Hodgson, 6 De G., M. & G. 474 ; 25 L. J., Chan. 186 ; 33 L. 
 J., Chan. 780, S. C. 
 
 (d) Wright V. Laing, SB. & C. 165 (10 E. C. L. R.) ; 4 Dowl. & R. 783. 
 
 (e) Waller v. Lacy, 1 M. & Gr. 54 (39 E. C. L. R.) ; 1 Scott, N. R. 186, 
 S. C. 
 
 (/) Williams v. Griffith, 5 M. & W. 300. 
 
 (1) The debtor has the first right to direct the application of any payment 
 he may make. Taylor v. Sandiford, 7 Wheaton, 13 ; Read v. Boardman, 20 
 Pick. 441 ; Martin v. Draher, 5 Watts, 544 ; McDonald v. Pickett, 2 Bailey, 
 617; Mitchell v. Dull, 4 Gill & Johns. 361 ; Selfridge v. Northampton Bank, 
 8 Watts & Serg. 320 ; Runyan v. Latham, 5 Iredell, 551 ; Rowland v. Rench, 
 
 .7 Blackfdrd, 236 ; Rackley v. Pearce, 1 Kelly, 241 ; Randall v. Parramore, 1 
 Branch, 409 ; V. States v. Bradbury, Daveis, 146 ; Thayer v. Denton, 4 
 Michigan, 192 ; Sherwood v. Haight, 26 Conn. 432 ; Semmes v. Boykin, 27 
 Georgia, 47; Proctor v. Marshall, 18 Texas, 63; Hargraves v. Cooke, 15 
 Georgia, 321; Gaston v. Barnej', 11 Ohio (N. S.), 506; Irwin v. Paulett, 1 
 
 -Kansas, 418. If payment is offered on an account not due, the creditor need 
 not receive it, but if he does receive it, he is bound to apply it in accordance 
 with the directions of the debtor. Wetherill v. Joy, 40 Maine, 325. The rule 
 that a debtor may apply payment as he pleases, applies only ^o voluntary pay- 
 ments, and not to those made by process of law. Blackstone Bank v. Hill, 
 10 Pick. 139. If no appropriation be made by him, it then devolves upon 
 the creditor to make it. Mitchell v. Dull, 3 Har. & Gill, 159 , Alexandria v. • 
 Patten, 4 Cranch, 316 ; Brady v. Hill, 1 Missouri, 315; Blinn v. Chester, 5 
 Day, 166 ; Brewer v. Knapp, 1 Pick. 332 ; Blackstone Bank v. Hill, 10 Il>id. 
 129; Arnold v. Johnson, 1 Scam. 196 ; Logan v. Mason, 6 Watts & Serg. 9 ; 
 Washington Bank v. Prescott, 20 Pick. 339 ; Allen v. Kimball, 23 Ibid. 473 ; 
 Jones V. U. States, 7 Howard, U. S. 681 ; Van Rensselaer v Roberts, 5 Denio, 
 470 ; Sawyer v. Tappan, 14 N. Hamp. 352 ; Watt v. Hock, 1 Casey, 411 ; 
 
 : Middleton v. Frame, 21 Missouri, 412 ; Carpenter v. Goin, 19 New Hampshire, 
 479 ; Orisler v. McCoy, 38 Mississippi, 445 ; Calvert v. Carter, 18 Maryland, 
 
 ' 73 ; Solomon v. Dreschler, 4 Minnesota, 275 ; Proctor v. Marshall, 18 Texas, 
 63 ; Taylor v. Coleman, 20 Ibid. 772 ; Bird v. Davis, 1 McCarter, 467 ; Babe's 
 Heirs v.Stickney, 36 Ala. 4ti2. Yet the creditor must make, it has been held, 
 such an application as the debtor could not reasonably or justly object to. 
 
 • Ayer V. Hawkins, 19 Vermont, 26 ; Cowperthwait v. Sheffield, 1 gandf. S. C. 
 
 23 
 
854 OF PAYMENT. 
 
 There are eases where a payment is appropriated by law to 
 several -debts proper bionally. 
 
 Rep. 416 ; Parchman v. McKinney, 12 Smedes & Marshall, 631 ; Bancroft v. 
 Dumas, 31 Vermont, 456 ; Caldwell v. TVentworth, 14 N. Hamp. 431. If a 
 creditor holds two demaiids, one lawful and the other unlawful, he cannot 
 apply a general payment to the Illegal demand, but the debtor himself mny 
 thus apply it if he elects to do so. Bohan v. Hanson, 11 Gushing, 44 ; Stone 
 T. Talbot, 4 Wisconsin, 442. The creditor, when the debtor does not,- may 
 apply a payment even to a debt barred by the statute. Armistead v. Brook?, 
 18 Arkansas, 531. He may appropriate to the payment of the first items not 
 barred at the time by theStatute of Limitations. Livermore v Bandi 6 Foster, 
 85. It has been held that such application by the law shall be made as the 
 debtor may be presumed to have done — in other words, as would be most for 
 his interest at the time. Hilton v. Burley, 2 New Hamp. 193 ; Dorsey v. 
 Garraway, 8 Har. & Johns. 403; Dedham Bank v. Chickering, 4 Pick. 314 ; 
 V. States V. Bradbury, Daveis, 146. C. J. Giffson has controverted this doc- 
 trine with great force and ability, in Logan v. Mason, 6 Watts & Sergeant, 9. 
 The principles which regulate and control the appropriations of payments 
 made on a running account, in the absence of directions from the debtor, look 
 to the interest of the creditor. Johnson's Appeal, 1 Wright, 268; Pierce t. 
 ■Sweet, 9 Casey, 151. When a debtor makes payments without specifying the 
 application, the creditor cannot apply them to debts not due tf there are other 
 debts which are due. Bacon v. Brown, 1 Bibb, 834 ; McDowell v. Canal Co., 
 5 Mason, 11 ; Seymour v. Sexon, 10 Watts, 355. A debtor or creditor can- 
 not appropriate a payment in such manner as to affect the relative liabilities 
 or rights of sureties without their consent. Postmaster-General v. Norvell, 
 Gilpin, 106 ; Bank v. Brown, 12 N. Hamp. 320 ; Meyers v. U. States, 1 Mc- 
 Lean, 493. The holder of two notes of the same maker, receiving from him 
 in part payment a sum smaller than either, can, in the absence of any appro- 
 priation by him, apply the whole sum upon either, but not half on each note, 
 without the debtor's approbation. Wheeler v. House, 1 Williams, 735. The 
 holder of several notes of the same maker has a right to impute a partial pay- 
 ment made on them to part of the notes, and is not, bound to make the impu- 
 tation to all pro rata. Blackman v. Leonard, 15 Louisiana Annual, 59. 
 
 If application be directed by neither, then the law will make the application 
 according to equity. Postmaster-General v. Norvell, Gilpin, lOd ; Barker v. 
 Conrad, 13 Serg. & Rawle, 301 ; U. States v. Kirkpatrick, 9 Wheaton, 7S0 ; 
 Cremer v. Higginson, 1 Mason, 323 ; Gwinn v. Whitaker, 1 Har. & Johas. 
 754 ; Briggs v. Williams, 3 Vermont, 283 ; Robinson v. Doolittle, 13 Vermont, 
 356 ; Randall v. Parramore, 1 Branch, 409 ; Bayley v. Wjnkoop, 5 Gilman, 
 449. To the debt which is prior in date. Allston v. Contee, 4 Har. & Johns. 
 351 ; U. States v. Kirkpatrick, 9 Wheat. 730 ; Pairchild v. Holly, 10 Conn. 175 ; 
 Postmaster-General v. Furber, 4 Mason, 833 ; McKenzie v. Nevins, 9 Shep. 
 138 ; Berghaus v. Alter, 9 Watts, 386 ; Boody v. U. States, 1 Woodbury & 
 Minot, 150; Upham v. Lefavonr, 11 Metcalfe, 174; U. States v. Bradbury, 
 Daveis, 146; Caldwell v. Wentwoith, 14 N. Hamp. 431 ; Pierce v. Sweet, 9 
 Casey, 151 ; Miller v. Laflore, 33 Mississippi, 634 ; Scott v. Cleveland, 33 
 Ibid. 445; Morgan v. Tarbell, 3 Williams, 498; Shedd v. Wilson, 1 Ibid- 
 
OF PAYMENT. 355 
 
 Thus, 'where a principal debtor has assigned his effects to a 
 trustee for his creditors, a creditor who has a guarantee for 
 
 478 ; Harrison v. Johnston, 27 Alabama, 445 ; AUcott v. Strong, 9 Gushing, 
 323 ; McKee v. The Commonwealth, 2 Grant's Cases, 23 ; although such 
 items accrued during the infancy of the deljtor. Thurlnw v. Gilmore, 40 
 Maine, 378 ; and though the creditor may hold security for these items and 
 none for the subsequent ones. Cushing v. Wyman, 44 Maine, 121. Contra, 
 Moasv. Adams, 4 Iredell Eq. 42 ; Jones v. Kilgore, 2 Richardson (Equity), 
 63; Baim v. Williams, 10 Smedes & Marshall, 113. If a payment is made 
 generally to a party who holds a debt due to himself, and another due to him- 
 self and the plaintiff, he is bound as between himself and the plaintiff to ap- 
 ply the payment ratably upon the two debts.. Colby v. Copp, 35 New Hamp- 
 shire, 434. Where money is placed in the hands of an agent to pay two notes 
 pursuant to agreement, and this fact is known to the holder, he has no right 
 toiappropriate it to the payment of one of them, at his own option. Jones 
 V. Perkins, 29 Mississippi, 139. To make an application of a payment, the 
 person paying must give directions before or at the time of payment. Rey- 
 nolds V. McFarlane, 1 Overton, 488 ; Moss v. Adams, 4 Ired. Bq. 42. If the 
 debtor pakes no appropriation at the time of payment, the creditor may ap- 
 propriate at any time before suit. Haynes v. Wait, 14 California, 446. The 
 rules in regard to the application of payments only apply where the debts are 
 equally good in law. Green v. Tyler, 8 Wright, 361 ; Gill v. Rice, 13 Wis- 
 consin, 549 ; Smith v. Coopers, 9 Iowa, 376 ; Solomon v. Dreschler, 4 Minne- 
 sota, 278. 
 
 Where a partial payment is made on a debt, the law will make the applica-' 
 Hon first to interest and then to principal. Gwinn v. Wliitaker, 1 Har. & 
 Johns. 754 ; Prazier v. Hyland, Ibid. 98 ; Prebles v. Gee, 1 Dev. 341 ; Spires 
 v. Hamot, 8 Watts & Serg. 17 ; De Bruhl v. Neuffer, 1 Strobhart, 42G ; Bond 
 T. Jones,, 8 Smedes & Marshall, 868 ; Righter v. Stall, 3 Sand Ch. Rep. 608 ; 
 Jencks v. Alexander, 11 Paige, 619 ; Hart v. Dorman, 2 Florida, 445 ; Stewart 
 v. Stebbins, 30 Mississippi, 66 ; McPadden v. Fortier, 20 Illinois, 509 ; John- 
 son V. Johnson, 5 Jones (Equity), 167 ; Hampton v. Dean, 4 Texas, 451 ; 
 Hearn v. Culbirth, 10 Ibid. 216. The law will apply a payment to the prin- 
 cipal, and not to the discharge of usurious interest. Stanley v. Westrop, 16 
 Texas, 200. When it is proved that a payment was made in a certain year, 
 but -the day and month cannot be shown, the Court will direct the credit to 
 he given as of the last day of the year, a day most favorable to the creditor. 
 Byers v. Fowler, 14 Arkansas, 86. 
 
 For general rules, see King v. Andrews, 30 Indiana, 429 ; Nuttall v. Bran- 
 nin, 5 Bush, 11 ; McDaniel v. Barnes, Ibid. 183 ; Leef v. Goodwin, Taney, 
 460 ; Champenoes v. Fort, 45 Wis. 355 ; Marshall v. Sloan, 26 Ark. 513 ; 
 Waterman v. Younge, 49 Mo. 413 ; Howard v. McCall, 21 Grattan, 205. 
 
 Payments on several promissory notes by the maker are to be applied to 
 the payment of such of the notes as are matured, and the balance ou account 
 of those not due, in the absence of directions. Cloney v. Richardson, 34 Mo. 
 370. The holder of several bills of exchange may appropriate a payment by 
 the acceptor to either one of them, when the acceptor has expressed no pref-^ 
 erence. Holmes v. Pratt, 34 Georgia, 558; Fargo v. Buell, 21 Iowa, 292. 
 
356 OF PAYMENT. 
 
 part of his debt will be forced, even at law, to apply in dis- 
 charge thereof a ratable part of any payment that he may 
 receive from the tru8tee.(^) 
 
 (gy Baidwell v. Lydall, 7 Bing. 489 (20 E. C. L. K.) ; see Eaikes y. Todd, 
 1 P. & D. 138 ; 8 Ad. & E. 846 (35 E. C. L. E.), S. C. ; Paley v. Field, 12 
 Ves. jun."435. See other instances of ratable appropriation in Favenc v. 
 Bennett, 11 East, 36 ; and Perris v. Roberts, 1 Vernon, 34 ; 2 Chan. Ca. 83, 
 8. C. ; Thompson v, Hudson, L. R., 6 Chan. Ap. 330. 
 
 The following rules as to appropriation of payment have been established 
 in America: — 
 
 The debtor has the first right to direct the application of any payment be 
 may make. 
 
 The rule that a debtor may apply payment as he pleases, applies only to 
 voluntary payments, and not to those made by process of law. 
 
 If no appropriation be made by him, it then devolves upon the creditor to 
 make it. 
 
 Yet the creditor must make such an application as the debtor could not 
 reasonably or justly object to. 
 
 A debtor or creditor cannot appropriate a payment in such manner as to 
 affect the relative liability or rights' of sureties without their consent. 
 
 When a debtor makes payments withi ut specifying the application, the 
 creditor cannot apply them to debts not due, if there are other debts which 
 are due. 
 
 If application be directed by neither, then the law will make the application 
 according to equity. 
 
 It has been held that such application by the law shall be made as the 
 debtor may be presumed to have done — in other words, as would be most for 
 his interest at the time. 
 
 The law will make the application first to interest, and then to principal. 
 
 To the debt which is prior in date. 
 
 To that debt which is 'least secured. 
 
 To make an application of a payment the person paying must give direc- 
 tions before, or at th^ lime of payment. 
 
 Bee the authorities in Byles on Bills, 5th American edition. 
 
 Cieditor may apply payment in the absence of direction by the debtor. If 
 neither party makes application, it is to be applied to the demand which first 
 accrued. Berrian v. New York, 4. Robertson, 538 ; Home v. Planters' Bank, 
 32 Qeorgiaj 1 ; Wendt v. Ross, 33 Cal. 650. A creditor receiving payments 
 from his debtor without direction, may apply them to a debt on which the statute 
 of frauds does not allow an action to be riiaintained, such debt not being 
 illegal ; for example, on a verbal promise to pay the debt of another. Haynes 
 V. Nice, 100 Mass. 337. When a debtor upon several notes, barred by the 
 statute of limitations, makes a general payment, without restricting the credi- 
 tor's right of application, the creditor may so apply it as to take all the n'jies 
 'out of the operation of the statute. Jackson v. Burke, 1 Dillonj'311. Creditor 
 cannot apply to a debt for which he cannot maintain an action. Kidder v. 
 
OF PAYMENT. 357 
 
 *Part payment of the debt by the party liable is no p^.-jgo-. 
 discharge of the whole debt,(A) but part payment by a ^ "• -I 
 stranger may be.(i)(l) And it has been held, that where a 
 promissory note is due and unpaid^ so that not only the princi- 
 pal, but interest (at least to a nojninal amount) is due also, 
 the principal may be taken in satisfaction of the debt and 
 damages. (A) 
 
 As the lapse of twenty years,(^) is sufficient to raise a pre- 
 sumption that a bond has been paid, so it has been held to be 
 a good defence to an action on a promissory note payable on 
 demand.(7») But if during this period the plaintiff' was an 
 alien enemy, and payment to him would consequently have 
 been illegal, such a presumption would not, it seems, arise.(ji) 
 
 The production of a cheek drawn by the defendant on his 
 banker, and indorsed by the plaintiff', is evidence of payment ;(o) 
 
 (A) Fitch V. Sutton, 5 East, 230. When a bill or note may be satisfaction, 
 see post. Chap. XVI. 
 
 (0 Welliy V. Drake, 1 C. & P. 557 (13 E. C. L. R.). 
 ■'(*) Beaumont v. Greathead, 3 D. & L. 631 ; 2 C. B. 494 (52 E. C. L. R.), 
 B.C. 
 
 (0 See now 3 & 4 "Will. 4, c. 42, s. 3. 
 ' («) Duffield V. Creed, 5 Esp. 52. 
 
 (n) Du Beloix v. Lord Waterpark, 1 D. & R. 16 (16 E. C. L. R.). 
 
 (o) Egg V. Harnett, 3 Esp. 196. 
 
 Norris, 18 New Hamp. 532. Payments must be applied to that which is law- 
 fully due, and not to usurious interest. Duncan v. Nelson, 22 Louis. Ann. 418. 
 In cases of running accounts, payments' ought to be applied to extinguish the 
 -debts according to priority of time. Leef v. Goodwin, Taney, 460 ; Sprague 
 V. Hazenwinkle, 53 Illinois, 419 ; Moon v. Gray, 23 Louis. Anri; 289 ; 
 Crompton v. Pratt, 105 Mass. 255. Payments by a debtor upon a running 
 account made partly before and partly after his discharge in bankruptcy, of 
 ■which the creditor had no notice, may be applied by the latter to the items 
 first due. Hill v. Robbins, 22 Mich. 475. A payment of usury will be ap- 
 plied in law to the payment of the debt legally due. Burrows v. Cooke, 17 
 Iowa, 436. When a debtor makes a payment to a creditor who has two de- 
 mands, both due, and neither makes application, and one of the debts is after- 
 wards barred by the statute, the law will apply it to the demand which is 
 barred. Robinson's Adm's v. Allison, 36 Ala. 525. 
 
 ■ (1) A part payment of what a person is bound in law to pay, forms no con- 
 sideration for postponing the residue ; neither can the verbal promise of the 
 plaintiff to postpouethe payment of the balance be enforced. Price v. Can- 
 non, 3 Missouri, 458 ; Wheeler v. Wheeler, 11 Vermont,^ 60. 
 
858 OP PAYMENT. 
 
 but not if there have been several transactions between the 
 parties, without evidence to connect the delivery of the check 
 ■with the payment in question. (p) A bill or note once in circu- 
 lation overdue, and coming out of the hands of the acceptor or 
 maker, is presumed to be paid. Thus, it is a maxim of the 
 Scotch law, chirographum apud debitorem repertum presumitur 
 solutum. But the mere production of a bill from the custody 
 of the acceptor is not prima facie evidence of his having paid 
 it, without proof of its having been once in circulation after it 
 had been accepted.(g')(l) 
 
 *The party paying a bill or note has a right to insist 
 ■^ -l on its being delivered up to him.(r) But, where the 
 bill or note is not negotiable, he cannot refuse to pay it till it 
 is delivered up.(s) 
 
 It was formerly held,(j) that a pa;rty paying a debt could not 
 
 (p) Aubert v. "Walsh, 4 Taunt. 393. 
 
 (g) Pfiel V. Vanbatenberg, S^amp. 439. 
 
 In America it is held that if a bill be sent to the dravee and he be directed 
 to pass it to the credit of the holder, and do so credit it, the bill is funetus 
 officio, and cannot be further negotiated. 
 
 Where a promissory note that has been negotiated cornea into the posses- 
 sion of one of the parties liable to pay it, such possession is prma. facie evi- 
 dence of payment by him, and he is to be treated as the bona fde holder 
 unless the contrary is made to appear. 
 
 The possession of a bill by the drawee after maturity is prima facie eyiienee 
 of payment. See Byles on Bills, 5th American ed. 364. 
 
 (r) Hansard v. Robinson, 7 B. & C. 90 (14 E. C. L. R.) ; 9 Dowl. &R. 
 860; Powell v. Roach, 6 Esp. 76; Alexander v. Strong, 9 M. •& W. 733; 
 Cornes v. Taylor, 10 Exch. 441. 
 
 (s) Wain v. Bailey, 10 A. & E.*616 (33 E. C. L. R.) ; 3 P. & D. 507, 8. C. 
 
 (i) According to the older authorities, the obligor of a single bond is not 
 bound to pay without an acquittance under seal ; otherwise of a bond with 
 condition. Bro. Ab. tit. Faits, pi. 8 ; 1 Yin. Ab. 192 ; Fortesc. 145. 
 
 (1) If a bill be sent to the drawee, and he be directed to pass, it to the credit 
 of the holder, and do so credit it, the bill is funetu» officio, and cannot be 
 further negotiated. Savage v. Merle, 5 Pick. 85. Where a promissory note 
 that has been negotiated comes into the possession of one of the parties liable 
 to pay it, such possession is prima fade evidence of payment by him, and he 
 ia to be treated as the bona fide holder, unless the contrary is made to appear. 
 McGee v. Prouty, 9 Metcalf, 547. The possession of a bill by the drawee after 
 maturity, is prinpa facie evidence 'of payment. Hill v. Gayle, 1 Alabama, 275 ; 
 Fellows V. Kress, 5 Blackford,. 536. , . . 
 
OF PAYMENT. 359 
 
 in general demand a receipt for the money, and therefore that 
 a tender on condition of having a receipt, was insufficieut.(M) 
 It has since, however, heen enacted, by 43 Geo. 3, c. 126, s. 5,. 
 that a person to whom money has been paid is bound to give, 
 a receipt, and that if he refuse to fill up a blank stamp paper 
 presented to him for that purpose, and to pay the stamp, he 
 becomes liable to a penalty of 10l.{x) It is usual to write a 
 receipt on the back of bills, and it has been said that it is the 
 daty of bankers to make some memorandum on bills or notes 
 which have been paid.(y) A receipt on a bill or note, duly 
 stamped, does not require an additional staxhp.(2;) And a re- 
 ceipt on a distinct piece of unstamped paper, though' it cannot 
 be looked at as evidence of the payment, may be shown to a 
 M'itness who has signed it to refcesh. his- memory, and enable 
 him to speak to the fact of payment.(a) 
 
 A receipt on the back of a bill imiportB, prima- faciei that it 
 has been paid by the acceptor. (6)' 
 
 *A tender of part of the amount of an entire sum due 
 on a bill or note seems not to be good pro ianto,{c) even l- ~ -I 
 though the residue be met by a set-oS.{d) 
 
 A defendant, where there is a plea of payment (but not 
 otherwise), is allowed to reduce the damages by the amount of 
 
 (a) Green v. Croft,, 2 H. Bl. 30 ; Cole v. Blafce, Peake, N. P. C. 179. 
 
 (x) See 5 & 6 Vict. e. 82, same duty for Ireland. 
 
 (y) Per Lord Ellenborougli, Burbidge v. Manners, 3 Camp. 195. 
 
 (s) 55 Geo. III., c. 184, ScUed. Receipts ; 38 & 34 Vict. c. 97, Soiled, tit. 
 Eeceipt. Ex. 9. A receipt may be explained. Graves v. Key, 3 B. & Ad. 
 313 (23 B. C. L. R.). 
 
 (a) Maugliam v. Hubbard, 8 B. & C. 14 (15 E. 0. L. R.) ; 2 Man. & R. 5. 
 Letters by the general post, acknowledging the safe arrival of anj bills of 
 exchange, promissory notes, or any other securities for money, were formerly 
 exempted from stamp duty by the late act 55 Geo. 3, c. 184, repealed by 17 & 
 18 Viet. c. 83, s. 13, itself repealed. The present stamp Act, 1870, contains 
 an exemption in favour of letters from bankers, acknowledging the receipt of 
 bills or notes, for presentment or payment. Sehed. tit. Receipt. Ex. 2. 
 
 (i) Pfiel V. Vanbatenberg, 2 Camp. 439 ; Scholey v. Walsby, Peake, 25 ; 
 Graves v. Key, supra. 
 
 («) Cotton V. Goodwin, 7 M. & W. 147 ; Hesketh v. Fawcitt, 11 M. & W. 
 356 ; Dixon v. Clark, 5 C. B, 935 (57 E, C. L. R.) ; Searles v. Sadgrove, 
 5E. &B. 639 (85 E. C. L. R.). 
 
 (d) Searles v. Sadgrove, supra. 
 
360 OF PAYMENT. 
 
 payment established, though he be unable to prove the plea.(e) 
 But if he plead that a note was given for a part only of the 
 apparent consideration, and allege payment of that part, and 
 on issue joined the plea is found against him, the plaintiff is 
 entitled to a verdict for the full amount of the note.(/) 
 
 If the drawee discover, after payment, that the till or check 
 is a forgery, he may in general, by giving notice on the same 
 day, recover back the money. (g) And if he have paid the bill 
 with the understanding that he was to receive it back, and do 
 not, he may bring an action to retract the payment.(A) And 
 an indorser may sue on a bill which he has been induced by 
 fraud to pay on behalf of the party liable. (?) 
 
 Money paid under a mistake of law cannot be recovered 
 back •,{k) but money paid under a mistake of fact, or even in for- 
 getfulness of a fact, may be recovered back.(^) Payment of a 
 bill accepted under a mistake of fact is money paid under such 
 mistake and can be recovered back (m) 
 
 Money laid down on the counter by a banker's cashier in 
 payment of a check cannot be recovered back by action, 
 *though it were handed over under a misapprehension 
 '- ■'of the state of the drawer's account ; still less can it be 
 taken back by force from the party receiving it.(n) A banker's 
 counter is in the nature of a neutral table, provided for the use 
 of both banker and customer. As soon as the money is laid 
 down by the banker upon the counter, to be taken up by the 
 receiver, the payment is complete.(o) 
 
 (e) It is said to have been donbtecl, whether, in an action on a bill or note, 
 a plea of part payment be good even pro tanto. Lord v. Ferrand, 13 L. J., 
 !Exch. 111. Bed qimre. 
 
 (f) Robins v. Lord Maidstone, 4 Q. B. 811 (45 E. C. L. R.). 
 
 (g) See the Chapter on Foboed Bills. 
 
 (A) Alexander v. Strong, 9 M. & W. 733. See also the Chapter on Plbad- 
 
 IHG. 
 
 (0 Bell V. Bacbley, 11 Exch. 631. 
 (k) Kitchen v. Hawkins, Law Rep., 3 C. P. 22. 
 (0 Kelly V. Solari, 9 M. & W. 54. 
 (»i) Kendall v. Wood, L. R., 6 Ex. 243 ; 39 L. J. 167. 
 (ra) Chambers v. Miller, 82 L. J., C. P. 30 ; Pollard v. Bank of : 
 L. R., 6 Q. B. 623. 
 (o) Chambers v. Miller, supra. 
 
OF SATISFACTION, EXTINGUISHMENT, ETC. 361 
 
 •CHAPTER XVI. 
 
 [*232] 
 
 OF SATISFA.CTION, EXTINGUISHMENT AND SUSPENSION. 
 
 SATISFACTION, .... 232 
 NOT KECESSABY BEFOBB BREACH, 232 
 
 ITS BEQUISITES 233 
 
 PAYMENT OF A SMALLBB SUM BY 
 
 A THIRD PARTY, . . . 233 
 SNGAQBMENT BY THIRD PARTY, 234 
 BELINQUISHIN6 A SUIT, . . 234 
 WHEN A BILL OPERATES AS SAT- 
 ISFACTION, .... 234 
 EXTIKGtriSHMKNT, . . . 235 
 EFFECT OP WABRANT OP AT- 
 TORNEY, 235 
 
 OP TBANSPBR TO AN ACCEPTOR, 235 
 OP JUDGMENT, .... 235 
 OP EXECUTION, .... 235 
 OP DISCHARGE PROM EXECUTION, 235 
 OP WAIVING A FIERI PACIAS, . 236 
 OP TAKING A DEED, . . . 236 
 SUSPENSION, .... 236 
 EFFECT OF RENEWAL, . . 336 
 OF DEBTOR BECOMING ADMINIS- 
 TRATOR, 237 
 
 OF COVENANT NOT TO SUB 
 
 WITHIN A LIMITED TIME, . 237 
 
 The nature and effect of payment, in the ordinary sense of 
 that word, has already been considered in the Chapter on Pay- 
 ment. The nature and effect of such dealings with the ac- 
 ceptor, or other principal debtor as discharge the drawer or 
 indorser, is a subject of so much importance, that it will form 
 the subject of a separate Chapter on Sueettship. In the pres- 
 ent Chapter the reader's attention is requested to such obser- 
 vations on satisfaction, extinguishment and suspension, as do 
 not properly fall within either of these two divisions. 
 
 A simple contract may be discharged before breach, without 
 a release and without sati8faction.(a)(l) Buta/fer breach, unless 
 
 (i) Langden v. Stokes, Cro. Oar. 383 ; Com. Dig. Action on the case in 
 Assumpsit, 6., Conier and Holland's case, 2 Leo. 214 ; King v. Gillptt, 7 M. 
 & W. 55 ; Dobson v. Espie, 26 L. J., Exch. 240 ; 3 H. & N. 79, S. C. 
 
 e(l) This position is perhaps too broad. There are, it appears to me, two 
 qualifications of it. First. The contract must be mutually executory, that is, 
 the consideration executory on both sides. If the consideration on either side 
 is executed, then the party cannot be bound by a mere nude agreement to re- 
 lease his right to performance. That right is a perfect one. Before it is thus 
 complete by execution on his side, the contract is still nude as far as he is 
 concerned, at least so far as this, that he cannot legally compel the cxeoution 
 of the stipulations of the other party. Sfudi consensus obligatio con'rario con- 
 sensu dissohituTi is the language of the Roman law. The cases cited as au- 
 
362. OF SATISFACTION, EXTINGUISHMENT 
 
 there be a release, ther^ must be satisfaction. (6) Accord with- 
 out satisfaction is no plea, and no action lies on an accord.(c)(l) 
 
 (J) As to the waiver of an acceptance or indorsement, see tlie Chapter on 
 Acceptance. 
 
 (c) Allen V. Harris, 1 Ld. Eaym. 122 ; Lynn v. Bruce, 3 H. Bl. 117. Uiiless 
 another person is party to it. Henderson v. Stobart, 5 Exch. 99. 
 
 thority for the text are all of this character. Langdon v. Stokes was the case 
 of an agreement to go a certain voyage before a certain day. It was held that 
 it could be dispensed with without consideration or seal. Conier and Holland's 
 case is a very short and imperfect note ; the nature of the contract is not stated. 
 King v. Gillet was the case of mutual promises to marry. The principal other 
 case cited in Com. Digest is Triswaller v. Keyne, Crp. Jac. 619. That was 
 an agreement that the plaintiff would travel and help the defendant to search 
 for a will. In all cases of this character it seems a reasonable doctrine, that 
 one party may dispense with the performance by the other without a seal and 
 without consideration. . But the second qualification, equally essential, is'that 
 this dispensation be accepted, or assented to, expressly or impliedly, by the 
 other party. The original contract resting for its consideration upon mutual 
 promises — mutual agreement to dispense is an equally good consideration for 
 the rescission. It requires, therefore, neither a release nor satisfaction. It is 
 certainly not in the power of one party to put an end to a contract, nor can 
 one party, relying upon a naked dispensation of his part, insist upon the per- 
 formance by the other of that of which the acts waived formed the sole con- 
 sideration. In all the cases cited to sustain the text, the waiver before breach 
 was held to put an end to the entire contract ; to amount to a rescission of it. 
 It is plain', then, that this doctrine can and ought to have no application to 
 the contract arising upon a bill of exchange or promissory note. As between 
 the original parties, if tliere is no consideration, it is still a nude pact, and 
 there can be no recovery. If there is a consideration, or if the instrument is 
 in the hands of a hona fide holder for value without notice, when it is in all 
 respects as if there was a consideration, to hold that the vested and absolute 
 right of the holder to performance at maturity could be waived without release 
 or satisfaction, would be in the teeth of the best settled authorities and a legion 
 of decided cases. If the other party paid back the consideration, then the 
 tonlract might be rescinded, but that would be satisfaction. The contract by 
 bill of exchange and promissory note, creates a debilum in preieriti sohmdun 
 infuturo. On this subject, see Ruggles v. Patten, 8 Mass. 480; Crawford v. 
 Millspaugh, 13 Johns. 87 ; Champlin v. Butler, 18 Ibid. 169, and the note by 
 the American editors to the case of Poster v. Dawber, 6 Welsby, Hurlstone & 
 Gordon (Exchequer) Reports, 838. 
 
 (1) "When anything has been done under an accord by the debtor he may 
 avail himself of it without satisfaction. Christie v. Craige< 8 Harris, 430. 
 This is the extent of the case in the opinion of the Court. "If the creditor 
 consents to accept merchandise in satisfaction of his claim, and the debtor in- 
 vests the money with which he would otherwise have paid it, ia the goods 
 contracted for, and has these goods ready at the time and place agreed upon, 
 iti would be. wrong to say that money might be claimed afterwards." BlM^i 
 
AND SXTSPBN8I0N. 363. 
 
 *A satisfaction must be beneficial to the plaintiff.(c?) r*.7qq-| 
 It has been considered that it must come from the de- 
 fendant or at least from some on& who represents him,(e) but 
 at this day probably satisfaction by a stranger would be held 
 good.(/) 
 
 Payment by the debtor himself of a sum smaller than the 
 debt is no satisfacti'on.(^) But paym'ent of a smaller sum by a 
 third person has been held to be a discharge of the whole debt. 
 The defendant was drawer of a bill for 18Z. 3». lid., and the 
 plaintiff had taken from the defendant's father Ql. in satisfac- 
 tion of the whole debt. The plaintili notwithstanding, after- 
 
 (d) Cumber v. "Wane, 1 Stva. 426 ; Heathcote v. Crookslianks, 3 T. R. 24. 
 
 (e) Gvymes v. Blofield, Oro. Eliz. 541 ; James v. Isaacs, 12 C. B. 791 (74 E. 
 C. L. R.) ; Kemp v. Balls, 10 Exch. 607 ; Edgecombe v. Koddj 5 East, 394. 
 The effect of satisfaction by a stranger was fully discussed in Jones v. Broad- 
 linrst, 9 C. B. 173 (67 E. C. L. R.) ; and see a very learned judgment de- 
 livered by Mr. Justice Maule in Belsbaw v. Busb, 11 0. B. 207 (73 E. C. L. 
 R.) ; to the effect that satisfaction by a stranger is good. See also Chapter 
 XV. It must be fully executed. James v. David, 5 T. R. 141 ; Bac. Ab. 3 ;: 
 Walker v. Seaborne, 1 Taunt. 526. Mutual promises, with an immediate 
 remedy on them have, however, been considered a good accord and satisfac- 
 tion. Bee Com, Dig. Accord, B. 4 ; Cartwright v. Cooke, 3 B. & Ad. 701 
 (23 E. C. L. R.) ; Good v. Cheesman, 3 B. ifc Ad. 333 (22 E. C. L. R.) ; but 
 see Bayley v. Homan, 3 Bmg, N. C. 915 (32 E. C. L. R.) ; 5 Scott, 94, S. C. 
 Is not the distinction this ? If the mere agreement were intended to be the 
 satisfaction, it need not be executed ; if its performance were intended as the- 
 satisfaction, it must be executed. See Reeves Vi Hearn, 1 M. & W. 323 ; Sard 
 v. Rhodes, 1 M. & W. 153 ; Lewis v. Lyster, 2 C, M. & R. 707. In the 
 Roman law, a stipulation by which a former obligation was taken away by 
 the substitution of a new one was familiar. It was called Novatio. It exists 
 at this day in the French law. (Code Civil, 1371.) Novation might be either 
 without a change of persons, sine ctelegaiione,, or with a change of persons, 
 oum delegaiione, Tliere might be a change of the debtor's person exprommiOj, 
 Of of the creditor's eessio. I 
 
 (/) Belshaw v. Bush, ubi supra. 
 
 (g) Fitch V. Sutton, 5 East, 230 ; unless the demand be unlicpidated. 
 Wilkinson v. Byers, 1 Ad. & El; 106 (88 E. C. L. R.) ; 3 N. & M. 853, S. a.; 
 Walters v. Smith, 3 B. & Ad. 889 (33 E. C. L. R.) ; Beaumont v. Greathead, 
 2 C. B. 494 (53 B. C. L. R.) ; Cooper v. Parker, 34 L. J., C. P. 68 ; 15 C. B. 
 822(80E. C. L. R.), S. 0. 
 
 C. J. The case, however, shows no such investment by the debtor, but that 
 it was merchandise on hand at the time of the accord ; so that in effect it was 
 accord without satisfaction. 
 
364 OP SATISFACTION, EXTINGUISHMENT 
 
 wards sued the defendant for the balance. But Abbott, C. J., 
 said, " If the father did pay the smaller sura in satisfaction of 
 this debt, it is a bar to the plaintiff's now recovering against 
 the son, because, by suing the son, he commits a fraud on the 
 father, whom he. induced to advance his money on the faith of 
 such- advance being a discharge of his son from further liabil- 
 ity."(/t) Payment of a sraallei; sura may be a satisfaction where 
 r*2S4T *^^* *smaller sum is the result of an account stated, 
 ■^ including cross demands.(i) 
 
 So, although a contract by the defendant himself to pay a 
 smaller sura can be no satisfaction, unless it be negotiable ;(/) 
 yet a contract by a third person to do so may be. Thus the 
 taking a bill from one of the two partners may operate as a 
 satisfaction of the joint debt ; for the sole liability of one per- 
 son may, in some instances, be more advantageous than hia 
 liability jointly with another.(A) 
 
 Eelinquishing a suit, involving a doubtful point of law, may 
 be a good satisfaction.(^) So, it should seem, is the relinquish- 
 ment of a claim involving a reasonable doubt, though really 
 unfounded and without suit.()n) 
 
 The acceptance of a negotiable security from the debtor alone 
 may be a satisfaction even of a debt of larger amount.(?i) 
 
 "Where a bill or note, on which some person other than the 
 debtor is liable, is expressly given and accepted,[o) in full satis- 
 faction and discharge, the liability of the debtor for the original 
 
 (A) Welby V. Drake, 1 Car. & Payne, 557 (12 B. C. L. R.) ; Cooper v. 
 Parker, 15 C. B. 823 (fcO E. C. L. R.). 
 
 (4) Smith V. Page, 15 M. & W. G83 ; Perry v. Atwood, 25 L. J., Q. B. 408 ; 
 6 B. & B. 691 (88 E. C. L. R.), 8. C. 
 
 (j) Sitree v. Tripp, 15 M. & W. 23. 
 
 (&) Thompson v. Percival, 5 B. & Ad. 925 (27 E. C. L. R.) ; 3 N. ■& M. 
 667, S. C. ; Henderson v. 8tobart, 5 Exch. 99 ; and see Belshaw v. Bush, 11 
 C. B. 191 (73 E. C. L. R.). 
 
 (0 Longridge v. D'Orville, 5 B. & Aid. 117 (7 E. C. L. R.) ; see Edwsvds 
 V. Baugh, 11 M. & W. 641 ; Llewellyn v. Llewellyn, 15 L. J., Q. B. 4. 
 
 (to) Cook V. Wright, 30 L. J., Q. B. 321. 
 
 (ji) Sibree v. Tripp, 15 M. & W. 23. 
 
 (o) Hard man v. Bellhouse, 9 M. & W. 596. 
 
AKD SUSPENSION. 365 
 
 debt will not revive, on the dishonour of the substituted in- 
 strument.(p) But if it be -taken generally on account, or in 
 renewal, the original liability of the debtor revives on its dis- 
 honour.(5) If, in satisfaction of a note, a second note be given, 
 and in satisfaction of the second note a third, the third note 
 cannot be pleaded as given in satisfaction of the first.(r)(l) 
 
 (p) Sard v. Rhodes, 1 M. & W. 153 ; 1 Tyrw. & Gr. 298 ; 4 Dowl. 743 ; 
 1 Gale, 376, S. 0. 
 
 (y) See post, Sleadman v. Gooch, 1 Esp. 3 ; Kearslake v. Morgan, 5 T. R. 
 513. 
 
 (r) David v. Preece, 5 Q. B. 440 (48 E. C. L. R.). 
 
 (1) A. bill of exchange or promissory note, either of a debtor or any other 
 person, is not^payment of a precedent debt, nnless it be so expressly agreed. 
 Tobey v. Barber, 5 Johns. 68 ; McGinn v. Holmes, 2 Watts, 121 ; Weakly v. 
 Bell, 9 Watts, 2B0 ; Johnson v. Weed, 9 Johns. 310 ; Higgins v. Packard, 2 
 Hall, 547 ; Coxe v. Hunkinson, Coxe, 85 ; Bill v. Porter, 9 Conn. 23 ; Sbeeliy 
 T. Mandeville, 6 Cranch, 253; Chasiain v. Johnson, 2 Bailey, 574; Porter v. 
 Talcott, 1 Cowen, 359 ; Ayres v. "Vanlieu, 2 Southard, 765 ; Sneed v. Witster, 
 2 A. K. Marshall, 277 ; Davidson v. Bridgeport, 8 Conn. 473 ; Gardner v. Gor- 
 liam, 1 Dongl. 507 ; Weed v. Snow, 3 McLean, 265 ; Hays v. Stone, 7 Hill, 
 128 ; Kelsey v. Rosborough, 2 Richardson, 241 ; Steamboat v. Hammond, 9 
 Missouri, 59 ; Elvirood v. Deifendorf, 5 Barb. S. C. 398. In some States, how- 
 ever,, the rule established is that such a bill or note is prima facie payment, 
 unless the contrary appears. Reed v. Upton, 10 Pick. 522 ; Jones v. Kennedy, 
 11 Ibid. 125 ; Wood v. Bodwell, 12 Ibid. 268 ; Eutchins v. Olcutt, 4 Vermont, 
 555; Trotter v. Crockett, 2 Porter, 401 ; Huse v. Alexander, 2 Metcalf, 157; 
 •French v. Price, 24 Pick. 13. It is a question of fact, however, for the jury 
 to determine in all cases the quo animo with which the security was given and 
 ■accepted. Hart v. Boiler, 15 Serg. & Rawle, 162; BuUen v. McGillcuddy, 2 
 Bana, 91 ; Gardner v. Gorham, 1 Dougl. 507. A bill of exchange indorsed 
 by the defendant in the suit for the accommodation of the drawer, and subse- 
 quently by the plaintiflfs for the same purpose, was discounted at the instance 
 of the drawee, and not being paid by Jiim, was taken up by the plainti^s, due 
 notice being given to the defendants as fiist indorser. Subsequently, in order 
 to reimburse the amount paid by the plaintiffs, a note, drawn by plaintiffs, 
 was indorsed by the defendant, was discounted by a bank, and its proceeds 
 remitted to the plaintiffs, and the amount was credited by their clerk on their 
 hooks to the bill, on account of the drawer of it. The note was taken up by 
 the drawer. The act of the clerk was disaffirmed by the plaintiffs oh discov- 
 ering the entry in their books : it was held, that the discount of the note to 
 raise money to take up the bill and the receipt by the plaintiffs of the amount 
 of the note, was not an extinguishment of the liability of the defendant as first 
 indorser of the bill of exchange, the note not being paid by him, but taken up 
 by the plaintiffs, there being no evidence of an intention on the part of the 
 plaintiffs to receive the note or its proceeds in satisfaction of the bill. Oliphant 
 v. Church, 19 Penna. State Rep. 318. Where a party, holding a contingent 
 
366 OF SATISFACTION, EXTINGUISHMENT 
 
 The taking of a co-extensiye security of a higher nature for 
 a bill or note merges the remedy on '. the inferior instrument. 
 But it must be strictly co-extensive. Therefore, a specialty 
 given by one maker of a joint and several note does not merge 
 the remedy on the note.(s) 
 
 *A warrant of attorney is not an extinguishment of 
 
 '- J the debt, as between the parties. " Till judgment is 
 
 entered up," says Lord Ellen borough, "the warrant of attorney 
 
 ^is merely a collateral security, and cannot merge the original 
 
 debt."(0 
 
 A bill indorsed in blank to one of several acceptors, and in 
 his hands when due, cannot be afterwards transfejred,(M) so as 
 
 («) Ansell V. Baker, 15 Q. B. 30 (69 E. C. L. R.). Quare, as to the effect 
 ■when the note is joint only. See Bell v. Banks, 3 M. & G. 258, i367 (42 E. C. 
 L. R.) ; King v. Hoare, 13 >I. & W. 494, 496 ; Sharps v. Gibbs, Scott, N. R. 
 See ante, Chapter on Acceptahcb. 
 
 (0 Norris v. Aylett, 3 Camp. 339 ; Bell v. Banks, 3 M. & G. 358 (69 E. C. 
 L. R.). 
 
 (u) Steele v. Harmer, 15 L, J., Exch. 217 ; 14 M. & W. 831, S. C. As to 
 
 note, receives, in lieu thereof, a note for a smaller sum, payable absolutely, it 
 is a good accord and satisfaction. Winslow v. Hardin, 3 Dana, 543. If the 
 vendor of goods received from the purchaser the note of a third person made 
 payable to himself, and not indorsed or guaranteed by the purchaser, such 
 note will be deemed to have been accepted by the vendor in full payment and 
 satisfaction, unless the contrary be expressly proved. Whit beck v. Van Nees, 
 11 Johns. 409. If a promissory note be given for goods sold, the seller can- 
 not recover on the original cause of action ■without producing the note or 
 accounting for its loss. Hays v. McClurg, 4 Watts, 453. Giving the creditor 
 a bank check is not payment. Dennie v. Hart, 3 Pick. 304 ; People v. Howell, 
 4 Johns. 396 ; Patton v. Ash, 7 Serg. & Rawle, 116 ; Crom^well v. Lovett, 1 
 Hall, 56 ; Franklin v. Vanderpoel, Ibid. 78 ; The People v. Baker, 20 Wen- 
 ,dell, 602. In general, payment in counterfeit notes or money is not good. 
 Eagle Bank v. Smith, 5 Conn. 71 ; U. S. Bank v. Bank of Georgia, 10 Wheaton, 
 333 ; Markle v: Hatfield, 3 Johns. 455 ; Thomas v. Todd, 6 Hill, 340; Ander- 
 son V. Ha^wkins, 3 Ha^wks. 568 ; Ramsdale v. Horton, 3 Barr, 330. Payment 
 in the bills of an insolvent bank is not a satisfaction of a debt, although, lat 
 the time and place of payment, the bills are in full credit and the parties are 
 wholly ignorant of such insolvency, if the bank was in fact insolvent. Ontario 
 Bank v. Lightbody, 13 Wendell, 101 ; Wainwright v. Webster, 11 Vermont, 
 576 ; Thomas v. Todd, 6 Hill, 340 ; Watson v. McLaren, 19 Wend. 557. 
 Contra. Lowrey v. Murrell, 3 Porter, 380; Bayard v. Shunk, 1 Watts & 
 Serg. 92 ; Scruggs v. Gass, 8 Yerger, 175. 
 
AND SUSPENSION. 367 
 
 to confer on the transferee a remedy against any of the accep- 
 tors ; for there has been that which- is an equivalent to the 
 performance of the contract. 
 
 Judgment recovered on a bill or note is an extinguishment 
 of the original debt, as between the plaintiiF and the defendant. 
 But it alone, without actual satisfaction, is no extinguishment, 
 as between the plaintiff and other parties not jointly liable 
 with the original defendant, whether those parties be prior or 
 subsequent to the defendant.(a;) Nor is it an extinguishment,, 
 as between a party prior to the plaintiff, to whom the plaintiff 
 a,fter the judgment returns the bill, and the defendant.(2/) 
 
 But a judgment recovered against one of several joint 
 makers ov joint acceptors, though without satisfaction, is a good 
 plea in bar to an action against the others.(2') But a judgment 
 recovered against one joint and several maker is no plea to au 
 action against his companion.(a) 
 
 Nor does the issuing of execution against the person or goods 
 of one party to a bill extinguish the plaintiff 's remedy against 
 other parties. 
 
 Nay, even the discharging of one party from execution under 
 aca. sa., though it is a satisfaction as to him, and a discharge 
 of those parties to the bill who are his sureties *there- p^n„„-, 
 on,;(J) is no extinguishment of the liability of other ^ ^ 
 parties.(e) 
 
 Waiving zjieri facias against the goods of a party does not 
 discharge any other party.(ci) 
 
 this, see the judgment of the Court of Error, 19 L. J., Exch. 37 ; 4 Exch. 1, 
 ■S. C. 
 
 (a!) Bayley, 335 ; Claxton v. Swift, 3 Show. 441, 494 ; Lutwyche, 882 ; 
 Skin. 355, 8. C. 
 
 {y) Tarleton v. Allhusen, 3 Ad. & E. 33 (39 E. 0. L. R). 
 
 (z) Ward v. Johnson, 13 Mass. Rep. 148; King v. Hoare, 13 M. & W. 494. 
 
 (a) Ibid. 
 
 (J) See Chapter on iNDTJliOBNCE, post. 
 
 (c) Hayling v. Mulhall, 2 W. Bl. 1335, the marginal note of this case is 
 incorrect, see English v. Darley, 2 Bos. & P. 61 '; 3 Esp. 49, S. C. ; Clark 
 V. Clement, 6 T. R. 535 ; Mayhew v. Crickett, 3 Swanst. 190. See Michael 
 v. Myers, 6 M. & G. 703 (46 E. 0. L. R.). 
 
 W) Pole V. Ford, 3 Chit. 135 (18 E. C. L. R.). 
 
368 OF SATISFACTION, EXTINGUISHMENT, ETC 
 
 Taking security of a higher nature, as a deed, thougl 
 extinguish the simple contract debt on the bill, as between 
 parties to the substitution, has no effect on the liability of 
 other distinct parties to the bill,(e) supposing that it does 
 give time so as to prejudice the condition of sureties. Ind 
 if the specialty were given and accepted as a collateral secu 
 only, even the liability on the bill, of the party giving it 
 mains unaff'ected.( /) 
 
 If a bill or note be taken on account of a debt and not! 
 be said at the time; the legal effect of the transaction is th: 
 that the original debt still remains, but the remedy for i 
 suspended till maturity of the instrument in the hands of 
 creditor. (^) This effect of giving the bill has also been 
 scribed as a conditional payraent.(A) It is an exception, 
 not a solitary one, to the general rule of law, that a righl 
 action once suspended by act of the parties is gone for eve 
 The action for the original debt is equally suspended if the 
 or note be given by- a stranger ,(A:) or if it be outstanding in 
 hands of a transferee. 
 
 Where a bill is renewed, holding the original bill, and tak 
 the substituted one, operates as a suspension of the debt 
 the substituted bill is at maturity.(^) And although.the sec 
 r#oq7n ^^'^ ^°'' ^^^ principal' sum should be paid, the *plaii; 
 *- ^ may recover interest due on the original bill at the t 
 when the second was given, by bringing an action on the oi 
 nal bill, unless it appear that the second bill was intendec 
 
 (e) Bayley, 6th ed. 334 ; Bac. Ab. Extingnisliment, D. ; Ansell v. Ba 
 15 Q. B. 20 (69 E. C. L. R.). 
 
 (/) Bedford v. Deakin, 2 B. & Aid. 210 ; 2 Stark. 178 (3 E. C. L. R.), J 
 
 (g) Kearslake v. Morsan, 5 T. R. 518 ; 2 Wins. Saund. 103 b, n. c ; St 
 man V. Goocli, 1 Esp. 3. 
 
 (h) Belsbaw v. Bush, 11 C. B. 205 (73 E. C. L. R.). 
 
 (0 Belshaw v. Bush, 11 C. B. 201 (73 E. C. L. R ). See ante. For 
 Beech, Parke, B., delivering the judgment of the Court of error, 11 Q. B. 
 (63 E. C. L. R.). 
 
 (ft) Ibid. 
 
 (0 Keudrick v. Lomax, 2 C. & J. 405 ; 2 Tyrw. 438, S. C. See Ex f 
 Barclay, 7 Ves. 597; Bishop v. Rowe, 3 M. & Sel. 362 ; Dillon v. Rimi 
 1 Biug. 100 (8 E. C. L. R.) ; 7 Mo&j-e, 427, S. C. ; In re London and 
 mingham Bank, 34 L. J., Qhan, 418. i 
 
OF RELEASE. 
 
 369 
 
 operate as a renewal, or satisfaction of the whole of the former 
 biil.(»j) If the second bill be discharged, by an alteration, an 
 aetion may bie brought on tie first.(n) 
 
 If, as we have seen, a debtor on a bill takes but administra- 
 t\m to his deceased creditor, that is a suspension of the right 
 of action.(o) 
 
 A covenant not to sue for a limited time will not suspend 
 the right of action,(^) but will only create a right to sue for the 
 keach of covenant. So more will a subsequent, or even a con- 
 temporaneous, but collateral, agreement on good consideration 
 not to sue for a limited time on a bill or note.{q) 
 
 ♦CHAPTER XVII. 
 
 [*338] 
 
 OF RELEASE. 
 
 WHAT IT IS, . . . . 238 
 
 BBLEASB AT MATURITY, . . 238 
 
 fBEMATUKE BELEASE, . . 338 
 
 BT A PARTY WHO IB NOT THE 
 
 HOLDER 288 
 
 TO BR4WKE BEFORE AOCEPT- 
 
 AHCEj 289 
 
 BY OR TO ONE OP SEVERAL 
 
 JOIHTLY ENTITLED OR LIABLE, 2 ,9 
 
 RESTRAINED BY A RECITAL, . 389 
 
 COVENANT NOT TO SUE, . . 389 
 
 COVENANT NOT TO .SUB FOR A 
 
 LIMITED TIME, . . . 240 
 APPOINTMENT OP DfcBTOR EX- 
 ECUTOR, 340 
 
 RIGHT TO HOLD SECURITIES FOR 
 KELEASED DEBT, . . . 240 
 
 An express release, relaxatio, is an acquittance under the seal 
 of the releasor. Being a deed, no consideration is essential to 
 its validity.(a) 
 
 A release by the holder after the maturity of the bill is a 
 
 (m) Lumley v. Musgravo, 4 Bing. N. C. 9 (37 E. C. L. E.) ; 5 Scott, 230, 
 S. C. ; Lumley v. Hudson, 4 Bing. N. C. 15 (33 E. C. L. R.) ; 5 Scott, 338, 
 S. C. 
 
 (b) Sloman v. Cox, 1 C, M. & R. 471 ; 5 Tyrw. 174, S. C. 
 
 (o) Ante, p. 56. See Lowe v. Peskett, 16 0. B. 500 (81 E. C. L. R.). 
 
 (p) Thimbleby v. Barron, 3 M. & W. 210. 
 
 (S) Tord v. Beeeh, 11 Q. B.,842 (63 B. C. L. R.^ ; in error; Webb v. 
 Spicer, 19 L. J., Q. B. 35 ; 13 Q. B. 894 (66 E. U. L. R.), S. C, in error ; 
 Mossv. Hall, 5 Exch. 50 ; per Parke, B., Salmon v. "Webb, 3 H. L. Cas. 
 SlO ; Flight V. Gray, 3 C. B., N. S. 330 (91 E. C. L. R.). 
 
 (a) As to the discharge oif contract before breach, see the preceding Chapter. 
 
 24 
 
870 OF RELEASE. 
 
 domplete discharge as between the releasor and his transferees 
 on the one hand, and the releasee on the other. Its effect on 
 other parties will be considered when we come to the subject 
 of principal and surety. 
 
 But a premature release, i. e., a release before the bill is due, 
 though good as between the parties, will not discharge the re- 
 leasee from the claim of an indorsee for value, who took the 
 bill before it was due, without notice of the release.(6) 
 
 And a release, whether before or after the maturity of the 
 bill, is good as between the parties, although the releasor be not 
 at the time of the release the holder of the bill.(c) 
 
 P^Qoq-i *But a release of a drawee before acceptance is in- 
 operative.(d) 
 
 A release by one of several joint creditors is a release by all. 
 And a release to one of several joint contractors is in law a re- 
 lease of all,(e) Therefore a release of one of two joint acceptors 
 or joint indorsers is a release to both. 
 
 A release of one of several joint debtors, who are severdly,s& 
 well &a jointly, liable, is equally a release to all, for judgment and 
 execution against one would have been a discharge to all.(/) 
 
 But it has been held, that a release to parties jointly liable 
 may in some cases be restrained by the terms of the instrn- 
 ment,(^) and may be construed as a covenant not to sue where 
 such a construction is necessary to carry out the paramount 
 
 (6) Dod V. Edwards, 3 C, & P. 603 (13 E. C. L. R.)- 
 
 (c) Scott V. Lifford, 1 Camp. 346 ; 9 East, 347, S. C. If an acceptor plead 
 a release, it must appear by his plea that the bill had been accepted before the 
 release was given. Ashton v. Fieestun, 3 M. & G. 1 (40 E. C. L. B.);2 
 Scott, N. R. 373, S. C. 
 
 {d) Drage v. Netter, 1 Ld. Raym. 65 ; Hartley v. Manton, 5 Q. B. 247(48 
 E. C. L. R.) ; and see Ashton v. Freestun, ante, n. (c), p. 338. 
 
 («) Co. Litt. 333, a; Nicholson t. Revill, 4 Ad. & Ell. 675 (31 E. C, L. 
 R ) ; 6 N. & M. 193 ; 1 Har. & VV. 753, S. C. So a release of one of several 
 j oint trespassers is a release of all ; Lit. s. 376. 
 
 (/) Nicholson v. Revill, 4 Ad. & E. 675 (31 E. C. L. R.) ; 6 N. & M. 192; 
 1 Har. & W. 753, S. C. ; Evans v. Themridge, 3 K. & J. 174 ; 25 U J-, d. 
 103, S. C. 
 
 (jr) Brooks v. Stuart, 1 Per. & D. 615 ; 9 Ad. & E. 854 (36 E. C. L. R.). 
 S. C. ; Cocks v. Nash, 9 Bing. 341 (33 E. C. L. R.) ; Price v. Barker, i B. 
 & B. 4C0 (83 B. C. L. R.) ; Henderson v. Stobait, 5 Exch. 99, 
 
OB' RELEASE. 371 
 
 intention of the deed.(A) But it cannot be defeated by a mere 
 parol agreement.(i) 
 
 Indeed, the most general atid sweeping words of release may 
 be qualified and restrained by the reeital.(J) 
 
 A covenant not to sue amounts in law to a release.(A) But 
 though it may be pleaded as a release by the party to whoni it 
 is given, it does not so far operate as to discharge another 
 person jointly liable.(?) Nor will a covenant not to sue, given 
 by one of two joint creditors, operate as a release.(»i) 
 
 *A covenant not to sue for a limited time, though r*o4oi 
 (as we shall hereafter Bee) it discharges sureties, does 
 not, as between the parties, eifect a release, or even a suspension 
 of the action, (n) unless there be a provision that it may be 
 pleaded in bar.(o) 
 
 We have already seen(p) that the creditor's appointment of 
 Ms debtor as executor amounts in law to a release. And that 
 the same consequence follows if one of several joint debtors be 
 appointed executor. But a debtor's appointment of his creditor 
 to be executor is no release unless there be assets.(g') 
 
 _. The release of a debt is a' release of the right to hold any 
 securities that may have been given for the debt.(r) 
 
 (ft) Solly V. Forbes, 3 B. & B. 38 (7 E. C. L. R.) ; Willis v. De Castro, 
 27 L. J., C. P. 243 ; 4 C. B. (N. S.) 216 (93 E. C. L. R.), S. C. 
 
 (0 3 Rol. Ab. 413; Lacy v. ^ynaston, 3 Salk. 575; 2 Saund. 47, t ; 
 Cheetham v. "Ward, 1 B. & P. 630 ; Nicholson v. Revill, ubi supra, n. («) ; 
 Brooks y. Stuart, 9 A.d. & E. 854 (36 E. C. L. R.) ;. i Per. & D. 615, S. C. 
 
 U) Paylerv. Homersham, 4 M. & S. 428 ; Simons v. Johnson, 3 B. & Ad 
 175 (33 E. C. L. R.). 
 
 (Jc) Com. Dig. tit. Release. See as to a covenant in a composition deed, 
 Ellis v. M'Henry, L. R., 6 C. P. 239. 
 
 (0 Dean v, Newhall, 8 T. R; 168 ; Hutton v. Eyre, 6 Taunt. 389 (IE. C. 
 L. R.) ; Price v. Barker, 4 E. & B. 760 (83 E. C. L. R.). 
 
 (m) Walmesley v. Cooper, 11 Ad. & Ell. 216 (37 B. C. L. R.) ; 3 Per 
 & Dav. 149, S. C. 
 ,!.;,(») Thimbleby v. Barron, 3 M. & W. 210. 
 
 (o) Walker v. Neville, 34 L. J., Exch. 73. 
 
 (p) Ante, p. 54. 
 
 (?) See Lowe v. Peskett, Ifi C. B. 503 (81 E. C. L. R.). 
 
 ()•) Cowper V. Green, 7 M. & W. 633. 
 
372 OF THE LAW OF PRINCIPAL AND SURETY 
 
 [*241] 
 
 *OHAPTER XVIII. 
 
 OP THE LAW OF PRINCIPA.L AND SURETY IN ITS APPti- 
 CATION TO BILLS AND NOTES. 
 
 GENEEAI. PBINCIPLES OF 
 
 THE 
 
 
 cognovit;. OB warrant op, Air 
 
 
 LAW, . . . 
 
 . 
 
 241 
 
 TORNEY,. 
 
 
 m 
 
 blVIBION OP THE SUBJECT, 
 
 . 
 
 243 
 
 JUDGMENT, . 
 
 
 350 
 
 WHAT PARTIES TO A Blt-L 
 
 ARE 
 
 
 BANKRUPTCY, 
 
 
 230 
 
 PBIHCIPAlaS, AND WHAT 
 
 PAB- 
 
 
 INSOLVENCY, 
 
 
 m 
 
 TIES ARE SURETIES, 
 
 . 
 
 243 
 
 COMPOUNDING, . 
 
 
 350 
 
 ON ACCOMMODATION BILLS, 
 
 . 
 
 244 
 
 COLLATERAL SECURITY,, 
 
 
 250 
 
 ON PROMISSORY NOTES, 
 
 
 244 
 
 WARRANT OF ATTORNEt 
 
 , ' 
 
 251 
 
 ON A JOINT AND SEVERAL NOTE, 
 
 245 
 
 DISCHARGE OF PRIOR 
 
 PARTIES 
 
 
 WHAT CONDUCT OP THE CREDI- 
 
 
 BY GIVING TIME TO 
 
 DRAWEU 
 
 
 TOR DOBS OR DOES. NOT 
 
 DIS- 
 
 
 WHO HAS NOT ACCEPTED, 
 
 251 
 
 CHARGE THE SURETY, 
 
 
 245 
 
 HOW THE DISGHABGI! 
 
 OF THE 
 
 
 RECEIPT OP PAYMENT, 
 
 
 247 
 
 SURETY MAY BE PREVENTED, 
 
 253 
 
 RELEASE, .... 
 
 
 247 
 
 HOW IT IS WAIVED, . 
 
 . 
 
 353 
 
 COVENANT NOT TO SUE, 
 
 
 247 
 
 WHAT CONDUCT OP THE CREDI- 
 
 
 RELEASE IN LAW, 
 
 
 248 
 
 TOR TOWARDS THE 
 
 SURETY 
 
 
 AGREEMENT NOT TO SUB, . 
 
 
 248 
 
 WILL DISCHABGP THE 
 
 PRINCI- 
 
 
 RENEWING A BILL, 
 
 
 248 
 
 PAL, .... 
 
 . 
 
 353 
 
 MISUSING SECURITIES, 
 
 
 248 
 
 RIGHT OF SURETIES, , 
 
 
 m 
 
 INABILITY TO RECOVER AGAINST 
 
 
 surety's right to INDEMNITY, 
 
 353 
 
 PRINCIPAL, 
 
 • 
 
 249 
 
 OF CONTBIBUTIION BETWEEN CO- 
 
 
 DISCHARGE PROM EXECUTION, . 
 
 249 
 
 SURETIES, 
 
 . 
 
 354 
 
 PART PAYMENT, . 
 
 , 
 
 249 
 
 ACTION FOR CONTRIBUTION BE- 
 
 
 OFFER TO GIVE TIME, 
 
 . 
 
 249 
 
 TWEEN CO-SURETIES, 
 
 . 
 
 355 
 
 Our la-H^ of pj^incipal ^nd surety is in substance the same as 
 tte Eoman law ; not periaps so much derived froin it, as flow- ' 
 jwg from the same natural equities between creditor, principal 
 debtor, and suretiesi "Pro eo qui promittit solent alii obli- 
 gari, qui fidejussores appellantur ; quos homines accipere solexiti 
 dum curant ut diligentios sibi cautum sit,"(a) 
 
 A party liable on a bill sometimes bears to the holder the 
 relation of principal debtor, sometimes of surety only. 
 
 r*949i *The contract of suretyship is a contract wfem^^ 
 
 Therefore, where there is any misrepresen,t'3?^ 
 
 (a) Inst. 3, 20. See as to the Roman, Dutch law, and the old Ftenchilnw. 
 M'Dnnald v. Bell, 8 Moore, P. C. C. 315 ; Bellinghapi v. Frere, 1 Modw, P. 
 C. C. 333. 
 
IN ITS APPLICATION TO BILLS AND NOTES. 373 
 
 or any fraudulent concealment of any material fact, which fact 
 if known might have induced the surety not to enter into the 
 contract, that contract is void from the beginning, as between 
 the creditor and the suret3'.(6) Bat mere non-disclosure of the 
 state of accounts by the creditor to the surety will not avoid 
 the contract.(e) 
 
 It is a general rule of law, that a discharge of the principal 
 is a discharge to the surety. For the iengagement of the surety 
 being but an accessory to the principal's agreement, (d) termi- 
 nates with it. If, notwithstanding this release of the principal 
 debtor, the creditor could sue the surety, he would evade the 
 effect of his own discharge to the principal, and regain a debt 
 which he may have relinquished for a valuable consideration, 
 or at least by his deliberate act. Besides, were the surety 
 obliged to pay the creditor, the surety must either be allowed 
 to resort to his principal, or he must not. If he may, then the 
 principal will lose the benefit of that discharge which he re- 
 ceived from the creditor ; if he may not, the loss occasioned by 
 the creditor's stipulation with the principal will fall on the 
 surety. Further, it is a doctrine of equity that the surety is 
 entitled to all the remedies which the creditor has against the 
 fjrincipal, and the creditor by releasing the principal would 
 prejudice those remedies. It is evident, from these considera- 
 tions, that the only rational and equitable rule is, that which 
 is well established both in law and equity, namely, that a dis- 
 charge to the principal is a discharge to the surety. 
 
 In inquiring into the effect of a discharge or indulgence by 
 the holder, to parties liable on a negotiable instrucaent, let u^ 
 consider, — 1st. What parties to a bill or note are principals, 
 iind what parties are sureties ; 2ndly. What conduct of the 
 holder will discharge the surety; Srdly. How the discharge of 
 the surety may be prevented ; 4thly. How it may be waived ; 
 
 (5) See Owen v. Homan, 4 H. of L. Cas. 997 ; Hamilton v. Watson, 12 C. 
 & P. 109 ; North British Insurance Company v. Lloyd, 10 Eicch. 523. 
 
 (c) Hamilton v. Watson ; North Biitish Insurance Company v. Lloyd, 
 snpra. But see Bailton v. Matthews, 10 G. & F. 934, and the observations of 
 Parlse ahd Alierson, BB., thereon in North Bi'itish Insurance Company v. 
 Uoyd. 
 
 i((Q Nam fidejussorum obligati'o acoessio est principalis obligationiSi nee 
 plus in accessioce potest esse, quam in priucipali re. Instit. 8, 20, 5. 
 
374 OF THE LAW OF PRINCIPAL AND SURETY 
 
 5thly. "What conduct of the creditor to the surety will dis- 
 charge the principal debtor ; and, lastly, add a few words on 
 the rights of sureties. 
 
 *First. What parties to a bill are principals, and what 
 '- -' parties are sureties. 
 
 Suppose the bill to have been accepted and indorsed for 
 value. The acceptor is, the principal debtor-, and all" the other 
 ^parties are sureties for him, liable o^ly on his default. 
 
 But though all the other parties are, in respect of the acceptor, 
 sureties only, they are not, as between themselves, merely co- 
 sureties, but each prior party is a principal in respect of each 
 subsequent party.(l) For example, suppose a bill to have been, 
 accepted by the drawee, and afterwards indorsed by the drawer 
 and by two subsequent indorsers to the holder. As between 
 the holder and the acceptor, the acceptor is the principal debtor, 
 and the drawer and indorsers are his sureties. But as between 
 the holder and the drawer, the drawer is a principal debtor,, 
 and the subsequent indorsers are his sureties. As between the, 
 holder and the second indorser, the second indorser is the prin- 
 cipal, and the subsequent or third indorser is his surety. A. 
 discharge, therefore, to the prior parties, the principals, is a 
 discharge to the subsequent parties, the sureties; but a dis- 
 charge to the subsequent parties, the sureties, is not a dis- 
 charge to the prior parties, the principals.(e) 
 
 . Where a bill is payable to the order of a third person, the 
 payee is a subsequent party, and, so a surety for the drawer. 
 He stands in the same situation as the first indorsee and second 
 indorser of a bill drawn payable to the indorser's order .(/") 
 
 («) Wliere a. bill of exchange is drawn by one person upon another, and a. 
 third party subscribes his name under that of the drawer, adding the word 
 "surety" to his signature, it has been held in America, that the undertaking 
 of such third party is with the payee or subsequent holder, that the bill shall 
 be accepted and paid, but he incurs no obligation to the drawees. See Byles 
 on Bills, 5th American ed. 378. 
 
 (/) Claridge v. Dalton, 4 M. & Sel, 326. 
 
 (1) Where a bill of exchange is drawn by one person upon another, and a 
 third party subscribes his name under that of the drawer, ad'ding Ihe word 
 " surety" to his. signature, the undertaking of such third party is with the 
 payee or subsequent holder, that the bill shall be accepted and paid, but he 
 incurs no obligation to the drawees. Griffith v. Reid, 21 Wend. 502. 
 
IN ITS APPLICATION TO BILLS AND NOTES. 375 
 
 It follows, therefore, that a discharge to the acceptor is a 
 discharge to all the parties to the bill; for, if they were still 
 liable, tKey could either sue the acceptor or they cpuld not. 
 If they could, the discharge to the acceptor would be frus- 
 trated ; if they could not, they must pay the bill without a 
 remedy over, which would extend their liability beyond their 
 contract. So, a discharge to an indorser is no discharge of 
 the prior indorsers, for they have no remedy against the dis- 
 charged indprser ; but it is a discharge of the subsequent in- 
 dorsers, for if the holder could notwithstanding recover against 
 them, and they could recover against the prior discharged 
 *indor8er, his discharge would be frustrated ; if they 
 could not, they must pay the bill without a remedy ^ ' 
 over.(j) 
 
 It was formerly held, that where a bill was accepted with- 
 out consideration for the accommodation of the drawer, the- 
 drawer was to be considered the principal debtor, and the ac - 
 ceptor as his surety ; and, therefore, that time given to the 
 drawer would discharge the acceptor?(A) but time given to the 
 acceptor would not discharge the drawer.(t) But this distinc- 
 tion has since been overruled ;(J) and in Courts of Law at least 
 the acceptor, in all cases of accommodation bills as well as 
 Others, is considered as the principal debtor, though the holder, 
 at the time of making the agreement, or even of taking the 
 bill, knew the acceptance to have been without value.(&)(l) It 
 
 (g) Smith v. Knox, 3 Esp. 46 ; Claridge v. Dalton, 4 M. & Sel. 232 ; Hall 
 V. Cole, 6 Nev. & M. 124 ; 4 Ad. & El. 577 (31 E. C. L. R.) ; 1 Har. & W. 
 722, SO. 
 
 (A) Laxton v. Peat, 2 Camp. 185 ; see Yallop v. Ebers, 1 B. & Ad. 698 (20 
 E. C. L. R.). 
 
 («■) CoUott V. Haigh, 3 Camp. 281. 
 
 (i) Pentura v. Pocock, 5 Taunt. 193 (t E. C. L. R.) ; 1 Marsh. 14, S. C, ; 
 Carstaiis v. Bolleston, 5 Taunt. 551 (1 E. C. L. R.) ; 1 Marsh. 207, S. C. ; 
 Smith V. Jones, 2 E. & B. 50 (75 E.G. L. R.), note. 
 
 (*) " I thinls, " says Parke, J,, "that the decision in Fentum v. Pocock 
 was good sense and good law." Price v. Edmunds, 10 B. & C. 578 (31 E. 
 C. L. R.) ; Harrison v. Courtauld, 8 B. & Ad. 36 (28 E. C. L. R.) ; Nichols 
 
 .; (1)- Walker v. Bank of Montgomevy, 12 Serg. & Rawle, 382; Lewis v. 
 Sanchman, 2 Rarr, 416 ; Hapsborough v. Gray, 3 Grattan, 356 ; Stiles v. 
 Eastman, 1 Kelley, 305. The holder for value of a bill vf ho did not know. 
 
376 OF THE JliAW OF PRINCIPAL AND SURETY 
 
 is otherwise in equity where the holder had notice, and the 
 equitable doctrine is available under an equitable plea-(i) 
 
 As the acceptor is at law in all cases the principal debtor on 
 a bill, so the .maker is at law the principal debtor on a note, 
 though it be given by the maker to the payee without consid- 
 eration,(m) and the holder take it with notice of the absence of 
 consideration. (n) 
 
 The indorsers of a note severally stand, as principals or sure- 
 ties, in the same situation as the indorsers of a bill. 
 
 r*24'i1 *Whenof a joint andseveralnoteonemakeris in reality 
 
 principal and the other surety, yet it is no defence' at law 
 
 that one is principal and the other is surety, that this was known 
 
 V. Norris, 3 B. & Ad. 41 (33 E. C. L. R.). The doctrine laid down in Fentnm 
 T. Pocock lias, however, been doubted in equity by Lord Eldon. Ex parte 
 Glendinning, Buck. 517 ; Bank of Ireland v. Beresford, 6 Dow. 233 ; and by tbe 
 late Master of tbe Rolls, Sir John Leacb. As to tbe rule in equity, see bow- 
 ever Hollier v. Eyre, 9 Clark & F. 45 ; Strong v. Foster, 17 C. B. 201 (84 E. 
 G. L. R.) ; Davies v. Stainban&, 6 De G., Mac. & G. 679. An accommod^'^ 
 tion acceptor wbo pays tbe creditor is, it seems, entitled to all instrumentg 
 and securities given by tbe principal debtor. Dowbiggin v. Bourne, You. 
 115 ; Wodehouse v. Farebrotber, 35 L. J., Q. B. 33 ; 5 E. & B. 277 (86 E. C. 
 ii. R.), S. C. ; and see now tbe statutable rule 19 & 30 Vict. c. 97, s. 6^ Pearl 
 T. Deacon, 24 Beav. 186 ; 1 De G. & J. 461 ; 26 L. J., Cban. 761, S. 0. 
 
 (0 Bailey v. Edwards, 34 L. J., Q. B. 41 ; 4 B. & 8. 761, S. C. 
 
 (m) Carstairs v. Rolleston, 5 Taunt. 551 (1 E. G. L. R.) ; 1 Marsh. 207, 
 S. G. 
 
 (n) Nichols v. Norris, 3 B. & Ad. 41 (33 E. C. L. R.). 
 
 that it was accommodation, may bold all parties according to their legal lia- 
 bilities on tbe face of tbe paper, and, though be may subsequently know its 
 true character, he may release tbe drawer and hold the acceptor. Bank t. 
 Rathbone, 36 Vermont, 19. The maker of an accommodation liote is liable 
 to the holder, though the latter knew at tbe time it was made that it was for 
 the accommodation Of tbe indorsee, and giving time to the indorserwill not 
 discharge tbe maker. Yates v. Donaldson, 5 Maryland, 389. If holder with 
 knowledge release tbe drawer, that will not release tbe accommodation ac- 
 ceptor. Howard Go. v. Welcbman, 6 Boswprth, 380. Time givet to the 
 indorser of a note, or a composition accepted from him by tbe holder does 
 not discbarge tlie maker ; yet he is discharged if be is an accommodation 
 maker to tbe extent of the payments made by the payee to the holder. LoVe 
 T. Brown, 2 Wright, 307. Tbe addition of tbe word "surety" after tbe 
 name of one of tbe makers does not vary his liability to the halders. Its 
 Only effect is as between tbe makers. And T. Magruder, 10 California, 283. 
 
IN ITS APPLICATION TO BILLS AND NOTES. 377 
 
 to the creditor at the time of the contract, and consequently, that 
 the surety is discharged by time given to the principal. (o) Bat 
 such a defence is plainly -available in equity ,(yi) and therefore 
 may be the ground of an equitable pleaj- 
 
 Secondly. As to what conduct of the creditor will discharge 
 the surety. 
 
 The creditor must not, as we have already seen, conceal 
 from the surety any stipulation in the original 'contract, disad- 
 vantageous to the principal debtor. Such concealment is a 
 fraud, and releases the svirety.(2') 
 
 (o) Price v. Edmunds, 10 B. & C. 578 (21 E. 0. L. R.) ; Perfect v. Mar- 
 grave, 6 Price, 111 ; Manley v. Boycott, 2 j;. & B. 46 (75 B. C. L. K.) ; Strong 
 T. Foster, 17 C. B. 201 (84 E. C. L. R.) ; Hollier v. Eyre, 9 Clarli & F.. 45. 
 But evidence to tliat effect has been admitted. Garrett v. Jall, 1 S. N. P. 
 11th ed. 407 ; Hall v. Willcox, 1 M. & Rob. 58. In Clarke v. Wilson, 3 M. 
 & W. 208, it was intended to have raised the question, hut on demurrer to 
 defendant's plea jadgment was given for the plaintiff. In Rees v. Berrington, 
 2 Ves. jUn. 540, Lord Lougborough says, referring to legal obligations, " that 
 where two are bound jointly and severally, the surety cannot aver by plead- 
 ing that he is bound as siwety." See Ashbee v. Pidduck, 1 M. & W. 564, 
 and Thompson v. CInbley, 1 M. & W. 213. But in equity, a surety may aver 
 and prove that he was only a surety, though the bond was joint and several. 
 Heath v. Key, 1 Y. & J. 434 ; Nisbett v. Smith, 2 Bro. C. C. 581 ; Skip v. 
 Hucy, 3 Atk. 91. The authorities are contradictory ; but, on principle, such 
 evidence is inadmissible at law as against the creditor ; for it is parol evidence 
 to make a written contrapt conditional, which, on the face of it, is absolute. 
 The evidence does not show absence of consid'eration as in the case of an 
 accommodation acceptance. Besides, the introduction of such evidence might 
 affect an innocent indorsee with stipulations of which he had no notice. But 
 when the question arises not between the creditor and bis debtors, but be- 
 tween those debtors themselves, whether one was principal and the other was 
 surety, parol evidence is admissible at law, as in such a case if clearly is in 
 equity. Craythorne v. Swinburne, 14 Ves. 170 ; see p. 8 ; Reynolds v. 
 Wheeler, 30 L. J., C. P. 350. 
 
 (p) Hollier v. Eyre, 9 C. & F. 45 ; Davies v. Stainbank, 6 De G., Mac. & 
 G. 679. See, however. Strong v.~Foster, supra. But this case was reflected 
 on in Pooley v. Harradine, 7 E. & B. 431 (90 E. C. L. R.) ; and see Mutual 
 Loan Fund v. Sudlow, 28 L. J., C. P. 108 ; Raynei' v. Fussey, 28 L. J., Exch. 
 132 ; Taylor v. Burgess, 29 L. J., Excb. 7 ; 5 H. & N. 1, S. C. ; and may be 
 Gonsideied to" have been finally overruled by the Court of Exchequer Cham- 
 ber in Greenough V. M'Clel'land, SOL. J., Q. B, 15 ; Oriental Finance Com- 
 pany V. Overehd, Gnrney & Co., L, R,, 7 Chan. Ap. 142. 
 
 (?) Pidcock V. Bishop, 3 B. & C. 605 (10 E. C. L. R.) ; 5 D. & R. 505, S. 
 C. ; Mayhew v. Crickett, 2 Swan. 193 ; Stone v. Compton, 5 Bing. N. C. 142 
 (35 E. C. L. R.) ; 6 Scott, 816, S. 0. ; Jackson v. Duchaire, 8 T. R. 541 ; Cecil 
 
378 OP THE LAW OF PRINCIPAL AND STJBBTT 
 
 r*94fil *-A.nd the surety is discharged if the actual original 
 contract between the creditor and the principal debtor 
 varies in the slightest degree from that for which the surety 
 had stipulated.(?') ■■ 
 
 So, in all transactions subsequent to the original contract the 
 surety's remedies, both at law and in equity, against the prin- 
 cipal debtor, whether in his own name or in the name of the 
 creditor, must be preserved intact by the creditor.(s) 
 
 The holdeB of a bill of exchange is not obliged to use active 
 diligence in Ofder to recover against the acceptor,(<) in the 
 absence of any agreement to do so. He may defer suing him 
 as long as he pleases ; he may even promise not to press him, or 
 not to sue him, if the promise be not binding in law. Thus 
 where the executrix of an acceptor verbally promised to pay 
 the holder out of her o^yll estate, provided he would forbear to 
 sue, and he forbore accordingly, it was held tha% the agreement 
 being invalid under the Statute of Frauds, the drawer was not 
 discharged.(M) 
 
 But, if the holder once destroy or suspend, or, by a binding 
 agreement with the acceptor,(i;) contract to destroy m- suspend^, 
 his right of action against the acceptor, the drawer Ind indop-i 
 sers are at once discharged, unless the agreement giving time 
 contain a stipulation that the holder shall, in case of default, 
 haye judgment at a period as early as he could have obtained, 
 judgment if hostile proceedings had continued. (a:) But if tl.e 
 
 V. Plaistow, 1 Anst. 302 ; Middletoa v. Lord Onslow, 1 P. Wms. 768 ; Brown. 
 V. Wilkinson, 13 M. & W. 14. 
 
 (r) See Bonsor V. Cox, 4 Beav. 379; affirmed 'on appeal, 4 Beav. 383; 6 
 Beav. 110-118. 
 
 (s) And see as to the duty of the creditor, "Watts v. Shuttleworth, 5 H. &■ 
 N. 835 ; affirmed on appeal, 7 H. & N. 353 ; Wulff r. Jay, L. R., 7 Q. B. 756 ; 
 41 L. J. 333. 
 
 (0 'Orme v. Young, Holt, N. P. 84 (3 B." C. L. E.) ; Eyre v. Everest, 3. 
 Euss. 381 ; 3 Mer. 278 ; Trent Navigation v. Harley, 10 East, 34 ; unless there 
 be a'stipulation that the creditor is on default to sue the debtor witUout delayi 
 Bank of Ireland v. Beresford, 6 Dow. 333. 
 
 («) Philpot V. Briant, 4 Bing. 717 (13 B. C. L. E.) ; 1. M. & F. 734 ; 3 C. & 
 P. 344 (14 E. C. L. B.), S. C. 
 
 («> Praser v, Jordan, 36 L. J., N. S., Q. B. 388 ; 8 E. & B. 303 (12 E. C. 
 L. R.), S. C. But an agreement with a stranger will not have this effect. 
 Ibid. See, however, Lyon v. Holt, 5 M. & W. 350. 
 
 (3!) Kennard v. Knott, 4 M. & Gr. 474 (43 B. C. L. E.) ; Michael v. Myers, 
 
IN ITS APPLICATION TO BILLS AND NOTES. 379 
 
 agreement contain a stipulation that a judgment shall be given-, 
 it is not necessary to aver in a plea disclosing such an agree- 
 ment that the time within which the plaintiff might have ob- 
 tained judgment was postponed.(i/) That it was not must 
 either he specially replied,- *or may possibly (if the form r*04.7i 
 of the averment in the plea admits of it) be proved 
 under a traverse of an actual forbeai;ance.(2;)(l) 
 
 6M. & Gr. 702 (46 E. C. L. R.). Receipt of interest in advance is not neces- 
 sarily a giving of time. Rayner v. Fussey, 3S L. J., Exch. 133. 
 
 (p) kennard v. Knott, 4 M. & Gr. 474 (43 E. C. L. R.) ; Isaac v. Daniel, 
 15 L. J., Q. B. 149 ; 8 Q. B. 500 (55 E. C. L. R), S. 0. ; Moss v. Hall, 5 
 Exch. 46. 
 
 (2) In some of the American States due diligence is required. See the au- 
 thorities in Byles on Bills, 5th American edition, p. 388. 
 
 (1) If the holder of a bill or note do anything, the effect of which is to 
 suspend or impair or destroy the right of the prior parlies to indemnity from 
 those still before them, he cannot resort to the parties thus affected by his 
 conduct. Couch v. Waring, 9 Conn. 361 ; Wood v. Jefferson County Bank, 
 9 Cowen, 194 ; Okie v. Spencer, 3 Wharton, 353 ; Bank v. Hanrick, 3 Story, 
 416 ; Newcomb v. Rayuer, 31 Wend. 108 ; Hawkins v. Thompson, 3 McLean, 
 111 ; Woodman v. Eastman, 10 N. Hamp. 359. Mere indulgence or delay, 
 however, will not have that effect. There is no obligation to use due dili- 
 gence, as is generally the case against a principal in order to hold a surety 
 liable, at least where the surely calls upon the creditor to act. Bank v. 
 Myers, 1 Bailey, 412 ; Powell v. Waters, 17 Johns. 176 ; Worsham v. Goar, 4 
 Porter, 441 ; Stafford v. Yates, 18 Johns. 337; Sterling v. Marietta Co., 11 
 Serg. & Rawle, 179 ; Slate B.ink v. Wilson, 1 Devereux, 484 ; Foreman's 
 Bank v. Rollins, 1 Shepley, 303 ; Page v. Webster, 3 Shepley, 249 ; Pierce v. 
 Whitney, 1 Shepley, 113 ; Bank of Utica v. Ives, 17 Wend. 501. In some 
 States, however, due diligence must be used, and the same principles are ap- 
 plied as between principal and surety in ordinary cases. Lee v. Love, 1 Call, 
 497 ; Bronaugh v. Scott, 5 Call, 78 ; Smailwood v. Woods, 1 Bibb, 542 ; Per- 
 rin V. Broadwell, 3 Dana, 596 ; Horton v. Frink, 5 Day, 530 ; Huntington v. 
 Harvey, 4 Conn. 134 ; Treadway v. Drybread, 4 Blackford, 30 ; Bishop v. 
 Yeazle, 6 Ibid. 137 ; Pillard v. Darst, 6 Missouri, 358 ; Kilpatrick v. Heaton, 
 3 Brevard, 92 ; Richetson v. Wood, 10 Missouri, 547 ; Boster v. Walker, 4 
 Oilman, 3 ; Hopper v. Sisk, 1 Smith, 103. If the holder of a promissory note 
 he called upon by the iudorser, after the note has become due, to prosecute 
 the maker, of whom the amount might then be collected, but who afterwards 
 becomes insolvent, and he neglects so to do, this will not discharge the in-, 
 clorser. . Trimble v. Thorne, 16 Johns. 1 52 ; Beebe v. West Branch Bank, 7 
 Watts & Serg. 375 ; Hickok v. Farmers' Bank, 35 Vermont, 476 ; Hellen v. 
 Crawford, 8 Wright, 105 ; Dane v. Corduan, 34 Cal. 157. But see contra, 
 Hamblin v. McCallister, 4 Bush, 418 ; Woolishlare v. Searles, 8 Wright, 45 ; 
 Shimer v. Jones, 11 Ibid. 268 ; Strickler v. Burkholdcr, Ibid. 476 ; Ward v. 
 
380 OF THE LAW OF PRINCIPAL AND SUKETt 
 
 • If the ereditol* engages with the surety that he will enforce 
 payment from the principal debtor within a certain time, his 
 neglect to do so is a good defence in equity.(a) 
 
 Payment ]>y the principal of coarse discharges the surety. 
 
 Payment of money, which has to be refunded as being a 
 fraudulent preference, is no payment so as to discharge a 
 6urety.(6) 
 
 The acceptor of a bill, or maker of a note, is bound to^pay on 
 the day the bill or note falls due, and therefore he cannot plead 
 in his own discharge a subsequent tender.(c) But it has been 
 held that an indorser has a reasonable time within which to pay 
 the bill ; and if he pay, or tender payment, within a reasonable 
 time, and before wt'it issued, perhaps he discharges him8elf.(rf) 
 And, therefore, payment by the acceptor or maker, though after 
 the note has been dishonoured, if within a reasonable time, and , 
 with interest, and before action brought against the indorse^ 
 or a tender of such payment, though it would not dischargii' 
 himself, would, it should seem, discharge the indorser. ;'" 
 
 A release to the acceptor or maker discharges the indorsers ; 
 and a release of one of several joint acceptors or makers is a 
 release of all. But if it appear, on the face of the deed that it 
 was the paramount intention of the parties that the others 
 should be held liable, this intention will be carried into effect' 
 by disregarding the form of the deed and construing the releasq; 
 as a covenant not to sue.(e) 
 
 (a) Lawrence v. Walmsley, 31 L. J., C. P. 143 ; Watson y. Alooek, 32 L. 
 J., Chan. 858 ; 4 De G., Mac. & G. 242. 
 
 (6) Pritchard v. mtchoock, 6 M. & G. 151 ; Petty v. Cooke, L. R. 6 Q.: B. 
 790. 
 
 (c) Hume v. Peploe, 8 East, 168. 
 
 (d) Walker v. Barnes, 5 Taunt. 240 (1 E. C. L. R.) ; 1 Marsh. 36 S. C; 
 Soward v. Palmer, 2 Mood. 374 ; 8 Taunt. 277 (4 E. G. L. R.) ; but see Big- 
 g^rs V. Lewis, 1 C, M. & R. 370 ; 4 Ty^. 847 ; 3 Dowl. 681, S. 0. 
 
 («) Belly v. Forbes, 2 Bvo. & Bing. 38 (6 E. C. L. R.); Henderson v. 
 Stobart, 5 Exch. 99 ; Price v. Barker, 4 E. & B. 760 (82 B. C. L. R.) ; Bate- 
 son V. Gosling, L. R., 7 C. P. 9 ; ^1 L. J. 58. 
 
 Stout, 32 Illinois, 899. The acceptance by the holder of a judgment agailist 
 the maker, and time given thereon, will liot discharge the indorser if the time 
 so given be not greater than would have elapsed had a suit been brought anu 
 paraued with diligence. Sizer v. Heacock, 23 Wend. 81. 
 
IN ITS APPLICATION TO BILLS AND NOTES. 381 
 
 But a general covenant not to sue discharges the sureties, 
 for that will enure as a release ;(/) or a covenant not to sue 
 *within a particular time,(^) though it do not in law r«24fti 
 amount to a release, or suspend the action.(A) 
 
 So also will a release in law. Therefore, if the holder makes 
 the acceptor his executor, the indorsers are discharged. 
 
 A written or verbal agreement, op good Gonsideration,(i) not 
 to sue the acceptor at all, or not to sue him within a specified 
 time, discharges the drawer and indorsers ;(_;') but if such agree- 
 ment be without consideration, or otherwise void in law, the 
 indorsers are not discharged.(A)(l) In equity it has been held 
 
 (/) Com. Dig. Release. 
 
 (g) At law, a parol agreement by the creditor not to sue the principal is no 
 discharge to the surety of a liability he has contracted by deed. Davey v. 
 Prendprgrass, 5 B. & Al. 187 (7 E. C. L. R.), recognized in Price v. Edmunds, 
 10 B. & C. 582 (21 E. C. L. R.) ; Bulteel v. Jarrold, 8 Price, 467 ; Cocks v. 
 Nash, 9 Bing. 346 (23 E. C. L. R.) ; 3 M. & Sc. 434, S. C. ; sed vide Archer 
 V, Hale, 4 Bing. 464 (18 E. C. L R.) ; 1 M. & P. 285, S. C. ; but, in equity, 
 Ihe creditors giving time to the principal, although by a parol agreement, is a 
 lischarge to the surety of a liability created by deed. Rees v. Berrington, 3 
 Ves juii/ 540 ; Bulteel v. Jarrold, 8 Price, 467 ; et vide Combe v. Woolf, 8 
 Bing. 161 (21 E. C. L. R.) ; 1 M. & Sc. 241, S. C. ; Bowmaker v. Moore, 3 
 Price, 214 ; 7 Price, 328 ; Blake v. White, 1 Y. & C. Exch. Oa. 430. As tp 
 ififcumstances under which a Court of Equity will interfere, see Heath v. Key, 
 1 Y. & J. 434. But a covenant not to sue upon a simple contract for a limited 
 time, is not pleadable in bar to an action on the contract against the principal 
 debtor. Thimbleby v. Barron, 3 M. & W. 310. 
 
 (A) Quim-f, as to the effect of indulgenfce as to part of the sum due. See 
 Mayhew v. Crickett, 3 Swanst. 189. 
 
 (0 The Court will not estimate the value Of the consideration. That 
 would be to inquire whether the bargain were a good one or not. Moss v. 
 Hall, 5 Exch. 50. 
 
 ij) Ibid! 
 
 (*) Arundel Bank v. Goble, K. B. 1817 ; Chitty, 9th ed. 413 ; 3 Chit. 385, 
 S. C. ; Willison v. Whitaker, 3 Marsh. 383 ; 7 Taunt. 53 (2 E. C. L. R.), S. 
 C. ; Brickwood v. Annis, 5 Taunt. 614 (1 E. C. L. R.) ; 1 Marsh. 350, S. C. ; 
 Philpot V. Briant, 4 Bing. 717 (13 E. 0. L. R.) ; 1 Moo. & P. 754 ; 3 C, & 
 P. 244 (14 E. p. L. R.), S. C. See the American authorities in Byles on Bills, 
 5tli American edition, p. 385. 
 
 (1) A gratuitous agreement by the holder of a bill with the acceptor made 
 on the last day of grace to look to him alone for the payment, and not to 
 present the bill or notify the drawer, does not relieve the drawer if the pro- 
 
382 OF THE LAW OF PRINCIPAL AND. SURETY 
 
 that an agreement with the principal to give time to the surety 
 discharges the 8urety.(Q 
 
 (0 Oriental Finance Co. v. Overend, Gurney & Co., L. R., 7 Clian. Ap. 
 142. 
 
 test is made and notice given. De Wilt v, Bigelow, 11 Alabama, 480. An 
 agreement to.give time must be legally binding on the bolder in order to dis- 
 charge the indorsers. Bagley v. Buzzell, 1 App. 88; Low v. Underbill, 3 
 McLean, 276 ; Lockwood . v. Crawford, 18 Conn, 361 ; Chute t. Patlee, 37 
 Maine, 103; Williams v. Smith, 48 Maine, 185; Dollon v. Christie, 39 Bar- 
 bour, 610 ; Veazie v. Carr, 3 Allen, 14 ; Warner v. Campbell, 26 Illinois, 282. 
 The payment of interest in advance is a sufficient coneiideration to make an 
 agreement to give time binding. Flynn v. Madd, 37 Illinois, 323. An agree- 
 ment to pay interest is a sufficient consideration to make the giving of lime 
 to the maker binding, and to discharge the indorser. Chute v. Pattee, 37 
 Maine, 103. A promise to pay usury or the actual payment of interest due 
 is not sufficient consideration for a promise to give time so as to discharge a 
 surety. Halatead v. Brown, 17 Indiana, 202. An usurious note is sufBcient 
 consideration to discharge the surety. Corielle v. AUen, 13 Iowa, 289. A 
 promise to pay usurious interest, in consideration of an agreement to give 
 further time, is void and will not discharge the surety. Payne v. Powell, 14 
 Texas, 600. 
 
 For cases in which the indorser or surety is discharged by giving time to 
 the antecedent parties or principal, or other variance of the terms of llie con- 
 tract, see Cox v. Mobile R. E. Co., 37 Ala. 330 ; Worlhan v. Brewster, 80 
 Geo. lis ; Jones v. Kerr, Ibid. B3 ; Farmers' Bank v. Blair, 44 Barb. 641; 
 Ward V. Stout, 32 Illinois, 399; Riley v. Gregg, 16 Wise. 606; Campbell v. 
 Baker, 10 Wright, 243 ; Kennedy v. Evans, 31 Illinois, 258; Drew v. Druiy, 
 Iliid. 350 ; Flynn v. Madd, 27 Ibid. 333 ; JudaU v. Zimmerman, 23 Indiana, 
 388; Gower v. HoUoway, 13 luwa, 154; Wright v. Bartlett, 43 If. Hamp. 
 548; Corielle v. Allen, 13 Iowa, 289; Halstead v. Brown, 17 Indiana, 202 j 
 Montague v. Mitchell, 28 Illinois, 481; Dorlon v. Christie, 39 Barb. 610; 
 Veazie v. Carr, 3 Allen, 14 ; Home v. Young, 40 Geo.. 193 ; Draper v. Hilt, 43 
 Vermont, 439 ; Hockenbury v. Meyers, 34 N. Jersey (Law), 347 ; Banglit v. 
 Black, 2 Disney, 477 ; Eisner v. Keller, 3 Daly, 485 ; Scott v. Saffold, 37 Geo. 
 384; Camp v. Howell, 37 Geo. 313; Champion v. Robertson, 4 Bush, ,17; 
 Place V. Mcllvain, 38 N. York, 96 ; Redman v. Deputy, 26 Indiana, 338; 
 Smarr V. Schnitter, 38 Mo. 478 ; Lauman v. Nichols, 15 Iowa, 161. 
 
 For cases in which the indorser or surety has been held not to be discharged, 
 see Hazard v. While, 36 Ark. 155; Frois v. Mayfield, 33 Texas, 801 ; New 
 Hampshire Bank v. Downing, 16 N. Hamp. 187 ; Potter v. Green, 6 Allen, 
 443 ; Glazier v. Douglass, 33 Conn. 393 ; Howell v. Lawrence*ille Co., 31 
 Geo. 663; Goodwyn v. Hightower, SO Geo. 249 ; Smith v. Hyde, 36 Vermont, 
 303 ; Allen v. Jones, 8 Minn. 203 ; Davis v. Converse, 35 Vermont, 503; Cox 
 V. Mobile R. R. Co. 1 Ala. Sel. Cas. 835 ; Wilier v. Ransom, 84 Mo. 362 ; 
 Hinds V. Ingham, 81 Illinois, 400 ; Halstead v. Brown, 17 Indiana, 202; Mor- 
 gan v. Martien, 32 Mo. 438 ; Williams v. Smith, 48 Maine, 135 ; Nightingale 
 V. Meginnis, 34 N. Jersey (Law), 461 ; Fernan v. Doubleday, 3 Lansing, 216; 
 
IN ITS APPLICATION TO BILLS AND NOTES. 383 
 
 The taking of a new bill from the acceptor, payable at a 
 future day, discharges the indorsers.(m)(l) 
 
 Misappropriating or misusing, or losing any security for the 
 debt held by the creditor, discharges the surety .(n) 
 
 *Where the creditor was unable to recover against r«o4.Q-i 
 the principal debtor on account of a set-oli" existing be- 
 tween them, an equitable plea stating these facts was held to be 
 a good defence in an action against the surety.(o) 
 
 (m) Gould V. Robson, 8 East, 576 ; English v. Darley, 2 B. & P. 62 ; 3 Esp. 
 49, B. C. 
 
 (71; Pearl v. Deacon, 24 Beav. 186 ; 1 De G. & J. 461 ; 26 L. J., Ch. 761 ; 
 Wnlff V. Jay. L. R., 7 Q. B. 756 ; 41 L. J. 3i2. 
 
 (o) Becliervalse v. Lewis, L. R., 7 C. P. 372 ; 41 L. J. 161. 
 
 Headier v. Jones, 43 Mo. 235 ; Ward v. Wick, 17 Ohio St. 159 ; Schlnssel v. 
 Warren, 2 Oregon, 17 ; Bank of East Tennessee v. Hooke, I Coldwell, 156 ; 
 Barney v. Clark, 46 N. Hamp. 514 ; Wiley v. Hight, 89 Mo. 130 ; Van 
 Rensselaer v. KirUpatrick, 46 Barb. 194; Jennings v. Chase, 10 Allen, 526. 
 
 There is no general rule, that giving time to the maker of a note only for 
 a period equal to that sufficient to obtain a judgment, does not discharge an 
 indorser. Such rule has only been applied in cases where the giving time oc- 
 curred after an action had been commenced. Raught v. Black, 2 Disney, 477. 
 It is no defence to an indorsee that the holder has attached the properly of 
 the maker. Amoskeag Bank v. Robinson, 44 N. Hamp. 503. A creditor may 
 discontinue suit against principal, though his property is attached by it, with- 
 out discharging a surety. Concord Bank v. Rogers, 16 New Hamp. 9. If 
 creditor parts with'property or security, surety is discharged pro tanto. Stew- 
 art V. Davis, 18 Indiana, 74; Robeson v. Roberts, 20 Indiana, 155. If 
 a creditor has the means of satisfaction in his hands, and chooses to suffer it 
 to pass into the hands of the principal, the surety will be discharged. Bank 
 of Gettysburg v. Thompson, 3 Grant Cas. 114. An administrator of the 
 payee of a note is bound in discharge of a surety to apply a share of the 
 payee's estate, coming to the maker, to its payment. Wright v. Austin, 56 
 Barb. 13. 
 
 (IJ. Gower v. Halloway, 13 Iowa, 154 ; Smith v. Harper, 5 California, 291. 
 On the maturity of a note, one of two accommodation iudorsers gave his own 
 note in renewal with collaterals, without the knowledge of the other : it was 
 held to be a discharge of the other indorser. Kelty v. Jenkins, 1 Hilton, 73. 
 Where a new note is received as collateral for overdue paper, it will not dis- 
 charge the indorser, unless there is an express agreement to give time. Taylor 
 V. Allen, 36 Barbour, 294 ; Globe Ins. Co. v. Carson, 31 Missouri, 218. The 
 mere receipt of a collateral note does not imply any agreement to wait until 
 it is due. Austin v. Curtis, 31 Vermont, 64 ; Whitney v. Goin, 20 New Hami)- 
 Bhire, 354. 
 
384 OF*THB LAW OF PRINCIPAL AND SURETY 
 
 Discharging the acceptor or a prior indorser from execution 
 against the. person, discharges the other indorsers; but dis- 
 charging a subsequent indorser from execution affords no' de- 
 fence to a prior indorser.(p) A second execution agairist the 
 person of the same debtor who has been once discharged is not 
 absolutely void, and therefore a man may be taken again if he 
 has so agreed.(g') And it is conceived that where the holder of 
 a bill has seized the acceptor's goods in execution, he is in the 
 position of a creditor holding the security of a principal debtor, 
 and may so conduct himself as to discharge the sureties.(r) ' 
 
 Part payment by the principal or by the surety will only dis- 
 charge the 8urety(s) pro tanto.iX) 
 
 A mere offer to give time to the acceptor not acted upon will 
 not discharge the drawer.(<) 
 
 (j)) Hayling v. Mulkall, 2 Bla. 1335. In the marginal note of this case 
 tlie words "prior" and "subsequent" are transposed. See Englisli t. Dar- 
 ley, 3 B. & P. 63'; 3 Esq. 49, S. C. 
 
 (j) A.tkinson v. Bajnlun, 1 Bing. N. C. 444 (27 E. C. L. E.) ; 1 Scott, 404, 
 S, (J. 
 
 (r) "It is," says Lord Eldon, "a question fit to be tried at law, wliether, 
 if a party talies out execution on a bill of exchange, and afterwards waives 
 that execution, be has not discharged those who were sureties for the due pay- 
 ment of the bill. The principle is, that he is a trustee of his execution for all 
 parlies. interested in the bill." Mayhew v. Crickett, 2 Swanst. 190, and see 
 Smith V. "Winter, 4 M. & W. 467 ; Lake v. Brutton, 35 L. J., Ch. b42. 
 
 But it has been deeided, that the withdrawing of an execution against the 
 goods of an acceptor will not discharge the drawer, ag&inst whom judgmenj; 
 had been obtained, and that the rule, that giving indulgence to an acceptor 
 without the consent of the drawer discharges such drawer, does not apply 
 after judgment. Pole v. Ford, 3 Chit. 13B (18 E. C. L. E.) ; Bray v. Man- 
 son, 8 M. & W. 668 ; but see English v. Darley, 3 B. & P. 62 ; 3 Bsp. 
 49, S. C. It is conceived that when the obligation of a surety is pursued to 
 judgment, he is, at law, no longer surety, but an absolute debtor, yet that 
 tquily, regarding the substance and not the form of his obligation, may con- 
 sider him still a burety, entitled to all the securities which the creditor holds, 
 and perhaps discharged by indulgence to the principal. _ Vide Bray v. Manr 
 son, ubi supra. But a decree in equity against the surety prevents tlje subse- 
 quent giving of time from discharging the surety. Jenkins v. Eobertson; 23 
 L. J., Ch. 816 ; 2 Drew. 351, S. C. 
 
 (s) Walwyn V. St. Quenlin, 1 B. & P. 653; 3 Esp. 515, S. C. 
 
 (0 Hewet V. Goodrick, 3 0. & P. 468 (12 K C'. L. E.) ; Badnall T. Samuel, 
 3 Price, 531. 
 
 (1) The holder is not obliged to receive part payment from the maker. 
 
 To^^i^rrov Hhviiro R Ttla^Vfr.vrl 97 /7/.oi*«./. Wio-Titnwn V. .Tov. 2 Porter, 308. 
 
IN ITS APPLICATION TO BILLS AND NOTE'S. 385 
 
 *The taking a cognovit or warrant of attorney or r^nrn-i 
 judge's order from the acceptor, though payable by in- 
 stalments, will not discharge the indorsers, provided the last in- 
 stalment be not postpbned beyond the period when in the ordinary 
 course of the action, judgment and execution might have been 
 had.(M) But the instrument must be executed with the statu- 
 tory formalities.(i;) 
 
 The obtaining of a judgment against any one party, without 
 satisfaction, is no, discharge' of any other party.(t4;) 
 
 If the acceptor become bankrupt, the holder may prove and 
 receive a dividend without prejudice to his remedies against 
 other parties, for the acceptor is, in case of bankruptcy, dis- 
 charged, not by the act of the holder, but by act of law.(a;) 
 
 Upon the same principle, if the acceptor, being charged in 
 execution at the suit of the indorsee, have been discharged 
 under the old Insolvent Act, the indorsee has his remedy 
 against the drawer.(y) 
 
 But if the holder voluntarily accepts a composition, the in- 
 dorsers are discharged.(^) 
 
 («) Jay V. Wan-en, 1 0. cfe P. 533 (12 E. 0. L. R.) ; and see Lee v. Levy, 6 
 Dowl. & R. 475 ; 4 B. & C. 390 (10 E. C. L. R.) ; 1 C. & P. 553, S. C. ; 
 Hulme y. Coles, 2 Simon, 12 ; Stevenson, v. Roche, 9 B. & C. 707 (17 E. C. 
 L. E.); Price v. Edmunds, 10 B. & C. 578 (21 E. C. L. R.) ; Kennard v. 
 'Enott, 4 M. & G. 474 (43 E. C. L. R.) ; Whitfield v. Hodges, 1 M. & W. 
 679. 
 
 (v) Watson v. Alcock, 1 Sm. & G. 319 ; 4 De Gex, M. & G. 243. 
 
 (w) Glaxton v. Swift, 2 Show. 441, 494 ; 1 Lutw. 878. 
 
 (s) Browne v. Carr, 2 Russ. 600 ; 7 Bing. 508 (20 E. C. L. R.) ; Langdale 
 v.vI*aiTy, 2 D. & R. 337 (16 E. C. L. R.). 
 
 (y) Nadin v. Baltic, 5 East, 147 ; 1 Smith, 363, S. 0. ; and see English v. 
 Parley, 2 B. & P. 63 ; 3 Esp. 49, S. 0. If a creditor execute a deed of com- 
 position, having indorsed away bills on the dehtor, the deed is no defence to 
 an action on the bills when they are returned to the creditor. .Margetson v. 
 Aitken, 3 C. & P. 383 ; Dans. & LI. 157, S. C. Where a man has been dis- 
 charged from a debt on a note under the Insolvent Act, a new note for the 
 old debt will not bind, though given to procure time for a surety on the old 
 note. Evans v. Williams, 1 0. & M. 30 ; 3 Tyr. 326, S. C. 
 
 (s) Ex parte Wilson, 11 Ves. 412 ; Ex parte Smith, Co. B. L. 189 ; Ellison 
 T. Dezell, 1 S. K P. 11th ed. 385. 
 
 25 
 
386 Off THE LAW OF P R IN C I P A t AND SIJRETT 
 
 Though the. taking of a fresh bijl from thp acceptorin, lieu of 
 the dishonoured bill discharges the other parties, it will nothaye 
 the eff'eet, if the second bill or second security, whateyssr it be, 
 r*25n ■were, given as a collateral, security,(a)(l) *Wbere^bili 
 having been dishonoured, the acceptor transpiitt^^ 
 .^ew bill for a, larger amount to t,he payee, but had not any 
 communication with him respecting the first, and the paye? 
 discounted the second bill and indorsed the first to the plaintifi"; 
 it was held, that the second bill was merely a eoHateral security, 
 and that th^ receipt of it by the payee did not aniount to giving 
 time to the acceptor of the first bill, so as* to exonerate the 
 drawer. "In cases of this description," says Abbott, C. J., 
 " the rule laid down is, that if time be given to.the.aceepto}^ 
 th^ other parties to the bill are discharged ; b,ut. in no case ha§ 
 it been said, that taking a collateral security from the acceptpi; 
 shall have that effect. Here the second bill was nothing more 
 than, a collateral gecurity."(6), B., being indebted to A., pro- 
 cured 0. to join with him in giving a joint and severa,! promis: 
 ' sory note for the amount, and afterwards .having bepo^ne further 
 indebted, and being pressed by A. for further security by dee§ 
 reciting the debt, and that for a part a note had been given by him 
 and C, and that ^., haying demanded payment for the debt,B. 
 had requested him to accept a further security, assigned, ta A, 
 all his household goods, &c., as a further secxxrity, it was held, 
 that this did not affect the. remedy, on the note against |C,(c) 
 So, where one of the three partners, after a dissolution of paut 
 nership, undertook by deed made between the partners to pay 
 a particular partnership debt on two bills of exchange, and that 
 was communicated to the holder, who consented to take th? 
 
 (a) Gordon v. Calvert, 4 Eusg. 581 ; Calvert v. Gpxdon, 7 B. & C. 809(14 
 i:,C.. L, R). 
 
 (J) Piing V. ClarksoD, 1 B. & C. 14 (8, B, C, L. B.) ; 2 Dowl & R-, 78. Ban 
 the observations an this case, Bayley, 6th ed, 347. 
 
 (c) Twopenny v. Young, 3 Bi. <^ C. 208 (10 E. 0. L. R.) ; 5 Dowl. & R. 
 ,259, S. C. 
 
 (1) If the holder of a note receives a bond and warrant of attorney frojn 
 the maker for the purpose of entering judgment thereon and increasing l)is 
 security, the bond ^nd warrant will be considered only as collateral secui'ity, 
 and the in(jlorsei; will not be thereby discharg^., Mohawk Bank v. Van 
 Home, 7 Wendell, 117. 
 
IN ITS APPLICATION TO BILLS AND N T B;S . 387 
 
 separate notes of the one partner for the amount, strictly rer 
 serving his right agaiuat all three, Skiid retaining possession of 
 the original bills, the separate notes having proved unproduQ- 
 tive, it was held, that he might still resort to his remedy against 
 the other partners, and that the taking under these circumr 
 stances, the separate notes, and even afterwards renewing thera 
 ieyeral times, did not amount to satisfaction of the joint deht.(d) 
 
 A warrant of attorney may be only a collateral- security.(e), 
 
 Though the drawee should not have accepted the bill, yet it 
 is conceived that the holder, by giving up the bill to him and 
 taking from Ifim a substituted bill at a longer date would 
 *4isoharge the prior parties, though he have given r*o)::oi 
 due notice of dishonour. It is true, the drawee is not 
 the principal debtor, nor at law a debtor to the holder at all, 
 but he is the debtor of the drawer ; and, if a man be referred 
 to his own debtor's debtor for payment, and instead of taking, 
 cash elects to take a bill, he discharges his own debtor.(^) If, 
 however, the holder, being unable to obtain cash, take a bill 
 Irom the drawee as a collateral security, and keep the original 
 bill, his remedies on the original bill would not, be affected, and, 
 as DetWeen himself and the drawee, there would be a good con- 
 flij^eration for the new bill.(A) 
 
 Thirdly, as to the means by which the discharge of the 
 principal may be prevented from operating as a discharge of 
 the surety. 
 
 It has been repeatedly held, and is now well established, that 
 a giving of time by the creditor to the principal debtor will not 
 discharge the s,urety, if there be an agreement between the 
 creditor and the principal, that the surety sh^ll not be thereby 
 
 (d) Bedford v. Deakin, 3 B. & Al. 210 ; 3 Stark. 178 (3 E. C. L. R.), S. C. 
 («) Norris v. Aylett, 2 Cam^. 339 ; Bell v. Banks, 3 M. & G. 358 (43 E. C. 
 L. R.) 
 
 (ff)"Stri0jjg V. Hart, 9 D. & R. 1-89 ; 6 Bi & C. 160 (13 E. C. L. R.),; Smith 
 V. Eemnd, 7 B. & C. 19 (14 E. C. L. R.) ; 9 D. & R. 803 (32 E. C. L. R.) ; 
 taJsee RcWnspfl v. Read, 9 B. & C. 449. (17 E. C. L. R.) ; 4 M. &. R. Bids, 
 S. C. 
 
 (A) Vide the Chapter on Con9idesation, IJbbt of a Third Fekbon. 
 
388 OF THE LAW OF PRINCIPAL AND SITRBTY , 
 
 discharged ,(i) although the surety himself be no party to the 
 stipulation, or even have no notice of it.(A)(l) And the surety's 
 remedy over against the principal is intact whether the surety 
 be or be not a party ,(Z) unless the instrument amount to a release, 
 or to a release of one of several joint or joint and several 
 debtors.(m) This stipulation , res^erving the rights of the surety, 
 must in general appear on the face of the instrument giving 
 time, and cannot, if the indulgence be in writing, be proved, by 
 parol.(7i) But that is not always necessary \irhere.the agree- 
 ment to reserve the sureties' rights is distinct andcoliatera].(o) 
 'Ho indulgence to an acceptor or other prior party will 
 ^_.„^ *discharge an indorser, if the indorser previously con- 
 sent to it. Thus, where the acceptor, having been 
 arrested by the holder, oftered him a warrant of attorney for 
 the amount of the bill payable by instalments, and, the holder 
 mentioning the offer to the drawer, the drawer said, " You may 
 do as you like, for I have had no notice of the non-payment ; " 
 it was held, that this amounted to an assent, and that the 
 drawer (who, in fact, had had notice) was not discharged by 
 the indulgence.(^) 
 
 (0 Burke's Case, 6 Ves. 809; Bonltbee v. Stubbs, 18 Yes. 20; Ex 
 parte Glendinnlng, Buck. 517 ; Ex parte Carstairs, Ibid. 560 ; Harrisofc T. 
 Courtauld, 3 B. & Ad. 36 (33E. C. L. R.) ; Nichols v. Norris, Ibid; 41, n. ; 
 Cowper V. Smith, 4 M. & W. 519 ; Smith v. Winter, 4 M. & W. 454; Nortli 
 V. Wakefield, 13 Q. B. 258 (66 E. C. L. R.) ; Owen v. Homan, 4 H. L. Cases, 
 997. 
 
 (ft) Webb V. Hewitt, 3 K. & J. 438. 
 
 (0 Kearsley v. Cole, 16 M. & W. 128 ; Webb v. Hewitt, 3 K. & J. 438. ; 
 
 (m) Ibid. It is not unusual to insert in the original contract of suretysli^ 
 a stipulation, that a composition with the principal shall not release the surety. 
 See Cowper v. Smith, 4 M. & W. 519. 
 J (») Ubi supra. 
 
 * (o) Ex parte Harvey, 33 L. J., Bank, 26 ; Wyke v. Rogers, 21 L. J., Ch. 
 611 ; 1 De G., M. & G. 408, S. C. But see Ex parte Glendinning, Buck. 517, 
 ■where time is given by deed. 
 
 (p) Clark V. Devlin, 3 B. & P. 363. 
 
 (1) If the extension of payment contain an express reservation that the 
 indorsers shall have the right to pay the note at any time, and proceed against 
 the maker, thereupon, at once, the indorsers will not be discharged. Morse v. 
 Huntington, 40 Vermont, 488 ; Potter v. Green, 6 Allen, 44S. 
 
INITS APPLICATION TO BILLS AND NOTES. 389 
 
 Fourthly, as to the mode in which the operation of indulgence 
 to the principal on the liability of the surety may be waived. 
 
 Wherever the surety, with knowledge of the facts, assents 
 either by words or acts to what has already been done, such 
 stibsequent assent will be a waiver of his discharge without any 
 new con8ideration.(g') Therefore, where time had been given, 
 and the drawer, aware of the fact, but ignorant of the law, and 
 conceiving himself still liable, said, " I know I am liable, and if 
 vthe acceptor does not pay it I will," the drawer was held to 
 have waived his di8charge.(r) But where a bill was renewed, 
 and an indorser said, " It was the beSt thing that could be done," 
 it was held, that this was no recognition of his liability.(s) 
 
 , Fifthly, as to discharge of principal by dealings with surety. 
 If the principal and sureties are jointly liable, e. g., if they are 
 joint makers of a note, then a discharge to a surety by the credi- 
 tor releasing him, or making him executor, or taking from him 
 a composition and erasing his name from the note, will be a 
 discharge of the co-surety, and also of the principal debtor ;(<) 
 but the discharge, in this case, does not proceed on the law of 
 principal and surety. 
 
 liastly, as to the rights of sureties. 
 
 If one who is surety on a joint and several note, signed by 
 ihe principal, pay the amount, though without any request 
 *or compulsion by the creditor, he may recover it of the r^gsAi 
 principal.(a;) A surety, on payment of the debt, is en- 
 titled in equity to existing securities which the creditor may 
 possess against the principal debtor.(2/) And he has now such 
 
 (j) Mayhew v. Crickett, 2 Swanat. 185 ; Smith v. Winter, 4 M. & W. 467. 
 
 (r) Stevens v. Lynch, 12 East, 38 ; 3 Camp. 332, S. 0. ; Smith v. Winter, 
 4 M. & W. 454. 
 
 («) Withall V. Masterman, 3 Camp. 179 ; Clark t. Devlin, 3 B. & P. 363 ; 
 Tindal v. Brown, 1 T. R. 167 ; English v. Darley, 3 B. & P. 61. 
 
 (0 Nicholson v. Revill, 4 Ad. & E. 675 (31 E. C. L. R.) ; 6 N. & M. 192 ; 
 1 Bar. & W. 753, S. C. 
 
 (it) Or the co-surety's proportion of the co-surety. Pitt v. Purssord, 8 M. 
 4 W. 538. 
 
 (y) See Copis v. Middleton, 1 T. & R. 329 ; Hodgson v. Shaw, 3 M. & K. 
 190; Goddard v. White, 3 Giff. 449 ; Newton v. Charlton, 10 Hare, 651. And 
 to what has heen realized on them. Gray v. Seckham, L. R., 7 Chan. Ap. 
 680 ; 41 L. J. 381. 
 
• OF THE LAW OP PRINCIPAL A N D S U E* T T 
 
 a right even at law, on giving a proper indemnity, and may feue 
 in the creditor's name.(2) A contract to indemnify a surety 
 'entitles the surety to interest,(a) 
 
 i A promise by a stranger to indemnify a surety is not within 
 the 4th sfection of the Statute of Frauds, and therefore need'n©t 
 be in writihg.(ft) 
 
 If a surety pa|y money to the creditor under a mistake !ab to 
 the fact supposed to constitute his liability, he may recover it 
 'back.(c) 
 
 A surety who has paid- for his principal is a breditor who 
 inay be barred by a composition deed-, though he have not con- 
 sented to it.(flf) 
 
 Wlhere the sureties are ndt, as between 'themselves, principal 
 and surety, as are a prior and subsequent indorser of a biill or 
 note, but merely co-suretiefs, as are two or more joint or joint 
 and several makers of a note, if one be called on to pay the 
 whole debt, the others shall severally contribute in equal pro- 
 portions. 
 
 And though T;he same debt be secui-ed by different instru- 
 ments, executed by different sureties, and' though one portion 
 of the debt be secured by one instrument, and one by another, 
 and different sureties execute each, still there is mutual con- 
 tribution ;(e) nay, even though the surety seeking contributioji 
 did hot at the time of the contract know that he had any co- 
 sureiies. For the right of a co-surety to enfore contribution 
 does not depend upon contract, but upon the equity of the 
 case.(/) 
 
 (s) 19 & 30 Vict. c. 97, s. 5 ; Batchellor v. Lawrence, 9 G. B. (N. S.) 543 
 (99E. C. L. R.). 
 
 (a) Petre v. Duncombe, 20 L. J., Q. B. 342. 
 
 (&) Cripps V. Hartnall, 32 L. J. 381, Excli. Chamber,; Batson v. King, 4-H. 
 '& N. 739. 
 
 («) Mills v. Alderberry Union, 3 Exch. 590. 
 
 id) Hooper v. Marshall, L. R., 5 C. P. 5 ; 39 L. 3. 14. 
 , •(«) Deeririg v. Earl of Winchelsea^ 2 Bos. & P. 270 ; 1 Cox, 318, S. G. ; 
 Mayhew v. Cricljett, 3 Swanst. 184 ; Whiting v. Burke, L. R., 6 Olian. Ap. 
 942. 
 
 (/) See Craytliorn v. Swinburne, 14 Ves. 169 ; Reynolds^. Wheeler; 30 L. 
 J. I C. P. 850. 
 
IN ITS APPLI-CA TIOS 'T BILLS AND NOTES. 891 
 
 *A'slire'ty has a right of action against his principal p^n-,-, 
 for eVery Sum that he pays, and a right of action against *- ^ 
 Ms co-surety a:s soon as he has paid more than his own due pro- 
 portion of the debt.(^) He has a fresh right of action against 
 the co-surety for bvery sum that he pays beyond that amount.(l) 
 
 The proper legal remedy for a surety, who has paid more 
 than his due proportion of the debt against his co-surety, is an 
 action for money paid to the use of the co-surety.(A) But a 
 surety cannot at law recover more than an aliquot part of the 
 debt against his co-surety, although others of the sureties be 
 ih8olvent.(i) To distribute the loss arising from the insolvency 
 of co-sureties, a co-surety must resort to equity. And although 
 in equity the loss arising from the insolvency of sureties must 
 be equally borne by the solvent sureties, yet that liability 
 
 ig) Davies v. Humphreys, 6 M. & W. 153 ; Cowell v. Edwards, 2 B. & P. 
 268; Browne v. Lee, 6 B. & C. 689 (13 E. C. L. R.). 
 
 (h) Kemp v. Finden, 12 M. & W. 481. 
 
 (0 Cowell V. Edwards, 3 Bos. & P. 268 ; Browne v. Lee, 6 B. & 0. 689 
 (IS E. C. L. R.) ; Batard v. Hawes, 33 L. J., Q. B. 443. 
 
 (1) If two peVsons put their names 6n the back of an a'ccommodalioa note 
 at the time of ks malting, for the benefit of a third person, as between them- 
 selves, they are co-sureties, entitled to contribution from each other. Currier 
 V. Fellows, 7 Foster, 866 ; Steckel v. Steckel, 4 Casey, 233. The mere fact 
 that a bill was drawn and indorsed for the accommodation of the acceptor 
 does not give rise to the relation of co-sureties between the drawer and ifl- 
 (ibrser, but it may be proved by parol evidence that such was the understand- 
 fng afid 'agifeemeht. Dunn v. Sparks, 7 Indiana, 490. The joint indorsers of 
 negotiable paper, who are liable as co-promisors, have no right of subrogation 
 SgaiiiSt eacli other. West Branch Bank v. Armslrohg, 4 Wright, 275. An 
 accommodation acceptor is entitled in equity to be subrogated to the holder's 
 aecnrities against the drawer. Bank of Toronto v. Hunter, 4 Bosworth, 646. 
 When one guarantees the payment of a note, on whicTi sureties have already 
 si^tifed, prima facie his legal relation to tho^e ■Who hav6 signefl before hitii ik 
 that he is surety for them jointly, not surety with them. Keith v. Goodwin, 
 31 Vermont, 268. Successive indorsers of accommodation paper are liable to 
 each other in succession and not as joint promissors or sureties. McNeilly '^. 
 ratehin, 23 Missouri, 40. Givilig time to one of two sureties on a piro'miSsctry 
 note does not discharge the other. Draper v. Wild, 13 Gray, 580. 
 
 See, also, Gordon v. Southern Bank, 19 Indiana-, 192 ; Chipman v. Morrill, 
 20 Cal. i30; McCune v. Belt, 45 Mo. 174; Stillwell v. How, 46 Ibid. 589 ; 
 Woodward v. Severance, 7 Allen, 340. 
 
 • A binding contract to give time to one of two sureties-, only discharges the 
 other from such part thereof as the first would be bound to contribute. IdS 
 V. Churchill, 14 Ohio (N. S), 372. 
 
392 
 
 OF PROTEST AND NOTING. 
 
 I 
 
 may be- restrained by the express contract of the suretieB.(vK) 
 And a collateral surety may contract to be liable only in the 
 event of the default of the principal debtor and the other sure- 
 ties.(i) A surety is not in general liable for interest. 
 
 The right of a surety to contribution from his co-suretyas 
 not prejudiced by the plaintiff possessing a security against the 
 principal debtor which the defendant does not possess, and of 
 which he was not aware.(m) 
 
 It has been held, that 'a surety on a continuing guaranty 
 has a right to determine his liability for future advances by 
 notice.(?i) Even although the duration of the advances be 
 limited by the instrument of suretyship.(o) 
 
 [*256] 
 
 *CHAPTEK XIX. 
 OP PROTEST AND NOTING. 
 
 PEOTBBT NKCKSSABT ON FOREIGN 
 
 BILLS, AND WHY, . . . 356 
 
 BT whom: to be made, . . 357 
 
 OFFICE OF A NOTARY, . . 357 
 
 WHEN TO BE MADE, . . . S57 
 
 ■WHERE TO BE MADE, . . . 357 
 
 FORM OF PROTEST, . . . 258 
 
 STAMP ON PROTEST, . . . 358 
 
 PROTEST FOR BETTER SECTJpiTY, 358 
 NOTING, WHAT, .... 358 
 
 NOTICE OP PROTEST, . . . iOV 
 
 COPT OF PROTEST, .... 259 
 WHEN PROTEST EXCUSED, . . 260 
 
 PROTEST OF INLAND BILLS AND 
 
 NOTES, 360 
 
 PROTEST OF LOST BILL, . . 261 
 
 PLEADING, . . . . . 261 
 
 EVIDENCE, 261 
 
 EFFECT OF A PROMISE TO PAT, 261 
 
 When a foreign bill is refused acceptance or payment, it was 
 and still is necessary, by the custom of merchants, in order to 
 charge the drawer, that the dishonour should be iittested. by a 
 protest.(a) For, by the law of most foreign nations,(6),a pro- 
 
 (A) Swaine v. "Ware, 1 Cha. Rep. 149 ; Collins v. Prossor, 1 B. & C. 683 
 (8 E. C. L. R.). 
 
 (0 Craythorn v. Swinburne, 14 Vesey, 160 ; Harthey v. O'Flaherty, L. & 
 G. temp. Plunket, 317. 
 
 (to) Done v. Whalley, 17 L. J., Excli. 335 ; 3 Excli. 198, 8. C. 
 
 (u) Per Lord Tenterden, Brocklebank v. Moore, 3 Stark, on Et. 371. 
 
 (,0) Offord V. Davis, 31 L. J., C. P. 319. 
 
 (a) Gale v. "Walsh, 5 T. R. 339 ; Rogers v. Slephens, 3 T. R. 713 ; Orr v. 
 Maginnls, 7 East, 859 ; 3 Smith, 338, S. C. 
 
 (6) Polh. 317. 
 
OF PROTEST AND NOTING. g9§ 
 
 test is, or was, essential in case of dishonour Of any bill ; and, 
 though by the law of England it is unnecessary in the case of 
 an inland bill, yet, for the sake of uniformity in international 
 transactions, a foreign bill must be prote8ted.(e)(l) Besides, a 
 protest affords satisfactory evidence of dishonour to the drawer, 
 who, from his residence abroad, might experience a difficulty 
 in making proper inquiries on the subject, and be compelled to 
 rely on the representation of the holder. It also furnishes an 
 indorsee with the best evidence to charge an antecedent party 
 abroad; for foreign Courts give credit to the acts of a public 
 functionary, in the same manner as a protest under the seal of 
 
 (c) See Borough v. Perkins, I Salk. 131 ; 2 Ld. Raym. 993 ; 6 Mod. 80, S. 
 C. ; and the argument in Trimby v. Vignier, 1 Bing. N. C. 151 (27 E. C. L. 
 R.) ; 4 M. & So. 695 ; 6 0. & P. 25 (35 E. C. L. R.), S. C, as to a protest of 
 a French bill payable in France. 
 
 (1) Demand and protest must be made according to the laws of the place 
 where the bill is made payable. Ellis v. Commercial Bank, 7 Howard, Miss. 
 294; Carter v. Union Bank, 7 Humph. 48 ; Grafton Bank v. Moore, 514 N. 
 Hanip. 143. Where the diawee of a bill of. exchange residing in New York, 
 wrote a letter there to the drawer, residing in Massachusetts, accepting the 
 bill which was drawn in the latter State, it was held that the contract of ac- 
 ceptance was made in New York, and was governed by the law of that State ; 
 and the bill must be presented there to the acceptor for payment. Worcester 
 Bank v. Wells, 8 Metcalf, 107. 
 
 Protest is necessary in case of a foreign bill, in order to charge the drawer 
 or indorser. Payne v. Winn, 3 Bay, 376 ; Union Bank v. "Hyde, 6 Wheaton, 
 572 ; Duncan v. Course, 1 Rep. Const. Ct. 100 ; Read v. The Bank of Ken- 
 tacky, 1 Monroe, 91 ; Carter v. Burleigh, 9 N. Hamp. 558 ; Nelson v. Fotterly, 
 7 Leigh, 173. But a protest of an inland bill is unnecessary, unless as in 
 some States it is made necessary by statute to the recovery of damages. 
 Union Bank v. Hyde, 6 Wheaton, 573 ; Miller v. Hackley, 5 Johns. 375 ; 
 Payne v. Winn, 3 Bay. 876 ; Young v. Bryan, 6 Wheaton, 146 ; Taylor v. 
 Bank of Illinois, 7 Monroe, 579 ; Bank of United States v. Leathers, 10 B. 
 Monroe, 64 ; Lawrence v. Ralston, 3 Bibb, 103 ; Murray v. Clayborn, 2 Ibid. 
 300; McMarchey v. Robinson, 10 Ohio, 496; Hubbard v. Troy, 2 Iredell, 
 134; Bailey y. Dozier, 6 Howard, U. S. 23 ; Smith v. Ralston, 1 Morris, 87 ; 
 Turner v. Greenwood, 4 English, 44. It is not necessary to protest a promis- 
 sory note. Payne v. Winn, 3 Bay. 374 ; City Bank v. Cutter, 3 Pick. 414 ; 
 Young V. Bryan, 6 Wheat. 146 ; Smith v. Little, 10 N. Hamp, 526 ; Bay v. 
 Church, 15 Conn. '15; Sussex Bank v. Baldwin, 2 Harrison, 487 ; Evans v. 
 Gordon, 8 Porter, 143 ; Smith v. Gibbe, 3 Smedes & Marshall, 479 ; Piatt v. 
 Drake, 1 Doug. 296. 
 
 A bill of exchange must be protested, or there must be a noting of .the pro- 
 test on it, on the same day with the presentment. Commercial Bank v. 
 Barksdale, 36 Mo. 563. 
 
394 0* PROlB^si AND NOTINS. 
 
 a foreign notary is evidence, in our Courts, of the dishbiiour of 
 a bill payable abroad.((5[) » 
 
 But a protest is not tiec6sBary on a fofeigh promissory hotis.^e) 
 
 r^n- -^ *The protest should be .made by a notary public ; 
 but, if therie be no such notary in or near the place 
 where the bill is payable, it may be made by an inhabitant, ia 
 the presence of two witnesses,(/')(l) 
 
 A notary^ registrarius^ actuarius, smnan'MS, was anciently a 
 scribe that only took notes or minutes, and made short drafts 
 of writings and other instruments, both public and private. 
 He is at this day a public officer of the civil and canon law, 
 appointed by the archbisVro'p of Canterbury, who, in the instru- 
 ment of appointment, decrees, " that full faith be given, as well 
 
 (,d) Auon., 12 Mod. 345 ; Rep. temp. Holt, 297. 
 
 (e) Bonar v. Mitchell, 19 L. J., Exch. 302 ; 5 Exch. 415, S. O. 
 
 (/) Bivyley, 210. 
 
 (1) A demand of Spayrrient of a note may be made by a clerk of the notary. 
 Sussex Bank v. Baldwin, 2 HarrisoB, 487. The notary who fills up and cer- 
 tifies the protest must present the bill himself ; it cannot be done by an agent. 
 Carmichael v. Pennsylvania Batik, 4 Ho^iard, Miss. 567; Sacrider v. BroWn, 
 3 M'Lean, 481 ; Chenowitli v. Chamberlain, 6 B. Monroe, 60 ; Bank of Ken- 
 tucky V. Garey, Ibid. 626 ; Carter v. Union Bank, 7 Humph. 548. As to the 
 office and functions of a notiiry public in demanding paj'ment, and giving 
 notice of the non-payment of bills and notes, and of notailaV certificates, §ee 
 Chatham Bank v. AUisdfl, 15 Iowa, 357 ; Adams v. Wright, 14 Wise.' 408 ; 
 Bank of the Commonwealth v. Miidgdtt, 44 N. Ydrk, 514 ; TDakin v. Graves, 
 48 N. Hamp. 45; Commercial Bank v. Varnuni, 3 Lansing, 86; Gceafi 
 National Bank v. Williaths, 102 Mass. 141 ; Commercial Bank v. BarksdaW, 
 36 Mo. 568 ; Harman v. Hicks, 1 Duvall, 322 ; UnioQ Bank v. Stonf, 50 Maine, 
 595 ; Ordho Bank v. Wood, 49 Maine, 26 ; Lee v. Buford, 4 Met. (Ken.) 7 ; 
 Starr t. Sanford, 9 Wright, 193 ; Painter v. Whitney, 21 Indiana, 58 ; TerMl 
 V. Jones, 15 Wise. 253 ; Milt6nberg.er v. Spaulding, 33 Mo. 481 ; Bliss v. 
 Paine, 11 Mich. 92; Kerli v. Van Phnl, 7 Mifan. 426; Schorr V. Wowllief, 
 28 Louis: Ann. 473 ; MulhoUand v. 'Samuels, 8 BuShj 13 ; Caruthers v. Haf*- 
 bert, 5 CbldWell, 362 ; CoiTrharin v. Bank of Kentucky, 41 Miss. 213^ TraWe 
 V. Ssiyre, 1 Bush, 129 ; Jex v. Threanfl, 19 Louis. Anti. 64? Pattee v. Mc- 
 Crillis, 53 Maine, 410; Fnrniss v. Holland, 1 Edmond's Sel. Oas. 470; Mc- 
 Andrew V. Radway, 34 N. York, 511 ; Union Bant v. Middlebvooki 33 Cofin. 
 95 ; Unioii Bank v. GregbTjn, 46 Bairb. 98 ; Drum. v. Bi'adfutB,18 'Louis. Ann. 
 680. . i 
 
OP PROTBfe?C AND ilOTING. 8^5 
 
 •in as out of judgment, to the iiistrumen-ts by bim to be made."(^) 
 This appointment is alsti registered afid subscribed by the clerk 
 of her Majesty for faculties in Chancery. The present act for- 
 the regulation of notaries is the 41 Geo. 3, c. 79.(A) By the llth 
 section of this statute, any person acting for reiward as a notary, 
 without being duly admitted, forfeits bOl. to him that will sue 
 for the same. 
 
 By the 6 Geo. 4, c. 8'?, s. 20, her Majesty's consuls at foreign 
 ports or places are empowered to do kll notarial acts. 
 
 And, by the 3 <& 4 Will. 4, c. tO, attorhies residing more than 
 •ten miles from the Royal Exchange mky be admitted to prac- 
 tice as notaries. 
 
 The protest of a foreign bill should be begun, at least (and 
 such an incipient protest is fcalled noting), on the day onwMch 
 acceptance or pa,yment is refused ;(t) but it may be drawn up 
 and completed at any time before the commencement of the 
 suit,(A) or even before or during the trial,(i) and ante-dated 
 accordingly. -An inland bill cannot be protested for non-,p&.y- 
 ment till the day after it is due.(m)(l) A bill should not be 
 ■protested on a bank holiday ; it should 'be protested on the 
 morrow.(n) ' 
 
 A protest is usually ma(ie where the dishonour occurre^.(Q) 
 
 / 
 
 (?) Ayliffe's Parergon, 385; 3 Burn's Eccl. Law, 1. 
 
 (A) AnS see 6 & 7 Vict. c. 90. 
 
 (0-B. K.P. fefe 
 
 ih) Chaters v. Bell, 4 Esp. 48 ; Selw. llth ed. 381, S. G. ; 'but sfee Vaiiafei- 
 yiailk. Tyrrell, M. & M. 87 (22 E. O. L. R.) ; where there is payment (6t 
 hononr. But this case does not support the position that the notarial act 
 cannot be formerly extended afterwards. Geralopulo v. Wieler, 10 C. B. 690 
 (70E. 0. L.R.). 
 
 (I) Bull. N. P. 272 ; brr V. Maginnis, f Bast, 361 ; Thompson on Bills, 
 p. 147. 
 
 (m) 9 & 10 Will. 3, c. 17. 
 
 (n)-See t. 'iBa ; and 34 Vict. b. 1?, Appeisdix. 
 
 (0) See Mitchell v. Baring, 10 B. & €. '4 (21 E. C. L. E.) ; M. &% '38il ; 
 4 C. &-P, M <1«-E. G. L. E.)-, S. G. 
 
 (1) A 'protest is properly made on the last day of grace. Battertons v. 
 Porter, 2 Litt. 888.; Mills v. Rouse, Ibid. 207; Ontaria Bank v. Pfetrie, 3 
 iWend. 456. If the last day of ,gfaee be Sunday, protest should be made on 
 Saturday. .Offutt v. Stout, 4 J. J. Marsh. 333. 
 
OF PROTEST AND NOTING, 
 
 r*2581 *'^^ 2 & 3 Will. 4, c. 98, enacts, that a bill made paya- 
 ble by the drawer at a place other than the drawee's 
 residence, and which bill shall not be accepted on presentment, 
 shall be, without further presentment, protested for non-paymeffit 
 in the place where it has been made payable.(3o) 
 
 A protest is, in form, a solemn declaration, written by the 
 notary under a fair copy of the bill, stating that payment op 
 acceptance has been demanded and refused, the reason, if any, 
 assigned, and that the bill is therefore protested. When the 
 protest is made for a qualified acceptance, it must not state a 
 general refusal to accept, otherwise the holder cannot avail him- 
 self of the qualified acceptance.(g')(l) 
 
 Where the stamp duty on the bill or note does not exceed Is., 
 a protest is subject to the same duty as the bill or note, and' in 
 any other case to a duty of Is.(r) 
 
 Besides the protest for non-acceptance and for non-payment, 
 the holder may protest the bill for better security. Protest for 
 better secuiity is, where the acceptor becomes insolvent, or 
 where his credit is publicly impeached before the bill falls due. 
 In this case, the holder may cause a notary to demand better 
 security ; and, on its being refused, the bill may be protested^ 
 and notice of the protest may be sent to an antecedent party. 
 Yet, it seems, the holder must wait till the bill falls due before 
 he can sue any party. Nor does there appear any advantage 
 from the protest more than from simple notice of the circum- 
 stances ;(s) except that, after such a protest, there may be a 
 
 (p) See the statute in the Appendix. 
 
 (j) Bentinck v. Doirien, 6 East, 199 ; 2 Smith, R. 337„ S. C. ; Sproat v. 
 Matthews, 1 T. R. 183. 
 
 (r) 33 & 34 Vict. c. 79, s. 116, and Sched. And formerly, to a duty of 1«. 
 on every other sheet or piece of paper written on. 84 & 35 Vict. o. 91, s. 25. 
 
 («) Anon., 1 Ld. Raym. 743 ; Chitty, 9th ed. 343 ; Mar. 110. 
 
 (1) When the protest of a bill of exchange contained an exact copy of the 
 bill, but the acceptance was made by " Chas. Byrne," instead of "And. E. 
 Byrne," as it was in the original bill, this variance or error in the name of 
 the acceptor's agent ought not to have excluded tlie protest from being read 
 in evidence to the jury. Dennistown v. Stewart, 17 Howard, 606. 
 
OF PROTEST AND NOTING. 
 
 agGond acceptance for honour.(<) Whereas, without the inter- 
 ventioa of a protest, there cannot be two acceptances on the 
 same bill.(M) 
 
 Noting is a minute made on the bill by the officer at the time 
 of refusal of acceptance or payment. It consists of his initials, 
 the month, the day, the year, and his charges for minuting ;(t;) 
 and is considered as the preparatory step to protest. " Noting," 
 says Mr. J. Buller, " is unknown in *the law, as distin- r*2<;qi 
 guished from the protest: it is merely a preliminary 
 step to the protest, and has grown into practice within these 
 few years. "(a;) A bill, however, is often noted, where no pro- 
 test is either meant or contemplated, as in the case of many 
 inland bills. The use of it seems to be, that a notary, being a 
 person conversant in such transactions, is qualified to direct 
 the holder to pursue the proper conduct in presenting a bill, 
 and may, upon a trial, be a convenient witness of the present- 
 ment and dishonour. In the meantime, the minute of the 
 notary, accompanying the returned bill, is satisfactory assurance 
 of non payment or non-acceptance, to the various parties by 
 vhom the amount of the bill may be successively paid. In 
 case of an inland bill, as it can only be protested under the 
 statute, and the fees of a notary for protesting are thereby fixed 
 at 6rf., it has been said, that no more can be charged for 
 noting,(y) though it is usual to charge more.(2:) 
 
 The Court will not allow the expense of noting to be re- 
 covered against the acceptor,(a) unless it be laid as special 
 damage in the d&laration.(l) But in actions brought under 
 
 (0 Ex parte Wackerbath, 5 Ves. 574. 
 (m) JacksoD V. Hudson, 3 Catnp. 447. 
 (») Kyd. 87. 
 
 («) LefHey v. Mills, 4 T. R. 170. 
 (j/) Leftley v. Mills, 4 T. E. 170 ;Chitty, 9th ed. 465. 
 («) Vide Appendix. 
 
 (a) Hobbs v. Christmas, Sittings after Mms. T. 1831 ; Kendrick V. Lomax, 
 2 C. & J. 405 ; 2 Tyrw. 438, S. C. ; Rogers t. Hunt, 10 Exch. 474. 
 
 (1) If the acceptor of a bill fail to pay it at maturity, so that it is necessary 
 to protest it, in order to charge the drawer and indorser with damages, the 
 acceptor is liable to refund the notarial fees. Tichner v. Branch Bank, 3 Ala- 
 bama, 135. 
 
398 OF PROTBSTAND HGTING. 
 
 the 1-8 k. 19 Vict, c, Q7,{b) the expenses of noting may be re- 
 covered. ''1;/'- 
 
 If the drawer reside abroad, a copy, or some memorial of the 
 protest ought to accompany the notice^ of di8honour.(c) But 
 notice of the protest certainly is not; necessary, if the draweu 
 resides within this country, though, at the, time of non-accept* 
 ance, he may happen to be abroad ;(<i) nor if, at the time of 
 dishonour, he have returned home to. this country, " If," says 
 Lord Ellenborough, " the pa,rty: is abroad, h© cannot know of 
 the fact of the bill having been protested, except by having 
 notice of the, protest itsiclf ; but, if he be at home, it is easy foi 
 him, by making inquiry to ascertain that fact."(^) 
 
 And it is now decided that a copyioi the protest need not in 
 any ease be 8ent.(/)(l) 
 
 ^Proof of a protest of a foreign bill is excused', if the 
 J, -I -J, d,rawer had no effects in the hands of the drawee, and 
 no reasonable expectation that the billwonld be honouredi;(^) 
 0? if the drawer has admitted his liability, by promising to 
 pay. " By the drawer's promise to pay," observes Lord Ellen-* 
 borough, " he admits the existence of every thing which) is 
 necessary tp render him liable. When called upon for. payr 
 ment of the bill, he ought to have objected that there was no 
 protest. Instead of that, he promises to pay ib. I must, there- 
 fore, presume he had due notice, an(J that a pi^test was regu. 
 larly drawn up by a notary. "(A) 
 
 (6) Post, Chapter XXXIII. 
 
 (e) Bayley ; Poth.- 148; Robins v. Gibson, 1 M. & S. 888; yijifi. pp;a, 
 Chapter on Notice of Dishohotjk. 
 
 {d) Cromwell v. Hynson, 3 Esp. 511. 
 
 (e) Robins V. Gibson, 1 M. & Sel. 2j88.; 3, Gamp. 834, S,. C. 
 
 (/) Goodman v. Harvey, 4 Ad. & E^ 870 (31 E. C. L. IL); 6T^:iiM- 
 873, S. C. 
 
 ig) Legge v. Thorpe, 12 Eas^ 171 ; 2 Canip,.810i S, C, 
 
 (70 Gibbon v. Coggon, 2 Camp. 188 ; Patterson v. Beecher, 6 Moote, 319 
 (17 B. C. L. R.) ; GYeenway v. Hindley, 4 Camp. 52. 
 
 (1) It is unfl,e(;cssar3f that a copy of the protest, of a fqreig^ bill shpuJdibeijiT 
 eluded in the notice. Dennistown v. Stewart, 17 Howard, 606. 
 
OF PROTEST AND NOTING. 399 
 
 And it ifl said, that where the drawer adds a request or 
 direction, that in the event of the bill not being honoured by 
 the drawee, it shall be returned without protest, by writing the 
 words " relour sans proiet," or '■'■ sans frais" a protest as against 
 the drawer, and perhaps as against the indorsers,(t) is unneces- 
 sary.(l) 
 
 Inland bills may. be protested for non-payment under the 9 & 
 10 ^ill. 3, c. 17, and for non-aceeptance under the 3& 4 Anne^ 
 c. 9, But it has been, held, that a protest is unnecessary, ex- 
 qept to enable the holder- to recover interest ;(i) a,nd subsequent 
 and uniform practice, confirmed by a late d.ecision,(^) has settle4 
 that it is superfluous even for this purpose. 
 
 Foreign bills are very frequently protested, both for non- 
 acceptance i^nd non-payment : but a protest is hardly ever made 
 for uon-aeceptance of an inland bill, though it is sometimes 
 protested for non-paymeat,(m)(2) It is conceived, that a pro- 
 test of an inland, bill is unknown to the common law, and 
 must, therefore, derive its efiicacy from the above enactments ; 
 from which it will follow, that it is applicable only to such in- 
 atrunients as are therein described, and that the steps therein 
 required must be taken. As the 3 & 4 Anne, c. 9, puts promis- 
 sory notes on the same footing as bills, it should seem to 
 authorize a protest : and such protest is accordingly sometimes 
 made.(?i) It would, therefore, be of no pi;actical benefit further 
 
 (0 1 Pardessus, 540 ; Cliitty, 10th ed. 114, 
 (A) Harris v. Bensom, 2 Stra. 910. 
 
 (!) Windle v. Andrews, 2 B. & Aid. 696 ; 2 Stark. 425 (3 E. C. L, R.) 
 S, C. ' 
 
 (m) Kyd, 95 ; 2 & 3 Will. 4, o. 98. 
 (n) Kyd, 97. 
 
 (1^ Protest for non-payment is not necessary to charge the acceptor with 
 the principal sum ; but if no other evidence of a denaand is given, a protest is 
 necessary to charge him with interest. Lang v. Brailsford, 1 B,ay..2a2. 
 . (?,) 'W^hen a protest fpr n,pn-^cceptancea8well a,s nori-payment is necessary, 
 see Brown v. Barry, 3 Dall. 368 ; Clarke v, Russell, Ibid, 424 ; Read v. Adams, 
 6 Serg. & Rawle, 356 ; Lennox v. Leverett, 10 Mass, 5 ; Duncan v. Course, 1 
 Sep. Qo^st, Ct., 103 ; Phillips x- McCurdy, 1 Har, & Johiis. 187 ; Thompson v, 
 Cnmming, 2 Leigh, 331 ; Martin v. Ingersoll, 8 Pick. 1 ; Chase v. Taylor, 4 
 %. & J. 5^; Fleming y. McClure, 1 Brevard, 438. 
 
400 OF PKOTBST AND NOTING. 
 
 to discuss the provisions of these *too loosely drawn 
 '- -■ and obscCire statutes, with respect to the protest of 
 inland bills. 
 
 The loss of a bill is no excuse for the absence of prote3t.(o) , 
 
 ■ In an action' against the drawer of a foreign bill, protest must 
 be averred(p) as well as proved ; and it has been held that, if 
 protest of an inland bill be set forth in pleading, it must be 
 proved.(g') But this decision proceeded on the ground that an 
 allegation of protest of an inland bill involved a consequential 
 claim for interest and costs ; whereas it has been since decided', 
 that such a claim may be made without protest.(r) 
 
 In an action on a foreign bill, presented abroad, the dishonour 
 of the bill will be proved by producing the protest, purporting 
 to be attested by a notary public : or, if there is not any notary 
 near the place, purporting to have been made by an inha^bitant, 
 in the presence of two witnesses.(s) But a protest made in 
 England is not evidence of the presentment here.(i)(l) 
 
 (0) Pothier, 145. 
 
 (p) But the absence of the allegation of protest is a defect of form only. 
 Solomons v. Stavely, 3 Doug. 298 (36 B. C. L. R.) ; Gale v. "Walsh, 5 T. R. 
 239 ; Armani v. Castrique, 13 M. & W. 443. 
 
 (5) Boulager v. Talleyrand, 2 Bsp. 550. 
 
 (r) Windle v. Andrews, 2 B. & Aid. 696 ; 2 Stark. 425 (3 E. C. L. R.), 
 S. C. 
 
 (s) Anon., 12 Mod. 345 ; Rep. temp. Holt, 297, S. C. 
 
 (t) Chesmer v. Noyes, 4 Camp. 129. 
 J ___ f , — __ 
 
 (1) A statement in a protest of a bill for non-acceptance, that the reason 
 given by the drawee for non-acceptance was that he had no effects of the 
 drawer, is no evidence of the want of effects. Dumont v. Pope, 7 Blackfard, 
 367. The notarial certificate is sufficient proof of the dishonor of a foreign 
 bill. Brydon v. Taylor, 3 Harr. & Johns. 899 ; Nicholls v. Webb, 8 Wheat. 
 333; Townsley v. Sumrall, 2 Peters, 179; Lonsdale v. Brown, Ibid. 688; 
 Chanvine y. Fowler, 8 Wendell, 173 ; Bank v. Purvey, 3 Monroe, 338 ; Chase 
 V. Taylor, 4 Har. & Johns. 54. It is only in relation to foreign bills of ex- 
 change that the protest of a foreign notary is admissible in evidence; and 
 though a promissory note, payable in another State or country, may, for re- 
 mittance, answer the purpose of a bill of exchange, yet that does not make 
 the notarial certificate evidence. Kirtland v. Wanser, 2 Duer, 378. A pro- 
 test is not necessary by the law merchant to fix the liabilities of the parties to 
 an inland bill. Demand and notice are sufficient. But to recover damages it 
 must be protested, and the fact averred in the declaration. Knott v. VenaMe, 
 
OF ACCEPTANCE SUPRA PROTEST, ETC. 401 
 
 A promise to pay is good prima fade evidence of protest.(M) 
 and of notice thereof.(a;) 
 
 *CH AFTER XX. [*262] 
 
 OF ACCEPTANCE SUPRA PROTEST, OR FOR HONOUR, (a; 
 
 MODE OF SUCH ACCEPTAHCB, . 263 
 WHO MAY SO ACCiBPT, . . . 363 
 
 CONDUCT WHICH HOLDER SHOTJLD 
 
 PDKSUE, 263 
 
 LIABILITY GIT ACCEPTOB SUPRA 
 
 PROTEST, 364 
 
 ■WHAT ACCEPTANCE SUPRA PRO- 
 TEST ADMITS, 265 
 
 RIGHTS OF ACCEPTOR SUPRA PRO- 
 TEST, 266 
 
 "When acceptance is refused, and the bill is protested for non- 
 
 (a) Patterson v. Beccher, 6 Moore, 319 (17 E. C. L. E.) ; Gibbon v< 
 Coggon, 2 Camp. 188 ; Campbell v. Webster, 15 L. J., C. P. 4 ; 2 0. B. 258 
 [52 E. C. L. R.), S. C. ; Greenway v. Hindlcy, 4 Camp. 52. 
 
 (it) Ibid. 
 
 (o) Called in French, "Acceptation par Intervention," Code de Com- 
 merce, 136. 
 
 42 Alabama, 186. A notarial protest is not, in cases of inland bills and 
 promissory notes, evidence of demand, non-payment and notice by a notary 
 when given by him. Bond v. Bragg, 17 Illinois, 69 ; McAllister v. Smith, 
 Ibid. 328 ; Snmner v. Bowen, 2 Wisconsin, 524 ; Sullivan v. Dradman, 19 
 Arlsansas, 484. Where a certificate of protest is properly authenticated by 
 the seal of the notary, no proof of his signature or of his authority to act is 
 necessary. Ross v. Bedell, 5 Duer, 462. 
 
 In many of the States there are statutes making the certificate of a notary 
 public evidence prima facie of the facts of demand and notice on bills 
 and notes, leaving it open of course to the opposite party to contradict it, 
 and this he may do by calling the notary himself or his clerk as a witneES. 
 Ticonie Bank v. Stackpole, 41 Maine, 821 ; Lewiston Falls Bank v. Leonard, . 
 
 43 Ibid. 144 ; Golladay v. Bank of the Union, 2 Head. 57 ; Dichenor v. Turner, 
 12 Indiana, 323 ; Loud v. Merrill, 45 Maine, 516 , Ricketts v. Pendleton, 14 
 Maryland, 330 ; Carnith v. Walker, 8 Wisconsin, 253 ; Baumgardner v. Reeves, 
 11 Casey, 350 ; Adams v. Wright, 14 Wisconsin, 408 ; Simpson v. White, 40 
 New Hampshire, 540 ; Gillespie v. Neville, 14 California, 408 ; Duchert v. 
 Yon Llleinthal, 11 Wisconsin, 56 ; Reapers' Bank v. Willard, 24 Illinois, 439 ; 
 Rindshoff v. Malone, 9 Iowa, 540 ; Bradshaw v. Hedge, 10 Ibid. 402 ; Brooks 
 T. Day, 11 Ibid. 46 ; Kern v. Von Phul, 7 Minnesota, 426 ; Union Bank v. 
 Hnmphreys, 48 Maine, 172 ; Coleman v. Smith, 2 Casey, 255 ; McFarland v. 
 Pico, 8 California, 626; Sherer v. Eastern Bank, 9 Casey, 134; O'Neil v. 
 Dickson, 11 Indiana, 253. 
 
 26 
 
40-2 OF ACCEPTANCiB SUPEA PROTEST, 
 
 acceptancie, or where it is protested for better security, any per- 
 son may accept it, supra protest,{b) for the honour of the draw,eij, 
 or of any one of the indorsers. The method of accepting, 
 supra protest, is said to be as follows, viz., the acceptor, supra 
 protest, must personally appear before a notary public, with 
 twitnesses, and declare that he accepts such protested bill iu 
 honour of the drawer or indorser, as the case may be, and that 
 he will satisfy the same at the appointed time ; and then he 
 must subscribe the bill with his own hand, thus — "Accepted, 
 supra protest, in honour of A. B,," i&G. ;(c) or,. as it is more usual, 
 "Accepts, S. P." And a general acceptance, supra proteM, 
 r*26'^1 ''^^^^^ does not *express for whose honour it is made, 
 is considered as made for the honour of the drawer.(«Z) 
 
 Any person miay accept a bill supra protest: and the drawee 
 himself, though he may refuse to accept the bill generally, may 
 yet accept it supra protest, for the honour of the drawer or of 
 an indorsfer.(e) And thongh we have seen that, after one gen- 
 eral acceptance, there cannot be another acceptance,(,/;) yet, 
 ■ when a bill has been accepted, supra protest, for the honour of 
 one party, it may, by another individual, be accepted supra 
 
 (J) I am not aware of any authority to show that there may he an accept- 
 ance for honour without a protest, and the statute 6 & 7 "Will. 4, c. S8, seems 
 ' to assume that bills accepted for honour are always protested ; see Vandewajl 
 V. Tyrrell, M. & M. 87 (23 E. C. L. R.) ; Geralopulo v. Wieler, 10 C. B. 690 
 f(70 E. C. L. R.) ; Bay ley, 6th ed. 181 ; Noguier, Lettres de Change,, ss. 384 
 -591. Unless, indeed, there be a direction to another person in case of need, 
 Chitty, 165, 236. Where the direction, in case of aeed, is appended, it is said 
 to be necessary to present a foreign bill to that other person. But then he 
 , is more properly an original alternative drawee, than an acceptor for honotir. 
 As to a direction "in case of need " on an indorsement, see Leonard v. Wil- 
 son, 3 C. & M. 589. There seems from that case no obligatien to presentau 
 inland bill (where the direction in case of need isgiven by an indorser) to 
 the party to whom in case of need it may be. presented. The referee, in case 
 of need, appointed by tlie indorser, though agent to pay the bill, is not agent 
 to receive notice of dishonour. In re Leeds Banking Company, Law Kep., 
 1 Equity, 76 ; 35 L. J., Ch. 88. 
 
 (c) Beawes, pi. 38. 
 
 id) Chitty, 9th ed. 344 ; Beawes, 39. 
 
 (e) Beawes, 83. And it has been held in America that it is no ohjeetion 
 that the acceptor, supra protest, takes the guarantee of the drawee. Byles on 
 Bills, 5th, American edition, 403. 
 
 (/) Jackson v. Hudson, 8 Camp. 447. 
 
OR FOR HONOUR. 403 
 
 protest, for the honour of another. (^) In no one case is the 
 holder obliged to take an acceptance for 'hQnour.(A)(] ) 
 
 The holder of a dishonoured bill, who is offered an accept- 
 ance for the honour of sonae one of the preceding parties to 
 the bill, should first cause the bill to be protested, and then to 
 be accepted, supra protest, in the manner above described. At 
 maturity he should again present it to the drawee for payment, 
 -who may, in the meantime, have been put in funds by the 
 drawer for that purpose. If payment by the drawee be re- 
 fused, the bill should be protested a second time for non-pay- 
 ,menti,(i) and then presented for payment to the acceptor for 
 honour.(A) Doubts having arisen as to the day when the bill 
 should be again presented to the acceptor for honour, or referee, 
 in case of need, for payment, the 6 & 7 Will. 4, c. 58, enacts, 
 that it shall not be necessary to present, or in case the acceptor 
 for honour or referee live at a distance, to forward for present- 
 ment, till the day following that on which the bill becomes 
 due,(0 
 
 (g) Beawes, pi. 43. 
 
 (A) Mutford V. Walcott, 13 Mod. 410 ; 1 Ld. Eaym. 575, S. C. ; Beawes, 
 37; Gregory v. Walcup, Comb. 76 ; Pillans v. Van Mierop, 3 Burr. 1603. 
 
 (O'Hoare v. Cazenove, 16 East, 891. 
 
 (ft) Williams v. Germaine, 7 B. &-C. 477 (14 E. C. L. R.) ; 1 M. & R. 894, 
 S. 0. 
 
 (J) According to the French law the acceptor for honour is bound to give 
 ■notice to the person for whose honour he accepts. " L'intervenant est 
 
 TENU DE NOTIFIER SANS DELAI SON INTBEVENTION A CBLTJI POUK QUI IL EST 
 
 INTEKVENU," Code de Commerce, 127: — "Parce que autrement," says 
 iRogron, "le tireur, ignorant ce qui est arrivfe, pourrait envoyer la provision 
 au tir6 ; I'observalion de cette disposition donne lieu a des dommages-interets 
 eontre I'accepteur par intervention si le tireur en ^prouve quelque prejudice." 
 But according to Beawes, pi. 47, any one accepting a bill, supra protest, for 
 the honour of the drawers or indorsers, though without their order or knowl- 
 edge, lias; his remedy against the person for whose honour he accepted. It 
 fieems, that, -according to the Scotch law, a holder may take an acceptance 
 lupra protest, and yet sue the drawer or indorsers. Thompson, 489. Such 
 IS certainly the French law : "Xe porteur de la letire de change conserve ioits 
 let droits eontre le tireur et les endosseurs a raison du difaut d'aecepiation par 
 eelui tw qui la lettre etait tiree, nonobstant toutes acceptations par intervention. " 
 CodedeComm. 128. 
 
 (1) A stranger to the drawer and indorser of a bill may intervene supra 
 pretest, and accept. > And it is no objection to such intervention (and does not 
 
404 OF ACCEPTANCE SUPRA PROTEST, 
 
 r*9f^4T *^^ ^ ^^^^ which attracted much attention, it was 
 proved, that where a foreign bill, drawn upon a mer- 
 chant residing in Liverpool, payable in London, is refused ac- 
 ceptance, the usage is to protest it for non-payment in London. 
 The bill is put into the hands of a notary, and he formerly 
 used to make protest at the Eoyal Exchange, but that custom 
 is obsolete : the notary now is merely desired by the holder to 
 seek payment of the bill, and on a declaration by the holder 
 that the drawee has not remitted any funds-, or sent to say 
 where the bills will be paid, the notary at once marks it as 
 protested for non-payment. The Court (with the exception 
 perhaps of Mr. J. Bayley) seemed to think this might, if the 
 bill were payable in. London, be, in ordinary cases, sufficient. 
 But they were all agreed that it would not have been sufficient 
 in the principal case to charge the acceptor, supra protest, h&- 
 cause the acceptance was in these words — " If regvlarli/ pro- 
 tested and paid when due ;" and they said the drawees could not 
 be said to refuse, unless they were asked. The Court also ap- 
 pear to have been clear, that though there might be cases in 
 which an exhibition of the bill to a notary in London is suffi- 
 cient, yet that in all cases a bill may be sent to the drawee, and 
 indeed that such is the more regular course.(m)(l) 
 
 By the 2 & 3 Will. 4, c. 98, it is enacted, that all bills made 
 payable by the drawee in any place other than his residence, 
 are, on non-acceptance, to be without further presentment 
 protested for non-payment in the place where they are made 
 payable. 
 
 (m) Mitchell v. Baring, 10 B. & C. 4 (21 E. C. L. R.) ; M. & M. 381 ; 
 4 C. & P. 35 (19 E. C. L. R.), S. C. 
 
 impair such acceptor's remedy against the party for whom he intervenes), that 
 it is done at the request and under the guarantee of the drawee. Konig v. 
 Bayard, 1 Peters, 250. Where a bill is directed to a particular person, no 
 other one can accept it but for the honor of the drawer. May v. Kelly, 27 
 Alabama, 497. 
 
 (1) Where a draft has been protested for non-acceptance, the holder is not 
 bound to present it at maturity for payment. Exeter Bank v. Gordon, 8 New 
 Hamp. 66. But this is not where there has been an acceptance supra protett. 
 An acceptor for the honor of the drawer cannot recover against him without 
 proof of a presentment for acceptance or payment, and refusal and notice to 
 the drawer. Baring v. Clark, 19 Pick. 220. He who accepts supra protest is 
 not liable unless demand of payment is made on the drawee, and notice of his 
 refusal given. Schofield v. Bayard, 3 Wendell, 491. 
 
OR FOR HONOUR. 405 
 
 The undertaking of the acceptor, supra protest, is not an ab- 
 solute engagement to pay at all events, but only a collateral 
 conditional engagement to pay, if the drawee do not, " It is," 
 says Lord Ellenborough, " an undertaking to pay, if the original 
 drawee, upon a presentment to him for payment, should per- 
 sist in dishonouring the bill, and such dishonour by him be 
 notified, by protest, to the person who has accepted for hon- 
 our."(n) The learned Judge proceeds *to lay down the p^n^cT 
 doctrine that a second protest is necessary ; observing : ■- 'J 
 "The use and convenience, and, indeed, the necefsity of a pro- 
 test upon foreign bills of exchange, in order to prove, in many 
 cases, the regularity of the proceedings thereupon, is too obvi- 
 ous to warrant us in dispensing with such an instrument in 
 any case where the custom of merchants, as reported in the 
 authorities of law, appears to have required it."(o) And a sec^ 
 ond protest, for non-payment by the drawee, is after acceptance, 
 supra protest, equally necessary, in order that either the holders 
 may charge the acceptor, supra protest, or the acceptor, supra 
 protest, may charge the party for whose honour the acceptance 
 was given. The object of an acceptance for honour is to save 
 to the holder all those rights which he would have enjoyed, 
 had the bill been accepted in a regular manner. If the bill be 
 drawn payable at a certain period after sight, and accepted 
 supra protest, a second presentment for payment, and protest 
 and notice, is still essential, for the purpose of enabling the 
 holder to sue either drawer or acceptor, supra protest, or enab- 
 ling the latter to sue the party for whose honour he has ac- 
 cepted. And the time which the bill has to run is computed, 
 not from the date of the exhibition to the drawee, but from 
 
 : (n) Hoare v. Ca^enove, 16 Bust, 391. See Vandewall v. Tyrrell, M. & M. 
 87 (23 E. C. L. R.) In America it is held that where a draft has been pro- 
 tested for non-acceptance, the holder is not bound to present it at maturity 
 for payment. Exeter Bank v. Gordon, 8 New Hamp. 66. But this is not so 
 when there has been an acceptance supra protest. An acceptor for the honour 
 of the drawer cannot recover against him without proof of presentment for 
 acceptance or payment and refusal, and notice to the drawer. Baring v. 
 Clark, 19 Pick. 220. He who accepts, supra protest, is not liable unless 
 demand of payment is made on the drawer and notice of the refusal given. 
 Schofleld T. Bayard, 3 Wendell, 491. See Byles on Bills, 5th American ed. 
 405. 
 
 , (o) Ibid. 
 
406 OF ACOBPTANOB SUPRA PKOTEST, ETC. 
 
 the date of the acceptance supra protest.{p) Presentment to 
 the drawee, and protest,, must be averred in the declaration.(j) 
 The acceptoT, supra protest, becomes liable to all parties on the 
 bill subsequent to him for whose: honour the acceptance was 
 raade.(r) 
 
 • The acceptor, supra protest, admits. tl\e genuineness of the 
 signature, and is bound by any estoppel binding on the party 
 for whose honour he accepts. Thus, where a bill was drawain 
 favour of a non-existing person or order, but the name of the 
 r*2fifi1 <^''3^6i" ^^^ the name of the payee and first *indorser 
 were both forged, and the defendant accepted for the 
 honour of the drawer, it was held that the defendant was 
 estopped from disputing that th&drawer's signature was genui,ne 
 and that, the bill was drawn in favour of a non-existing person, 
 was negotiable,, and had become payable to bearer.(s) 
 
 By acceptance supra protest', the party for whose honour' it 
 was made, and all parties antecedent to hini, become liable to 
 the acceptor, supra protest, for all damages which he may inciir 
 by reason of his acceptance.(<) The acceptor supta protest,- 
 where the bill has been protested' for better security, has his 
 remedy also against the acceptor.(tf) It was once held,(2;) that 
 a party paying for the honour of the drawer had no claim on 
 the assignees of the accommodation acceptor, because the drawer 
 himself had none, but in. a recent case it was decided that he 
 could recover against the acceptor whether the acceptance were 
 given for value or not.(w)(l) 
 
 (p) Williams v. Germaine, 7 B. & C. 468 (14 E. C. L. E.) ; 1 Man. & R 
 894, 403, S. C. 
 
 (?) Ibid. 
 
 (r) Hoaie V. Gazenove, 16 East, 391; Bayley, 6th ed. 178; Beawes,S3; 
 Marius, 21 ; Ex parte Wackerbath, 5 Ves. 574'. 
 
 (s) Phillips V. Im Thurn, L. R., 1 C. P. 330. 
 
 (0 Beawes, 47. 
 
 («)• Ex parte Wackerbath, 5 Vesi 574. 
 
 (») Ex parte Lambert, 13 Ves. 179. 
 
 (w) Ex parte Swan, L. R., 6 Eq. 844. In America it is held that if a Hiir* 
 party takes up a bill at its maturity for the honour of the drawer, and at his' 
 request he thereby releases the accommodation acceptor of such bill, whether 
 he intended it or not. See Byles on Bills, 5th American ed. 408. 
 
 (1) If a third party takes up a bill at its maturity for the honor of the 
 
OF PAYMENT SUPRiA PRQT/ES.T, ETC. 
 
 40T 
 
 *OHAPTER XXI, 
 
 [*267] 
 
 OF PAYMENT SUPRA PROTEST; OR FOR HONOUR. 
 
 WHAT, AND HOW MADE, . . 267 
 
 BIGHT OP PARTY PAYING SUPKA 
 
 PB0TB8T, 367 
 
 NOTICE OF DISHONOUR BY, . 368 
 
 CANNOT REVIVE LIABILITY, . 268 
 
 PAYMENT -WITHOUT PROTEST, . 268 
 
 SAFEST MODE OFi TAKING UP A. 
 
 BILL FOR HONOUR, . . . 268 
 
 ACCOMMODATION BILLS, . . 268 
 
 WHEN THE PROTEST SHOULD BE 
 
 MADE, 269 
 
 NO PAYMENT BUPRA PROTEST OF 
 
 PROMISSORY NOTES, . . 369 
 
 Payment, supra protest, is where a bill of exchange, having 
 been protested for nonrpayment, is paid by another person, .for 
 the honour of some one of the parties. Any party, to a bill o£ 
 exchange, whether drawer, drawee, payee or indorser, may pay 
 for hQinour.(l) So may a mere stranger, without any previous 
 req,aes1; or authority from the party for whose honour he pays., 
 .This right is not founded on the English common law, but is a 
 pvovd^on of the general law merchant, introduced to aid the 
 crediti and circulation of bills of exchange.. It extends; to no- 
 other instrument. Such payment should be. preceded, on the 
 part of the payer, in the presence of a notary public, by a dec- 
 laration for whose honour the bill is paid, which, should be re- 
 corded by the notary, either in the protest or in a separate" 
 instrument.(a) It is clear that there can be no payment fop- 
 honour till the bill is dishonoured by non-payment ;(6) and a 
 
 (b) Beawe^ pi. 53 ; Marius, 138i L'interrentton et le paiement seromt 
 constat^ dans l!acte de protet ou a la.suit& de I'acte. CodCf de Oommeroei 
 Art. 158. 
 
 (S) Deacon y. Stodhart, 3 Man. & 6r. 317 (40,E. C. L. R.). 
 
 drawer,, and' at his request, he thereby releases the accommodation acceptor 
 of such bill, whether he intended it or not. McCowell v. Cook, 6 Staedea & 
 Marshall, 430. 
 
 (1) The drawee may.accept or pay supra protest for the honor of the drawer 
 or indorser, but if he discount it before maturity he stands in the position of 
 an indorsee as against- all prior-parties; Swope v. Ross-, 4 Wright, 186.- 
 
408 01 PAYMENT SUPRA PROTEST, 
 
 protest is essential,(c) though it may be drawn out in due form 
 afterward8.(c?) 
 
 A party paying a biJl of exchange, supra protest, has his 
 action against the party for whom the payment was made, and 
 against all other parties to whom that party could have re- 
 r*2fi81 ^^^''^^ *^°'" reirabursement.(e) But he thereby dis- 
 ■ charges all the subsequent parties, although that dis- 
 
 charge does not prevent his relying on any title they may 
 have.(/)(l) 
 
 ' A man paying for honour of an indorser may, if he choose, 
 give immediate notice to the prior indorsers, but he is not 
 bound so to do. He may, if he please, send the protest, or the 
 bill or notice, to the indorser for whose honour he pays, and any 
 subsequent regular notice given by that party(g') will suffice. 
 
 It is conceived that a man cannot, by. paying, supra protest, 
 revive the liability of an indorser already discharged by laches. 
 
 And where a party pays generally for honour, without a pro- 
 test,' a bill already indorsed in blank, he, as an indorsee, may, 
 it seems, sue any party on the bill.(A) ' 
 
 (e) In Vandewall v. Tyrrell, M. & M. 87 (33 E. 0. L. K.) ; so held by Lord 
 Tenterden ; and in Ex parte JSVylde, 30 L.' J., Bky. 10, by Lord Campbell. 
 As it is by the French law, Code de Commerce, Ait. 158, and by the law of 
 Scotland, Bell's Comm. p, 3, pt. 1, c. 4, s. 367. 
 .(d) Geralopulo v. Wifeler, 10 C. B. 690 (70 E. C. L. R.). 
 
 (e) Bayley, 6th ed. 318. 
 
 (/) Celui qui paie une lettre de change par. intervention est subrogfi anx 
 droits du porteur. * * * Si le paiement par intervention est fait pour le 
 compte du tirenr tous les endosseurs sont lib^rfis. S'il est fait pour un endos- 
 senr, les endosseurs subsfiquents sont liblrfis. Code de Commerce, Art. 159. 
 In America it is held that an acceptor, supra protest, for the honour of the 
 first indorser, may require, as a condition of payment, that the holder shall 
 indorse the bill to him. See Byles on Bills, 5th American ed. 408. 
 
 (.g) Goodall v. Polhill, 14 L. J., C. P. 146; 1 C. B. 383 (50 B. C. L. R.), 
 S. C. 
 
 (JO Mertens V. Winnington, 1 Esp. 113. But see the observations on this 
 case by Lord Campbell in Ex parte Wylde, 30 L. J., Bky. 10. 
 
 (1) An acceptor supra protest for the honor of the first indorser, may re- 
 
OR EOR HONOUR. 409 
 
 The most obvious and advantageous course to be pursued by 
 a man desiring to protect the credit of any party to a dis- 
 honoured bill is simply to pay the amount to the holder and 
 take the bill as an ordinary transferee. 
 
 But the holder may possibly object ; for example, the bill 
 may not have been indorsed in blank, and the holder may refuse 
 to indorse even sans recours. In such an event a payment, 
 swpra protest, becomes essential. 
 
 The party. paying, supra protest, has also his remedy against 
 the acceptor, and that whether the acceptance was given for 
 value or not, unless there be an equity attached to the bill 
 amounting to a discharge.(i) 
 
 *It is necessary that the protest should be made be- n^aori 
 fore payment.(A) 
 
 The law merchant as to payment, supra protest, dtjes not ex- 
 tend to promissory notes, which are not, like bills of exchange, 
 instruments calculated or intended for circulation all over the 
 globe. Whoever, therefore, pays a note for another person 
 withoat authority, express or implied, does so at his peril.(Z) 
 
 In ordinary cases, however, where the note is indorsed in 
 blank, he of course becomes a transferee of the note. 
 
 (j) Ex parte Wackerbath, 5 Ves. 574 ; Ex parte Swan, L. R., 6 Bq. 344, 
 explaining and overruling Ex parte Lambert, 13 "Ves. 179. A party taking 
 up a bill for the honour of any party to it succeeds to the title of the party 
 from whom he took it, and is in effect an indorsee by the law merchant, 
 though he cannot himself indorse. Pothier, vol. iv. pt. 1, ss. 113, 114. " Au 
 moyen du paiement il demeurera subrog^ en tous les droits du porteur, 
 quoiqn'il n'en ait pas de transport, subrogation ni ordre." Noguier, Lettres 
 de fihange, ss. 584-591. 
 
 (ft) Vandewall v. Tyrrell, M. & M. 87 (22 E. 0. L. R.). Although it need 
 not be drawn out in full, or extended, as it is called, till afterwards. Geralo- 
 pulo T. Wieler, 10 C. B. 690 (70 B. C. L. R.). 
 
 (0 Story on Promissory Notes, s. 453. 
 
 quire as a condition of payment that the holder shall indorse the bill to him. 
 Freeman v. Perot, 3 Wash. C. C. 485. 
 
410 
 
 OF NOTICE OF DISHONOUR. 
 
 [*27,0] 
 
 *C.HAPTER XXII. 
 
 OF NOTICE OF DISHONOUR. 
 
 DrVISIGN OF THE SUBJECT, . 371 
 
 FORM OF THE NOTICBj . . 271 
 
 BESCKIPTION OF THE MTSTBU- 
 
 MBHT, 376 
 
 STATEMENT OF THE PARTY ON 
 WHOSE BEHALF NOTICE IS 
 
 GIVEN, 376 
 
 NOTICE OF PROTEST, . . . 377 
 
 MODE OF TRANSMITTING IT, . 277 
 
 BY POST, 377 
 
 IVIBECTION OF THE LETTER, . 377 
 
 EVIDENCE OF NOTICE BY POST, . 278 
 SPECIAL MESSENGER, . . . 278 
 
 HOW TO BE BENT IN CASE OF 
 
 FOREIGN BILL, . . .379 
 
 AiT WHAT PLACE, . . . 379 
 
 WHEN TO BE GIVEN, . . . 380 
 
 IP THE PARTIES LIVE IN DIF- 
 FERENT PLACES, . . .381 
 IN THE SAME PLACE, . . . 283 
 WHEN A PERSON RECEIVING NO- 
 TICE SHOULD TRANSMIT IT, . 383 
 MAY BE GIVEN ON THE DAY OP 
 
 DISHONOUR, .... 383 
 WHEN, IF THE BILL 18- DEPOSI- 
 TED WITH BANKER, ATTORNEY 
 OB AGENT, .... 283 
 
 NOTICE TgaOUGH BRANCH 
 
 BANKS, 384 
 
 SJJNDAXS,, HOLIDAYS', AND. BANK 
 
 HOLIDAYS, HOW RECKONED, . 384 
 BURDEN OF PROOF, . . . 384 
 
 BY WHOM NOTICE SHOULD BE 
 
 GIVEN, 
 BY AN AGENT, 
 BY A. PLEDGEE, 
 
 , 385 
 386 
 
 387 
 
 TO WHOM, 
 
 TO AN AGENT. OR ATTORNEY, . 
 
 TO A BANKRUET, 
 
 WHERE THE PARTY IS DEAD, 
 
 NEED NOT BE GIVEN TO AC- 
 CEPTOB, 
 
 TO PARTIES JOINTLY LIABLE, . 
 
 TO A TBANSFEROB, NOT INDORS- 
 ING, 
 
 WHEN TO A GUARANTOR, ,. 
 
 TO AN INDORSER GIVING A BOND, 
 
 CONSEQUENCES OF NEGLECT, ,. 
 
 WHAT EXCUSES NOTICE, 
 
 AGREEMENT OF THE PARTIES, . 
 
 COUNTERMAND OF PAYMENT, 
 
 NO EFFECTS, .... 
 
 WHERE THERE IS BSAiSONABLE 
 EXPECTATION THAT THE BILL 
 WILL BE HONOURED, 
 
 IGNORANCE OP PARTY'S RESI- 
 DENCE, 
 
 ACCIDENT 
 
 WHERE A BILL IS DRAWN BY 
 SEVERAL ON ONE 01* THEM- 
 SELVES, 
 
 DEATH, BANKRUPTCY OR INSOL- 
 VENCY WILL NOT EXCUSE, 
 
 INSUFFICIENT STAMP, . 
 
 NOTE NOT NEGOTIABLE, .. 
 
 CONSEQUENCES OF NtEQIiHCT, 
 HOW WAIVED, .... 
 
 LACHBS NOT IMPUTABLE TO THE 
 CROWN, 
 
 PLEADING WHERE NOTICE IS EX- 
 CUSED OR WAIVED, . 
 
 EVIDENCE. OF NOTICE, 
 
 287 
 289 
 289 
 
 390 
 291 
 
 293 
 
 295 
 » 
 
 297 
 
 298 
 
 m 
 
 299 
 29». 
 
 soil 
 
 301 
 3flL 
 
 In general, it is iacumbent on the holder of a bill or nota 
 dishonoured, whether by non-acceptance(a)(l) or by non-pay- 
 
 (as) Bleasard v. Hirst, 5 Burr. 3673 ; Qoodall v. DoUey, 1 T. R. 712. And 
 
 (1) The drawer and indorsers are liable to an action by the holder imme- 
 
or NOTICE OF DISHONOUR. 411 
 
 ment, *to give notice of that fact to the antecedent r»o7i n 
 parties.(l) The requisites of notice and the consequences 
 of neglect being much the same in both cases, under the general 
 head of notice of dishonour will be considered notice of non- 
 acceptance and notice of non-payment. 
 
 In considering this subject, let us inquire, — first, what form 
 of notice is required ;, secondly, how notice is to be transmitted ; 
 thirdly, at what place it is to be given; fourthly, at what time; 
 
 the parties who are entitled to notice of non-acceptance,, are discharged' for 
 w,ant of it, and are riot liable for subsequent non-payment; Roscow v. Hardy, 
 13 East, 434 ; unless the bill come into the hands of a subsequent indorsee for 
 Talue, who was not aware of the dishonour. O'Keefe V. Dunn, 6 Taunt. 305 
 (1 E. C. l! R.>; 1 Marsh. 613, S. C. ; Dunn v. O'Keefe, 5 M. & S. 383; 
 Whitehead v. Walker, 9 M. & W. .506, 8. C. ; see Goodman v. Harvey, 4 Ad. 
 & El. 870 (31 B. C, L. R.) ; 6 N. & M. 373. "Where a bill was re indorsed to 
 a prior indorser, and in the interval had been dishonoured by a refusal to 
 accept, <if which refusal the drawer had had no notice, it was held that the 
 plaintiff, declaring as immediate indorsee of the drawer, the defendant might 
 plead those facts without averring that the plaintiff gave no value, or was not 
 again indorsee before the bill became due, or had knowledge of the facts; 
 Bartlett v. Benson, 15 L. J., Exch. 23 ; 14 M. & W. 733 ; 3 D. & L. 274, B. 
 C. i and if notice of non-acceptance be given, the right to recove^^of the prior 
 parties the full amount of the liill immediately, however distant its maturity, 
 is complete. Whitehead v. "Vyalker, 9 M. iS; W. 506. 
 
 diately after the bill is refused acceptance, and before it is payable, on giving 
 due notice of non-acceptance. Wallace v. Agry, 4 Mason, 336 ; Watson v. 
 loring, 8 Mass. 557 ; Lenox v. Cook, 8 Mass. 460 ; Sterry v. Robinson, 1 Day, 
 11 ; Than v. Le Gaux, 1 Yeatcs, 204 ; WeldOn v. Buck, 4 Johns. 144 ; Win- 
 throp V. Pepoon, 1' Bay, 468 ; Mason v. Franklin, 3 Johnson, 203 ; Corser v. 
 Craig, 1 Washington C. C. 424 ; Miller v. Hackley, 5 Johnson, 375 ; Evans v. 
 Gee, 11 Peters, 80 ; Evans v. Bridges, 4 Porter, 348 ; Wild v. Passamaquoddy 
 Bank, 3 Mason, 505. It is not indispensable that a bill should be presented 
 for acceptance until it becomes due ; but if presented and not accepted, notice 
 of the non-acceptance must be given to the drawer. Smith v. Roach, 7 B. 
 Monroe, 17. The holder of a bill of exchange may commence a suit imme- 
 diately upon the protest for non-acceptance. Roosevelt v. Woodhull, Anthon, 
 35. Absence of the drawee from home, when called on for acceptance, is not, 
 a refusal to accept. Bank of Washington v. Triplett, 1 Peters, 35. 
 
 (1) Where the holder of. an indorsed bill of exchange, which is not accepted 
 by the drawee, merely informs the drawee that he has the bill but does not 
 actually present it to him for acceptance, and the drawee thereupon tells him 
 that the bill will not be accepted nor paid, the indorser is not thereby dis- 
 charged, though no notice is given to him of the drawee's declarations. Fall 
 River Bank v. WHlard, 5 Metoalf, 316. 
 
412 OE NOTICE OF DISHONOUR. 
 
 fifthly, by whom it must be given ; sixthly, to whom ; seventhly, 
 what are the consequences of neglect ; eighthly, how notice may 
 be excused or waived ; and lastly, how it may be proved. 
 
 First, as to the form of the notice. Notice does not mean 
 mere knowledge, but an actual notification. For a nian who 
 can be clearly shown to have known beforehand that the bill 
 would be dishonoured is nevertheless entitled to notice.(J) 
 
 No particular form of notice is required. It may be either 
 written or oral.(c)(l) All that is necessary is, to apprise the 
 party liable of the dishonour(rf) of the bill in question, and to 
 intimate that he is expected to pay it. And an announcement 
 of the dishonour will (at least, if it come from the holder) amount . 
 to a sufficient intimation to theindorser, thatheisheldliable.(e) 
 
 (J) See Burgh v. Legge, 5 M. & W. 418 ; Cauat v. Thompson, 18 L. J., 
 C. P. 127 ; 7 0. B. 400 (63 E. C. L. R.), S. C. 
 
 (c) The construction of a parol notice is for the jury, of a written notice 
 for the Court, and therefore, perhaps, a parol notice may be good where tlie 
 same words, if in writing, might be held insufficient. See Metcalfe v. Richard- 
 son, 11 C. B. 1011 (73 B. C. L. R.) ; and Phillips v. Gould, 8 C. & P. 355 
 (34 E. C. L. R.). 
 
 (d) i. e. (m the case of dishonour by non-payment), of presentment and 
 non-payment. East v. Smith, 16 L. J., Q. B. 392; 4 Dowl. & L. 744, S. C. 
 
 (e) It was held in Furze v. Sharwood, 3 G. & D. 116 ; 2 Q. B. 416 (42 E. 
 C. L. R.), S. C, that a notice of the dishonour of a bill of exchange sent by 
 the holder, need not contain an announcement that the holder looks to the 
 party to whom it is addressed for payment, but that if the notice do not come 
 immediately from the holder, such an intimation may perhaps be necessary. 
 See also East v. Smith, 16 L. J., Q. B. 293 ; 4 Dowl. & L. 744. The formal 
 protest itself, for which the notice is substituted, contains no such announce- 
 ment. And see Miers y. Brown, 11 M. & W. 872, where Mr. Baron Alderson 
 fiays, " Knowledge of dishonour, obtained by communication from the holder 
 of the bill, amounts to notice ; " and the observations of Creswell, J., in 
 Gaunt v. Thompson, 18 L. J., C. P. 128 ; 7 C. B. 400 (62 E. C. L. R.), S. C. 
 In King v. Bickley, 2 Q. B. 419 (43 E. C. L. R.), it was held not necessary 
 to state in a notice of dishonour, that the holder looks to the other party for 
 payment, and that the mere sending of notice of dishonour is itself a sufBcient 
 intimation for that purpose. The following was the form of notice :— "Sir, 
 I hereby give you notice that a bill for 502., at three months after date, drawn 
 by J. L. upon and accepted by J. E. of Blenheim-street, Chelsea, and indorsed; 
 by you, lies at No. 6, Ely Place, dishonoured. Yours, &c., (Signed) Wm. 
 King." See Chard v. Fox, 14 Q. B. 300 (68 E. C. L. R.) 
 
 (1) Notice of non-payment need not be in writing ; a verbal notice is suf- 
 ficient. Cnyla v. Stevens, 4 Wend. 566 ; Glasgow v. Pratte, 8 Missouri, 336. 
 
OF NOTICE OF DISHONOUR. 413 
 
 But where a mere demand of payment was *made, the r*o72i 
 Court observed, " There is no precise form of words 
 necessary to be used in giving notice of the dishonour of a bill 
 of exchange, but the language used must be such as to convey 
 notice to the party what the bill is, and that payment of it has 
 been refused by the acceptor. Here the letter in question did 
 not convey to the defendant any such notice ; it does not even 
 say the bill was ever accepted. "We„therefore, think the notice 
 was insufiicient."(/) Where the attorney for the indorsee wrote 
 a letter to the iudorser to the following effect : " A bill for 683?., 
 drawn by K. on J. & Co., and bearing your indorsement, lias 
 been put into our hands by A., with directions to take legal 
 measures for the recovery thereof, unless immediately paid to 
 us ; " it was held, that this letter was not a sufficient notice of 
 dishonour. "The notice of dishonour," says Tindal, C. J., de- 
 livering the judgment of the Court of Exchequer Chamber, 
 " which is commonly substituted in this country in the place 
 of a formal protest (such formal protest being essential in other 
 countries to enable the plaintiff" to recover), most certainly does 
 not require all the precision and formality which accompanied 
 the regular protest, for which it has been substituted. But it 
 should at least inform the party to whom it is addressed, either 
 
 (/) Hartley v. Case, 4 B. & C. 339 (10 E. C. L. E.) ; C Dowl & R. 505. 
 
 Thompson v. 'WilHams, 14 California, 160. The payee of a protested bill 
 carried it with the notarial certificate attached to the drawer's place of busi- 
 ness, placed it there before him, and notified him of its dishonor. Held suffi- 
 cient, as no precise words and no particular form were necessary in giving 
 notice, nor was it required to be in writing. Butt v. Hoge, 3 Hilton, 811. 
 Demand and refusal by the maker or acceptor, are both facts which in all 
 oases must in some form or other be communicated to the indorser in the 
 notice of protest. Boehme v. Carr, 3 Maryland, 203. Any notice describing 
 the bill with sufficient certainity, so as to enable the party to identify it, and 
 communicating its dishonor, is sufficient. Butt v. Hoge, 3 Hilton, 81 ; Gill v. 
 Palmer, 29 Conn. 54; Burham v. Trowbridge, 9 Michigan, 209; Davenport 
 V. Gilbert, 4 Bosworlh, 572 ; Thompson v. Williams, 14 California, 160 ; Home 
 Insurance Co. v. Green, 19 New York, 518 ; Cook v. Litchfield, 3 Bosworth, 
 137 ; Eenick V. Robbins, 38 Missouri, 389; Henry v. State Bank, 3 Indiana," 
 216 ; Sewberry v. Trowbridge, 4 Michigan, 891 ; Cook v. Litchfield, 5 Selden, 
 279 ; Hodges v. Shuler, 24 Barbour, 68 ; Youngs v. Lee, 18 Ibid. 187 ; Man- 
 'chester Bank v. White, 10 Foster, 456 ; Reid v. Eeid, 11 Texas, 585 ; Youngs 
 V. Lee, 2 Eernan, 551 ; Stephenson v. Dickson, 13 Harris, 148 ; Manning v. 
 Hayes, 6 Maryland, 5 ; Williams v. Smith, 48 Maine, 135. 
 
414 OP NOTICE OP DISHONOUR. 
 
 in express terms or by necessary implieation,{g) that the bill has 
 r*2731 ^^®^ dishonoured,. and that *the holder looks to him 
 for payment of the amount. Looking at this notice, 
 we think no such intimation is conveyed in terms, or is neces- 
 -sarily to be inferred from its contents." The Court further 
 observed, that it was consistent with the notice that the bill 
 ,had npver been presented, but that the plaintift'intendedtorely 
 on an excuse for non-presentment, that the notice did not state 
 that the bill was due, and might not have been intended as a 
 notice of dishonour, but might have pre-supposed it.(A)(l) 
 
 (ji) Perhaps "reasonable intendment" would be a more eorrect expressiPB 
 than " necessary implication ; " at all events the expression " necessary 
 implication " is not to be so construed as to exclude the possibility of any 
 other inference. See the observations of Mr. Baron Parke on this expression 
 
 -in 'Hedger v. Steavenson, 2 M. & W. 799 ; 5 Dowl. 771, S. C. ; Lewis v. Gomi- 
 
 ,pe.rtz, 6 M. & W. 402. 
 
 (h) Solarte V. Palmer, 7 Bing. 530 (20 E. C. L. E.) ; 5 Moo. & P. 475 ; 1 
 C. & J. 417; I'Tyr. 371, S. C. ; affirmed in the House of Lords, 1834, 1 
 Bing. N. 0. 194 (27 E. C. L. R.) ; where Parke, J., declared the unanimous 
 opinion of the Judges present, that the letter of the plaintiff's attorney did not 
 ^amount to notice of the dishonour of the bill, as such a notice ou^ht, in ex- 
 press terms, or by necessary implication, to convey full information that the 
 bill had been dishonoured. And Lord Brougham, C, on the ground that 
 after Hartley v. Case, the judgment of the Exchequer Chamber, and the 5th 
 edition of Bayley on Bills, the case was too clear for appeal, said that the 
 judgment of the Court below must be affirmed, with costs. The propriety 
 
 <1) Notice of tiie dishonor of a bill need not state that the holder looks to 
 
 the party notified for payment ; this is implied by the act of giving notice. 
 
 Cowles V. Harts, 8 Conn. 517 ; Shrieve v. Duckham, 1 Litt. 194 ; Bank of 
 
 Cape Fear v. Seawell, 2 Hawks. 560 ; Warren v. Gilman, 5 Shepl. 360. Nor 
 jieed it slate who the holder is. Bradley v. Bavis, 26 Maine, 45 ; Townsead 
 
 V. Lorain Bank, 2 Ohio, .345. Notice that a bill has been protested for non- • 
 fpayment is a suffleient notice of a demand and refusal. Spies v. Newberry, 
 
 2 Doug. 425 ; Smith v. Little, 10 N. Hamp. 526 ; Pinkham v. Macy, 9 Mete. 
 
 174. • See Piatt v. Drake, 1 Dong. 396 ; Nailor v. Bowie, 3 Maryland, 251 ; 
 .Farniet's' Bank of Maryland v. Bowie, 4 Ibid. 290 ; Sasscer v. The Farmers' 
 
 Bank, 4 Ibid. 409 ; Townsead v. Lorain Bank, 2 Ohio, 845 ; Burgess v. Vree 
 ;land, 4 Zabrisrkie, 71 ; Brewster v. Arnold, 1 Wisconsin, 264. That knowledge 
 
 of non-payment is not notice is very clear ; for the notice must come from tbe 
 "holder himself, or, some one who is a party ; for the notice must assert: that 
 
 the holder intends to stand on his legal rights and to resort to the indorser fur 
 -payment. The Juniata Bank v.. Hale, 16 Serg. & Hawle, 157. 
 
 A mistake in the notice which cannot mislead the party will not invulidste 
 
 it. Cabot Bank'v. Warner, 10 Allen, 522 ; Walmsley y. Acton, 44 Barb. 312 ; 
 
 Bank v. Woods, 28 N. York, 545 ; Wolf v. Lauman,,34Mo. 575 ; Williams v. 
 
OF NOTICE OF DISHONOUK. 415 
 
 *It is to be observed , however, that the expressions raqnA-i 
 of the Judges in Solarte v. Palmer are not the language 
 
 of this decision and of dismissing tlie appeal, witli costs, as a case too clear 
 .for argument, was the subject of considerable discussion among the profession 
 .at the time. The decision in Hartley v. Case, and Solarte v. Palmer, have 
 been followed by no small inconvenience to the public, who are now hardly 
 -safe in giving notices of dishonour without professional aid. 
 
 Tlie following notices have accordingly been since held inauffieient : — 
 "The note for 200Z., drawn by H. H., dated 18th July last, payable three 
 months after date, and indorsed by you, became due yesterday, and is returned 
 to me unpaid. I therefore request you will let me have the amount forthwith. 
 'These facts,' says Tindal, C. J., ' are compatible with an entire omission to 
 present the note to the maker.' " Boulton v. Welsh, 3 Bing. N. 0. 688 (33 
 E. C. L. R) ; 4 Scott, 425, S. C. 
 
 "Sir, A bill for ZOl., dated the 18th August, 1887, at three months, drawn 
 and endorsed by R. Everett, upon and accepted by W. Tuck, and indorsed by 
 you, lies at my office due and unpaid. I am, &c., B. J. Sydkbv.'.' Phillips 
 V. Gould, 8 C. & P. 355 C34 E. C. L. E.). 
 
 "■Messrs. Strange & Co. inform Mr. James Price that Mr. John Betterton's 
 aeceptance for 872. 5s. ds not paid. As indorser, Mr. Price is called upon to 
 ipay the money, which will be expected immediately. Swindon, Dec. 1836." 
 Strange v. Price, 10 Ad. & El. 125 (86 E. C. L. R.) ; 2 Per. & Dav. 278, 
 S.C. 
 
 "Sir, This is to inform you that the bill I took of you. 111. 2s. 6d., is not 
 (took up, and 4s. 6d. expenses ; and the money I must pay immediately. My 
 son will be in London on Friday morning. Wm. Messbngeh." Messenger 
 V. SoBthey, 1 Ma.n. & Gr. 76 (39 E. C. L. R.) ; 1 Scott. N. E. 180, S. C. 
 
 The following notices of non-payment of. six bills of exchange were held 
 iBsuflacient :— 
 
 Smith, 48 Maine, 135 ; Union Bank v. Humphreys, Ibid. 172 ; Lennig v. 
 Tobey, 4 Clark, 275 ; Wood v. Watson, 53 Maine, 300 ; McCnne v. Belt, 38 
 Mo. 281 ; Artisans' Bank v. Backus, 36 N. York, 100 ; Myers v. Bank of Ten- 
 nessee, 8 Head, 330. A notice dated on the day following the thiid day of 
 ■ 'grace, and stating that the note was this day protested, is invalid. Walmsley 
 V. Acton, 44 Barb. 812. Notice must state substantially the dishonor of tlje 
 note. Fish v. Morse, 16 New Hamp. 271. Where amistake in the address of 
 ■a notice was attributable to the peculiarity of the indorser's signature, it was 
 held good. Manufacturers' Bank v. Hazard, 30 New York, 226. Notice 
 may be verbal. Merritt v. Woodbury, 14 Iowa, 999. An unsigned notice is 
 • invalid. Walmsley v. Acton, 44 Barb. 312. The person giving notice should 
 be a party to the bill, or some one acting under the authority of a party,- and 
 "liberal presumptions will Idc indulged in favor of such authority, when the 
 contrary is not made to appear. Payne v. Patrick, 21 Texas, 680. The 
 cashier of a bank, which is the holder of a bill, may give notice of its non- 
 payment. Bank of Missouri v. Vaughan, 36 Mo. 00. A printed notice, in- 
 cluding signature of notary, is sufficient. Bank v. Woods, 28 New York, 541 ; 
 Spalding v. Kru.tz, 1 Dillon, 414. 
 
416 OF NOTICE OF DISHONOUR. 
 
 r*27^1 °^ ^^® *House of Lords, and it is to be borne in mind 
 that so far as those expressions go beyond what was 
 
 1. "Sir, A bill for 29Z. 17«. 2d., drawn by Ward on Hunt, due yesterday, is 
 unpaid, and I am sorry to say the person at whose house it is made payable- 
 don't speak very favorably of the acceptor's punctuality. I should like to gee 
 you upon it to-day." 
 
 3. " Mr. Maine, — Sir, This is to give yon notice that a bill drawn by you 
 and accepted by Josias Bateman for 47/. 168. Qd., due July 19th, 1835, is un- 
 paid, and lies due at Mr. J. Furze's, 65 Fleet-street." 
 
 3. "Sir, Mr. Howard's acceptance forSlZ. is. 4d., due on Saturday, is un- 
 paid. He has pi-omised to pay it in a week or ten days. I shall be glad to 
 see you upon it as early as possible." 
 
 4. "Sir, This is to give you notice that a bill for 176!. 15«. 6d, drawn by 
 Samuel Maine, accepted by Q. Clisby, dated May 7th, 1835, at four months, 
 lies due and unpaid at my house." 
 
 5. " P. Johnson, Esq., — Sir, This is to give you notice that a bill, 201. 17«. 
 7d., drawn by Samuel Maine, accepted by Eichard Jones, dated May 21st, 
 1835, at four months, lies due and unpaid at my house." 
 
 6. " P. Johnson, Esq., — Sir, This is to give you notice that a bill forl48i. 
 10s., drawn by Samuel Maine, and accepted by G. Parker, dated MaySZdi 
 1835, lies due and unpaid at my house." Furze v. Sharwood and others, 11 
 L. J., Q. B. 19 ; 2 Q. B. 388 (43 B. C. L. E.), S. C. 
 
 But the following have been held to be sufficient notices of dishonour : — 
 
 "Sir, A bill drawn by you upon and accepted by Mr. Joshua Watson for 
 Sll. 3s., due yesterday, is dishonoured and unpaid ; and I am desired to give 
 you notice thereof to request that the same may be immediately paid. I am, 
 &c., H. D. EusHBUBY." Woodthorpe v. Lawes, 2 M. & W. 109. 
 
 " Sir, The bill for £ , drawn by you, is this day returned with charges, 
 
 to which your immediate attention is requested." (Signed by indorsee.) 
 Grugeon v. Smith, 6 Ad. & Ell. 499 (33 E. C. L. E.) ; 2 Nev. & P. 303, 
 S. C. 
 
 " Sir, I am desired by Mr. Hedger to give yon notice that a promissory 
 note for 99/. 18«., payable to your order two months after the date thereof, 
 became due yesterday, and has been returned unpaid, and I have to request 
 you will please remit the amount thereof with Is. 6d!. noting, free of postage, 
 by return of post. I am, &c., Jones Spveb." Hedger v. Steavenson, 3 M. 
 & W. 799 ; 5 Dowl. 771, S. C. 
 
 " Your bill is unpaid, noting 5s." Armstrong v. Christiani, 5 C. R 687 (57 
 E. C. L. E.). 
 
 " Your note has been returned dishonoured," is sufficient, without the words 
 "your note has been presented for payment." Edmonds v. Gates, 3 Jurist, 
 183. 
 
 " Messrs. Houlditch are surprised that Mr. Canty has not taken up Chap- 
 lin's bill according to his promise ; are also surprised to hear that Mrs. Gib ' 
 bill was returned to the holder unpaid." 
 
 This notice was followed by a visit from the endorser to the holder on the 
 same day, in which he promised to write to the other parties, by whom, or by 
 
OP NOTICE OF DISHONOUR. 417 
 
 necessary to decide the case then under consideration, they are 
 extra-judicial, 
 
 lumself, the bill should be paid. Houlditch v. Cauty, 4 Bing. N. C. 441 (33 
 B. C. L. E.) ; 3 Scolt, 209, S. 0. 
 
 "Mr. Go'mpcrtz, — Sir, Tlie bill of exchange for 350Z., drawn by S. Rondall, 
 and accepted by Charles Siretton, and bearing your indorsement, has been 
 presented for payment to the acceptor theieof, and returned dishonoured, and 
 now lies overdue and unpaid with me, as above, of which I hereby give you 
 notice. I am, &r., C. Lewis." Lewis v. Gompertz, 6 M. & W. 400. 
 
 "I beg to inform you tliat Mr. D.'s acceptance for 2001.. drawn and indorsed 
 by yoii, due 31st July, has been presented for payment and returned, and now 
 remains unpaid." CooUe v. French, 10 Ad. & Ell. 131 (37 E. C. L. R.) ; 8 
 Per. &D. 596, S. C. 
 
 " Dear Sir, To my surprise I have received an intimation from the Birming- , 
 liam and Midland Counties Bank that your draft on A. B. is dishonoured, and 
 I have requested them to proceed on the same." Shelton v. Bralthwaite, 7 
 M. & W. 436. 
 
 "Sir, I am instructed by Mr. Molineaux to give you notice that a bill (de- 
 scribing it) has been dishonoured," &c. Stockeu v. Collen, 9 C. & P. 653 
 (38 E. C. L. R.) ; 7 M. & W. 515, S. C. 
 
 A party sent by the holder of a dishonoured bill of exchange, called at the 
 drawer's house the day after it became due, and there saw his wife, and told 
 her that he had brought back the bill that had been dishonoured. She said 
 that she knew nothing about it, but would tell her husband of it when he, 
 came home. The party then went away, not leaving any written notice : held 
 sufficient notice of dishonour. Housego v. Cowne, 2 M. & W. 348. 
 
 "James Court's acceptance, due this day, is unpaid, and I requmt your im- 
 mediate attention to it," was held sufficient. Bailey v. Porter, 14 M. & W. 44. 
 See theobservations on this case in Allen v. Edniundson, 17 L. J., Exch. 293 ; 
 2Exoh. 719, S. C. ; and see Paul v. JOel, 3 H. & N. 455 ; 28 L. J., Exch. 
 }43 ; 4 H. & N. 355, affirmed in error. 
 
 "Tour draft upon C. for HOI., due 3d March, is returned to us unpaid, and 
 if not taken up this day, proceedings will be taken against you for the re- 
 covery thereof," was held sufficient. Robson v. Curlewis, 2 Q. B. 421 (43 E. 
 C. L. R.). 
 
 "A bill, &c., is unpaid, noting 5«.," is sufficient, the expression noting indi- 
 cating a dishonour. Armstrong v. Christiani, 17 L. J., C. P. 181 ; 5 0. B. 687 
 (57 E. C. L. R.), S. C. X 
 
 Wlieve the holder, when the bill became due, said to the executor of the ac- 
 ceptor, who was also indorser, "I have brought a bill from the plaintiffs, you 
 know what it is ;" and the defendant said, "lam executor of the drawee, 
 you must persuade the plaintiff to let the bill stand over a few days, because 
 the acceptor has been dead only a few days. I shall see the bill paid." No- 
 tice of dishonour was held to be proved. Caunt v. Thompson, 18 L. J., C. 
 P. 125 ; 7 0. B. 400 (62 B. C. L. R.), S. C. 
 
 " We beg to acquaint you with the non-payment of William Miles's accept- 
 ance to James Wright's draft of 29th December last, at four months, 50^., 
 amounting, with expenses, to 501. 5s. Id., which remit us in course of post- 
 27 
 
418' OF. NOTICE OFBISHONOUR. 
 
 r*27fil *The decision in Solarte v. Palmer is unquestionably 
 binding to this extent, that a notice in those; very terms 
 and under those very circumstances is bad and ought to be 
 withdrawn from the jury. But in strictness this decision is 
 binding no further. 
 
 Notwithstanding, therefore, the case of Solarte v. Palmer the 
 tfue rule in nearly all cases seems now to be this : that whene a 
 notice of dishonour conveys expressly or impliedly an intima- 
 tion intelligiljle to ordinary understandings of dishonour, and 
 of demand of payment, the notice is sufficient. 
 
 The notice must not so misdescribe the instrument that the 
 defendant may be led to confound it with some other. Thus, a 
 notice in the following terms : " I give you notice, that a bill 
 for, &c., at, &c., drawn hj you, upon, Ac^-lies at, &c., dishonouTed,?' 
 has been held insufficient to sustain an action against the indorser 
 who is not also the drawer.ij) But this is only a Msi Prius.de- 
 cision and doubtful. It has since been held that if there, be mpre 
 than one bill to which the notice may apply, it lies on the der 
 fendant to prove that- fact.(A) And if a note be improperly 
 called a bill it is no objection,(?) nor if a bill be improperly 
 
 withont, fail, to pay to Messrs: Everards & Co., Lynn," was held sufficient. 
 Evei-aid v. Watspn, 1 E. & B. 801 (73 E. C. L. R ).. In this case Lord Camp- 
 Veil expressed his regret at the decisiou ol' SoJarte v. Palmer ; and see Paul v. 
 J^oel, ante. 
 
 It is conceived tliat the following is the full form of notice to be given by 
 the liolder to an indorser. It may be easily altered and adapted to circum- 
 stances : — 
 , No, 1. Fleet-street, London, 26ih Sept., lSi2.^^8ir, I herebt/ give you noUee 
 
 that the bill of exchange, dated 22d ult., drawn by A. B. of , on C, !>.■ of 
 
 , for 1001. payable one mpntji after date to A. B. or his order, and indorsed 
 
 by you, has been duly presented for payment, but was dishonoured and is unpaid. 
 I request you to pay me the amount thereof. I am. Sir, your obedient- servantf 
 G. M.—ToMr. E. F., of , Merchant.'' 
 
 The construction of all written instruments is for the Court-, but llie meati' 
 ing.of peculiar expressions, which in particular places or trades have a known 
 meaning, is for the jury. • Hutchinson v. Bowker, 5 M. & W. 543. 
 
 (0 Besauchamp v. Cash, 1 D. & R, N. P. C. 3 (16 E. C. L. E.). Though 
 e,vei\y indorser is in the nature of a new drawer, ante, p. 151 But see Mel- 
 lersh .V. Rippen, 7 Exch. 578. 
 
 (A,) Shelton v. Braithwaile^ 7 M. & W. 436. 
 
 («^ Messengenv. Soutliey, 1 Man. & Gr. 76 (39. E. C. L. R.) ; 1 Scott,. N. 
 K. 186* S. C. 
 
OF NOTICE OF DISHONOUR. 419^ 
 
 called a note,(m) nor if the characters of drawers and acceptors 
 of a bill be transposed. (n) 
 
 In short, that a raisdescriptioTi which does not mislead is im- 
 ffiateriai,(o) is now the rule of law, as well as of convenience 
 aitid ju8tiee.(l) 
 
 It has been- held that notice of dishonour need not state on 
 whose behalf payment is applied for, nor where the bill is, 
 lfmg,{p) and a misdescription of the place where the bill is 
 Lying is immaterial,(g') unless, perhaps, a tender were made 
 tkere. ' 
 
 (m) Stockman v. Parr, 11 M. & W. 809. 
 
 (n.) Mellersli v. Rippen, 7 Exch. 578. 
 
 (») Bromage v. Vauglian, 9 Q. B. 60S (38 E. C. L. R.) ; Mellersh v. Rip- 
 pen, supra ; Dennistoun v. Stewart, 17 Howard, U. 8. S. C. Rep. 606 ; Harp- 
 ham V. Child, 1 F. & F. 652. 
 
 (p) Woodthorpe v. Lawes, 2 M. & W. 109 ; Housego v. Cowne, 2 M. & W. 
 S48 i Harrison v. Ruscoe, 15 L. J., Exch, 110 ; IS M. & W. 231, S. C. ; Max- 
 well v. Brain, Exch. 1860. 
 
 (?) Rowlands V. Sprinjett, 14 L. J., Exch. 227; 14 M. & W. 7, S. C. 
 
 (1) If iu a notice of non-payment, dated on the day the bill is due, it is 
 stated by mistake that it was protested the evening before, and that the hold- 
 ers look to the indorser for payment, it is a question for the jury whether the 
 indorser was misled. Ontario Bank v. Petrie, 3 Wend. 456 ; Ross v. Planters' 
 Bank, 5 Humphrey, 385 ; Moorman v. Bank of Alabama, 3 Porter, 353 ; Rowan 
 T. Odenheimer, 5 Smedes & Marshall, 44; Mills v. U. S. Bank, 11 Wheat. 
 43 ; Bank of Rochester v. Gould, 9 Wendell, Si79 ; M'KnigJit v. Lewis, 5 Barb. 
 S. C. 681. Any form of notice to an indorser is suflScient to fix his liability, 
 if the instrument in question was intended to be described in such notice, and 
 the party was not misled or deceived thereby as to the instrument intended. 
 Tobey v. Lennig, 14 Penna. St. Rep. 483 ; Kilgore v. Bulkley, 14 Conn. 362 ; 
 Spann V. Baltzell, 1 Branch, 301 ; Crocker v. Getchell, 10 Shepl. 392 ; Cayuga 
 County Bank v. Warden, 1 Comstock, 413 ; Dennistown v. Stewart, 17 How- 
 ard, S. C. Rep. 606 ; Toung. v. Lee, 18 Ibid. 187. Where there is no dispute 
 as to the facts, the sufficiency of the notice is a question of law for the Court. 
 Eemer v. Downer, 21 Wend. 10 ; 23 Wend. 620 ; 25 Wend. 277 ; Thompson 
 V. The State, 3 Hill, S. C. 77; Fleming v. Fulton, 6 Howard (Miss.), 473 ; 
 Johnston v. M' Grim, 4 Devereux, 277 ; Sinclair v. Lynch, 1 Speers, 244 ; Piatt 
 V. Drake, 1 Dougl. 296 ; Dole v. Gold, 5 Barb. S. C. 490 ; Nevins v. Bank, 10 
 Michigan, 547 ; Ricketts v. Pendleton, 14 Maryland, 320. The notice of non- 
 payment of a note to charge an indorser must show that the presentment was 
 made at the proper time ; therefore, where the notice stated that the note had 
 been "this day presented for payment," and payment refused, and the no&:e 
 was without date, it was held, that it was defective. Wynn y. Alden, 4 
 Benio, 163. 
 
420 OF NOTICE OF DISHONOUR. 
 
 T*Q.'7'"\ *^^ ^^^ notice, by mistake, misdescribe the party 
 giving it, by representing that it is given by or on be- 
 half of A., when in reality it is given by or on behalf of B., 
 it is, nevertheless, good. But the party who receives the notice 
 is to be placed in the same situation as if the notice had really 
 been given by A., and is at liberty to object any inability in A. 
 to give notice; as, for example,. that A. had been discharged 
 by laches, or had no right of action on the bill.(r) ^", 
 
 It is not necessary that a copy of the protest should accom- 
 pany notice of the dishonour of a foreign bill.(s) But informa- 
 tion of the protest should be 8ent,(<) if the party to whom 
 notice is transmitted reside abroadi.(M) 
 
 Secondly. As to the mode of transmitting the notice. 
 
 Putting a letter into the post is the most common and the 
 safest mode of giving notice. It is not necessary to prove that 
 the letter was received, and any miscarriage will not prejudice 
 the party giving notice.(a;)(l) It has been ruled that, in Lon- 
 
 (?•) Harrison v. Enscoe, 15 L. J., Exch. 110 ; 15 M. & W. 281, S. C. 
 
 (8) Goodman v. Harvey, 4 Ad. & El. 870 (31 E. C. L. H.) ; 6 N. &M. 
 372, S. C. 
 
 (0 Rogers v. Stephens, 2 T. R. 713 ; Gale v. Walsh, 5 T. B. 339 ; BrougU 
 V. Parkins, 2 Ld. Raym. 993 ; Cromwell v. Hynson, 2 Esp. 511 ; Robins v. 
 Gibson, 3 Camp. 334 ; 1 M. & Sel. 288, S. C. ; B. N. P. 271. 
 
 (u) See the Chapter on Pkotest. 
 
 («) Saunderson v. Judge, 3 H. Bl. 509 ; Kufh v. Weston, 3 Bap. 54 ; Par- 
 ker V. Gordon, 7 East, 385 ; 3 Smith, 358, S. C. ; Langdon v. Hulls, 5 Esp. 
 157; Dobreev. Eastwood, 3 C. & P. 250 (14 E. C. L. R.) ; Stockinv. Col- 
 lin, 7 M. & W. 515 ; 9 C. & P. 653, (38 E. C. L. R.), S. C. ; Woodcock t. 
 Houldsworth, 15 L. J., Exch. 49 ; 16 M. & W. 126, S. C. ; Mackay v. Judtina, 
 1 P. & F. 208. 
 
 (1) In order to charge an indorser, where it is proper to send notice 6f pro- 
 test by mail, which was not received in due course, the onus is upon ihe plain- 
 tiff to show that the notice was properly mailed. Friend v. Wi]kinson)r<9 
 Grattan, 31. If it appears from the testimony of several witnesses that in the 
 regular routine of the holder's business notice must have been mailed on the 
 proper day, if at all, and it appear that it was received, it will be presuin§(| 
 to have been mailed at the proper lime. Commercial Bank v. Strong, 2 Wil- 
 liams, 316. A post-mark is prima facie evidence that a notice was mailed on 
 that day. Early v. Preston, 1 Patton & Heath, 228 ; Crawford v. Brancli 
 Bank, 1 Alabama, 305. Proof of the fact that notice was given is prima fade^ 
 
OP NOTICE OF DISHONOUR. 421 
 
 don, delivery of a letter to a bellman in the street is not suffi- 
 cient, and that it should be posted either at the General Post- 
 Ofiice, or at an authorized receiving-house.(y) 
 
 It is not sufficient that the letter be directed, generally, to a 
 person at a large town; as, for example,. to " Mr. Hayues, 
 BriBtol,"(2) without specifying in what part of it he resides, 
 unless where the person to whom the letter is sent is the 
 drawer of the bill, and has dated it in an equally general man- 
 ner.(a) But if he has done so, then the sending" *of a rsnrro-i 
 letter with, an address as general as the drawer's de- 
 scription, as " T. M. Barron, Esq., London," will at least be 
 evidence from which the jury may infer due notice.(6)(l) If 
 
 (y) Hawkins v. Rutt, Peake's N. P. C. 186 ; but see Pack y. Alexmider, 3 
 M. & Sco. 789 (30 E. C. L. R.), and Skilbeck v. Garbett, 14 L. J., Q. B. 339 ; 
 72 Q. B. 846 (53 E. C. L. R.), S. C. " A bell-man," says Lord Denman, "is 
 an ambulatory post-office. " 
 
 (2) Walter v. Haynes, R. cfc M. 149 (21 E. C. L. R.). 
 
 (a) Mann v. Moore, 1 R. & M. 249 (31 E. C. L. R.) ; Clarke v. Sharpe, 3 
 M. & W. 166 ; 1 Hor. & H. 35, S. C. ; Siegers v. Browne, 1 Moo. & Rob. 
 520; Burmester v. Barron, 17 Q. B. 828 (79 E. C. L. R.). 
 
 (t) Ibid. 
 
 evidence that it was in proper form. Burgess v. Vreeland, 4 Zabriskie, 71. 
 Parol evidence of notice may be given thougb the notice was in writing, and 
 the defendant not called on to produce it. Scott v. Betls, Hill & Denio, 363 ; 
 Burgess v. Vreeland, 4 Zabriskie, 71 ; Paten v. Lent, 4 Duei', 231. As to evi- 
 dence of notice, see Falconer v. Rogers, Hill & Denio, 127 ; Woiley v. Wal- 
 di'au, 3 Sneed, 548 ; Massachusetts Bank v. Oliver, 10 Cushing, 557 ; Cabot 
 Bank v. Russell, 4 Gray, 167 ; Beal v. Parish, 24 Barbour, 243. Notice can- 
 not be proved by the affidavit of a person deceased, when it did not appear 
 that the act was done in the regular course of his business. Bradbury v. 
 Bridges, 38 Maine, 346. 
 
 As to notice of dishonor by post, see First National Bank v. Owen, 23 Iowa, 
 185 J Citizens' Bank v. Pugh, 19 Louis. Ann. 43; Shaw v. Neal, Ibid. 156; 
 Gallagher v. Tyson, 19 Louis, Ann. 35 ; Ca' ot Bank v. Warner, 10 Allen, 
 522; Lime Rock Bank v. Hewett, 52 Maine, 51 ; Philipe v. Harberlee, 45 Ala. 
 597; Miller v. Whitfield, 16 Louis. Ann. 10; Woods v. Neeld, 8 Wright, 86 ; 
 True v. Collins, 3 Allen, 438 ; Knott v. Venable, 42 Ala. 186 ; Spalding v. 
 Ernlz, 1 Dillon, 414 ; Shelburne Falls National Bank v. Townsley, 102 Mass. 
 177; Williams v. Brailsford, 25 Md. 126; Young v. Durgin, 15 Gray, 264 ; 
 Lapeyre v. Robertson, 20 Louis. Ann. 399. Where in a large city there is a 
 regular penny post, it seems notice by the post office, duly mailed in time, is 
 flufficient to charge the indorser residing in the city. Shoemaker v. Mechan- 
 ics' Bank, 9 P. F. Smith, 79. 
 
 (1) Where the indorser of a promissory note resides in a town in which 
 
422 OF NOTICE OF DISHONOUR. 
 
 the notice to the drawer arrive too late, through misdirectioh, 
 it is for the jury to say, whether the holder used due diligence 
 to discover the drawer's address.(c) If the notice misoarrjr 
 from the indistinctness of the drawer's handwriting on the 
 bill, he will not be di8ehaTged.(£?) 
 
 Where a witness said that the letter, containing notice of 
 dishonour, was put on a table to be carried to the post-offlcfi, 
 and that by the course of business all letters deposited on this 
 ta.ble was carried to the post-office by a porter, Lord Ellenbor- 
 ough said, " You must go further ; some evidence must be 
 given that the letter was taken from the table in the counting- 
 house and put into the post-offiee. Had you called the portw 
 and he had said that, although he had no recollection of the 
 letter in question, he invariably carried to the post-offioe all 
 ' the letters found upon the table, this might have done,(e);'brft 
 I cannot hold this general evidence of the course of business, 
 in the plaintiff's counting-house, to he sufficient."(/) The post 
 marks in town or country, proved to be such, are evidence that 
 the letters, on which they are, were in the office to which those 
 marks belong, at the time of the dates of such ma,rka.{g) But 
 they are not conclusive evidence,(A) 
 
 (c) Ibld^ ; see Eaaaile v. Sowerby, 11 East, 114. 
 
 {d) Hewitt V. Thompson, 1 Moo. & Kob. 548. 
 
 («) So held in Skilbeok t. Gaibett, 14 L. J., Q. B. 388 ] 7 Q. B. 846 (53 B. 
 C. L. R.), S. C. 
 
 (f) Hetherington v. Kemp, 4 Camp. 194 ; Hawkes v. Salter, 4 Bing. 715 
 (13 E. C. L. B.) ; 1 Moo. & P. 750, S. P. ; and see Hagedornv. Reid.SCamp. 
 379 ; 1 M. & S. 567, S. C. 
 
 (_g) Kent v. Lowen, 1 Gamp. 177 ; Fletcher t. Braddyl, 3 Stark. 64 (S E. 
 C. L. R.) ; Rex v. Plumer, R. & R. C. C. 254 ; Rex v. Watson, 1 Camp. 
 815 ; Langdon v. Hulls, 5 Esp. 1 56 ; Rex v. Jtfhnson, 7 East, 65. 
 
 (h) Stockton v. Collin, 7 M. & W. 515 ; 9 O. & P. 653 (38 E. C. L. R.), 
 8. C. 
 
 ther« are two post offices, a notice of the dishonor of the note, addrtsssdw 
 him at the town generally, is sufflcient prima fade; though liable to be re- 
 butted by proof that he was accustomed to receive his letters at one of the 
 offices only, and that the holder of the note migbt have ascertained that fast 
 by reasonable inquiry. Morion v. Westcott, 8 OusMlig, 425. Where an in- 
 dorser resided in a Tillage where was a post office, at which he received let- 
 ters, and had an office in a neiglibodng Tillage, whei« be receivied most of his 
 letters, it was held tliat notice of non-payment addressed to him at the latter 
 village was sufficient. Montgomery Bank v. Marsh, 3 Seldeo, 481. 
 
■OF NOTICE Ot DISflONOUR. 423 
 
 A duplicate original, or an examined copy, Or oral fevJdence 
 of a written notice of dishonour, are adtriidsibte without no- 
 tice to produce the original. (i) 
 
 Though there be a general post, the • holder may send 
 *iiotice by a special messenger':(A) but if tlie notice be yi.-_Qi, 
 not communicated by the special messenger till after L -^ J 
 the day when it would have been conveyed by the post, it is iri- 
 "6(ifficient.(i) "Whel^e the communication by the post is infre- 
 .qiueiit, as where the party to whom notice is to be sent lives 
 out of the usual course of the post, so that a letter may, pos- 
 •sibly, not reach him for a fortnight, hfe may be charged a rea- 
 sonable sura by the holder for the expense of a special mes- 
 senger.(m) 
 
 Personal service of a written notice is not necessary.(n) 
 
 In the case Of a foreign bill, it is sufficient to send it by the 
 first regular ship bound for the place to which it is to be sent ; 
 and it is no objection that, if sent by a chance ship, bound 
 elsewhere, it Would have arrived sooner. " It is sufficient for 
 a party in India," says Eyre, C. J., " to send notice by the first 
 regular ship going to England, and he is not bound to accept 
 the uncertain conveyance of a foreign ship. ' — " It was enough 
 to do so by the first ship, whether English or foreign, that was 
 going to England in the regulat* course of conveyance. "(o) 
 
 We have already seen, in what cases a copy or notice of the 
 ;protest must accompany notice of the dishonour of a foreign 
 bill. 
 
 Thirdly, as to the place at which notice is to be given. 
 
 (») Ackland v. Piftrce, 2 Camp. 601 ; Roberts v. Bradsliaw, 1 Btafk. 58 ; 
 JCine v. Beaumont, 3 B. & B. 288 (7 E. C. L. R.) ; 7 Moore, 113, S, C. ; secu^ 
 p to a notice of a dishonour of a bill, not being the bill sued on ; Lanaujie v. 
 -Pftlnver. Moo. & Mai. 31 (22 E. C. L. R.). 
 
 (*) Dobree v. Eastwood, 3 C. & P. 250 (14 E. C. L. R.). 
 
 (0 -Darbishire v. Parker, 6 East, 3; 2 Smith, 195, 8. C. It has been held 
 that it may arrive later during business hours in the Same day ivithout dis- 
 Cllaiging the indorser. Bancroft v. Hall, Holt's N. P. C. 476 (3 E. C. L. R ). 
 - (m) Pearson v. Crallan, 2 Stflith, 404. 
 
 in) Housego v. Cowne, 2 M. & W. 348. 
 • (o) MuUman v. D'EguinO, 3 H. Bl. 565. 
 
4%l OF NOTICE OF DISHONOUR. 
 
 A- notice of dishonour should regularly be sent to the place 
 of business, or to the residence of the party for whom it is 
 designed.(pXl) 
 
 (p) It has been held in America that notice put into the post-office, if tlie 
 parties l.ve in different places, is good. It is otherwise when the parties re- 
 side in the same town. 
 
 Where a person has a dwellingrhouse and counting-room in the same town, 
 a notice sent to either place is sufficient. 
 
 The holder of a bill or note has a right to adopt a, private conveyance in- 
 stead of the mail for the receipt and transmission of notice to a drawer or 
 indorscr of the dishonour thereof ; but in such case it is incumbent on the 
 holder to show that due diligence was used. 
 
 If a party receive notice of the dishonour of a bill in due time, he cannot 
 object to the mode of conveyance. See 5th American ed. of Byles on Bills, 
 p. 431. 
 
 (1) Notice put into the post office, if the parties live in different places, is 
 good. Bussard v. Levering, 6 Wheat. 102; Munn v. Baldwin, 6 Mass. 316; 
 Btanto V. Blossom, 14 Mass. 116; Crisson v Williamson, 1 A. K. Marshall, 
 4.')6; Foster v. McDonald, 5 Alabama, 376 ; Warren v. Gilman, 5 Shepl. 360; 
 Lord V. Appleton, 3 Shepl. 270 ; Gl'ndrat v. Mechanics' Bank, 7 Alabama, 
 334 ; Ellis v. Commercial Bank, 7 Howard, Miss. 294 ; Lindenberger v. Beall, 
 6 Wheat. 104 ; Fish v. Jackman, 1 App. 467; Weakly v. Bell, 9 Watts, 378; 
 Jones V. Lewis, 8 Watts & Serg. 14 ; Hazleton Coal Co. v. Ryerson, 1 Spen- 
 cer, 139 ; Wilson v. Senier, 14 Wisconsin, 380 ; Woods v. Neild, 8 Wright, 86. 
 When the indorser adds his address to his signature, notice mailed to him by 
 that address is sufficient. Baker v. Morris, 25 Barbour, 158 ; Davis v. The 
 Bank of Tennessee,' 4 Sneed, 390. Notice to an indorser sent by mail to his 
 place of business in another city, when he resides in the very place where the 
 note is protested, is not sufficient. Van Vechten v. Pruyn, 3 Kernan, 549. 
 Notice by mail is not ■sufficient when the parties reside in the same town. 
 Green v. Darling, 3 Shepl. 143 ; Baily v. Bank of Missouri, 7 Missouri, 467; 
 Kramer v. McDowell, 8 Watts & Serg. 138; Ireland v. Kip, 10 Johns. 490; 
 S. C. 11 Johns. 281 ; Stephenson v. Primrose, 8 Porter, 155; Curtis v. State 
 Bank, 6 Blackford, 312 ; Davis v. Gowen, 1 App. 447 ; Pierce v. Pendar, 5 
 Mete. 353 ; Brindley v. Barr, 3 Harringlion, 419 ; Patrick v. Beazley, 6 How- 
 ard (Miss.), 609 ; Wilcox v. McNutt, 3 Ibid. 777 ; Timms v. Delisle, 5 Black- 
 ford, 447; Curtis v. State Bank, 6 Ibid. 313; Eiinsom v. Mack, 2 Hill, 587; 
 Hogatt v. Bingaman, 7 Howard (Miss.), 565 ; Manchester Bank v. Fellows, 
 8 Foster, 302 ; Costin v. Rankin, 3 Jones (Law), 387 ; Vance v. Collins, 6 
 California, 4B5 ; Davis v. Bank of Tennessee, 4 Sneed, 390 ; Bowling v. Ar- 
 thur, 34 Mississippi, 41 ; Power v. Mitchell, 7 Wisconsin, 161 ; Kevins v. 
 Bank, 10 Michigan, 547. See Walters v. Brown, 15 Maryland, 285. Notice 
 to an indorser may well be sent through the post office, when the place of 
 protest and the residence of the indorser are in the same city, when the latter 
 is yet ten miles distant, and there is a post office there at which it is not sup. 
 gested that the inxJorser does not usually receive his letters. Paton v. Lentj 4 
 Duer, 231 ; Bondnraut v. Everett, 1 Metcalfe, 618 ; Barret v. Evans, 28 Mis- 
 
OP NOTICE OF DISHONOUR. 425 
 
 *If a party, whose name is on a bill, direct a notice to ' 
 be sent to him when absent at a distance from his resi- ^ -' 
 dence, so that its transmission thither, and thence to the prior 
 parties, will occupy more time than if the notice had passed 
 through the ordinary place of residence, a notice to him at the 
 ^substituted and more distant place will, it seems, not only be a 
 good notice 'as against him, but al.so a good notice as against 
 prior parties.(g') 
 
 ' A message sent to a counting-bouse within the usual hours 
 of business has been held sufficient, though no person be in 
 attendance. Thus, where the holder sent to a counting-house, 
 and the messenger knocked at the outer door on two successive 
 days, making noise sufficient to be heard by persons within, 
 Lord Ellenborough said :{r) " The counting-house is a place 
 where all appointments respecting the business, and all notices, 
 should be addressed ; and it is the dijty of the merchant to 
 take care that a proper person be in attendance. It has. 
 
 (8) Shelton v. Brailhwaite, 8 M. & W. 253. 
 
 (r) But this case was decided before Solarte v. Palmer, and wlien tlie form 
 of pleading made it unnecessary to distinguish between actual notice and a dis- 
 pensation with notice. 
 
 sour!, 831. Though the first indorscr lives in the same town with the maker, 
 yet a notice to him through the post office from a second indorser living in 
 another town is good. Tiue v. Collins, 3 Allen, 438. It is not that Ihe in- 
 dorser resides in same town where the protest is made, which entitles him to 
 personal notice, but that he resides in the same place with the person who 
 gives the notice. West River Bank v. Taylor, 7 Bosworth, 466. "Where a 
 person has a dwelling-house and counting-room in the same town, a notice 
 sent to either place is sufficient. Bank of Columbia v. Lawrence, 1 Peters, 
 578. The post mark on a letter is not evidence, per se, that the letter was de- 
 posited in the post office on the day indicated by it ; but, its genuineness being 
 proved, it is prima facie evidence to fix the liability of a drawer of a protested 
 bill, of the lime when the notice was mailed. Crawford v. Branch Bank, 7 
 Alabama, 305 ; Early v. Preston, 1 Patton & Heath, 338. The holder of a bill 
 or note has a right to adopt a private conveyance instead of the mail, for the 
 receipt and transmission of notice to a drawer or indorser of the dishonor 
 thereof, hat in such case it is incumbent on the holder to show that due dili- 
 gence was used. Jarvis v. St. Croix Man. Co., 10 Shepley, 287. 
 
 If a party receive notice of the dishonor of a bill in due time, he cannot ob- 
 ject to the mode of conveyance. Whiteford v. Burckmeyer, 1 Gill, 137 ; Bank 
 of U. 8. V. Corcoran, 2 Peters, 121 ; Hyslop v. Jones, 3 McLean, 96 ; Foster 
 V. SIneath, ^ Richardson, 838 ; Bradley v. Davis, 20 Maine, 45 ; Manchester 
 Bank v. Fellows, 8 Foster, 303 ; Grinman v. Walker, 9 Iowa, 436. 
 
426 OF NOTICE 01 DISHONOUR. 
 
 howeveiF, been argued, that notice in writing left at the coiint- 
 ing-house, or put into the post, was necessary, but the law dofes 
 not require it, and with whom was it to be left? Putting a 
 letter into the post is only one mode of giving notice; but, 
 where both parties are residing in the- same town, sending a 
 'clerk is a more regular and less exceptionable mode."(s) But 
 the mere act of going and If nocking'at the door will not sustato 
 an allegation of actual notice, though it may enlarge thetime 
 necessary for giving it, or under some circumstances be 
 evidence of a dispensation.(<) A message left at the dwell- 
 ing-house of a private person with his wife bas been held suffi- 
 cient.(M)(l) 
 
 (s) Cross V. Smith, 1 M. & S. 545 ; Goldsmith v. Bland, Chit. 10th ed.,319; 
 Bayley, 6th ed. 276 ; Bancroft v. Hall, Holt's N. P. C. 476 (3 E. C. L. B.). 
 («) Allen V. Edmutiasbn, 3 Bxch. 719. 
 (u) Housego V. Oowne, 2 M. & W. 348. 
 
 (1) Notice addressed to the post office ©f the town where the indnrser re- 
 sides is sufficient. Bank of Manchester v. Slason, 13 Vermont, 384; Carson 
 T. State Bank, 4 Alabapia, 148^ Draper v. Clemens, 4 Missouri, 53; OlasBcock 
 v. Bank of Missouri, 8 Ibid. 443 ; Crawford v. Branch Bank ait Mobile, 7 Ala- 
 bama, 305 ; Dunlap v. Thompson, 5 Yeagfer, 67 ; Rand v. Reynolds, 2 Grattaii, 
 171 ; Union Bank of Louisiana v. Stoker, 1 Louis. Antiual Rep. 269; Seneca 
 County Bank v. Neass, 5 Denio, 829. Where a notice is sent to the post office 
 from which an indorser will get a notice soonest, it is sufficient, though it is 
 not the nearest office in point of distance. Bank v. Lane, 3 Hiiwks, 453; 
 Farmers' Bank v. Battle, 4 Humphrey, 86 ; Sherman v. Clark, 3 McLean, 91 ; 
 ■Mercer v. Lancaster, 5 Barr, 160; Walker v. Bank, 3 Kelly, 486; Hunt v. 
 Fish, 4 Barb. S. C. 324. Where the holder of a negotiable security knows 
 the residence of the indorser, but does not know the post office nearest thereto, 
 notice of protest directed to the post office, wliich after diligcpt inquiry iswi^- 
 posed to be nearest, will bind the indorser. Marsh v. Barr, 1 Meigs, 68. It 
 is not Bufflcient to look for the drawer at the place where the bill is drawn in 
 order to give liim notice ; reasonable diligence should bo used to asrertain liis 
 residence. Fisher v. Evans, 5 Binh. 542 ; Blakely v. Grant, 6 MasS; 386 ; 
 Branch Bank v. Pierce, 3 Alabama, 331 ; Barnwell v. Mitchell, 3 Conn. 101 ; 
 Cari'oll V. Upton, 3 Comstock, 272 ; Hill v. Varfell, 3 Greenl. 233 ; Loweryt. 
 Scolt, 24 Wend. 358 ; Foard v. Johnson, 2 Alal)ama, 565 ; see Denny v. Palmer, 
 
 5 Iredell, 610 ; Page v. Prentice, 5 B. Monroe, 7. Where a notary, on the 
 ■non-payment of a bill, left a notice for the indorser at his boarding-kotise, 
 with his fellow-boarder, requesting him to deliver it to the indorser, wlmwas 
 ■not within at the time, the notice was held sufficient. Bank of the United 
 States V. Hatch, 6 Peters, 350 ; S. C, 1 McLean, 90 ; Miles v. Hall, 12 Smedes 
 
 6 MarsliB'll, 332. How notice to be served when the indorser hoards at a 
 hotel. Ashley v. Guntor, 15 Arkansas, 415. A notice Of non-payment sent 
 to the indorser inclosed under seal and delivered by the messenger to one ia 
 
OF NOTICE OF DISHONOUR. 427 
 
 Fourthly, as to the time when notice of dishonour should be 
 given. 
 
 The general rule is, that notice must be given before action 
 brought within a reasonable time after the dishonour ; and 
 that what is a reasonable time is a question of law, depending 
 on the facts of each particular case.(3:) Accordingly, the due 
 interval within which notice may op must be *given, in p^,„^ , 
 a variety of conjunctures, heis .'been defined by the de- I- - J 
 cisions. 
 
 Where the holder, and the party to whom notice is ad- 
 dressed, live at different places, it is sufficient to send otf notice 
 on the day next after the day of dishonour. " It is," says 
 Abbott, C. J., " of the greatest importance to commerce that 
 some plain and precise rule should be laid down, to guide per- 
 sons in all cases, as to the time within which notice of the 
 dishonour of bills must be given. That time I have always 
 understood to be, the departure of the post on the day follow- 
 ing that in which the party receives intelligence of the dis- 
 
 (x) Uarbisliiie v. Parker, 6 East, 3 ; 3 Smith, 195, S. C. ; Gladwcll v. Tur- 
 ner, L. li, 5 Exch. 59; 39 L. J. 31. 
 
 the employment df tlie indorser, witli directions not to open it, is insufficient. 
 The snfiBciency of a notice sent by a tliird person, depends on wliat the mes- 
 senger did, not on what he was instructed to do by the holder of the note- 
 on the message that was delivered, not on that which was sent. Paine v« 
 Esdell, 19 Penna. Stat. Rep. 178. Notice may bo left at the indorser's dwelling 
 or his place of business. Sanderson v. Bclnstadler, 31 Missouri, 483 ; Grin- 
 man V. Walker, 9 lo'wa, 426 ; Nevius v. Bank, 10 MIcliigan, 547. Notice 
 must be left at indorser's place of business, not merely in the building in which 
 he does his biisiness. Kleinman v. Boernstein, 33 Missouri, 311. Service of 
 notice within the usual business hours, and at the usual place of business of 
 the indorser, or in liis absence on a person there, but not proven to be in any 
 way connected with him, is sufficient. Mechanics' Banking Association v. 
 Place, 4 Dner, 313. Service of notice at the place of business must be during 
 business hours, but service at the residence may be at any reasonable hour. 
 Adams v. Wright, 14 Wisconsin, 408. 
 
 As to where notice should be given or directed, see Eock v. Bringier, 19 
 touis. Ann. 183 ; Greves v. Tomlitison, Ibid. 90 ; Bliss v. Nichols, 13 Allen, 
 443; Coflman v. Bank of Kentucky, 41 Miss. 313 ; Bayly's Adm'r v. Chubb, 
 16 Gratt. 284 ; Mathewson v. Strafford Bank, 45 N. Hamp. 104 ; Sullivan v. 
 Godwin, 20 Louis. Ann. 33 ; Merz v. Kaiser, Ibid. 377 ; Aikia v. Marine Bank, 
 16 Wise. 679 ; Ward v. Perrin, 54 Barb. 89 ; Peters v. Hobbs, 35 Ark. 67 ; Wil- 
 liams V. Braiisford, 35 Md. 126 ; Sprague v. Tyson, 44 Ala. 338. 
 
428 OF NOTICE OF DISHONOOR. 
 
 honour- If, instead of that rule, we are to say that the party 
 must give notice by the next practicable post, we should raise, 
 in many cases, difficult questions of fact, and should, according 
 to the different local situations of parties, give them more or 
 less facility in complying with the rule. But no dispute can 
 arise from adopting the rule which I have stated,"(y)(l) 
 
 (jl) Williams v. Smith, 3 B. & Aid. 496. In Gladwell v. Turner, supra, 
 Martin, B , was of opinion that next day meant next day after holder having 
 exercised reasonable diligence was in a position to give notice. 
 
 It is held in America that notice of non-acceptance or non-payment must 
 be given in a reasonable time in order to cliarge the drawer or indorser. 
 Though, in some cases, the question of what is reasonable notice has been 
 left to the jury to decide ; yet the vast current of American cases holds, with 
 remarkable unanimity, that it is a matter of law for the determination of the 
 Court exclusively. The holder is bound to give notice of the dishonour of a 
 bill to the parties to be charged by the next practicable mail. Where a hill 
 drawn in that country on Europe has been dishonoured, notice must be sent 
 by the first ship bound to any port of the United Slates ; and it is not sufficient 
 to send it by the first ship for the port where the drawer and indorser reside. 
 See Byles on Bills, 5th American ed., p. 423. 
 
 (1) Notice of non-acceptance or non-payment must be given in a reasonable 
 time, in order to charge the drawer or indorser. Though in some cases the 
 question of what is reasonable notice has been left to the jury to decide, yet 
 the vast current of American cases hold, witk remarkable unanimity, that it 
 is a matter of law for the determination of the court exclusively. Philips v. 
 M' Curdy, 1 Har. & Johns. 187; United States v. Barker, Paine, 156; 12 
 Wheat. 559; Stanto v. Blossom, 14 Mass. 116; Mallory v. Kirwan, 3 Dall. 
 ^193; Warder v. Carson's Ex.,. Ibid. 233; Steinraetz v. Curry, 1 Dall. 235; 
 Bank of North America v. M'Knight, 1 Teales, 147 ; Denniston v. Iinbiie, 3 
 Wash. C. C. 396 ; London v. Howard, 3 Hayw. 332 ; Scarborough v. Harris, 
 1 Bay, 177 ; Bryden v. Bryden, 11 Johns. 187 ; Ribble v. Jefferson, 5 Halsted, 
 139 ; Stott V. Alexander, 1 Wash. 331 ; Dodge v. Bank of Kentucky, 3 A. K. 
 Marsh. 616; Mohawk Bank v. Broderick, 10 Wendell, 304; 13 Ibid. 133; 
 Hagar v. Boswell, 4 J. J. Marshall, 61 ; Bank of Utica v. Bender, 21 Wendell, 
 643 ; Warren v. Oilman, 3 Shepl. 70 ; Brown v. Ferguson, 4 Leigh. 37 ; Eoutli 
 V. Robertson, 11 Smedes & Marshall, 383. 
 
 The holder is bound to give notice of the dishonor of a bill to the partiei) to 
 be charged, by the next practicable mail. Mitchcl v. De Grand, 1 Mason, 
 176 ; Talbot v. Clark, 8 Pick. 54 ; Robinson v. Arnes, 30 Johns. 146 ; Dodge 
 V. Bank of Kentucky, 3 A. K. Marshall, 616 ; Sewall v. Russell, 3 Wend. 277; 
 Hickman v. Ryan, 5 Litt. 34 ; Mead v. Engs, 5 Cowen, 303 ; Freeman's Bank 
 V. Perkins, 6 Shepl. 293; Beckwith v. Smith, 9 Ibid. 135 ; Jones v. Wardell, 
 6 Walts & Serg. 399 ; Denny v. Palmer, 5 Iredell, 610 ; Whittlesey v. Dean, 
 3 Aikin, 263 ; Curry v. Bank of Mobile, 8 Porter, 360 ; Goodman v. Norton, 5 
 Shepl. 381 ; Chick v. Pillsbury, 11 Ibid. 458 ; Sussex Bank v. Baldwin, 2 Har- 
 rison, 487 ; Downs v. The Planters' Bank, 1 Smedes & Marshall, 251 ; De- 
 
OF NOTICE OF DISHONOUR. 429 
 
 If the post does not go out on the next day, notice need not 
 be posted till the day after, or till the next post-day. Thus, 
 where the plaintiff received intelligence of the dishonour on 
 Thursday morning, at nine o'clock, though the post did not go 
 out till nine o'clock at night, and no bag was made up on the. 
 Friday, hut the plaintiff wrote on Saturday, Lord Tenterden 
 said, " It suffices, iii this case, that the plaintiff put the letter 
 into the post on Saturday, for, if he had done so on the Friday, 
 it would not have been forwarded till the Saturday night, and 
 it is immaterial whether the letter lay in the post-office or in 
 the plaintiff's hands till the Saturday."(2) So, if the post goes 
 out at an unseasonable hour in the morning, the holder is not 
 bound *to get up and write by the second post, but may p^gjj„., 
 wait for the third. Thus, where a bill was dishonoured '- -^ 
 on Saturday in a place where the post went out at half-past nine 
 in the morning, it was held that it was sufficient notice of dis- 
 honour to send a letter by the following Tuesday morning's 
 post.(a) 
 
 .Where both the parties live in the same town, or where they 
 live in London,(6) notice must be given in time to be received 
 
 (z) Geill V. Jeremy, Moo. & M. 61 (83 E. C. L. R.). 
 
 («-) HawUes v. Salter, 4 Bing. 715 (13 E. C. L. R.) ; 1 Moo. & P. 750 ; Bray 
 T, Hadwen, 5 M. & Sel. 68 ; Wright v. Sbawcross, 3 B. & Aid. 501, n. 
 
 (b) I am not aware that the precise extent of the word London, as here 
 used, has been defined by any decision, nor that it has been held incumbent 
 on a person giving notice of dishonour to treat all persons living within the 
 limits of what was formerly the twopenny post, as living in the same pl^ce. 
 
 minds v. Kirkham, Ibid. 644 ; Hoopes v. Newman, 3 Ibid. 71 ; Carter v. Bur- 
 ley, 9 N. Hamp. 558 ; .Manchester Bank v. Fellows, 8 Foster, 303. On the 
 day of protest or the next day. Manchester Bank v. Fellows, 8 Foster, 303 ; 
 McFarland v. Pico, 8 California, 636 ; Stephenson v. Dickson, 13 Harris, 148 ; 
 Bnrgiss v. Vreeland, 4 Zabriskie, 71 ; Bank v. White, 10 Foster, 456 ; Black- 
 man V. Leonard, 15 Louisiana Annual, 59. Notice sent before the close of 
 business hours on the last day of grace is premature. Pieice v. Gate, l*Cush- 
 ing, IfiO. A notice on the day after the third day of grace is too late. Barker 
 v. Webster, 10 Iowa, 593. See Farmers' Bank v. Vail, 31 New York, 485. 
 Where a bill drawn m this conntry on Europe has been dishonored, notice 
 must be sent by the first ship bound to any port of the United States ; and it 
 is not sufficient to send it by the first ship for the port where the drawer and 
 indorser reside. Fleming v. M'Clure, 1 Brevard, 438. 
 
430 01 NOTICE OF DISHONOUR. 
 
 in the course of the day following the day of dishonoar.(c) 
 And, therefore, though a letter be piit into the post in Londoa 
 on the day after the dishonour, it will not be sufficieht notice, 
 unless posted in time to be delivered the same day. Lord 
 Elienborough : " Where the parties reside in London, each 
 party should have a day to give notice. The holder of a bill is 
 not, omissis omnibus aliis negoliis to devote himself to giving 
 notice of its dishonour. If you limit a man to a fractional part 
 of a day, it will come to a question how swiftly the notice can 
 be conveyed,- — a man and horse must be employed, and you 
 will have a race against time. But here a day has been lost. 
 The plaintiff had notice himself on the Monday, put in the 
 letter on Tuesday afternoon, and the defendant does not receive' 
 notice till the Wednesday. If the party has an entire day, he 
 must send off his letter conveying the notice within post-time 
 of that day. The plaintiiF only wrote the letter to the defend^ 
 ant on the Tuesday. It might as well have continued in his' 
 writing-desk on the Tuesday night, as lie at the post-office.(rf) 
 A person who puts the letter into the post on the day when it 
 ought to be received, must show affirmatively, that it was 
 posted in time to be received on that day.(e) 'Jhe post-mark is; 
 not conclusive evidence of the time when a letter is posted^ "(/) 
 
 r*28'?1 *'^ party receiving notice of dishonour need not 
 transmit it till the next post after the day on which h6 
 himself receives the notice,(^) although there should be no 
 post on the next day. 
 
 It has been doubted(A) whether, seeing that the acceptor of 
 an inland bill has, as in the case of other debts, the whole of 
 
 (c) Scott V. Lifferd, 9 East, 347; 1 Camp. 246, S. C. ; Smith y. Mullett,' 2 
 Camp. 208; Marsh v. Maxwell, 2 Camp. 210, n. ; Jameson V. Swinton, 2 
 Camp. 374 ; 2 Taunt. 224, S. C. ; Hilton v. Fairclough, 2 Camp. 633 ; Haynes 
 V. Bilks, 3 Bos: & Pul. 599 ; Williams v. Smith, 2 B. & Aid. 500 ; Fowler t. 
 Hendo'n, 4 Tyrw. 1002. 
 
 {d) Smith V. Mullett, 2 Camp. 208. 
 
 (e) Fowler v. Hendon, 4 TyrW. 1002. 
 
 (/) Stocken v. Collin, 7 M. & W. 515 ; 9 C. & P. 653 (38 E. C. L. R.), 
 8. C. 
 
 (gy Geill v. Jeremy; Moo. & M. 68 (32 E. C. L. R.). 
 
 {h) Leftley v. Mills, 4 T. R. 170. 
 
OF NOTICB OF DISHONOUR. 431 
 
 the day on- which the bill falls due to pay it, notice of non-pay- 
 ment can be given till tbe day after. But it is now settled 
 that notice may be given, at any time after demand on the day 
 the bill becomes due. " The other party," observes Lord Eilen- 
 borough, " cannot complain of the extraordinary diligence used 
 tp give him information. "(i)(l) 
 
 Notice of dishonour nqiay be given on the same day, though 
 there be no actual refusal, if the house where the bill is pay- 
 able be shut up and no one be there.(J )(2) 
 
 A banker with whom a bill is deposited to receive payment 
 is, for the purpose of notice, to be considered as a distinct 
 holder, and has a day to give notice to his customer, and the 
 customer another day to give notice to the antecedent par- 
 ties.(i) Upon the same principle, where the holder of a bill 
 employed an attorney to give notice to an indorser, and the 
 attorney wrote to another professional man, requesting him to 
 ascertain the indorser's residence, and received an answer to 
 his letter, conveying the desired information, on the 16th of 
 the month, which information he communicated to his princi- 
 pal oa the 17th, and on the 18th forwarded the letter contain- 
 ing the notice of dishonour, it was held sufficient. " If," says 
 
 (0 Burbridge v. Manners, 3 Camp. 193 ; Ex parte Moline, 19 Ves. 216 ; 
 Hume v. Peploe, 8 East, 169 ; Hine v. Allely, 4 B. & Ad. 634 (24 E. C. L. 
 E.); 1 N. &M. 433, S. C. 
 
 (i) Hine V. Allely, 4 B. & Ad. 634 (24 E. C. L. R.) ; 1 N. & M. 433, 
 B. C. • 
 
 (*) Kp^bson V. Bennett, 3 Taunt. 388 ; Langdale v. Trimmer, 15 East, 291 ; 
 Bray v. Hadwen, 5 M. & Sel. 68. 
 
 (1) Coleman v. Carpenter, 9 Barr, 178. The holder of a bill, in order to 
 Charge an indorser residing in another place, may send notice of its dishonor 
 by the mail, if he chooses to send by mail of the day of the default; but if he 
 does not, he must deposit the notice, diiected to the indorser, in the post office 
 in time lo be sent by the mail of the next day, unless the mail of that day be 
 made up and closed at an unreasonably early hour, or in other words, before 
 early business hours ; or if there be no mail of that day, or the mail of that 
 day be closed at an unreasonably early hour, then by the next practicable 
 mail. lawson v. Farmers' Bank- of Salem, 1 Ohio Stale Rep. 20C; Manches- 
 ter Bank v. Fellows, 8 Foster, 303. 
 
 (2) Although a demand cannot be made, yet notice must be given within 
 Ihe same time, as if the demand had been made. Price v. Young, 1 McCord, 
 339. 
 
432 OF NOTICE OF DISHONOUR. 
 
 Lord Tenterden, " the notice had been sent to the principal, 
 he would have been bound to give notice on the next day, but 
 it having been sent to the agent, he was not bound to give 
 notice on the following day. A banker who holds a bill for- a 
 customer is not bound to give notice of dishonour on the day 
 on which the bill is dishonoured. He has another day, and, 
 upon the same principle, I think the attorney in this ease was 
 entitled by law, to be allowed a day to consult his client. "(/): : 
 
 r*2841 * Where a bill passes through several branch banks 
 of the same establishment, each branch may be consid- 
 ered as a distinct holder entitled to receive and transmit no. 
 tice as such.(m) 
 
 Sunday, Christmas Day, Good Friday, bank holidays, a 
 public thanksgiving or fast day, or any festival' on which a 
 man is forbidden by his religion to transact any secular aflairs. 
 (for the law merchant respects the religion of different people),^ 
 are not to be reckoned, in computing the time within which 
 notice of dishonour should be given.(ji)(l) If a man receivejS 
 letter containing notice of dishonour on such a day, he is not 
 bound to open it, and will be considered as having received ' 
 notice on the next day. 
 
 It lies on the plaintiff to show that notice was given in due 
 
 . (0 Firth V. Thrush, 8 B. & C. 387 (15 E. G. L. R.) ; 3 Man. & Ry. 259 ; 
 Dans. & L. 151, S. C. See, however, In re Leeds Banking Company,'! Law 
 Rpp., Eq. 1 ; 35 L. J., Ch. 33. But in this case the prior decisions were not 
 brought under the notice of the Vice-Chancellor. 
 
 (m) Corlctt V. Jones, Exch. 1843 ; Clode v. Bayley, 13 M. & W. 51. Aafl so 
 held, althougli the bill may have passed by delivery vyithout indorsement. 
 Ibid. See further as to branch banks. Woodland v. Fear, 7 E. & B. 519 (90 
 E. C. L. R.). 
 
 (w) 39 & 40 Geo. 3, c. 43 ; 7 & 8 Geo. 4, c. 15 ; Lindo v. Unsworlh,' 
 3 Camp. 603 ; Tassell v. Lewis, 1 Ld. Raym. 743. See p. 182, and 34 Vict. 
 c. 17, s. 3, Appesdix. ^ 
 
 It is held in America that bills of exchange payable in Massachusetts are 
 properly protested on the day preceding the fast day, if they fall due on that 
 day. See Byles on Bills, 5th American ed., p. 439. 
 
 (1) Martin v. Ingersoll, 8 Pick. 1. Bills of exchange payable in Massachu- 
 setts are properly protested on the day preceding the fast day, if they fall due 
 on that day. Chamberlain v. Maitland, 5 B. Monroe, 448, 
 
QP NOTICE OF DISHONOUB. 433 
 
 time and before action brought. In an action bj the indorsee 
 against an indorser of a bill of exchange, a witness stated that, 
 either two or three days after the dishonour of the bill, notic© 
 was given by letter to the defendant ; notice in two days being 
 in itime, but notice on the third too late. Lord Ellenborough : 
 '^The witness says two or three days, but the third day would 
 be too late. It lies upon you to show that notice was given in 
 dtte time, and I cannot go upon probable evidence without 
 positive proof of the fact. Nor can I infer due notice from the 
 non-production of the letter ; the only consequence is, that you 
 may give parol evidence of it. The onus probandi lies upon 
 the plaintiff, and since he has not proved due notice, he must 
 be non-suited. "(o) So it lies on the plaintiff to show that notice 
 was given and received before action brought. Therefore, 
 where the notice was given and the action brought on the 
 same day, the plaintiff was non-suited, because he did not show 
 by affirmative evidence that the notice was received before the 
 writ issued.(p) • 
 
 *'When the party to whom notice should be given r*oQK-i 
 cannot be found, the time is extended.(g') 
 
 Each indorser has a day to transmit notice. 
 
 "When there are several indorsers, the time within which 
 each is entitled to notice of dishonour depends on the parties 
 by whom and to whom the notice is given, and will therefore 
 be more conveniently discussed after we have considered the 
 parties who are to give and receive notices. 
 
 Fifthly, we, are to consider by whom the notice ought to be 
 given. 
 
 The object of notice is twofold : first, to apprise the party 
 to whom it is addressed of the dishonour ; and, secondly, to 
 inform him that the holder, or party giving the notice, looks 
 to him for payment.(?') Hence it follows that notice can only 
 be given by some party to the instrument, though he need not 
 
 (o) Lawson v. Sherwood, 3 Stark. 314 (3 E. C. L. R.). 
 (p) Castrique v. Beinabo,' 14 L. J., Q. B. 3; 6 Q. B. 498, S. C. (51 E. C. 
 L. R ). 
 
 (?) See post. 
 
 («•) Tindal v. Brown, 1 T. R. 167. 
 
 ■ 28 
 
43i OF NOTICE OF DISHONOUR. 
 
 be the actual holdef of the bill at the time,(s) but that a stranger 
 is incompetent to give .it.(i)(l) And it has been held by Lord 
 Eldon, that notice by the first indorsee, who had not himself 
 received notiice from the second indorsee, and who was not, 
 therefore, obliged to take back the bill, was insufficient as be- 
 tween the second indorsee and the drawer.(M) And it seems 
 clear, that even a party to the bill, who has been already dis- 
 charged by laches, or who could not in any event sue, is in- 
 competent to give notice.(a:) But a prior indorsee who has 
 himself received due notice may transmit it,(y) though he may 
 
 («) Chapman v. Keane, 3 Ad. & E. 193 (30 E. C. L. E.) ; 4 N. & M. 607, 
 S. C. ; Harrison v. Euscoe, 15 L. J., Exch. 110; 15 M. & W. 331, 8. C; 
 Lysaght v. Bryant, 19 L. J., C. P. 160 ; 9 C. B. 46 (67 B. C. L. E.), S. C. 
 
 (0 Stewart v. Kennett, 2 Camp. 177. 
 
 It has been held in America that notice must be given by, or by the au- 
 thority of, a party, or one who on the return of the bill to him would have a 
 right of action on it. 
 
 A written notice, not Signed by any person, of the dishonour of a bill, and 
 sent by mail to an indorser, is insufficient to hold hini. He who accepts or 
 pays supra protest, must give tlie same notice, in. order to charge a party, 
 ■which is necessary to be given by other holders. There is the same necessity 
 for notice of non-acceptance, &c., when a bill is paid for the honour of one of 
 the parties as in other cases. See the 5th American ed. of Byles on Bills, p. 
 430. , 
 
 (m) Ex parte Barclay, 7 Ves. 597 ; but qucere, since the case of Chapman.' 
 v. Keane, 8 Ad. & E. 193 (80 B. C. L. E.) ; 4 N. & M. 607, S. C. ; unless the 
 party giving the notice had been already discharged by laches. 
 
 (a) Harrison v. Ruscoe, 15 L, J., Exch. 110 ; 15 M. & W. 231, S. C. See 
 post ; and see Miers v. Brown, 11 M. & W. 372. 
 
 (y) Jameson v. Swinton, 2 Camp. 373 ; 2 Taunt. 224, S. C. ; Wilson v. 
 Swabey, 1 Starli. 34(3 B. C. L. E ). 
 
 (1) Notice must be given by, or by tlie authority of a party, or one who on 
 the return of the bill lo him would have a.right of action on it. Chanvine v.. 
 Fowler, Wendell, 179; Bachellor v. Priest, 13 Pick. 406. A written notice 
 not signed by any person of the dishonor of a bill, and sent by mail. to an in- 
 dorser, is insufBcient to hold him. Walker v. Stale Bank, 8 Missouri, 704. 
 Notice must be signed or indicate from whom it proceeds. Kloekenbanm V. 
 Pierson, 16 California, 375. He who accepts or pays supra protest, must give 
 the same notice in order to charge a party which is necessary to be given by 
 other holders, Martin v. Ingersoll, 8 Pick. 1 ; Grosvenor v. Stone, Ibid. 79 ; 
 Konig V. Bayard, 1 Peters, 262. There is the same necessity for notice of 
 non-acceptance, &c., when a bill is paid, for the honor of one of the parlies, 
 as in other cases. Lenox v. Leverett, 10 Mass. 1. ' 
 
OF NOTICE OF DISHONOUR. 435 
 
 J. 
 
 not know that the bill has been dishononred.f^;) And notice 
 by the holder, or by *a party who is liable to be sued r*.iQu-| 
 and may be entitled to sue, will enure to the benefit of 
 all antecedent or subsequent parties. So that a notice by the 
 last indorsee to the drawer will operate as a notice from each 
 indorser to the drawer; and if the payee or first indorsee has 
 duly received notice, or has not been discharged by laches, a 
 notice by him to the drawer will be equivalent to a notice from 
 each indorser, and from the holder to the drawer.(a) And a 
 notice from an intermediate party may, in pleading, be described 
 as a notice from the plaintiff.(6) 
 
 There are two Nisi Prius cases(c) to be found in the books, 
 in which Lord Kenyon and Lord EUenborough are reported to 
 have held respectively, that notice of dishonour from the 
 acceptor himself was equivalent to notice by the holder. But 
 it is conceived, that in those cases the holder must have con- 
 stituted the acceptor his agent for the purpose of giving notice, 
 or that they are not law, being at variance with the general 
 principle laid down in Tindal v. Brown, and recognized in a 
 variety of subsequent cases.(rf) 
 
 Notice of dishonour is not invalid because the person giving 
 it did not know that the bill had been dishonoured. If a bill 
 is dishonoured in fact, and a party to it unequivocally asserts 
 that fact in a notice of dishonour, it is 8ufficient.(e) 
 
 Notice of dishonour may be given by any agent who hold^ 
 the bill as a banker or attorney, and in the agent's own name.(/) 
 
 (s) Jennings v. Roberts, 24 L. J., Q. B. 103 ; 4 E. & B. 615 (83 B. C. L. 
 R.), S. C. 
 
 (a) Bay ley, 6th ed. 351. 
 
 (J) Newen v. Gill, 8 C. & P. 367 (34 E. C. L. R.). 
 
 (c) Shaw V. Croft, Chit. 9th ed. 494; Selw. 9th ed. 332 ; Rosher v. Kicran, 
 4 Camp. 87. 
 
 id) See Baker v. Birch, 8 Camp. 107 ; Pickin v. Graham, 1 C. & M. 725 ; 
 3Tyrw. 923,8. C. ; Harrison v. JRuscoe, 15 L. J., Exch, 110; 15 M. & W. 
 231, S. C. The case of Tindal v. Brown, however, so far as it authorizes 
 the conclusion that the party giving notice must be the (letual holder, is now 
 overruled. Chapman v. Keane, 3 Ad. & E. 198 (30 E. C. L. R.) ; 4 N. & M. 
 607, S. C. 
 
 (e) Jennings v. Roberts, 4 E. & B. 615 (83 E. C. L. R.). 
 
 (/) Wopdthorpe v. Lawes, 2 M. & W. 109 ; Rowe v. Tipper, infra. As 
 to the effect of a mis-description of his principal by the agent, see ante, as to 
 the form of notice. 
 
436 OP NOTICE OF DISHONOUK. 
 
 And it has been held, that a notice given by a party to a l^ill 
 in the name of an indorser, but without his authority, is, 
 gPod.(i9'). 
 
 But a tradesman's foreman or servant is not necessarily such 
 an agent as can give a good notice.(A)(l) 
 
 r*9871 *^ creditor who holds a bill as a collateral security 
 is bound to present and give notice pf dishonour, and 
 is liable for the consequences if he omit tp do 8p.(i) 
 
 Sixthly, to whom notice is to be given. 
 
 Each indorser is entitled to notice. The drawer of a, bill 
 payable to a third party is also entitled to notice., The drawee; 
 or acceptor is not entitled, nor is the maker of a promissory 
 note. 
 
 (g) Eogerson v. Hare, 1 Jur. 1 . 
 
 (.h) East V. Smith, 16 L. J., Q. B. 393 ; 4 D. & L. 744, S. C. 
 
 In America it has been held that a bank, having a bill for the purpose of 
 collection only, is considered the real holder for the purpose of making de- 
 miind and giving notice. It is not necessary that notice should be given by 
 the holder ; if given, by any person, authorized by the holder, it^ is sufficient. 
 See 5th American ed. of Byles on Bills, p. 433. 
 
 (0 Peacock v. Pursell, 14 0. B., N. S. 728 (78 E. C. L. R.) ; 32 L. J., C; 
 P; 266, S. C. 
 
 (1) A bank, having a bill for the purpose of collection only, is considered 
 the real holder for the purpose of making demand and giving notice,. Free-, 
 man's Bank v. Perkins, 7 Shepley, 392 ; Warren v. Oilman, 5 Ibid. 360; Og- 
 den V. Dobbin, 2 Hall; 112 ; Manchester Bank v. Fellows, 8 Foster, 302. Tlie 
 notary who protests a foreign bill, is aulUorized to give notice of its dishonor 
 to all persons who are responsible to the holders, and a notice describing bim- 
 self officially, to which his name is printed, is good. Crawford v. Branch 
 Bank, 7 Alabama, 205 ; Sussex Bank v. Baldwin, 2 Harrison, 487 ; Cowj)er- 
 thwaite v. Sheffield, 1 Sandf. Sup. Ct. Rep. 416 ; Shed v. Brett, 1 Pick. 401 ; 
 Burbank v. Beach, 15 Barb. 326 ; Renick v. Robbins, 38 Missourj, 339 ; Fulton 
 V. Maccracken, 18 Maryland, 528 ; Munroe v. Woodruff, 17 Ibid. 159. It is. 
 not necessary that notice should be given by the holder ; if giveji by any per- 
 son authorized by the holder it is sufficient. See Haslett v. Poultney, 1 Nott 
 & McCord, 466 ; Stanto v. Blossom, 14 Mass. 116 ; Tunno v. Lague, 2 Johns. 
 Gas. 1 ;,Chanvine v. Fowler, 3 Wendell, 179 ; Bank of Cape Fear v. Seywell, 
 2 Hawks, 560 ; Mead v. Engs, 5 Cowen, 303 ; Van Hoesen v. Van. AlstyijfeJ 
 Wendell, 75 ; Cowperthwaite v. Sheffleld,^6 Sandf. S. C. Rep. 416 ; Harris v. 
 Robinson, 4 Howard, U. 8. Rep. 326 ; Glasgow, v. Pratte, 8 Missouri, 386; 
 Glasscock y. Bank, Ibid. 443. 
 
OF NOTICE OF DISHONOUR. 437 
 
 It is the safest course for the holder to give notice himself to 
 all the parties against whom he may wish to proceed within 
 the time within which he is, by law, required to give it to his 
 immediate indorser ;(J) for, if he merely give notice to his im- 
 liiediate indorser, and it be not regularly transmitted to the 
 antecedent parties, they are discharged ; and even if it be so 
 transmitted, the evidence required to trace the notice back to a 
 remote party is more voluminous, "and may be difficult to pro- 
 cure. But if, where there are several indorsements, notice of 
 the dishonour be given by the holder to his immediate indor- 
 ser, and to him only, but an unbroken chain of notices, each 
 giveii in due time, hang regularly from indorsee to indorser, 
 back to a distant indorser or to the drawer, the latter is liable 
 either to his indorser or to the holder. Thus, where all the 
 parties lived in London, and the holder on the day of dishonour 
 gave notice to the fifth indorser, and the fifth on the following 
 day to the fourth, he on the day after to the third, the third 
 on the next day to the second, and the second on the following 
 day to the first, it was held, in an action. by the second against 
 the first indorser, that due notice had been given.(A;) And it 
 would also have been sufficient in an action, by the holder at 
 the time of dishonour, against the fifth indorser, and in an 
 laetion by the fifth indorser against the first.(i) But, if there 
 he any laches in the circulation df the notice back through the 
 Beveral parties, even though the neglect of one be compensated 
 by the extraordinary diligence of another, laches once committed 
 discharges all the antecedent parties, and subsequent notices 
 are invalid, for they are given by parties who are no longer 
 •liable on the bill .(m) " It is not enough that the drawer rsosfii 
 or indbrser receives notice in as many days as there are 
 subsequent indorsers, unless it is shown that each indorsee gave 
 notice within a day after receiving it ; as, if any one has 
 been beyond the day, the drawer and prior indorsers are dis- 
 
 (i) Howe T. Tipper, 13 0. B. 349 (76 E. O. L. R.). 
 
 (ft) Hilton V. Shepherd, 6 East, 14, n. 
 
 (!) Smith V. Mullett, 2 Camp. 208 ; Marsh v. Maxwell, 2 Camp. 310 ; Jame- 
 son V. Swinton, 3 Camp. 373 ; 2 Taunt. 234, S. C. ; Wilson v. Swabey, 1 
 Stark. 84 (3 E. 0. L. R.). 
 
 W Harrison v. Ruseoe, 15 L. J., Exoh. 10 ; 15 M. & W. 231, S. C. 
 
438 OF NOTICE OF DISHONOUR. 
 
 chargcd."(nXl) Nor can a party, in such a case, by waiving hia 
 own discharge, waive the discharge of antecedent parties. De- 
 
 (w) Per Lord Ellenborongh, in Marsh v. Maxwell, 3 Camp. 210, n ; Smith 
 V, Mnllett, 3 Camp. 308 See Rowe v. Tipper, 13 C. B. 349 (76 E. C. L. R.). 
 
 In America, also, it is held that where tliere are several successive indorsers 
 of a bill of exchange or promissory note, whether the indorsements he upon 
 actual negotiation for value, or for the purpose of collection only, the holder 
 may send notice of dishonour to his immediate indorser ; and if that indorser, 
 after receiving such notice, give reasonable notice to his immediate indorser, 
 the latter is liable to his immediate indorsee, though he does not receive no- 
 tice BO soon as if it were transmitted to him by the holder immediately upon 
 the dishonour. And so of every successive indoiser. 
 
 Each party has a full day to give notice ; but the over-diligence of one sljall 
 not be made to supply the under-diligence of another. 
 
 Notice of a protest of a bill may be transmitted thi'ough the several indor- 
 sers to the drawer ; and though the route may be circuitous and delay be oc- 
 casioned, yet, such notice, sent with due diligcuqe throughout, will render the 
 .drawer a,nd all tlje indorsers lialile. 
 
 A notice given by the holder to the several indorsers enures to the benefit of 
 the endorsers or preceding parties, so that the rirst indorser who has received 
 notice of its non-payment from the holder, but not from the second endorser, 
 is liable to the second indorser, in the same manner as though notice, had been 
 received from him. 
 
 An agent of the holder is allowed one day to give notice to his ptincipal of 
 a default, and the principal is entitled to one day, after he receives notice, to 
 give or forward notice by mail to the drawer or indorser. 
 
 Neglect to give notice to the first iudorser^does not discharge a subsequent 
 indorser who had notice. See Byles on JBill^, 5th American edition, p. 43^. 
 
 (1) Where there are several successive indorsers of a bill of exchange or 
 promissory note, whether the indorsements be upon actual negotiation for 
 value or for the purpose of collection only, the holder may send notice of its 
 dishonor to his immediate indorser ; and if that indorser, after receiving such 
 notice,, give seasonable notice to his immediate indorser, the latter is liable .to 
 his immediate indorser though he does not receive notice as soon as if it were 
 transmitted to him by the holder immediately upon the dishonor : and so of 
 each successive indOrser. Eagle Bank v. Hathaway, 5 Metcalf, 213 ; Butler 
 V. Duval, 4 Yerger, 265; Farmer v. Rand, 4 Shepl. 453. Each party has a 
 full day to give notice, but the over- diligence of one shall not be made to sup- 
 ply the want of diligence of another. Brown v. Ferguson, 4 Leigb, 37 ; Simp- 
 son V. Tierney, 5 Humphrey, 419 ; American Life Ins. & Trust Co.. v. Emer- 
 son, 4 Smedes & Marshall, 177 ; Safford v. WycUoff, 1 Hill, 11 ; Whitman v. 
 Farmers' Bank, 8 Porter, 358 ; Etting v. Schuylkill Bank, 2 Barr, 355 ; Smith 
 V. Roach, 7 B. Monroe, 17 ; Carmena v. Bank of Louisiana, 1 Louis. Annual 
 Rep. 369 ; Crocker v. Getchell, 10 Shepl. 392 ; Manchester Bank v. Fellows, 
 8 Foster, 303; Fitchburg Bank v. Perley, 3 Allen, 433. An indorser .is' not 
 bound to notify his prioriindorser, even though he knows of the protest, until 
 he receives notice himself in due course. West River Bank v. Taylor, 7 Bos- 
 
OF NOTICE OF DISHONOUR. 439 
 
 fendant was the eighth, plaintiff the eleventh indoraer of a bill. 
 The iustrament passed through several subsequent hands, was 
 dishonoured at maturity, and returned to the immediate in- 
 dorsee of the plaintift". It remained in his hands three days, 
 and then the plaintiff paid it, and gave uotice to the defendant, 
 who received the notice in a shorter interval from the daj'^ of 
 dishonour than would have elapsed had each party through 
 
 worth, i!)S. Notice of the protest of a bill may be transmitted, througli the 
 several indorsers, to the dnxwer ; and thongh the route may be circuitous, and 
 deliiy be occasioned, yet sncU notice, sent with due diligence throughout, will 
 render t)ie drawer and all Hie indorsers liable. Triplett v. Hunt, 3 Dana, 128. 
 A notice given by the holder to the several indorsers, enures to the benefit of 
 the indorsers or preceding parties, so that the first indorser who has i-eceived 
 notice of its non-payment from the holder, but not from the second indorser, 
 is liable to the second indorser. in the same manner as though notice had been 
 received from him. Marr v. Johnson, 9 Yerger, 1. An agent of the holder 
 ■ is allowed one day to give notice to his principal of a default, and the prin- 
 ' cipal is entitled to one day after he receives notice to give or forward notice 
 by mail to the drawer or indorser. Ellis v. The Commercial Bank, 7 Howard 
 (Miss ), 294 ; Crawford v. Branch Bank, 7 Alabama, 205 ; Ohio Life Ins. & 
 Trust Co. V. McCague, 18 Ohio, 54 ; Hill v. Planters' Bank, 3 Humph. 670 ; 
 McNeil V. Wyatt, Ibid. 125 ; Foster v. McDonald, 3 Alabama, 34 ; Carmena 
 V. Bank of Louisiana, 1 Lonis. Annual Rep. 369 ; Colt v. Noble, 5 Mass. 167 ; 
 Cliurch V. Barlow, 9 Pickering, 547 ; see Johnson v. Harth, 1 Bailey, 482 ; • 
 V. S. Bank v. Goddard, 5 Mason, 366 ; Fish v. Jackman, 1 App. 467; Law-. 
 son v. Farmers' Bank, 1 Ohio State Rep. 200 ; United States v. Barker, 2 
 Paine C. C. 340. Neglect to give notict^ to the first indorser, does not dis- 
 charge a subsequent indorser, who had notice. Matthews V. Fogg, 1 Richard- 
 son, 369 ; Wilcox V. Milchell, 4 Howard (Miss.), 272; Baker v. Morris, ^5 
 Barbour, 138.; Struthers v. Blake, 6 Casey, 139. A failure to notify other 
 indorsers, although the attempt is made, will not discbarge one who is himself 
 properly notified. Westfall v. Farwell, 13 Wisconsin, 504. The holder of a 
 note is required to charge with notice only the indorser to whom he desires to 
 look for payment, and it belongs to each indorser to see for himself that prior 
 indorsers are duly fixed, if he would have his remedy over against them. 
 Spencer v. Ballon, 18 New York, 827. Notice to the drawer by the, acceptor, 
 enures to the benefit of the indorser. Brailsford v. Williams, 15 Maryland, 
 150. Where the holder transmits to the last indorser notice of non-payment, 
 and the latter on receipt of it sends notice to each of the prior parties, such 
 notice is sufficient to charge each of them. Renshaw v. Triplett, 23 Jlissouri, 
 213. See further. West River Bank v. Taylor, 7 Bosworth, 466 ; S. C. 34 N. 
 York, 128 ; Terbill v. Jones, 15 Wise. 253 ; Wamesit Bank v. Buttrick, 11 
 Gray, 387 ; Linn v. Horton, 17 Wise. 151 ; Haskell v. Boardman, 8 Allen, 38. 
 • The discharge of ari indorser by not giving him notice does not discharge the 
 other indorsers. The holder is only bound to give notice to the indorser whom 
 he intends to hold liable. Crane v. Trudeau, 19 Louis. Ann. 307. 
 
4^0 OF NOTICE OF DISHONOUR. 
 
 whose hands the bill was returned takeii the fall time allowed 
 by law for giving notice. Abbott, C. J.: "In this case the 
 plaintift" was clearly discharged by the laches of the holder. 
 Then can he, by paying the bill, place the prior indorsers in a 
 worse situation than that in which they would otherwise have 
 been ? I think he cannot do so, and that in paying this bill he 
 
 T*28Q1 ^^^ P^^*^ ^* ^^ ^'^ '^^^ wrong, *and cannot be allowed 
 to recover upon it against the defendant."(o) 
 
 . As notice may be given by leaving it at the counting-house ; 
 «o notice to an agent for th« general conduct of business is 
 .sufficient notice fro the principal.(p) But notice to a man's at- 
 torney or solicitor is not sufficient.(g') A verbal message left at 
 the drawer's house with his wife has been held sufficient. " A 
 .person, not a merchant," says !Bolland,.B., " who draws a bUl 
 of exchange, undertakes to have some one at his house to 
 answer any application that may be made respecting it when it 
 becomes due."(r) 
 
 If the drawer of a bill become bankrupt, notice must never^ 
 theless be given to him, at all events, before the choice of as- 
 signees. If the assignees are appointed, perhaps notice should 
 be given to them.(s) If the bankrupt have absconded, there 
 being as yet no assignees, and a messenger be in possession, 
 notice should be given to the messenger, and to the petitioniffl^ 
 creditor.(<) 
 
 If the party be dead, ncftice should "be given to his personal 
 ,representatives.(M)(l) , 
 
 i(o) Turner v. Leach, 4 B. & Aid. 451 (7 B. C. L. R.). 
 
 {p) Crosse v. Smith, 1 M. & Sel. 545. 
 . '(2) Ibid. 
 
 (r) Housego v. Cowne, 3 M. & W. 348. 
 
 («) Ex parte Moline. 19 Ves. 2W; Rhode v. Proctor, 4 B. & C. 517 (tOB. 
 C. L. R.) ; 6 D. & Ry. 610, 8. C. ; Ex palte Johnson, 3 Deac. & Chitly, 438; 
 1 Mont. & Ayr. 622 ; Ex parlie Chappell, 8 M. & Ayr. 490 ; 3 Dea. 2H8, S. C. 
 
 (<) So in Scotland notice must be giveii to thte party who represents tire 
 lestate. (Thomp. 535.) 
 
 (m) I am aware of too actual English decision to this effect. But it haslreeli 
 
 (1) The administrator of an itidorser appointed before the piaiuriiy of tllp 
 
OP NOTICE OF DISHONOUR. 441 
 
 Where a bill is accepted payable at a particular place, it is 
 not necessary, in an action against the acceptor, to have given 
 him notice of the dishonour. " Bills of exchange," says Abbott, 
 G. J., " of late years have been made payable *by the r*oQn-i 
 acceptor, either at the houses of his friends or agents, 
 they being expressly named in the acceptance, or at banking 
 houses, or at houses merely described by their number in a cer- 
 tain street. It is most convenient that the same rule should 
 be laid down as applicable to all these cases. The most plain 
 and simple rule to lay down is this : that the effect of ah ac- 
 ceptance in any of these forms, is a substitution of the house, 
 banker, or other person therein mentioned, for the house or 
 residence of the acceptor, and consequently, that the present- 
 ment at the house, or to the party named in the acceptance, is 
 equivalent to presentment at the house of the acceptor. This 
 rule will, I think, be equally applicable to the case of every ac- 
 ceptance, and will be convenient and advantageous to the 
 
 so decided in America. And if tliere be no personal representatives, a notice 
 sent to tlie residence of tlie deceased party's family is sufScient. Merclianls' 
 Bank v. Bircli, 17 Jolins. Rep. 25 ; Bayley, American ed. 418. 
 
 Il lias also been held in America tliat the administrator of an indorser, 
 appointed before the maturity of the note, who has given due notice of his 
 ap|]oiutment, is entitled to notipe. A notice addressed through the mail in 
 due time to the " legal representative " of A., deceased, the indorser, to the 
 last residence of the deceased, is suflBpient, though it does not appear that the 
 administrator or executor ever received it. See 5th American ed. of Byles on 
 Bills, p. 43G. 
 
 ntfte, who has given due notice of his appointment, is entitled to notice. 
 t)riental Bank v. Blake, 22 Pick. 206. See as to notice where the indorser is 
 dead, Planters' Bank v. White, 2 Humphrey, 112 ; Cayuga Bank v. Bennett^ 
 5 Hill, 23li ; Barnes v. Reynolds, 4 Howard (Miss.), 114. A notice addressed 
 through mail in due time to the "legal representative" of A., deceased, the 
 Indorser, to the last residence of the deceased, is sufficient, though it does npj 
 appearthat the administrator or executor ever received it. Pillow v. Harde- 
 man, 3 Humphrey, 538. Notice to an executor before probate is sufficient. 
 Shoenberger v. Lancaster Savings Institution, 4 Casey, 459. The death of 
 tile tliaker, and the fact that the indorser is his executor does not dispense 
 with the necessity of notice. As executor he is not personally bound, and the 
 purpose of demand and notice is to make him so, and to warn him of the 
 fact that the holder looks to him individually. Groth v. Gyger et al., 7 Casey 
 371. 
 
442 OP NOTICE OF DISHONOUR. 
 
 public."(a;) A fortiori^ it is uuneeessary to have given the ac- 
 ceptor such a notice in any action against the drawer.(y) 
 
 Where partners are jointly liable on the bill, notice to pue is 
 i5ufficient.(2r)(l) , 
 
 If a man, not a party to a bill, assign without indorsement, 
 he is not entitled to notice of di8houour.(a)(2) 
 
 i 
 
 (x) Treacher v. Hinton, 4 B. & Aid. 413 (6 E. C. L. R.) ; Smith t. 
 Thatcher, 4 B. & Aid. 300 (6 B. C. L. R.) ; Pearse v. Pemberthy, 3 Camp. 
 261. 
 
 (y) Edwards v. Dick, 4 B. & Aid. 212 (6 E. C. L. R.). 
 
 (z) Porthouse v. Parker, 1 Camp. 83 ; Bignold v. WateHiouse, 1 M. & Sel. 
 359. But it is conceived that notice to a private member of a joint stock 
 banking company would not suffice. See Powles v. Page, 3 C. B. 16 (54 E. 
 C. L. R.) ; In re Carew, 31 Beav. 39. 
 
 It is held in America .that joint owners of a note, who jointly indorse the 
 same, do not thereby constitnte themselves partners quoad hoc, so that notice 
 of the dishonour of a bill to one will charge both. Both must have notice. 
 
 Where a partnership indorses a note, notice of its dishonour given to a sur- 
 viving partner is sufficient to bind the legal representatives of the deceased 
 partner, although the holder knew of the decease of such partner before the 
 maturity of the note. See ByleS on Bills, 5th Amerioau ed. p. 437. 
 
 Mr. Justice Story doubts whether, in the case of juint parlies not partners, 
 notice to one only would bind even him. Story on Promissory Notes, Pv3li. 
 
 (a) Van Wan v. Woolley, 3 B. & C. 439 (10 E. C. L. R.) ; 5 D. & R. 374; 
 M. & M. 530, S. C. ; Swinjard v. Bowes, 5 M. & Sel. 62. But a notice lias 
 
 (1) Joint owners of a note, who jointly indorse the same, do not thereby 
 constitute themselves partners quoad hoc, so that notice of the dishonor of a 
 bill to one will charge both. Both must have notice. Sayer v. Frick, 7 
 Watts & Serg. 383 ; Wills v. Green, 5 Hill, 232. But where they-are part- 
 ners notice to one is sufficient. Bouldin v. Page, 34 Missouri, 594; Miser v. 
 Trovinger, 7 Ohio (N. S.), 381. Where a partnership indorses a note, notice 
 of its dishonor, given to a surviving partner, is sufficient to hold the legul 
 representatives of the deceased partner, although the holder knew of the de- 
 cease of such partner before the maturity of the note. Dabney v. Stidger, 4 
 Smedes & Marshall, 749 ; Cocke v. Bank, 6 Humph. 51. See People's Bank 
 V. Keech, 26 Md. 521. The rule that service of notice upon one member of 
 a fii;m is sufficient, does not hold where a notice: is served on a partner living 
 elsewhere, while none is served on a. partner residing in the town where the 
 demand is made. Hume v. Watt, 5 Kansas, 34. 
 
 (3) A party who purchases a bill and transmits it on account of goods 
 ordered by him without indorsing it, is not entitled lo notice of its dishonor. 
 Van Wart v. Smith, 1 Wendell, 319. 
 
OF NOTICE OF DISHONOUR. 443 
 
 , And, as a general rule,, a man transferring by delivery 
 *wi:hout indorsement a bill or note payable to bearer r*oQi-| 
 is not entitled to notice. 
 
 We have already seen,(6) that a transferor by mere delivery 
 .of a negotiable instrument, made or become payable to bearer, 
 is not in genera,i liable, either on the instrument, or on the con- 
 sideration. He, therefore (unless in some excepted cases), re- 
 quires no notice of dishonour. 
 
 But we have also seen, that if th^ bill or note payable to 
 ■bearer were delivered on account of a pre-existing debt that de- 
 livery is not, prima fade, a sale of the bill or note. On dis- 
 honour, therefore, of the bill or note, the liability of the 
 transferor for the original debt revives. But in such a cuse the 
 transferee will have made the bill or note his own, unless he 
 have given due notice of dishonour. 
 
 And we have further seen, that as there may be an express 
 contract that the instrument shall not amount to payment, if 
 'dishonoured, so there are many circumstances from which a 
 jury may infer, that the intention and understood contract of 
 the parties was, that the instrument was not to be payment, if 
 dishonoured. (e) 
 
 It is conceived, that in all cases where, in consequence of the 
 dishonour of bills or notes, made or become payable to bearer, 
 
 been lield to be in time, although an allowance be made for its transmission 
 through a party not indorsing. See Clode.v. Bayley, 12 M. & W. 53. 
 
 And it has been held in America that a party who purchases a bill and trans- 
 mits it on account of goods ordered by him, without indorsing it, is not entitled 
 to notice of its dishonour. See 5th American ed. of Byles on Bills, p. 438. 
 
 (J) Ante, Chapter on Transfer. 
 
 (c) " If a person," says Abbott, C. J., "deliver a bill to another, witho.ut 
 indorsing his own name upon it, he does not subject himself to the obligations 
 of the law merchant ; he cannot be sued on the bill, either by the person to 
 wliom he delivers it, or by any other. And, as he does not subject himsel|f 
 to the obligations, we think he is not entitled to the advantages. If the holder 
 of a bill sell it without his own indorsement, he is, generally speaking, liable 
 to no action inrcspect of the bill. If he deliver it without his indorsement 
 uppn any other consideration, antecedent or concomitant, the nature of the 
 ty^nsaction and all circumstances regarding the bill must be inquired into, in 
 order to ascertain whether he is subject to any responsihility. If the bill be 
 delivered, and received as an absolute discharge, he will not be liable ; if 
 otherwise, he may be. The mere fact of receiving such a bill does not show 
 it was received in discharge." Van Wart v. WooUey, 3 B. & C. 445 (10 E. 
 «rL. E.J. 
 
444 OF UOTICE OP DISHOHOUB. 
 
 a r6?medy arises on the consideration, the transferor is entitled 
 to notice of dishonour.(tif) 
 
 A man merely guaranteeing the paymeht of a bill, but not a 
 party to it, is not discharojed by the neglect of the- holdei- 
 *to givfe notice of dishonour, unless he has been actually 
 L -■ prejudiced by such neglect.{e)(l) 
 
 And though a man indorse a bill, yet if he also give a bond 
 conditioned for its payment, absence of due notice of dishouour 
 is no plea to an action on the b(md.(/) 
 
 Let us now inquire, seventhly, what are the consequences of 
 neglect to give due notice. The laVv presumes that, if the 
 drawer has not had due notice, he is injured, because, otheiv 
 ■wise, he might have imtmediatfely withdrawn his effects from 
 the hands of the drawee, and that, if the indorser has not had 
 timely notice, the remedy against the parties liable to hini is 
 rendered more precarious. The consequence, therefore, of neg- 
 lect of notice is, that the party to whom it should have been 
 given is discharged from all liability, whether on the bill or om 
 the consideration for which the bill was paid.(^)(2) 
 
 The old doctrine on this subject was, that it lay on the de- 
 
 {d) There is great confusion in the cases on tliis subject, but the anlhorftiifl 
 are canvassed in the judgment of Mr. Justice Coleridge, in Turner v. Stones, 
 1 Dowl. & L. 131. That learned judge says, " I think the obligation on tlie 
 bolder is to give notice promptly to the party from whom he receives the note.," 
 
 («) Warrington v. Furbor, 8 East, 242 ; 6 Esp. 89, S. C. ; Philips v. Astling, 
 3 Taunt. 206 ; Swinyard v. Bowes, 5 M. & S. 62 ; Holbrow v. Wilkins, 1 B. 
 & C. 10 (8 E. C. L. R.) ; 2 D. & Ry. 58, S. 0. ; Van Wart v. Woolley.-S B. 
 & C. 439 (10 E. C. L. R.) ; 5 Dowl. & R. 374 ; M. & il. 320 (22 E. C. <L,,B.), 
 S. C. ; Walton v. Mascall, 13 M. & W. 72 ; Hitchcock v. Humfrey, o M. & 
 Gr. 559 (39 E. C. L. R.). 
 
 (/) Murray v. King, 5 B. & Aid. 165 (7 E. C. L. R.). 
 
 (ff) Bridges v. Berry, 3 Taunt. 130. 
 
 (1) Donley V. Cttmp, 23 Alabama, 659. See Buckner v. Liebig, 38 Mft. 
 '188 ; Baker v. Robinson, 63 N. Car. 191 ; Brenner v. Weaver, 1 Kansas, 4S8 ; 
 Pickett v. Hawes, 14 Iowa, 460 ; Forest v. Stewart, 14 Ohio (N. S.),246; 
 Sibley v. Van Horfl, 13 loWa, 209 ; Baker v. Kelly, !tl Miss. 696 ; Weller v. 
 fiawes, 19 Iowa, 443 ; Poster V. Tollisoh, IS Richardson (Daw), 31 ; Paik&an 
 V. Brewster, 15 Gray, 371. 
 
 (3) Where the drawer of a check not paid on presentation has befen'injureii. 
 
OF NOTICE OF DISHONOUR. 445 
 
 fendant to prove that l^e. had been injured by the want of 
 notice ;'A) but it is now settled that the want of notice is a com- 
 plete defence, and that evidence tending to show the defendant; 
 was not prejudiced by the neglect is inadmissible, except in an 
 action against the drawer who had no effects in the hands of 
 the drawee.(t) A"^ ^f ^ ^^^ who is discharged for want of 
 notice, nevertheless pays the bill, he cannot recover againgt, 
 prior parties, But, where an agent drew a bill on his principal 
 for goods bought by the, agent for the principal, and the bill 
 was dishonoured, of which the agent had no notice, but the 
 aigent, being afterwards arrested on the billj paid it, and sued 
 his princijal on the contract of indemnity, which the law im- 
 plies in favour of the agent in such cases ; it was held, that, the 
 agent's not having insisted on the absence of notice as a defence, 
 to the action against himself, did not preclude him from re- 
 covering the amount of the bill against his prlncipal.(A) 
 
 *But eighthly,, and lastly, there are cases in which [-w^qot 
 ijptice is excused or waived. 
 
 Notice may be dispensed with and excused by a prior agree- 
 ment on the part of the, party otherwise entitled to it, that it 
 shall not be necessary tO; give him notice. Thus, where the 
 drawer stated to the holder a few days before the bill became 
 due that he would call and see if the biU had been paid by the 
 acceptor, it was held that he had dispensed with notice (?) 
 
 , (h) Mogadara v. Holt, 1 Sho,w..317; 13 Mod, 15, S. C. 
 
 (»■) Dennis v. Morrice, 3 Esp. 158 ; Hill v. Heap, D. & R., N. P^ C. 59 
 (16 E. C. L. R.). 
 
 (ft) Huntley ,v. Sanderson, 1 C. &M. 467; 3 Tyr. 469, 8. C. 
 
 (Ofhlpson v. Kneller, 4 Camp. 385 ; 1 Stark. 116 (3 B. C. L. R.). S. C. ; 
 see Burgh v. Legge, 5 M. & W. 418 ; aad Brett v. Levett, 13 East, 214 ; but 
 see Ex parte Bigiiold, 1 Deac. 728 ; Murray v. King, 5 B. & Aid. 165 (7 E. 
 C. L. B.) ; Soward v. Palmer, 3 Moore, 374 ; 8 Taunt. 277 (4 E. C. L. R.), 
 8.C. 
 
 for want of notice of such non-payment, he. is noj therebj' discharged from 
 the payment of the whole check, but only to the extent of the actual injury 
 lie lias sustained by the want of notice. Pack v. Thomas, IB Smedes & Mar- 
 shall, 11. See ante, the difference between checks, and other negotiable 
 paper. 
 
446 OP NOTICE (JF DISHONOTJK. 
 
 Where the drawer has countermanded payment, notice of 
 dishonour to him is dispensed vvith, although it may be still 
 necessary to present.(m) 
 
 If the drawer had no effects at any time during the currency 
 of the bills in the hands 6f the acceptor, and will have no 
 remedy against the acceptor or any other person if he be 
 obliged to pay the bill, he ca-nuot, in general, have been pre- 
 judiced by want of notice, and, therefore, cannot set that up 
 as a defence. (n)(l) But this decision, substituting knowledge 
 for notice, has been much regretted. " I have always thought," 
 says Abbott, 0. J., " that it would have been better never to 
 have considered knowledge as equivalent to notice ; I cannot 
 consent to carry the law one step further. "(o) Therefore it has 
 been held, that, in order to be liable without notice, the drawer 
 must have had no remedy against the acceptor or any other 
 person. Hence, if a bill be drawn for the accommodation, not 
 of the drawer, but of the acceptor, as the drawer might sue the 
 acceptor he is entitled to notice.(^) And if the drawer in such 
 a case chooses to pay without notice, he cannot sue the acceptor 
 for money paid to his use, although he may sue on the bill'.{j) 
 And where a bill was drawn for the accommodation of an in- 
 dorsee, and neither such indorsee nor the drawer ha4 any 
 
 (m) Hill V. Heap, D. & R., N. P. C. 57 (16 B. C. L. R.) ; Prideanx v. 
 Collier, 3 Stark. 57. 
 
 (n) Bickeidike v. Bollman, 1 T. R. 406 ; see Lafltte v. Blatter, post ; Carew 
 V. Duckworth, L. R., 4 Ex. 313. 
 
 (0) Cory V. Scott, 3 B. & Aid. 619 (5 E. C. L. R.) ; Carter v. Flower, 16 
 M. & W. 749. 
 
 (p) Ex parte Heath, 2 Ves. & B. 340 ; 3 Rose, 141, S. C. ; Coryv. Scott, 
 3 B. & Aid. 619 (o E. 0.' L. R.) ; Bayley, 294, 5th ed ; Sleigh v. Sleigh,, 19 
 I,. J., Exch. 345 ; 5 Exch. 514, S. 0. 
 
 (g) Sleigh v. Sleigh, 19 L. J., Exch. 345; 5 Exch. 514, S. C. 
 
 (1) If the drawer has no funds in the drawee's hands, the payee may^ne' 
 immediately after non-acceptance without giving notice. Baker v. Gallagher, 
 1 Washington C. C. 401 ; Reed v. Wilkinson, 2 Washington C. C. 514;" 
 Tarver v. Nance, 5 Alabama, 713 ; Hubble t. Fogartie, 3 Richardson, 413. 
 Want of funds, is no excuse for want of notice. Howard v. Jarvis, 5 Sneed, 
 375. As to notice when the drawee has no effects of the drawer in bis 
 hands, and is not bound to accept. Durnim v. HendricK, 4 Texas, 495 ; Cole 
 V. Winttrcost, 12 Texas, 118. 
 
OF NOTICE OF DISHONOUR. 447 
 
 *effect8 ia the hands of the acceptor, it was held that a r*2Q4i 
 subsequent indorsee, in order to recover against the 
 drawer, was hound to give him notice, for the drawer had a 
 remedy over against his immediate indorsee.(r)(l) So, it is no 
 excuse for neglect of notice to an indorser, that the drawer had 
 no effects in the acceptor's hands. " That circumstance," says 
 Lord Eenyon, " will not avail the plaintiff", — the rule extends 
 only to actions brought against the drawer ; the indorser is in 
 
 (r) Norton v. Pickering, 8 B. & C. 610 (15 E. C. L. R.) ; 3 Man. & R. 23 ; 
 Dans. & L. 210, S. C. ; Cory v. Scott, 3 B. & Aid. 6'9 (5 E. C. L. R.) ; over- 
 ruling Walwyn v. Qaintin, 1 B. & P. 652 ; and see Brown v. Miitfey, 15 East, 
 m ; Ex parte Heath, 2 Ves. & B. 249 ; 2 Rose, 141, S. C. 
 
 It is held in America that the indorser of a promissory note for the accom- 
 niodation of the drawer, is entitled to strict notice. 
 
 The maker of a note for the accommodation of the payee is not released by 
 the failure to protest the note and give him notice, though it is known to the 
 liolder that he is an accommodation maker. 
 
 An accommodation drawer of a bill of exchange is entitled to notice of its 
 dishonour, although he had no funds in the hands of the drawee. 
 
 An indorser is chargeable without notice, if he indorsed for the drawer's 
 accommodation only, and had no expectation that the drawee would pay. 
 See Byles on Bills, 5th American ed., p. 442. 
 
 And the indorser is entitled to notice, although the bill were drawn and 
 accepted, and indorsed l)y him for tlie purpose of raising funds for a company 
 in which he as well as the holder was a shareholder. Maltass v. Siddle, 6 C. 
 B., N. S. 494 (60 E. C. L. R.). 
 
 (1) The indorser of a promissory note for the accommodation of the drawer, 
 is entitled to strict notice. French v. Bank of Columbia, 4 Cranch, 141 ;■ 
 Bogg V. Keil, 1 Missouri, 743 ; Holland v. Turver, 10 Conn. 308 ; Rea v. 
 Borrence, 6 Shepl. 137. Tlie maker of a note for the accommodation of the 
 payee is not released by the failure to protest the note and give him notice ; 
 though it is known to tlie holder that he is an accommodation maker. Hans- 
 hrongh v. Gray, 3 Gratt. 356 ; Lewis v. Hanchman, 2 Barr, 416. An accom- 
 modation drawer of a bill of exchange is entitled to notice of its dishonor, 
 although he had no funds in the hands of the drawee. Sherrod v. Rhodes, 5 
 Alabama, 683 ; Reid v. Morrison, 2 Watts & Serg. 401 ; . Evans v. Norris, 1 
 Alabama, 511 ; Shirley v. Fellowes, 9 Porter, 309. An indorser is charge- 
 able without notice, if he indorsed for the drawer's accommodiition only, and 
 had no expectation that the drawee would pay. Faniicrs' Bank v. Van Meter, 
 4 Rand, 55iJ. No notice of non-payment of a note is required from an accom- 
 modation indorser to those for whose accommodati(m he indorsed, in order to 
 hold them liable to him. Fulton v. Maccracken, 18 Maryland, 528. Demand 
 and notice are not necessary to fix drawer for whose use bill was accepted 
 and indorsed. Barbaroux v. Waters, 3 Metcalf (Ky.), 304. An indorser 
 for whose accommodation the maker signs the note, is not entitled to notice 
 of non-payment. First National Bank v. Ryerson, 23 Iowa, 508. 
 
448 OF NOTI.CE, OF, DISHONOUK. 
 
 all cases entitled to nptice, for he has no concern with the, ac- 
 counts between the drawer and the drawee."(*) ^ov will the 
 aibsence of effects in the hands. of the naaker of a promissory miS' 
 be any excuse for want of notice to the indorser, at all events, 
 unless the indorser be the person who is to pay, and. who has; 
 no remedy over against any one ;(<) nor will it suffice to allege, 
 that he has not been damnifierl by the absence of notice. An. 
 intimation from tha drawee that he cannot meet the bill, but 
 that the drawer must take it up, will not relieve the holder 
 from the necessity of giving the drawer notice.(M) But if tbeac-. 
 ceptor give the drawer money for that purpose, such sum is recov- 
 erable from the drawer by the holder, as money paid to his use.(a;) 
 Though, the acceptor, at the time of dishonour, have no effects 
 of the drawer in his hands, yet, if he ever had any after the 
 ♦drawing of the bill, or if, without effects, the drawer. 
 L -I had any reasonable ground for expecting that the bill 
 would be honoured, he is entitled to notice. " The case of 
 Bickerdike v. Bollman," says Lord EUenborough, "went upon 
 the ground, that the drawer had no effects in the hands of the 
 drawee at the time of the bill drawn, and the other cases followed^: 
 on the same ground. But no case has gone: the length of 
 extending the exemption further to cases where the drawee 
 had effects of the drawer in his hands at the time of, the bill 
 drawn, though the balance might vary afterwards, and be 
 turned into the opposite scale.. Wjhen, there are no effects of the 
 drawer in the hands of the drawee at the time when the bill is 
 drawn, the drawer must know that he is drawing on accommo- 
 dation ; but, if he have effects at the time, it would be very 
 dangerous and inconvenient, merely on account of the shifting 
 of a balance, to hold notice not to be necessary. It would be 
 introducing a number of collateral issues in evfery case upon a 
 bill of exchange, to examine how the account stood between 
 the drawer and the drawee, from the time the bill was drawn 
 
 (8) Wilka V. Jacks, Peake, 202. But if tke indorser have had funds put 
 into bis liands by the drawer, out of -which he is to pay the bill, notice to the 
 indorser is unnecessary. Cprney v. Mendez da Costa, 1 Esp. 303; Carter v. 
 Flower, 16 M. & W. 751. 
 
 (0 Carter v. Flower, 16 M. & W. 751. 
 
 (w) Stables v. O'Kines, 1 Esp. 332. 
 
 («) Baker v. Birch, 3 Camp. 107. 
 
OF NOTICE OF DISHONOUR. 449 
 
 down to the time it was dishonoured."(y) Where the drawer 
 had goods in the hands of-draweea to the amount of 1,500Z. but 
 owed them 10,000^., and the drawees had appropriated the 
 goods to- the satisfaction of the debt, it was held, that notice of 
 dishonour to the drawer was still essentiaL Lord Ellenborough 
 observing — " If a man draws upon a house with whom he h;is 
 no account, he knows that the bill will not be accepted ; he can 
 suffer no injury from want of notice of its dishonour; and, 
 therefore, he is not entitled to such notice. But the case is 
 quite otherwise where the drawer has a fluctuating balance in- 
 the hands of the drawee. There notice is peculiarly requisite. 
 Without this, how can the drawer know that credit has been 
 refused him, and that his bill had been dishonoured ? It is 
 said here, that the effects in the hands of the drawees were all 
 appropriated to discharge their own debt ; but that appropri- 
 ation should appear by writing,(^) and the defendant should 
 be a party to it."(a) 
 
 And, in general, though the drawer had no effects in the 
 hands of the drawee, yet, if he had any reasonable expectation 
 that the bill would be honoured, he is entitled to notice 
 ^of dishonour, as if ho have consigned goods to the p^^oQ^-, 
 drawee, though,in fact, they never came to hand, or have '■ -' 
 aeeepted bills for him.(6) So where R., being indebted to the 
 drawer, represented to him that A. owed him money, and the 
 drawer in consequence drew a bill on A., which A. accepted, 
 but did not pay, it was held, that the drawer was entitled to 
 notice of dishonour ; for he had' reason to expect either that R. 
 would take up or that the aqceptor would pay the bill, and 
 might by want of notice be induced to relax in his endeavours 
 tojjrocurepayment of the debt o^ing by E,.(c) But the drawer 
 
 {.y) On- V. MaginniB, 7 East, 359 ; 2 Smith, 328, S. 0. ; Legge v. Thorpe, 
 12 East, 171 ; Brown v. Maffey, 15 East, 216 ; Hammond v. Dufrene, 8 Gamp. 
 145 ;,,f hackj'ay v. Blackelt, 3 Camp. 164. 
 
 f?} ^Mffire, as to the necessity of a writing. 
 
 (o) Blaokhan v., Doren, 3 Camp. 503. 
 
 (J) Legge V. Thorpe, 12 East, 171 ; Rucker v. Hillei-, 16 Bast, 43 ; 3 Camp. 
 217, S. 0. ; Spooner v. Gardiner, 1 R. & M. 84 (21 E. C. L. R.) ; Walwyn 
 V. St. quintin, 1 Bos. & Pul. 652 ; Ex parte Heath, 2 Yes. & B. 340. 
 
 (c) Lafitte V. Slatter, 6 Bing. 633 (19 E. C. L R.) ; 4 M. & P. 457, S. C. 
 The burthen of proving that the defendant has been injured by receiving uo 
 
 29 
 
450 OF NOTICE OF DISHONOUK. 
 
 of a bill, who has no effects in the hands of the drawee, except 
 that he has supplied him with goodB on credit, which credit 
 does not expire till long after the bill becomes due, is not en- 
 titled to notice, for the goods are not such as can properly be 
 set against the drawing, nor can there be any reasonable expec- 
 tation that the bill will be paid till the expiration of the 
 credit.(cZ)(l) 
 
 notice, where that is alleged, but where it is proved that he had nO funds m 
 the hands of the acceptor, lies on the defendant. Fitzgerald v. Williams,' 
 6 Bing. N. C. 68 (37 E. C. L. R.) ; 8 Scott, 271, S. C. 
 
 (d) Claridge v. Dalton,. 4 M. & Sel. 226. As to the ftfrm of the allegation 
 in pleading, see Thomas v. Fenton, 16 L. J., Q. B. 362 ; 5 D. & L. 28, S. C, 
 
 It is held in America that if the drawer had no effects in the hands of tlie 
 drawee at the date of the bill, and no reasonable ground to expect it would be 
 honoured, he is chargeable without notice. 
 
 The drawer is entitled to notice of the dishonour of a hill, if he had reasona- 
 ble ground to believe it would be honoured, although he bad no funds in the 
 drawee's hands. i 
 
 Though the drawer has no funds in the bands of the drawee, and no ground 
 to expect the bill to be honoured, yet the indorser is entitled to notice in all 
 cases, unless he has received funds from the drawer to take up the bill. An 
 indorser of a promissory note, who, before the note falls due, takes an assign- 
 ment of all the property and estate of the maker for the express puipose of 
 meeting his responsibilities, is not entitled to the usual notice of non-paymAfc 
 
 The mere taking of security by an indorser from the maker of the note does 
 not dispense with a demand and notice, unless suflScient funds have come 
 into his hands to satisfy the note, or all the property of the maker has been 
 transferred to the indorser. 
 
 The burthen of proof is on the holder of a bill to show that the drawer had 
 no funds in the drawee's hands in order to excuse want of notice. 
 
 Where the indorser has discharged the maker of a note from liability by a 
 settlement and release, a notice of non-payment' would be of no use lo him; 
 and therefore he is not entitled to it. See the authorities in Byles on Bills, 
 5th American ed., pi. 445. 
 
 .■ 'Wtff 
 
 (1) If the drawer had no effects in the hands of the drawee at the date of 
 the bill, and no reasonable ground to expect it would be honored, he is 
 chargeable without notice. Hopkirk v. Page, 2 Brockenb. 20 ; Eichelberge* 
 V. Finley, 7 Harris & Johns. 381 ; Warder v. Tucker, 7 Mass. 452 ; Valk v. 
 Simmons; 4 Mason, .115; Cathell v. Goodwin, 1 Har. & Gill, 468 ; Hoffman y. 
 Smith, 1 Caines, 157 ; Savage v. Merle, 5 Pick. 88 ; Armstrong v. Gay, 1 
 Stewart, 175 ; DoUfus v. JFrosch, 1 Denio, 367 ; Foard v. Womack, 3 Ala- 
 bama, 868 ; Kinsley v. Robinson, 21 Pick. 337 ; Cook v. Martin, 5 Smedes'& 
 Marshall, 379 ; Spear v. Atkinson, 1 Iredell, 262 ; Rhett v. Poe, 2 Howard, U. 
 B. 457. In the matter of Brown, 2 Story, 502 ; Stewart v. Desha, U Ala- 
 feama, 844 ; YoUnge v. Ruflf, 3 Strobhart, 311 ; Richie v. McCoy, 13 Smedes 
 
OF NOTICE OF DISHONOUR. 451 
 
 *If the drawer of a bill make it payable at his own r*oq-i 
 house, this is evidence to go to the jury that it is a bill 
 drawn for the accommodation of the drawer himself, of the 
 dishonour of which it is not necessary to apprise him. "I 
 cannot understand," says Lord Tenterden, " why the drawer 
 should with his own hand make the bill payable at his own 
 
 & Marshall, 541. The drawer is entitled lo notice of the dishonor of a bill, 
 if he had reasonable gi-ound to believe it would be honored, though he had 
 no fuuds in the drawee's hands. Austin v. Rodman, 1 Hawks, 195 ; Slanton 
 V. iJlossoQi, 14 Mass. 116 ; French's Ex. v. Bank of Columbia, 4 Cranch, 
 141 ; Robinson v. Ames, 20 Johns. 146 ; Giosvenor v. Stone, 8 Piclt. 83 ; 
 Campbell v. Pettengill, 7 Greenleaf, 126 ; Hill v. Norris, 2 Stewart & Porter, 
 114. Though the drawer has no funds in the hands of the drawee and no 
 ground to expect the bill to be honoi'ed, yet the indorser is entitled to notice 
 in all cases, unless he has received funds from the drawer to take up the bill. 
 Scarborough v. Harris, 1 Bay, 178 ; Barton v. Baker, 1 Serg. & Rawle, 334; 
 Warder v. Tucker, 7 Mass. 452 ; Fotheringham v. Price's Ex., 1 Bay, 291 ; 
 Denniston v. Inibrie, 3 Wash. C. C. 401 ; RamduloUday v. Darieux, 4 Ibid. 
 61; Walker v. Walker, 3 English, 542. An indorser of a promissory note, 
 who before the note (alls due, takes an assignment of all the property and 
 estate of the maker, for the express purpose of meeting his responsibilities,'is 
 rot entitled to the usual notice of non-payment. Mechanics' Bank v. Gris- 
 wold, 7 Wend. 165 ; Barton v. Baker, 1 Serg. & Rawle, 334 ; Coddington v. 
 Davis, 3 Denio, 16, 610 ; Duvall v. Farmers' Bank, 9 Gill & Johns. 31. The 
 mere taking of security by an indorser from the maker of the note does not 
 dispense with a demand and notice, unless sufficient funds have come into his 
 hands to satisfy the note, or all I he property of the maker has been transfer- 
 red to the indorser. Spencer v. Harvey, 17 Wendell, 489 ; Marine Bank v. 
 Smith, 6 Shepl. 99 ; Cramer v. Perry, 17 Pick. 332 ; Woodman v. Eastman, 
 10 N. Hamp. 359 ; Durham v. Price, 5 Yerg. 300 ; Walkins v. Crouch, 5 
 Leigh, 522; Watt v. Mitchell, 6 Howard (Miss.) Rep. 181; Barrett v. 
 Charlestown Bank, 2 McMullan, 191 ; Kramer v. Sanford, 4 Watts & Serg. 
 328 1 Burrows v. Hannegan, 1 McLean, 309 ; Stephenson v. Primrose, 8 Por- 
 ter, l.^iS ; Kyle v. Green, 14 Ohio, 495 ; Denny v. Palmer, 5 Iredell, 610 ; 
 Dcveling v. Ferris, 18 Ohio, 170. The burden of proof is on the holder of a 
 bill, to show that the drawer hadno funds in the drawee's hands in order to 
 excuse want of notice. Baxter v. Graves, 3 Marshall, 152 ; Ralston v. Bnl- 
 lils, 3 Bibb, 261 ; Thompson v. Stewart, 3 Conn. 172. Where the indorser 
 has discharged the maker of a note from liability by a settlement and release, 
 a notice of non-payment would be of no use to him, and theretbre he is not 
 entitled to it. Burk v. McKay, 2 Howard U. S. Rep. 66. 
 
 See, also, Hawes v. Austin, 35 Illinois, 396 ; Lawrence v. Schmidt, Ibid. 440 ; 
 Oofflmercial Bank v. Barksdale, 36 Mo. 563 ; Merchants' Bank v. Basley, 44 
 Mo. 286 ; Mehlberg v. Fisher, 34 Wise. 607 ; Walker v. Rogers, 40 Illinois, 
 278 ; McRae v. Rhodes, 22 Ark. 315 ; Sullivan v. Deadman, 23 Ibid. 14. 
 
 An accommodation drawer is entitled to notice, even though he had no 
 funds in the hands of the drawee. Merchants' Bank v. Easley, 44 Missouri, 
 
452 OF NOTICE OP DIS HONOUR. 
 
 house, unless he was to provide payment of it when at matu- 
 rity."(e) 
 
 Ignorance of a party's residence will excuse neglect to give 
 notice of dishonour, so long as that ignorance continues with- 
 out neglecting to use the ordinary means for acquiring infor- 
 mation. " It would be very hard," observes Lord EUenborough, 
 "when the holder of a bill does not know where the indorser 
 is to be found, if he lost his remedy by not communicating 
 immediate notice of the dishonour of the bill, and I think the 
 law lays down no such rigid rule. The holder must not allow 
 himself to remain in a state of passive and contented ignorance : 
 but, if he uses reasonable diligence to discover the residence of 
 the indorser, I conceive that notice given as soon as this is 
 discovered, is due notice of the dishonour of the bill, within 
 the usage and custom of merchants."(/) Where the holder, 
 in order to discover the residence of the indorser, had merely 
 made inquires at a certain house where the bill was made 
 payable. Lord EUenborough said, "Ignorance of the indorsed 
 residence may excuse the want of due notice, but the party must 
 show that he has used reasonable diligence to find it out. Has 
 he done so here ? How should it be expected that the requisite 
 information should have been obtained where the bill was 
 
 («) Sharp V. Bailey, 9 B. & C. 44 (17 E. 0. L. E.) ; 4 M. & E. 4, S. .0. 
 
 Qvcere, whether notice of dishonour be necessary, where the drawer dies 
 
 ' before maturity, and an indorser is sued who is the drawer's executor. See 
 
 Caunt V. Thompson, 18 L. J., C. P. 127 ; 7 C. B. 400 (62 B. C. L. E.), S. C. 
 
 (/) Bateman v. Joseph, 2 Camp. 463 ; 12 East, 433, S. C. ; Browning 
 V. Kinnear, Gow, 81 ; Harrison v. Fitzhenry, 3 Esp. 240; Baldwin v. Rich- 
 ardson, 1 B. & C. 245 (8 E. C. L. E.) ; 2 J). & E. 285, S. C. In this last 
 case the traveller of a tradesman received in the couise of business a promis- 
 sory note, which was afterwards dishonoured. The principal not knowing 
 the address of the next preceding indorser, wrote to his traveller to inquire 
 into it, and several days elapsed before he received an answer. He then gave 
 notice, and it was held sufficient. See Chapcott v. Curlewis, 2 Mou. & Bob. 
 484. ^ 
 
 286. The drawer is entitled to notice of dishonor, when by the course o( 
 business between him and the drawee, he had a rjght to expect that the bill 
 would be paid, as well as where he had funds in the drawee's hands at the 
 .time of drawing. Louisiana StateBank v. Buhler, 22 La. Ann. 83 ; Dunbar 
 V. Tyler, 44 Mississippi, 1. Evidence that on presentation the drawer, said 
 that he bad no money to pay, will not be sufficient to excuse notice. Mehl- 
 ,berg V. Fisher, 24 Wise. 607. 
 
OF NOTICE OF DISHONOUR. 453 
 
 payable? Inquiries might have been made of the other per- 
 sons whose names appeared on the bill, and application raight 
 have been made to persons of the same name with the defend- 
 ant, whose addresses are set down in the *Directory."(^) r*oQQi 
 Due diligence has, however, been held to be a question 
 (if fact. (A) After the residence of the party is discovered, the 
 holder has the same time to give notice as he would have had 
 in the first instance.(j);l) 
 
 (j) Beveiidge v. Burgis, 3 Camp. 363. 
 
 {h) Bateman v. Josepli, 13 East, 433 ; 3 Camp. 463, S. C. ; Hilton v. Shep- 
 ll«rd, 6 East, 14, n. ; Siggers v. Browne, 1 M. & Rob. 580 ; Hewitt v. Thomp- 
 son, 1 M. & Bob. 543. In these two last cases, the letters containing notice 
 of dishonour had miscarried, and the jury were directed to consider whether 
 the generality or indistinctness of the description which the defendant had 
 given of himself in the bill, Jiad led the plaintiff into error. ^ 
 ' (i) Eirth V. Thrush, 8 B. & C. 387 (15 E. 0. L. R.) ; 3 M. & R. 359 ; Dans. 
 & L. 151, S. C. ; Allen v. Edmundson, 17 L. J., Exch. 391 ; 2 Exch. 719, 
 S. C. ; Dixon v. Johnson, 1 Jur., N. S, 70. * 
 
 (l) Where the holder of a bill of exchange after the exercise of due dill- 
 pence to ascertain the residence of the indorser, sends him a notice of the dis- 
 honor of thebill, and afterwards discovers that he was not rightly informed, 
 and ascertains the true residence, it is not necessary for him to send another 
 notice. Lambert v. Ghiselin, 9 Howard U. S. 553. 
 
 What is diligence? see Shepard v. Citizens' Ins. Co., 8 Missouri, 273; 
 Planters' Bank v. Bradford, 4 Humphrey, 3!); Brener v. Wightman, 7 Walts 
 & Serg. 364 ; Rhett v. Poe, 3 Howard U. S. 157 ; Carroll v. Upton, 3 Sandf. 
 Sup. Ct. Rep. 171 ; Rawdon v. Redfleld, Ibid. 178 ; Carroll v. Upton, 3 Com- 
 stock, 878 ; Lambert v. Ghiselin, 9 Howard, U. S. 552 ; Johnson v. Lewis, 1 
 Dana, 188 ; Davis v. Herrick, 6 Ham. 55 ; Bank of Columbia v. Lawrence, 1 
 Peters, 578 ; Van Hosen v. Van Alstyen, 3 Wend. 75 ; Sice v. Cunningham, 
 1 Cowen 397 ; Nash v. Harrington, 1 Aiken, 39 ; Bronaugh v. Scott, 5 Call, 
 78 ; Harris v. Robinson, 4 Howard U. S. Rep. 336 ; Godley v. Goodlove, « 
 Smedes & Marshall, 855 ; Pierce v. Pendar. 5 Mete. 353 ; Wheeler v. Field, 6 
 Mete. 290 ; Thorn v. Rice, 3 Shepl. 263 ; Spencer v. Bank, 3 Hill, 520 
 Winans v. Davis, 3 Harrison, 376 ; Hoopes v. Newman, 2 Smedes & Marsh. 
 71; Godley v. Goodloe, 6 Ibid. 255; Remer v. Downer, 23 'Wend. 630; 35 
 Ibid. 277; Belden v. Lamb, 17 Conn. 441 ; Haly v. Brown, 5 Barr, 178 ; Ash- 
 ley v. Gunton, 15 Arkansas, 415; Porter v. Judson, 1 Gray, 175; Moore v. 
 Hardcastle, 11 Maryland, 486; Newberry v. Trowbridge, 4 Michigan, 391 ; 
 Linderman v. Guldin, 10 Casey, 54; Boyd v. City Savings, 15 Grattan, 501 ; 
 Middleton Bank v. Morris, 38 Barbour, 616 ; Heiss v. Corcoran, 15 Louisiana 
 Annual, 094 ; Early v. Preston, 1 Patton & Heath, 328 ; Adams v. Leland, 5 
 Bosworth, 411; Brighton Bank v. Philbrick, 40 New Hampshire, 506; 
 Blodgelt y. Durgin, 33 Vermont, 361 ; Libby v. Adams, 32 Barbour, 543 ; 
 Davenport v. Gilbert, 4 Boswell, 532. The holder is presumed to know the 
 
454 OF NOTICE OF DISHONOUR. 
 
 Nemo ad impossible teneiur ; and, therefore, it should seem, 
 on general principles that the death or dangerous illness of the 
 holder or his agent, or other accident not attributable to the 
 holder's negligence, rendering notice impossible may excuse it.(/;) 
 But, where an indorser left home on account of the dangerous 
 illness of his wife, at a distance, and a letter containing notice of 
 dishonour of a bill lay unopened at his shop during his absence, 
 till after the proper time for giving his indorser notice, Lord 
 Ellenborough held, that these circumstances aftbrded no excuse 
 for the delay. (/)(1) 
 
 (Je) Potli. 144 ; Pardessns dn Conlratde Change, 436 ; Thompson, 483, 548. 
 (?) Turner v. Leech, Chit. 9th ed. 330. 
 
 residence of his immediate indorser, and is bound to inform the notary or 
 agent employed to give notice. Lawrence v. Miller, 16 New York, 235. Due 
 diligence of notary is not sufficient if the holder knew. Randall v. Smith, 34 
 Barbour, 452. It is the duty of the holder to inform the notary of the resi- 
 dence of the maker and indorser; and if unknown to the holder, he must 
 inquire of those whose names are on the bill as to the residence he does not 
 know ; and if there are none such on the note he must use due diligence to 
 ascertain it. Smith v. Fisher, 12 Harris, 223. What is due diligence in giving 
 notice is a question of law when the facts are admitted ; when the facts are 
 disputed, the court should give hypothetical instructions, leaving the facts to 
 the jury. Linville v. Welsh, 29 Missouri, 203 ; Wyman v. Adams, 13 Onsh- 
 ing, 310. See further as to what is due diligence both in making demand 
 and giving notice. Howland v. Adrain, 1 Vroom, 41 ; First National Bank v. 
 Needham, 29 Iowa, 249 ; National Bank of the Metropolis v. Williams, 46 
 Mo. 17 ; Boyd v. Orton, 16 Wise. 495 ; Palmer v. Whitney, 21 Indiana, 58; 
 Walker v. Stetson, 14 Ohio (N. S.), 89; Bartlett v. Isbell, 31 Conn. 396; 
 White V. Stoddard, 11 Gray, 258 ; West River Bank v. Taylor, 7 Bosworlh, 
 466 ; Ray v. Porter, 43 Ala. 337 ; Tyson v. Olion, 43 Ibid. 455 ; Alexander v. 
 Parsons, 3 Lansing, 333 ; Peters v. Hohlis, 2-') Ark. 67 ; Jamesv. Wade, 21 
 Louis. Ann. 548 ; Dunbar v. Tyler, 44 Miss. 1 ; Durden v. Smith, Ibid. 548<; 
 Earnest v. Taylor, 25 Texas (Suppl.), 37 ; Harper v. Kenner, 19 Louis. Ann. 
 63; Van Wickle v. Downing, Ibid. 83 ; Holtz v. Boppe. 37 N. York, 834; 
 Staylor v. Ball, 24 Md. 183 ; Garvie v. Downie, 33 Cal. 176 ; Bird v. HeiriS of 
 Doyal, 20 Louis. Ann. 541 ; Judsnn v. Goodwin, 37 Illinois, 386 ; Whitiidge 
 V. Rider, 23 Md. 548 ; Johnson v. Bank of North America, 5 Robertson, 554; 
 Peters v. Hobbs, 35 Ark. 76 ; Tate v. Sullivan, 30 Md. 464 ; Mitchell v. Young, 
 31 Louis. Ann. 279 ; Puig v. Carter, 20 Louis. Ann. 414 ; Jarvis v. Garnettj 
 39 Mo. 268. 
 
 Cessation of mails and commercial intercourse during the civil war, is a 
 sufficient excuse for want of notice. House v. Adams, 12 Wright, 261; Ap- 
 person v. Bynum, 5 Coldwell, 341 ; Morgan v. Bank otiQuisyille, 4 13usli, 
 83 ; Apperson v. Union Bank, 4 Coldwell, 445. 
 
 (1) A state of war between the country of the drawer and that of the drawee 
 
OF NOTICE OF DISHONOUR. 455 
 
 Where a bill is drawn by severar persons upon one of them- 
 selves, since the acceptor is likewise a drawer, notice of dis- 
 honour is superfluous, as the dishonour must be known to one 
 f of them, and the knowledge of one is the knowledge of all.(m)(l) 
 
 The death, bankruptcy or insolvency of the drawee, however 
 I notorious, constitute no excuse for neglect of notice.(n)(2) Nor 
 
 an agreement or understanding between the parties, that the 
 instrument shall not be payable till after a certain event (o) 
 
 i; *E'otice of dishonour need not be given if the bill be r^nqn-i 
 
 on an insufficient stamp.(p) -' 
 
 Nor to the indorser of a promissory note not negotiable.(g')(3) 
 
 (m) Porthouse v. Parker, 1 Camp. 83. I?ut in case of fraud a differeut rule 
 would prevail. Bignold v. "Waterhouse, 1 M. & Sel. 359. And it may be 
 doubtful how far this rule would hold in the case of a joint stock company. 
 
 (n) Russel v. Langstatfe, Doug. 497 ; Esdaile v. Sowerby, H East, 114 ; 
 Boultbee v. Stubbs. 18 Ves. 31 ; but see 3 Bro. C. C. 1. 
 
 (0) Free v. Hawkins, 8 Taunt. 92 (4 B. C. L. R.) ; Moore, 38, S. C. 
 (p) Cundy v. Marriott, 1 B. & Ad. 696 (20 E. C. L. R.). 
 
 (?) Plimley v. Westley, 3 BIng. N. C. 249 (29 E. a L. R.) ; 2 Scott, 423 ; 
 1 Hodges, 334, S. C. 
 
 will excuse notice, but it must be given within a.reasonable lime after peace. 
 Hopkirk v. Page, 3 Brock. 20. The blockade of a city is a sutficient excuse 
 for not sending notice. House v. Adams & Co., 12 Wright, 261. 
 
 (1) If the drawer be a partner of the firm on which the bill is drawn, the 
 holder need not prove notice to him of its dishonor. Gowan v. Jackson, 20 
 Johns. 176 ; see Dwight v. Scavil, 3 Conn. 654. Where copartners purchase 
 goods together and give a note therefor, with^ne of them as maker and the 
 other as indorser, the latter is not liable on his indorsement, unless he be duly 
 notified of the dishonor of the note. Foland v. Boyd, 11 Harris, 476 ; Morris 
 V. Hnsson, 4 Sandf. 93. " This is not like the case where a note has copart- 
 ners for the makers, and some of them for indorsers, and where of course the 
 knowledge of the dishonor by the makers is chargeable on them as indorsers." 
 Iiowrie, C. J. 
 
 (2) The insolvency and absconding of the drawee are no excuse for not 
 giving notice to the indorser. May v. Coffin, 4 Mass. 841 ; Barton v. Baker, 
 1 Serg. & Rawle. 334 ; Gibbs v. Cannon, 9 Serg. &, Rawle, 201 ; Hunt v. 
 Wadleigh, 13 Shepl. 371 ; and see McClellan v. Clark, 3 Brevard, 106 ; Kiddell 
 V. ford, 3 Ibid. 178 ; Lawrence v. Langley, 14 N". Hamp. 70. 
 
 (3) The indorsement of a note not negotiable is a collateral and not an 
 original undertaking. If by the payee he will be holden as indorser, but if by 
 a person not a party to the note, as guarantor, but in both cases demand an(? 
 
456 OF NOTICE OF DISHONOUR. 
 
 The consequence of neglect of notice will be waived by a 
 subsequent promise to pay. And a payment of part, or an ac- 
 knowledgment of liability ,(r) tbough after action brought,(s) 
 will be evidence of notice.(<) 
 
 It makes no difference that such promise, payment or ac- 
 knowledgment, were made under a misapprehension of the law, 
 for every man must be taken to know the law ;(m) otherwise, a 
 premium is held out to ignorance, and there is no telling to 
 what extent this excuse might be carried. (a;) But, if the 
 promise or acknowledgment be made under a misapprehension 
 of fact, as, if the bill have been presented for acceptance, and 
 acceptance have been refused, a promise, to pay, in ignoraneeof 
 that circumstance, is no waiver of the consequence of laches.{y) 
 
 (r) Vaughan v. Fuller, 3 Stra. 1346; Hoiford v. Wilson, 1 Tannt. 12; 
 Lundy v. Robertson, 7 East, 331 ; 3 Smith, 235, 8. C. ; Brett v. Levett, 13 
 East, 313 ; Wood v. Brown, 1 Stark. 317 (8 E. C. L. R.) ; Hopes v. Alder, 
 6 East, 16, n. ; Dennis v. Morrice, 3 Esp. 158; Rogers v. Stephehs, 3 T. R. 
 713 ; Dixon v. Elliott, 5 C. & P. 437 (34 E. C. L. R.) ; Margetson v. Aitken, 
 3 C. & P. 338 (14 E. C. L. R.> ; Dans. & L. 157, S. C. ; Lecaan v. Kirkman^ 
 6 Jur., N. S. 17. 
 
 (s) Hopley v. Dufresnp, 15 East, 375. 
 
 (0 Many of tbe cases, cited below, fail in drawing the proper distinction 
 between the effect of a promise, as a waiver of notice, and its effect as midencs 
 of notice. In Killby v. Rochussen, the Court held a subsequent promise to 
 be sufficient evidence of due^ notice, but would have amended if necessary by 
 adding an averment of waiver. 18 C. B. 357 (86 E. C. L. R.). 
 
 (u) Or, more correctly speajiing, ignorance of the law cannot excuse. 
 
 (x) Bilbie v. Lumley, 2 East, 469. 
 
 (y) Goodall v. DoUey; IT., R. 712; Blesard v. Hurst, 5 Burr. 2672; Wil- 
 liams V. Bartholomew, 1 B. & P. 326 ; Stevens v. Lynch, 2 Camp. 333 ; 12 
 East, 38, ,S. C. 
 
 notice is necessary to hold the indorser. Parker v. Riddle, 11 Ohio, 102. If 
 a note is indorsed, however long a time after it becomes due, the indorsee is 
 bound to prove a demand and notice in an action against the indorser. Berry 
 V. Robinson, 9 Johns. 131 1 Stackman v. Riley, 2 McCord, 398 ; Allwood v. 
 Haseldon, 3 Bailey, 457 ; Poole v. Jolleson, 1 McCord, 199 ; Rugeby v. Da- 
 vidson, 2 Rep. Con. Ct. 33 ; Dwight v. Emerson, 3 N.,Hamp. 159 ; Keenan v. 
 McRea, 3 Stewart & Porter, 249 ; Benton V. (3ibson, 1 Hill, S. C. 58 ; Greeley 
 V. Hunt, 8 Shepl. 455 ; Colt v. Barnard, 18 Pick, 360 ; Kirkpatrick v. McCuV 
 lough, 3 Humph. 171 ; Kennon v. McRea, 7 Porter, 175 ; Chadwick v. Jeifeis, 
 1 Richardson, 397 ; Bean v. Arnold, 4 Shepl. 251 ; Williams v. Probst,, 10 
 Watts, 111 ; Matthews v. Fogg, 1 Richardson, 369 ; Gray v. Bell, 2 Ibid. 67; 
 3 Ibid. 71 ; Sanborn v, Southard, 25 ilaine, 409 ; Branch Bant v. Gaffney, 9 
 Alabama, 153. 
 
OP NOTICE OF DISHONOUR. 45t 
 
 But a promise to pay will entirely dispense' with proof of pre- 
 sentment or Tiotice, and will throw on the defendant the double 
 burthen of proving laches, and that he was ignorant of it.(3) 
 Where it is only *as to part of the sum, the plaintiff rsonn-i 
 can only avail himself of it as a waiver pro tanto. A 
 drawer of a bill for 200^., who had not received due notice of 
 dishonour, said, " I do not mean to insist on want of notice, but 
 I am only bound to pay you 70/." Abbott, C. J. : " The defend- 
 ant does not say that he will pay the bill, but that he is only 
 bound to pay 70/. I think the plaintiff must be satisfied with 
 the 70/. "(a) The acknowledgment or promise may be made by 
 the attorney for the defendant, or by his clerk, who has the 
 management of the case.(6) It need not be made to the plaintiff, 
 but may be made to another party to the bill, or to a stranger.(e) 
 A promise to pay made by the drawer in expectation that a 
 bill will be dishonoured, but before it is dishonoured, does not 
 dispense with notice ; for it is to be understood as a promise on 
 condition that due notice is giveu.((£) 
 
 It seems, however, in some recent cases to have been con- 
 sidered, that a promise to pay is only evidence from which a 
 jury may presume that a notice has been received. (e) But that 
 
 (s) Taylor V. Jones, 2 Camp. 105 ; Stevens v. Lynch, 13 East, 38; 2 Camp. 
 332, S. C. See instances of promises held insufficient in Dennis v. Morrice, 
 3 Esp. 158 ; Curaming v. French, 3 Camp. 106, n. ; and see Rouse v. Red- 
 wood, 1 Esp. 156 ; Standage v. Creighton, 5 C. & P. 406 (34 E. C. L. R.) ; 
 and Barradaile v. Lowe, 4 Taunt. 93, wliere it is said that an indorser can 
 only be rendered liable by an express promise ; and see Pickin v. Graham, 
 1 Cro. & Mee. 725 ; 3 Tyr. 923, S. 0. 
 
 (a) Fletcher v. Froggatt, 2 C. & P. 569 (IS.E. C. L. R.V 
 
 (S) Standage v. Creighton, 5 C. & P. 406 (34 E. C. L. R). 
 
 (c) Potter V. Rayworth, 13 East, 417 ; Gunson v. Metz, 1 B. & C. 193 (8 
 E. C. L. R.) ; 3 D. & Ry. 334, S. C. ; Fletcher v. Froggatt, 2 C. & P. 569 
 (12 E. C. L. R.). In Rabey v. Gilbert it was held that suffering judgment 
 liy default in an action at the suit of a second indorsee was evidence of notice 
 or of a wiiiver of notice in an action by the first indorsee. Rabey v. Gilbert, 
 30 L. .1., Exch. 171 ; 6 H. & N. 536, S. C. 
 
 («) PicUin V. Graham, 1 C. & M. 725 ; 3 Tyr. 923, S. C. ; and see Prideaux 
 V. Collier, 2 Stark, N. P. C. 57 (3 E. C. L. R.) ; and Baker v. Birch, 3 Camp. 
 107. 
 
 (e) Hicks v. The Duke of Beaufort, 4 Bing. N. C. 229 (33 E. C. L. R.) ; 
 5.Scotf, 598, S. C. ; and see Booth v. Jacobs, 3 Nev. & M. 351 ; Pickin v. 
 Graham, 1 tro. & Mee. 728 ; 3 Tyr. 923, S. C. ; but see Lundie v. Robertson, 
 7 East, 331 ; 3 Smith, 235, S. C. ; Haddock v. Bury, 7 East, 236, n. ; Anson 
 T. Bayley, B. N. P. 376 ; Hopley v. Dufresne, 15 East, 375 ; Norris v. 
 
458 OF NOTICE OP DISHONOUR. 
 
 is not so. A promise to pay, if made before the time forgivinir 
 notice has expired, is a dispensation ; if made after that time it 
 is a waiver, independently of any question of actual noticei( /)(1) 
 
 Solomonson, 4 Scott, 257 ; where the defendant said he had no intention but 
 to pay the bill, and should not avail himself of the informality of the notice, 
 held evidence to go to the jury of notice. Bronwell v. Bonncy, 1 Q. B. 39 
 (41 B. C. L. R.). 
 
 (/) Cordery v. Colville, 33 L. J., C. P. 311 ; 14 C. B., N. S. 374 (108 E. 
 C. L. R.), S. C. ; Woods v. Dean, 33 L. J., Q. B. 1 ; 3 Best & Smith, 101 
 (113 E. C. L. R.), a C. ; Killby v. Roclmsson, 18 C. B. 357 (86 B. C. L.R.). 
 
 (1) When it appears that the holder of negotiable paper has been guilty of 
 laches in an action against an indorser or drawer, the holder cannot recover 
 on a subsequent promise without showing tliat it was made with full knowl- 
 edge of the laches ; but where tlie fact of laches does not appear, a, promise 
 after maturity to pay the bill is presumptive proof of demand and notice. 
 Tebbets v. Dowd, 23 Wendell, 369. A promise made by the drawer to the 
 payee to pay the same, after a legal discliaige by want of notice of its dis- 
 honor, is,* if made with a full knowledge of the facts, biuding upon him. 
 Cram v. Sherburne, 3 Shepl. 48 ; Walker v. Walker, 3 Bnglish, 543 ; Hopkins 
 V. Liswell, 13 Mass. 53 ; Martin v. Ingersoll, 8 Pick. 1 ; Beck v. Thompson, 
 
 4 Har. & Johns. 531 ; Ladd v. Kenney, 3 N. Hamp. 340 ; Thornton v. Wynn, 
 12 Wheat. 183; Bobbins v. Pinckhard, 5 Smedes & Marsli. 51 ; Moore v. 
 Tucker, 3 Iredell, 347 ; Gardiner v. Jones, 3 Murp. 439 ; Barkalow v. John- 
 son, 1 Harrison, 397 ; Farrington v. Brown, 7 N. Hamp. 371 ; Davis v. Gowen, 
 
 5 Shepl. 387 ; Baltin v. Betcke, 11 Iowa, 304 ; Porter v. Hadenpuyl^ 9 Miclii- 
 pan, 11 ; Tabey v. Berly, 36 Illinois, 436 ; Campbell v. Varney, 12 Iowa, 43 ; 
 Blodgett v. Durgin, 33 Vermont, 361 ; Loose v. Loose, 12 Casey, 538; Golla^ 
 day V. Bank, 2 Head. 57 ; Landrum v. Trowbridge, 2 Metcalfe (Ky.), 281 ; 
 Edwards v. Tandy, 36 New Hampshire, 540 ; Sigerson v. Matthews, 2 How- 
 ard (S. C), 496. Admission by indorser that he had received notice and 
 would have to pay is sufficient. Long v. Crawford, 18 Maryland 230. A 
 part payment, a promise to psiy, or an acknowledgment of liability, by the 
 indorser of a promissory note, after the note becomes due, is prima facie evi- 
 dence not only of notice but of presentment. Bank of the U. S. v. Lyman, 
 20 Vermont, 668; Bibb v. Peyton, 11 Smedes & Marshall, 275; Ridgwayv. 
 Day, 13 Penna. St. Rep. 208. Apart payment of a note by the indorser, not 
 explained or qualified by any accompanying circumstances, will he held suffi- 
 cient evidence of waiver of notice. But where the payment is made with.the 
 money of tlie maker and by liis request, the indorser acts as mere agent of the 
 maker, and ihe transaction is so qualified and explained as to preclude all idea 
 of an actual or intended waiver on the part of the indorser. Whitaker y.< 
 Morrison, 1 Brandt, §5. 
 
 A promise in ignofj^pce of the fact that no notice has been given will not be 
 sufl3(iient. Crain v. GQlwell, 8 Johns. 384 ; Jones v. Savage, 6 W*ncle". 658; 
 Offlt v. Vick, WaHtel-^ si? ; Miller v. Hadley, Anthon, 68 ; Fleming v. McClure, 
 1 Brevard, 438 ; Hunt v, Wadleigh, 13 Shepl. 271 ; Warder v. Tucjser, 7 Muss. 
 
OF NOTICE OF DISHONOUR. 459 
 
 Though a party may waive the consequence of laches, in 
 
 449 ; freeman v. Boynton, III. 483 ; Garland v.. Salem Bank, 9 lb. 408 ; May 
 T. Coffin, 4 lb. 341 ; Otis v. Hussey, 3 N. Pamp. 346 ; Trimble v. Thorn, 16 
 Johns. 153 ; Kennon v. McRea, 7 Porter, 175 ; U. S. Bank v. Southard, 3 
 Harrison, 473 ; Spurlock v. Union Bank, 4 Humph. 336. Whether particular 
 conversations amount to a waiver of notice of refusal to accept, is a question 
 for the jury. Oarmichael v. Pennsylvania Bank, 4 Howard Miss. 567. If 
 tlie indorser, after the maturity of the bill, even supposing himself liable to 
 pay the same, takes security from the maker, this will not amount to a waiver 
 of the objection of want of due presentment or notice ; but the indorser will be 
 deemed to have taken the security merely contigeiitly in case of his ultimate 
 liability. The Otsego County Bank v. Warren, 18 Barbour, S. C. Rep. 290. 
 An agreement by the drawer and indorser with the holder before the bill is 
 due, that the holder should take any security that the acceptor could give, or 
 make any arrangement he might deem proper to receive payment, without af- 
 fecting their liabilities, was held not to dispense with demand and notice. Bank 
 T. Spell, 2 Hill, 366 ; Carter v. Burley, 8 N. Hamp. 558 ; Creamer v. Perry, 
 17 Pick. 333. A declaration by an indorser to a third person that he would 
 pay the note without suit is no waiver of demand and notice. Allwood v. 
 Haseldon, 2 Bailey, 457 ; see Robbing v. Pinchhard, 5 Smedes & Marshall, 51. 
 A waiver of notice of a demand does not dispense with the demand itself. 
 Backus V. Shiphard, 11 Wend. 629 ; Buchanan v. Marshall, 22 Vermont, 561 ; 
 Drinkwater v. Tibbits, 5 Shepl. 16. A waiver of protest held to be a waiver of 
 demand and notice. Coddington v. Davis, 1 Comstock, 186 ; see Wall v. 
 Bay, 1 Louisiana Ann. Rep. 312 ; Scott v. Greer, 10 Barr, 103. A waiver of 
 protest by an indorser is not a waiver of notice. Ball v. Greaud, 14 Louisi- 
 ana Annual, 305. See on the subject of waiver of demand and notice, Rus- 
 sell V. Cronkhite, 32 Barbour, 282 ; Power v. Mitchell, 7 Wisconsin, 161 ; 
 Edwards v. Tandy, 36 New Hampshire, 540 ; Amoskeag Bank v. Moore, 37 
 Ibid. 539 ; Byram v. Huntei', 36 Maine, 217. The clearest evidence is neces- 
 sary to show a waiver of demand and notice. Oswego Bank v. Knower, Hill 
 & Denio, 122. 
 
 Part payment by one joint indorser with a full knowledge of all the facts is 
 a waiver of the want of due notice, the other being notified. Sherer v. Eastern 
 Bank, 9 Casey, 134. By indorsing the note "A. C. accountable," defendant 
 waived demand and notice. Fnrbear v. Caverly, 42 New Hampshire, 74. An 
 indorser, over whose name is written "without demand or notice," is holden 
 as an original promisor. Lowell v. Gage, 38 Maine, 35. The indorser of a 
 note does not waive demand and notice by taking a mortgage to secure his 
 liability. Seacord v. Miller, 3 Kernan, 55. After the indorser has been 
 fixed by demand, protest and notice, mere forbearance of the holder to bring 
 his action will not discharge an indorser. Ashley y. Gunton, 15 Arkansas, 
 415. When an indorser of a note took wrons;ful possession of the. note, he 
 was held not entitled to notice. Havens v. Talbott, U Indiana,, 323. 
 
 Waiver or promise by indorser after discljarge, witb full knowledge of the 
 facts. Butler v. Muri^on, 18 Lo«(s. Ann. 363 ; Blazelton v. Colburn, 1 Rob- 
 ertson, 34') ; Gawtry v. Doane, 48 Barb. 148 ; Baa^erville v. Harris, 41 Miss. 
 535 ; Van Wickle v. Dawning, 19 Louis. Ann. 83 ; Fwd v. Dallam, 8 Cold- 
 
460 OF NOTICE OF DISHONOUR. 
 
 r**?fln *''6sp^^t "^ himself, he cannot do so in respect' of ante- 
 cedent parties,(^)(l) 
 
 No laches can be imputed to the Crown, and, therefore, if a 
 bill be seized under an extent before it is due, the neglect of 
 the officer of the Crown to give notice of the dishonour will 
 not discharge the drawer or indorser.(A) 
 
 A prior dispensation with notice, as absence of effects, mast 
 be specially alleged in the declaration.(i) So must the impossi- 
 bility of giving notice, or any other excuse for not giving '\t.{k) 
 And a subsequent promise when used as a waiver of notice, 
 
 (g) Eoscow V. Hardy, 13 East, 434; Turner v. Leach, 4 B. & Aid. 451 (6 
 E. C. L. R.) ; Marsh v. Maxwell, 3 Camp. 210, n. ; and see ante, p. 216. 
 
 (h) West on Extents, 28-9. 
 
 (0 Cory V. Scott, 3 B. & Aid. 624 (5 E. C. L. R.) ; Burgh v. Legge, 5M. 
 & W. 418. 
 
 (k) Allen v. Edmundson, 17 L. J., Exch. 291 ; 2 Exch. 719, S. C. 
 
 ■well, 67 ; Walker v. Rogers, 40 Illinois, 378 ; Blum v. Bidwell, 20 Louis. 
 Ann. 43 ; Hazard v. White, 86 ArU. 155 ; James v. Wade, 21 Louis. Ann. 
 548; Cheshire v. Taylor, 29 Iowa, 492 ; Matthews v. Allen, 82 Miiss. 594; 
 Salisbury v. Renick, 44 Mo. 554 ; Stone v. Smith, 30 Texivs, 138 ; Harrison v. 
 Bailey, 99 Mass. 620 ; Lewis v. Brelime, 33 Md. 413 ; Hughes v. Bowen, 15 
 Iowa, 446 ; Keyes v. Fenstermaker, 24 Cal. 339 ; Arnold v. Dresser, 8 Allen, 
 436 ; Croghliin v. Dinsmore, 9 Bosworth, 453 ; Morgan v. Peet, 33 Illinois, 281. 
 (1) As to what will be a waiver of demand and notice, see Fisher v. Price, 
 37 Ala. 407. Jaccard v. Anderson, 37 Mo. 91 ; Airey v. Pearson, Ibid. 424; 
 Sheldon v. Horton, 43 N. York, 93; Carpenter v. Reynolds, 42 Miss. 807: 
 Harness v. Diivis County Saving Association, 46 Mo. 357; Kewberry v. 
 Trowbridge, 13 Mich. 263 ; Sheldon v. Chapman, 31 N. York, 644 ; Neal v. 
 Wood, 23 Indiana, 523 ; Buckley v. Bentley, 43 Barb. 646 ; Haskell v. Board- 
 man, 8 Allen, 38 ; Johnson v. Crane, 16 'N. Hamp. 68; Hibbard v. Russell, 
 Ibid. 410; Gordon y. Montgomery, 19 Indiana^ 110; Moses v. Ela, 43 N. 
 Hamp. 557 ; Wilson v. Senier, 14 Wise. 380 ; Bryant v. Merchants' Bank, 8 
 Bush, 39 ; Yeager v. Farwell, 13 Wallace (S. C), 6 ; Tucker Co. v. Fair- 
 banks, 98 Mass. 101; Guyther v. Bourg, 20 Louis. Ann. 157; Brandt v. 
 Mickle, 28 Md. 436 ; Porter v. Kemball, 53 Barb. 467 ; Sheldon v. Horton, 
 53 Barb; 23; Lowry v. Steele, 27 Indiana, 168; Swan v. Hodges, 3 Head, 
 251 ; Keyes v. Winter, 54 Maine, 399 ; Staylor v. Ball, U Md. 183 ; Veasie v. 
 Howland, 53 Maine, 38 ; Whitridge v. Rider, 23 Md. 548 ; Braim v. Spalding, 
 3 P. F. Smith, 347 ; Wilkins v. Gillis, 30 Louis. Ann. 538 ; Wetberall v. 
 Garrett, 38 Md. 450. 
 
OF NOTICE OF DISHONOUR. 461 
 
 must also be specially pleaded.(^) But a subsequent promise 
 to pay, when used as evidence of the fact of notice, need not.(m) 
 
 After the bill is due, a promise to pay, or a part payment,(«) 
 or the offer of it,(o) or any admission of liability ,(p) whether 
 before or after the period for giving notice has expired, is 
 prima facie evidence of notice ; but though there be no evidence 
 to repel the inference, the jury are not bound to draw it.{q) A 
 letter from the defendant, containing no promise of payment, 
 but .merely an ambiguous allusion to the bill being dishonoured, 
 was held sufficient to warrant the jury in finding that the de- 
 fendant had received due notice of dishonour.(r) And the 
 sending a person by the defendant, the drawer, to a remote in- 
 dorsee two days after the bill had become due, to inform him 
 that he, the drawer, had been defrauded of the bill, and that 
 he should defend any action upon it, was left by Lord Tenter- 
 den to the jury as evidence to prove notice of di8honour.(5) 
 And *a statement by the defendant that he should pay 
 the bill, and not avail himself of the informality of the ^ J 
 notice, has been held to be evidence of due notice.(i) And a 
 conditional promise to pay, although the condition be not com- 
 plied with, is still evidence.(M) 
 
 Notice to produce a notice of dishonour is not uece8sary.(a;) 
 
 (I) Cordery v. Colville, ubi sup. 
 t (m) Lundie V. Robertson, 7 East, 231 ; Gibbon v. Coggon, 3 Camp. 188. 
 See post, Chapter on Pleading. 
 
 (») Horford v. Wilson, 1 Taunt. 12. 
 
 (o) Dixon V. Elliott, 5 C. & P. 437 (24 E. C. L. R.). 
 
 (p) Jackson V. Col.lins, 17 L. J., Q. B. 142 ; Mills v. Gibson, 16 L. J., C. 
 P. 249 ; Rabey v. Gilbert, 6 H. & N. 586. 
 
 (S) Bell v. Prankis, 11 L. J., C. P. 300 ; 4 M. & G. 446 (43 E. C. L. R.), 
 S. 0. 
 
 (r) Booth V. Jacobs, 3 Nev. & M. 351 (38 E. C. L. R.). 
 
 (s) Wilkins v, Jadis, 1 Moo. & R. 41 ; and see Curlewis v. Corfield, 1 Q. 
 B. 814 (41 E. C. L. R.). 
 
 (() Bronwell v. Boimey, 1 Q. B. 39 (41 E. C. L. R.). 
 
 (tt) Ciimpbell v! Webster, 15 L. J., C. P. 4 ; 2 C. B. 258 (53 B. C. L. R.), 
 B. 0. ; but see Pickin v. Graham, 1 C. & M, 735 ; 3 Tyr. 933, 8. C. 
 
 (x) Swain v. Lewis, 3 C, M. & R. 201. See Doe v. Somerton, 14 L. J., 
 Q. B.»210. 
 
462 
 
 OF INTEREST. 
 
 [*303] 
 
 ♦CHAPTER XXIII. 
 
 OF INTEREST. 
 
 THE NATURE OF INTEREST, . 303 
 
 FROM WHAT TIME IT RUNS WHEN 
 PAYABLE BY THE TERMS OF 
 THE INSTRUMENT, . . . 304 
 
 FROM WHAT TIME IT RUNS WHEN 
 NOT MADE PAYABLE BY THE 
 TERMS OF THE INSTRUMENT, . 304 
 
 FROM WHAT TIME IT RUNS AS 
 
 AGAINST AN INDORSEE, . . 305 
 
 TO WHAT PERIOD IT IS COMPU- 
 TED, 305 
 
 WHEN MONEY IS PAID INTO 
 
 COURT, 305 
 
 IN TROVER, 306 
 
 AFTER A TENDER, . . . 306 
 
 HOW BANKERS SHOULD CHARGE 
 
 IT ON CHECKS, . . . 306 
 
 RECOVERY OF INTEREST AFTER 
 
 RECEIPT OF THE PKIKCIPAL, . 306 
 
 WHEN INTEREST IS NOT RECOV- 
 ERABLE, 306 
 
 WHEN AN ENGAGEMENT TO GIVE 
 A BILL WILL CREATE A LIA- 
 BILITY TO INTEREST, . . 306 
 
 LIABILITY OF A GUARANTEEING 
 
 PARTY TO INTEREST, . . 806 
 
 HOW INTEREST IS RECOVERED, . 306 
 
 THE RATE OF INTEREST, . . 307 
 
 INDEBITATUS COUNT, . . . 307 
 
 USURY, 307 
 
 AT COMMON LAW, . . .308 
 
 STATUTES AGAINST IT, . . 308 
 
 THEIR CONSTRUCTION, . . 308 
 
 SUBSTANCE OF ENACTMENTS, . 308 
 THERE MUST BE A LOAN, . . 309 
 
 USURY ON DISCOUNTS, . . 310 
 
 USURIOUS SECURITY FOR GOOD 
 
 DEBT, 310 
 
 WHERE THE CHARGE IS NOT FOR 
 THE LOAN BUT FOR THE LA- 
 BOUR, 311 
 
 THERE MUST BE A CORRUPT IN- 
 TENTION, 312 
 
 HAZARD OF THE PRINCIPAL 
 
 MONEY, 313 
 
 ADVANCE OF GOODS, . . .313 
 
 IRISH, COLONIAL OR FOREIGN 
 
 INTEREST,. .... 314' 
 
 SUBSTITUTED SECURITY, . .314 
 
 SEPARATE INSTRUMENTS, . . 315 
 
 INNOCENT INDORSEE, . . . 315 
 
 STATUTES EXEMPTING CERTAIN 
 BILLS AND NOTES FROM THE 
 USURY LAWS, . . . .315 
 
 TOTAL REPEAL OF THE USURY 
 
 LAWS, 311' 
 
 PLEADING, SIT 
 
 Interest, where not made payable on the face of the iustru- 
 ment,(a) is in the nature of damages for the retention of the 
 principal debt.(l) 
 
 (a). But if interest be payable by the terms of the instrument, it is recovera- 
 ble, not as damages but as a debt. Watkins v. Morgan.O C. & P. 661 (25 E. 
 C. L. R.) ; Hudson v. Fossett, 13 L. J., C. P. 141 ; 7 M. & 6. 348 (49 E. 0. 
 L. R.), S. C. So if there be a collateral agreement to pay a particular rate 
 of interest. Florence v. Jennings, a6 L. J. 375 ; 1 C. B., N. S. 584 (87 E. C. 
 L. R.), S. C. As to payment of principal, in full of both principal and iuterest, 
 sue ante, p. 338. 
 
 ' (1) The suspension of intercourse consequent upon civil war does not pie- 
 vent interest from accruing. Shortrige v. Macon, 1 Phillips (Law), 893. 
 
OF INTEREST. 463 
 
 The general rule of the common law is, that interest is 
 *not recoverable unless there were an express stipula- 
 tion(6) that interest should be paid, or unless such he '■ -' 
 the usage of trade. Bills and notes by the usage of trade, 
 carry interest from the time of maturity; but a jury are not 
 bound, unless they see fit, to give more than nominal interest, 
 or, indeed any interest at all.(c) 
 
 And now, by the recent statute for the amendment of the 
 law,(<i) interest is recoverable on all debts payable by virtue of 
 a written instrument, at a time certain, and all ^other debts 
 after a written demand, and notice that interest will be claimed 
 from the date of the demand ; but it is discretionary with the 
 jury to give or withhold it. 
 
 Interest is seldom expressly made payable on the face of the 
 instrument, but sometimes it is so. 
 
 Where interest is expressly made payable on the face of the 
 instrument, it carries interest I'rom its date, and not merely 
 from its maturity. For unless the words "bearing interest," 
 or other words of similar import, are taken to mean that in- 
 terest is payable from the date of the instrument, they would 
 be idle, since without any such words the'owner of the bill or 
 note would be entitled to interest from its maturity. Thus it 
 has been held, that on a bill drawn payable at a certain period 
 after dsite bearing interest, the plaintiff is entitled to recover in- 
 terest from the date of the bill.(<!) So where a note was made 
 payable on demand with lawful interest, it was held to carry 
 interest from the date.(y) So a promissory note, whereby the 
 
 (6) If, at the lime of a contract of sale, the vendee agrees to p^y by hill 
 or note, and neglects to do so, interest is recoverable as part of the price. 
 Marshall v. Poole, 13 East, 98 ; Davis v. Smyth, 8 M. & W. 399. 
 
 (f) Kcenev. Keene, 27 L. J., C. P. 88 ; 3 C. B., N. S. 144 (91 E. C. L. 
 R.)i S. C. See Cameron v. Smith, 3 B. & Aid. 305 ; 5 Taunt. 636 (1 B. C. 
 L k); In re Burgess, 3 Moore, 745 (4 B. C. L. R.) ; Ex parte Williams, 
 1 Rose, 399 ; Ex parte Cocks, Ibid. 317 ; Lowndes v. Collins, 17 Vesey, 87 ; 
 Lilhgnw v. Lyan, 1 Coop. C. C. 39. See post, p. 306. 
 , (d) 3 & 4 Will. 4, c. 42, ss. 28, 39. See Taylor v. Stott, 34 L. J., Exch. 1. 
 
 (e) Kennerly v. Nash, 1 Stark, 453 (2 E. C. L. R.) ; Doman v. Dibden, 
 1 R. & M. 381 (21 B. C. L. R.) ; Richards v. Richards, 2 B. & Ad. 447 (23 
 E. C. L. R.). 
 
 (/) Weston V. Tomlinson, Chilly, 9th ed. 681 ; Hopper v. Richmond, 
 1 Stark. 507 (1 B. C. L. E.). 
 
464 OF INTEREST. 
 
 maker promised to pay, one year after his death, 300?. with 
 legal interest, bears interest from the date of the note.(g)[l) 
 
 Where interest is not expressly made payable by the terms 
 of the instrument, it runs from the maturity of the *bill 
 L -I or note. If the bill or note, not expressly made paya- 
 ble with interest, be payable on demand, interest runs, not 
 from the date of the instrument, but from the time of the de- 
 mand.(/i)(2) 
 
 Where there has been no demand except the action, interest 
 may be given from the service of the writ of summons.(j) , ,, 
 
 The indorser of a bill or note has been held liable to pay interest 
 only from the time that he receives notice of the dishonour. 
 "The drawer cannot,". says Mansfield, C. J., " find out by in- 
 spiration who is the holder, and till he finds that out he cannot 
 pay the bill. When he has found out who is the bolder, he is 
 
 (g) Roffey v. Greenwell, 10 Ad. & E. 232 (37 E. C. L. R) ; 3 Per & Dav. 
 365, S. C. 
 
 (A) Blaney v. Hendricks, 3 Bla. 761 ; Cotton v. Horsemanden, Prar. Reg. 
 357; and see Barough v. While, 4 B. & C. 327 (10 E. C. L. B.) ; 6 D. & Ey. 
 379 ; 2 C. & P. 8 (13 E. C. L. R.), S. C. ; Parker v. Hntohinson, 3 Vea. 134; 
 King V. Taylor, 5 Ves. 808 ; Litligow v. Lyan, 1 Coop. 39 ; Lowndes v. Col- 
 lins, 17 Ves. 27. 
 
 (j) Pierce v. Fotliergill, 3 Bing. N. C. 167 (39 B. C. L. R.) ; 2 Scott, 334^ 
 S, C. 
 
 (1) Tlie interest on a note payable with annual interest on the happening of 
 a certain event, should be computed from the dale of the note. Washbandv. 
 Wasliband, 24 Conn. 500. The words payable "with interest from day," are 
 an equivalent to " from date." Harrell v. Duirance, 9 Florida, 490. A prom- 
 issory note, made payable at a certain time after date, with interest from 
 date at the rate of ten per cent, per annum, draws interest at said rate after 
 maturity, and until paid. Hand v. Armstrong, 18 Iowa, 334 ; Thompson v. 
 Picfcel, 20 Ibid. 49,0. If a note is given payable by instalments, "with inter- 
 terest on the said sum," no interest is due upon the last instalment until it 
 Jjecomesdue. Saunders v. McCarthy, 8 Allen, 42. A promissory note, paya- 
 ble in three years, " with interest thereon till paid," bears interest from its 
 jJate. Pitiman v. Barirett, 34 Mo. 84. 
 
 (2) Patrick v. Clay, 4 Bibb. 246 ; Schmidt v. Limehouse, 2 Bailey, 276 ; 
 see PuUen v. Chase, 4 Pike, 210. A note on demand ' ' with interest till paid," 
 bears interest from the day of its execution. Pate v. Gray, 1 Hempstead, 
 155. A note payable at a given time to bear interest if not paid when due, 
 bears that interest only from maturity. Horn v. Nash, 1 Clarke, 204. 
 
OF INTEREST. 465 
 
 bound to pay the bill within a reasonable time. If he does not 
 he is liable to damages for. not performing his contract : those 
 damages are the interest on the bill."(^')(l) 
 
 'f Interest was formerly computed only to the commencement 
 of the suit, but it is now carried down to final judgment. 
 "That," says Lord Mansfield, "does the plaintiff complete 
 justice. It is .agreeable to the principles of the common law, 
 and interferes with no statute. It takes from the defendant 
 the temptations to make use of all the unjust dilatories of 
 chicane. B^or, if interest is to stop at the commencement of a 
 Buit, where the sum is large, the defendant may gain by pro- 
 tracting the cause in the most expensive and vexatious man- 
 ner, and the more the plaintiff" is injured, the less he will be 
 relieved."(/c) -^ 
 
 Where money is paid into court on a security carrying 
 interest, interest must be paid, not merely to the commence- 
 ment of the action, but to the time of payment into court,(^) 
 or the plaintiff may proceed in the action for the dift'erence.(m) 
 
 *But in trover the rule formerly was that the plain- r*Q(^(»-| 
 tiff is entitled to damages equal to the value of the 
 article converted at the time of the conversion. And, therefore, 
 iu trover for bills or notes, interest was only calculated down 
 to the time of conversion. But now by the 3 & 4 Will. 4, c. 42, 
 the jury may give damages over and above the value ot the 
 goods at the time of the conversion. 
 
 (i) Walker v. Barnes, 5 Taunt. 240 (1 B. C. L. R.) ; 1 Marsh. 36, S. C. 
 
 ■It is held in America that it is error to calculate ititertst on the damages 
 allowed in a protested bill of exchange from the maturity of the hill. See 5th 
 American edition of Byles on Bills, p. 457. 
 
 (4) Robinson V. Bland, 3 Burr. 1077. 
 
 (0 Mercer v. Jones, 3 Camp. 477. 
 
 ()») Kidd V. Walker, 3 B. & Ad. 705 (33 E. C. L. R.). 
 
 (1) It is error to calculate interest on the damages allowed in a protested 
 bill of exchange from the maturity of the bill. Rowland v. Hoover, 3 Howard 
 (Miss.), 769 ; Murphy v. Andrews, 1-3 Alabama, 733. 
 
 30 
 
466 OF INTEREST. 
 
 Interest cfeases to run after a tender. Lord Ellenborouglh' : 
 " I think interest ought to stop from the offer to pay."(n)(l) 
 
 A banker, in charging interest to a customer who has over- 
 drawn his account, should compute it, not from the date, .but 
 from the payment of the customer's checks.(o) 
 
 Though the principal have been paid, jet the plaintiff may 
 proceed for interest, unless it have been incurred by the negli- 
 gence of the plaintiff.( p) So where for the amount of the prin- 
 cipal on an overdue bill another bill was given, and afterwards 
 paid, it was held that an-action lay on the original bill for th<e 
 interest.(g') 
 
 We have already observed, that where interest is not pstyablp 
 by the terms of the instrument, it is in the nature of damages. 
 Hence it has been held, that the owner of a bill is not neces- 
 sarily and invariably entitled to interest, but tha.t a jury are 
 justified in reducing or withholding it altogether.(r) 
 
 ■/}:■ 
 
 An engagemerit'to give a bill will create a liability to interest 
 on a contract, which would not otherwise carry it. Thus, 
 where goods are sold to be paid for by a bill which is not given, 
 interest is recoverable as part Of the price of the goods, and it 
 has been held, that this itlterdst may be recovered in an action 
 for goods sbld and delivered.(5) 
 
 A, party who guarantees the due payment of a bill is liable 
 for interest. (<) 
 
 (ra) Dent v. Dunn, 3 Camp. 296. 
 
 (0) Qoodbody v. Foster, Camb. Sum. Ass. 1831, Lyndhiurst, C. B. ■ 
 
 (p) Lalng V. Stone, M. & M. 229 n. (22 E. 0. L. B.) ; 2 M. & By. 561, 
 8. C. 
 
 (?) Lumley v. Musgrave, 4 Bing. N. C. 9 (33 E. C. L. E.) ; 5 Scott, 230, 
 S. C. ; but see the Chapter on Payment, p. 228. 
 
 (r) Cameron v. Smith, 2 B. & Aid. 308 ; Du Belloix v . Lord Waterpark, 1 
 D. & R. 16 (16 B. C. L. R.) ; and see Dent v. Dunn, 3 Camp. 296. 
 
 (s) Marshall v. Poole, 13 East, 98 ; Parr v. Ward, 3 M. & W. 26 ; 6 Dowl. 
 163, S. C. 
 
 (<) Ackerman v. Ehrensperger, 16 M. & "W. 99. 
 
 (1) No presumption of law that interest has been paid up to date of receipt, 
 for one year's interest. Flint v. Flint, 6 Allen, 34. 
 
OF INTEREST. 467 
 
 Where the action goes on to trial, the jury assess the interest, 
 the plaintiff's coiinsel usually stating the sura which *ip r*S071 
 claimed. Where judgment goes fey default in debt, the 
 plaintiff indorses on the writ of ejcecution more than the exact 
 sum due at his peril. In actions of assumpsit the courts hay,e 
 .themwer of assessing the damages, but in order to iuforn(i the 
 eonscience of the courts they . usually issue a wi'it of inquiry. 
 In actions on bills and notes, however, the amount of damages 
 being mere matter of calculation, the writ of inquiry is sup- 
 plied by a reference to the Master to compute principal and 
 iiiterest.(M) 
 
 The rate of interest usually allowed is five per cent.,, but we 
 have seen that the jury may reduce the rate, or they may in- 
 crease it. Thus, where a bill carries ten per cent, interest from 
 its .date, a jury may give the same rate of interest from its 
 maturity to jiudgment.(a;)(l) 
 
 The common indebitatus count for interest is good.(j^) 
 
 Until recently, to contract for more or to take more than five 
 per cent, interest on any transaction relating to bills or nctes 
 was usurious and illegal. Eecent statutes, however.(^) which 
 will be considered in their order, first exempted a large pro- 
 prtion of bills and notes from the operation of the usury ]aw;s, 
 pd at length repealed the usury laws altogether. But as the 
 latitude conceded by the Legislature had until recently its 
 limits, and as questions may still arise on bills and notes even 
 
 ,(k) See the Common Law Procedure Act, 1853, s. 94, and 18 ifc 19 Vict, 
 c. ,67.- 
 
 (x) Keene v. Keene, 27 L. J., C. P. 89 ; 3 C. B., N. S. 144 (91 E. C. L. 
 R), S. C. 
 
 iy) No^'denstrom v. Pitt, 13 M. & W. 723. 
 
 (z) 3 !& 4 Will. 4, c. 98, s. 7 ; 1 Vict. c. 80 ; 2 & 3 Vict. c. 37, and 17 & 18 
 Yict. c. 90. 
 
 (1) A note bearing interest on its face at a given rate per cent, continues to 
 beartljat interest as well after as before maturity. KoWer v. Smith, 3 Cali- 
 foroia, 597 ; Ph=nney v. Baldwin, 16 Illinois, 108 ; Brewster t. "Wakefield, 1 
 Minnesota, 353. 
 
468 OF INTEREST. 
 
 of earlier date,(ff) it will still *be necessary to treat of 
 ^ -I the law of usury in its operation on bills and notes. 
 Moreover, usury laws still exi'st in France, Germany, America, 
 Holland, and in almost all foreign countries where bills of ex- 
 change circulate ; and in some States where usury laws have 
 been repealed, they have been re enacted. So that such ques- 
 tions may still arise on bills made or negotiated abroad. Fur- 
 ther, the decisions on the usury laws, in their operation on bills 
 and notes, are in many cases applicable where the illegality of 
 the consideration is of a different nature. 
 
 Usury is said to be an indictable misdemeanor at common 
 law. (6) 
 
 The stat. 87 Hen. 8, sect. 8-9, repealed all former enact- 
 ments on this subject, and restrained the legal rate of interest 
 to ten per cent, per annum, imposing a penalty on such as take 
 more. This statute was itself repealed in the next reign, by 
 
 (a) It may, perhaps, at first sight, be thought superfluous to retain in the 
 pi'esent edition any reference to the old decisions relating to usury But they 
 may still be applicable to past transactions, and to foreign dealings with bills 
 of exchange ; for in most countries usury laws still exist. In France, and in 
 some of the United Stales of America, they have been repealed, but afler- 
 wards re-enacted. The policy and expediency of the usury laws is at this 
 moment a subject of very warm discussion in the United States, especially in 
 Pennsylvania — perhaps the richest and most prosperous State in the Union ; 
 and many able men, after extensive experience of the consequences of re- 
 peal in some of the States of the American Union, have expressed a strong 
 conviction of their absolute necessity and beneficial operation. 
 
 To this day, even in England, a Court of Equity, when dealing with the 
 sales of reversionary interests and expectancies by persons of full age, admin- 
 ■ asters relief from usurious bargains by restraining actions on securities given 
 by expectant heirs, though of fuW age, and decreeing the delivery up of bills 
 of exchange and promissory notes, upon payment of the sums actually ad- 
 vanced and interest at 51. per- cent. The principles, on which a Court of 
 Equity proceeds, are independent of statute law, and are fully and unanswer- 
 ably explained and defended in the judgment of Lord Chancellor Selbornci 
 with the concurrence of Lord Justice James, in the case of Lord Aylesford v. 
 •Morris (L. R., 8 Chan. Ap. 484), affirming a decision of the late deeply- 
 lamented Vice-Chanellor Wickens. 
 
 Bentham's Defence of Usury is the work of an able but determined theorist, 
 who had had as much experience of human afl'airs as if, to use the expression 
 of a late noble and learned lord, " he had dropped from another planet." 
 
 (6) Com. Dig. Usury. 
 
QF INTEREST. 469 
 
 the 5 & 6 Edw. 6, c. 20, which prohibited the taking of any 
 interest whatever. The stat. 13 Eliz. c. 8, repealed the 5 & 6 
 Edw. 6, c. 20, thereby reviving the first-mentioned statute, and 
 avoided all contracts on which more than eight or ten per cent, 
 was reserved, as usurious. The 21 Jac, 1, reduced the legal 
 rate of interest to eight per cent. ; the 12 Car. 2, c. 13, further 
 dimiDished it to six per cent.; and lastly, the 12 Anne, st. 2, c. 
 16, reduced it to five per cent. The two last statutes of Anne 
 and Charles are copied almost verbatim from the statute of 
 James, and the statute of James contains substantially the 
 same provisions as the two statutes of Elizabeth and Henry 8, 
 taken together ; so that all the cases 'on usury since 13 Eliz. 
 are japplicable to the law as it stood before the recent abolition 
 of the usury laws. 
 
 These statutes are to be construed most strongly for the sup- 
 pression of usury, and the courts will look through the appar- 
 ent form of a contract and the artifice of parties, at the sub- 
 stance and real nature of the transaction. "Where," says 
 Lord Mansfield, " the real truth is a loan of money, the wit of 
 man cannot find a shift to take it out of the statute. "(e) 
 
 *The statute 12 Anne, st. 2, e. 16 (as well as the p^„„„- 
 former enactments), contains two distinct provisions : '- J 
 
 1, That no person, upon any contract, shall take, accept or re- 
 ceive for the loan of money or other commodities, above the 
 rate of five per cent, per annum, under penalty of forfeiture of 
 treble the money lent ; one-half to the Crown, and the other 
 moiety to him that will sue for the same. 
 
 2. That all bonds, contracts or assurances, whereby there 
 shall be reserved or taken above the rate of five per cent, per 
 annum, shall be utterly void. 
 
 Hence it appears, that to make at once the assurance void 
 and to incur the penalty, the contract must be for usurious in- 
 terest, and usurious interest must be taken ; but that, on the 
 one hand, the penalty may he incurred without avoiding the 
 contract, and that, on the other, the contract may be avoided 
 without incurring the penalty. Thus, if a bond be given tor 
 the payment of a jugt debt, and it be afterwards agreed that 
 
 (c) Floyer v. Edwards, Cowp. 114. 
 
470 of t^tE-Rilsi. 
 
 fhe money secured by the. bond' shall remain in' thfe hands of 
 the obligor at usui'ious' interest, and such interest be taken^. the 
 penalty is incurred, bat the bond is still good.(d) Eutif a tnaii 
 coiitrdct for usurious, yet ta'fe no more than legal inter'est, the 
 Assurance is void, tWough' the pfenalty be not i'neurred.(fi) 
 
 To make a contract void for' usury, there must have beera «• 
 loan.{f){\) 
 
 Therefore, if an acceptor discount his own acceptance^, at s 
 premium beyond legal interest, that is not usury ; fof the ac- 
 ceptor does not advaince his own niofiey to another, but merely 
 plays the debt to another before i^ is due. "It is," says Lord* 
 EUenborbugh, " an improper practice, but not usury. "(5')(2) 
 
 (.d) Ferrall v. Shaen, 1 "W. Saund. 294. 
 
 {e) Fisher V. Beasley, 1 Daug.ZS5. See Serjeant WilliainB's note to Fer- 
 rall V. Shaen, 1 W. Saund. 295, vrhere the cases are collected. 
 
 (/) Harvey v. Archbold, 3 B. & C. 636 (10 E. C. L. E.) ; 5 D. & Ry. 500, 
 8. C. _ 
 
 ig) Barclay i. Walmsley, 4 East, 55. 
 
 In America it is held that^ the purchase of a bill at any pri<ie is not 
 usurious; but the purchsise must be cbmplete,,so as to enable the purchaser 
 to bring suit on it. A bill not accepted is not of this character. 
 
 Where an indorsee takes a bill or note with the indorsement or guaranty of 
 the inddrser, and advances thereupon less than the real value of the bill or 
 liote, the transaction is in efiect a Ibati bett^een the indorser and indorsee, aUd 
 usurious 
 
 In America, if a note, made for the purpose of raising money, is discounted 
 at a higher premium than the legal rate or interest, and none of the parties 
 -whose names ai'e on it could, as between themseives, maintain a saii oh tli^ 
 nrtte wheli it becomes due, provided it had not befeii discounted, then sildli 
 discounting of the note is usurious, for it is then that it first exists as a con. 
 tract. 
 
 , It is otherwise, however, if the purchaser is ignorant of the character of the 
 note. 
 
 The taking of interest in advance upon the discount of' a note is not \xSarj; 
 iior taking interest for both the first and last day. See Byles on Bills, 5th 
 American ed. p; 463. 
 
 (1) A coritract to take a loaii of money at more than Wgftl intfereSf !8 
 ■usurious, though no illegal interest is actually taken npo'n it. Clark vj 
 Badgely, 3 Halsted, 233. ' 
 
 (3) Manhattan Co. v. Osgood, 15 Johns. 163 ; ting v. Johnson, 3 MoCord, 
 86) ; Churchill v. Suter, 4 Mass. 156 ; JBi-idge v. Hubbard, 15 Ibid. 96 j Vfym 
 V. Loughhead, 2 Dall. 92 ; Musgrove v. Gibbs, 1 Ibid. 216 ; Lloyd v. Keacl), 
 2 Conn. 175 ; Powell v. 'Waters, 8 Cbw'en, 669 ; ifieholi v. Fearson, 7 Peters, 
 
OF INTEEBSl!. 471. 
 
 *But the ordinary transaction of discounting a bill 
 or note is a lending within the 8tatute.(l) The party ^ ^ 
 discounting does, in fact, lend money on interest, t® be repaid 
 either by the person receiving or by some other partj' to the 
 bill, at a certain prefixed period. The general rule of law is, 
 that if the interest be retained at the time of the loan, or be 
 stipulated to be paid before it falls regularly due, the contract 
 is usurious.(A) But, in favour of trade, an exception is allowed 
 in the case of discount of bills. The interest is then allowed to, 
 he retained at the time of the loan, or, in other words, interest 
 may be and is always charged, not on the sum actually ad- 
 
 (S) Barnes v. Warlich, Noy, 41 ; Cro. Jac. 25 ; Tel. 30 ; Moore, 644, S. C. 
 
 103 ; Cram v. Hendricks, 7 Wendell, 569 ; French v. Grindle, 3 Shepl. 163 ; 
 Freeman v. Brittin, 2 Harrison, 191 ; Mazuran v. Mead, 31 Wend. 285 ; Bal- 
 linger v. Edwards, 4 Iredell's Eq. 449 ; Haleman v. Hobson, 8 Humph. 127. 
 Tlie purchase of a bill at any price is not usurious;; bat the purchase must be 
 complete so as to enable the purchaser lo bring suit on it. A bill not accepted 
 is not of this character. McLean v. Lafayette Bank, 3 McLean, 587. Where 
 an indorsee takes a bill or note with the indorsement or guarantee of the in- 
 dorser, and advances thereupon less than the real value of the bill or note, 
 the transaction is, in effect, a loan between the indorser and indorsee, and 
 usurious. McElwee v. Collins, 4 Dev. & Batt. 209. . If a note, made for the 
 purpose of raising money, is discounted at a higher premium titan the legal 
 rate of interest, and none of the parties whose names are on it can, as between 
 tliemselves, maintain a suit on the note, when it becomes due, provided it had 
 not been discounted, then such discounting of the note is usurious, for it is. 
 then that it first exists as a contract. Knights v. Putnam, 3 Pick. 184 ; Sauer-. 
 wein V. Brumer, 1 Har. & Gill, 477 ; Metcalf v. Watkins, 1 Pqrter, 57 ; Gouch 
 v. Massey, 4 Humph. 374 ; Acby v. Rapelye, 1 Hill, 9 ; Belden v. Lamb, 17 
 Conn. 441 ; Dowe v. Schutt, 2 Denio, 621. It is otherwise, however, if the 
 purchaser is ignorant of the character of the note. Whitworth v. Adams, 5 
 Eand. 333; Ramsey v. Clark, 4 Humph. 244; Creed v. Stevens, 4 Whart. 
 223 ; Long v. Gantley, 4 Dev. & Batt. 313 ; Hayes v. Walker, 7 Blackford, 
 640 ; May v. Campbell, 7 Humph. 450 ; Dickerman v. Day, 31 Iowa, 444. The 
 taking of interest in advance upon the discount of a note is not usury. Bank of 
 Utica V. Phillips, 3 Wendell, 408 ; Thornton v. Bank of Washington, 3 Peters, 
 40; State Bank v. Hunter, 1 Devereus, 100; McGill v. Ware, 4 Scam. 21 ; 
 Parker v. Cousins, 8 Gratt. 372. Nor taking interest for both the first and 
 last day. Crump v. Nicholas, 5 Leigh, 251 ; State Bank v. Cowan, 8 Leigh, 
 838. As to the use of Rowlett's Tables of Interest, which consider three 
 hundred and sixty days as a year, see State Bank v. Cowan, 8 Leigh, 238 ; 
 Planters' Bank v. Snodgrass, 4 Howard (Miss.), 573 ; Parker v. Cousins, 2 
 Grattan, 372 ; Bank of Utica v. Wager, 8 Cowan, 898. 
 (1) Gonira, Young v. Miller, 7 B. Monroe, 540. 
 
472 OF INTEREST. 
 
 vanced, but on the sum for which the bill is made payable.(t)(l) 
 Thus, if a bill for 100^. at twelve months' date is discounted at 
 five per cent., the sura actually paid is 95^., and the 5Z. discount 
 received is, in fact, interest at the rate of more than 5L 5s. Bd. 
 on the loan. It is evident that, the longer the date of the bill, 
 the greater the amount of the interest retained, the less the ac- 
 tual advance, and the higher the rate of interest on the ad- 
 vance ; BO that if a bill at twenty years' date were discounted, 
 at five per cent , the interest would annihilate the principal., 
 This exception is, therefore, restrained to discounts in the 
 ordinary course of trade, w^here the excess of charge above the 
 legal rate is fairly referable to the trouble and expense to which 
 the merchant or banker discounting is exposed.(A;) And the 
 discounting of a bill at a very long date, as, for example, two or 
 three, years, seems of itself a suspicious circumstance; and, if it 
 be done as an artifice to obtain more than legal interest, the 
 transaction will be usurious, and the bill and any substituted 
 security will be void, in the hands of the discounter, against all 
 parties.(0(2) 
 
 If a bill or note be given on an usurious contract, but for a 
 pre-existing legal debt, the debt is not extinguished, though 
 the security is void.(m) 
 
 (4) It is lield in America that the day on which a note is discounted is to 
 be excluded in the computation of interest ; but a day's interest lias accrued at 
 any time of the next day. See 5th American ed. of Byles on Bills, p. 463. 
 
 Ik) Marsh v. Martindale, 3 Bos. & Pul. 154. 
 
 (0 Ibid. 
 
 (to) Phillips V. Cockayne, 3 Camp. 119. A. being about to purchase an 
 estate, B. agreed to lend him money upon it, and before the conveyance from 
 the vendor to A. was completed, on receiving the then title deeds, advanced 
 the money ; afterwards it was agreed between A. and B. that A. should pay 
 usurious interest on the money advanced ; and after this agreement, the con- 
 veyance from the vendor to A. was by A. banded over to B., A. having be- 
 come bankrupt : held, that his assignees could not in trover recover the latter 
 deed, because by the first agreement, untainted with usury, B. acquired a 
 right to it. Wood v. Grimwood, 10 B. & 0. 679 (31 E. C. L. K.). 
 
 (1) The day on which a note is discounted is to be excluded, in the compun 
 tation of intere.st; but a day's interest has accrued at any time of the nest 
 day. Bank of Burlington v. Durkee, 1 Vermont, 403. 
 
 (3) When the charge of exchange will or will not be usurious. Andrews 
 
OF INTBKEST. 4T3 
 
 *If the excessive charge be in any case no triore than 
 a fair remuneration for trouble and expense, it will not '- ■' 
 be usury. Thus, where a man took promissory notes to a 
 bank to be discounted, and, on being asked how he would 
 have the money, said, partly in cash, partly in account, and 
 partly in bills on London, some at three, some at seven, and 
 some at thirty days' sight ; and the banker accordingly dis- 
 counted the notes at five per cent, in that way, deducting dis- 
 count for the whole time that the note^ had to run, but making 
 no allowance for the time wt\ich must elapse before the bills 
 on London became payable, though the cash could not be said 
 to be advanced by him till the bills on London fell due, and 
 though in consequence he received more than legal interest for 
 his advances, the transaction was held not to be usurious, for 
 the mode of payment being suggested by the other party, it 
 could not have been devised by him as a screen for a corrupt 
 loan. And it was held that the interest which he gained on 
 the bills on London might be considered as a compensation for 
 the trouble and expense of paying the money there ; that the 
 discount and remittance were separate transactions. (ji) But 
 where the substituted bill was not given at the particular 
 request of the parties applying for discount, and was itself dis- 
 counted, Lord Kenyon held the original discount usurious.(o) 
 A merchant, banker, or other person may, in addition to the 
 discount, take a reasonable and customary sum for remitting 
 the note or bill for payment, and other incidental expenses.(p) 
 So he may take a commission for accepting or drawing bills, 
 whether the bills be payable in the same place or not.(5') No 
 precise rate for commission in such cases is fixed by law, but the 
 usual rate sanctioned by the decisions is 5s. per cent. Upon a 
 
 (») Hammett v. Yea, 1 B. & P. 144. 
 . (o) Matthews v. Griffiths, Peake, 200. 
 f (p) Winch V. Fenn, cited in Aurialv. Thomas, 2 T. R. 52 ; Ex parte Jones, 
 
 17 Ves. 332 ; Baynes v. Fry, 15 Yes. 120 ; Masterraaa v. Cowrie, 3 Camp. 
 
 488. 
 I (s) Masterman v. Cowrie, 8 Camp. 488. 
 
 V. Pond, 13 Peters, 65 ; Merritt v. Benton, 10 Wend. 116 ; Cayuffa Bank v. 
 Hunt, 3HiJl, 635; Commercial Bank v. Nolan, 7 Howard (Miss.), 508; Mc- 
 Lean T. Bank, 8 McLean, 587 ; Holford v. Blatchford, 2 Sandf. Ch. Rep. 149 ; 
 Pilcher v. Banks, 7 B. Monroe, 548. 
 
474 0£' INTEREST. 
 
 long, and complicated account a banker has been allowed to 
 charge one^'half per cent. ; but, in another case, where a person 
 in general business, but not a banker, charge;! 7s. 6di percent, 
 for discounting bills, and gave no evidence of having been 
 . *put to any extraordinary trouble or expense, Lord 
 ■- -^ Ellenborough thought the chai'ge'USuriou8.(?') Whether 
 in any case the charge for commission be but a fair remuner- 
 ation for trouble and expense, or a mere artifice for ehargi'ng 
 illegal interest, is a question' of fact for the jury.(s (1) 
 
 To constitute usury, there must,, further, be a corrupt inten- 
 tion, not, perhaps to evade the statute, for a man may not 
 know that there is such a law ; but his ignorance of the law 
 here, as in all other cases, is no excuse, for it is one which (as 
 Selden observes) every one might make, and nobody could telt 
 how to refute him ; but there must he a corrupt intention to take 
 exorbitant interest.{t) Thus the old cases show, that if illegal 
 interest be reserved by mistake, as by an error, in the compu- 
 tation of time, it is not u8u,ry.(M)(2) Accordingly, where A. 
 
 (»•) Briiofc V. Mi'ddleton, 1 Camp. 445. 
 
 (s) Carstairs v. Slein, 4 M. & S. 193 ; Harris v. Boston, 3 Camp-. 348; Mas- 
 terman v. Cowriei 3 Camp. 488. 
 
 (0 It is lield in America that parting with depreciated paper at par, aqd 
 charging for the same the legal rate of interest, does not coustilnte usury-. 
 See ffth American ed. of Byles on Bills, p. 465. 
 
 {u) Backley v. Guilbanis, Cro. Jac. 677 ; Nevison t. Whitley, Cro. Car. 501. 
 
 (1) A compensation, exceeding (he lawful rate of interest for obtaining 
 money at the bank, on one's own security for the use of another, is not usury, 
 unless it is so unreasonable and extravagant as to show that it was a coven 
 for usury, and whether it is so or not is a question for the jury. Hutchinson 
 v. Hosmer, 3 Conn. 341. As to when the charge of commission will be 
 usurious. See Bartlett v. Williams, 1 Pick. 288 ; Trotter v. Curtis, 19 Johns. 
 160 ; Bamsdell v. Morgan, 16 Wendell, 574 ; McKesson v. McDowell, 4 Dev. 
 & Batt. 120; Suydam v. Westfall, 4 Hill, 211 ; Harger v. McCulIough, 2 
 Denio, 119; Dry Dock Co. v. Trust Co., 8 Sandf. Ch. Rep. 215. TheJoM 
 fide sale of one's credit or guarantee is not usurious, though it exceed the 
 legal rate of interest, and is not connected with a loan. Ketchum v. Barber, 
 4 Hill, 224 ; More v'. Howland, 4 Dehio, 264. 
 
 (3) Chllders v. Dean, 4 Rand. 406 ; Maine Bank v. Butts, 9 Mass. 49 ; Gib- 
 son v. Stearns, 3 N. H'amp. 185 ; Bank of Utica v. Smalley, 2 Cowen, 770 ; 
 Duvall V. Farmers' Bank, 7 Gill & Johns 44. Parting with depredated paper 
 at par and charging for the same the legal rate Of interest, does not constitnte 
 
of INTEEES*. 475 
 
 was indebted to ike plaintiff in a bdtid execnted in St. Kitts, 
 ebtiditioued for the payment of 6,000^., and six per cent.' 
 interest,. and it was' agreed that the principal should be paid in ■ 
 two bills of exchange at long dates, which were dra\Vn in 
 fe/TOur of the: plaintiff, for the principal and interest which 
 would be due at the time they were payable, the plaintiffs- 
 igetit coifaputing the interest by mistake still at six per cent., 
 Slid the bond was tfeen cancelled, Mansfield, C. J., held that the 
 action on the bills might clearly be maintained for the sum 
 hriafide due; aS the excess in the amount of the bill had arisen 
 from a mere mistake, and no intention to take usury could- at 
 atiy rate be imputed to thei plaintiff hirnself.(a;)- A. was in- 
 debted to B. in 802!., and gave him a promissory note for 87?. 
 3s., payable by four quarterly instalments (being the amount 
 of the principal and legal interest), with a clause that, in case 
 default should be made in payment of any one instalment, the 
 tphole sum should become payable. The court held that this 
 was not a stipulation for usury, but for a penalty, and that A. 
 was entitled to recover the whole sum on default. (y) "Where a 
 brbker was employed to get a bill discounted, whicb he did' , 
 iipon an agreement to reserve to himself 10s. per cent, comrais- 
 siorij as the party advancing *the money was no party 
 to this agreement, and had no intention that more than I- -* 
 legal interest should be charged, it was held that the discount 
 was not u8urious.(2:) 
 
 » 
 
 The contract must be for repayment of the principal, at all 
 
 events; for if the principal be put in hazard, it is not usury. 
 " If I lend 1001 to have 120?. at the year's end upon a casualty, 
 if the -casualty goes to the interest only and not to the princi- 
 pal, it is usury ; for the party is sure to bave the principal again 
 come what will come ; but if the interest and principal are both 
 
 (*) GlaSfurd v. Laing, 1 CAmp. 149. 
 
 (y) Wells Y. Girling, 4 Moore, 78 ; 1 B & B. 447 (5 E. C. L, R.) ; Gow, 21, 
 S.C. 
 («) Dagnall v. Wigley, 11 Bast, 43. 
 
 tfsiirjr. U. S. Bank v. Waggeher, 9 Peters, 378. See Caton v. Shaw, 2 Har. 
 & Gill, 13 ; U. B. Bauk v. Owen, 2 Peters, 537 ; Sizer v. Miller, 1 Hill, 227. 
 (Mnira, Bbndtirant v. Bank, 8 Shiedes & Mai'shall, 583 ; Cook r. Bank, Ibid. 
 343. 
 
476 OF INTEREST. 
 
 in hazard, it is not then usury. "(a) Hence the purchase of an 
 annuity with a clause for tedemption. by the grantor, though 
 on terms never so exorbitant, is not usury. And where the 
 lender becomes a partner with the borrower by deed in the 
 borrower's trad^, and is to receive profits thereout, in addition 
 to the interest, to a certain amount, at all events, this may be 
 a contract of partnership, and not an usurious loan. (6) But if 
 the lender do not profess to be a partner, and is nevertheless to 
 receive a portion of the profits in addition to the interest, it is 
 an usurious loan, for, though the lender thereby so far puts his 
 principal in hazard as to render it liable to partnership creditors, 
 yet it is no further hazarded than in the case of every otberloan, 
 namely, by the risk of the borrower's insolvency .(c) 
 
 Usury may be committed within the express words of the 
 statute, not only by advancing money, but by advancing goods^ 
 to be repaid in money. If goods are forced upon the borrower 
 in lieu of money, as for example, upon the party applying;for 
 the discount of a bill, the transaction is suspicions, and it lies 
 on the lender to show not only that the goods were fairly worth 
 the sum at which they were estimated, but that they would have 
 been easily available in the borrower's hands for raising that 
 sum by resale.(rf) But, where the lender requests or prefers to 
 take goods, it lies on him to show that they were estimated 
 above their real value.(e)(l) 
 
 (a) Roberts v. Trenayne, Cro. Jac. 507; Chesterfield v. Jansen, 1 Wils. 
 886. 
 
 (J) Gilpin V. Enderbey, 5 B. & Al. 954 (7 E. C. L. E.) ; 1 D. & Ry. 570, 
 S. C. 
 
 (c) Morse v. Wilson, 4 T. R. 353. 
 
 (d) Davis v. Hardacre, 3 Camp. 375. 
 
 (e) Coombe T; Miles, 3 Camp. 558. 
 
 It has been held in America that a contract to lend ajjrirtion of the money 
 wanted by the borrower, on condition that he will receive stock at a price 
 much above the market value, to make up the deflciency, is usurious. See 5tli 
 American ed^ of Byles on Bills, p. 467. 
 
 (1) A contract to lend a portion of the money wanted by the borrower, on 
 condition that he will receive stock at a price much above the mailiet value, 
 to make up the deficiency, is usurious. Stribbling v. Bank, 5 Rand, 132 ; 
 Valley Bank v. Stribbling, 7 Leigh, 36 ; Bank v. Arthui;, 3 Grattan, 173 ; 
 Archer v. Putnam, 13 Smedes & Marshall, 386. 
 
OF INTKREST. 477 
 
 *In Ireland, in many of the British colonies, and in r*qi4-i 
 various foreign states, more than five per cent, interest 
 is allowed by the law of the place. Whenever the contract is 
 made abroad it is not usurious here, because the utmost interest 
 which the law of the place allows is reserved. But it often 
 happens that the transaction is partly in one country and partly 
 in another, so that whether it is to be considered as a domestic 
 or a foreign contract, becomes a question of great nicety. A. 
 resides iu England, B. at Gibraltar, where thelegal rate of interest 
 is six per cent., and where a bill on England at ninety days is 
 reckoned as cash. It was agreed that A. should consign to B. 
 goods for sale, and that, upon the receipt of the invoice, B. 
 should remit to A. bills on London at ninety days' date, and 
 charge interest at six per cent, from the date of the bills. Lord 
 Tenterden : — " The case must be considered as if the bargain " for 
 the advances had been made at Gibraltar, and not in London.(/) 
 
 The statutes 14 Geo. 3, c. 79, and 1 & 2 Geo. 4, c. 51, the 
 latter repealed, and re-enacted by 3 Geo. 4, c. 47, reciting that 
 doubts had arisen on the point, enact that all mortgages or 
 securities of or concerning any lands, tenements, hereditaments, 
 slaves, cattle, or other things, in Ireland or the "West India 
 colonies, whereby interest is reserved above the rate of five per 
 cent., but not exceeding the rate allowed by the law of that 
 place, are valid, though executed in Great Britain, as well as ail 
 bonds and covenants, original or collateral, tor further securing 
 money so advanced. It will be observed, that these statutes do 
 not include bills and notes, and, therefore, it is a doubtful point, 
 whether a bill or note not exempted from the usury laws by 
 the recent statutes, and given in England as a collateral security 
 for an Irish, colonial, or foreign debt, with more than five per 
 cent, interest, be legal.(^) It seems clear, however, that if the 
 original security be cancelled, and a bill or note be taken as a 
 substituted security, but carrying the original interest, such a 
 bill or note is usurious.(A) 
 
 If an usurious bill or note be in the hands of a holder, 
 
 (/) Harvey v. Arcbbold, 3 B. & C. 636 (10 E. C. L. R.). 5 D. & R. 500, 
 S C. 
 
 (ff) Sec Lord Ranelagh v. Champante, 2 Vern. 395 ; 1 Eq. Ca. Ab. 3S9. 
 (A) Glasfuid V. Laing, 1 Camp. 149 ; Oewar v. Span, 3 T. R. 426, 
 
478 OF INTER^Sg;. 
 
 who was either a party to or cognizant of the usurious trans- 
 action, and he give it up for a substituted security, as a not«, 
 or even if he deliver up this noce for a further security, as a 
 'r**?! ~1 *^^^^j the oi'iginal usurious taint infects both the, sub- 
 sequent securities, and either is void.(8) But if tlie 
 party taking a .substituted security had no notice of the usury, 
 the security is good.(^) Yet, beforp 68 Geo. 3, c. 93, if a party 
 had taken an usurious bill without notice of the usury, and, 
 afterwards, upon learning the defect, took a substituted bill, 
 such .second bill was void {I) But, if the substituted secur- 
 ity be for principal and lesgal interest only, expunging the bad 
 part of the debt, it is good.{»j) And whgre a bill or note is 
 given on a consideration, partly usurious and partly legal, the 
 holder cannot recover even for the good part, though the whoJiS 
 .amount of the bill should not be sufficient to cover. that,(?i) i 
 
 It makes no difference that the contract is comprispd in two 
 separate instruni^nts.(o) 
 
 ^Before the late statute, if the bill were tainted with usury 
 in its inception, or if it was necessa.ry for the iholder to make 
 title through any party guilty of usury,{p) he could not recover, 
 though he had no notice of the usury, ^iit now, by the 68 
 Geo. 3, c. 93, no bill or noteythough given for an usurious con- 
 sideration, or upon an usurious .contract, shall be void in the 
 hands of an indorsee for value, unless he had notice at the time 
 of taking thp fcill that it had been given for an usurious eon- 
 sideration.(g') 
 
 (0 Marsh v. Martipdale, 3 B. & P. 154. 
 
 {k) Outhbei-t v. Haley, 8 T. R. 390 ; 3 Esp. 23, S. C. 
 
 (0 Chapman v. Black, 3 B. & Aid. 588 ; Amory v. Merryweather; 2 B. & 
 C. 573 (9 E. C. L. R.) ; 4 D. & R. 86, S. C. 
 
 (m) Preston v. Jaclsson, 3 Stark. 337 (3 E. C. L. R.) ; Barnes y. Hedley, 
 1 Camp. 157-180, d. ; 3 Taunt. 184, S. C. 
 
 (ra) Harrison v. Hannel, 5 Taunt. 780 (1 E. C. L. R.) ; 1 Marsh. 349, S. C. 
 
 (o) Roberts v. Trenayne, Cro. Jac. 507 ; White T. Wright, 3 B. & C. 373 
 (10 B. C. L. R.) ; 5 D. & R. 10, S. C. 
 
 (p) Lowes V. Mazzaredo, 1 Stark. 385 (3 E. C. L. R.). 
 
 ((?) This statute does not apply to a note in the hands of a party whoihas 
 taken it in payment of an antecedent debt ; see also 5 & 6 Will. 4, p. 41 ; 
 Vallance v. Siddel, 6 Ad..& Ell. 933 (33 E. C..L. R.) ; 3 N. & P. 78, 8. C. 
 In an aptjen ;bropght before the passing of this act; but tried after, the da- 
 
OF INTEREST. 479 
 
 The 3 & 4 Will. 4, c. 9S, s. 7, exempts from the operation of 
 the usury laws bills and notes not having more than three 
 months to run. It seems that a bill or note good within this 
 act is not in-validated by being part of a real secarity.(?-) 
 
 *iOn this statute it has been decided that a warrant r«Qi(^q 
 of attorney given to secure a bill, which, but for the 
 act,.iwould have been usurious, is within the protection of the 
 &tatnte.(s) The act applies to a note payable to A. or order on 
 iemand, and given for money lent on an agreeraeat to pay 5/. 
 over and .above all lawful interest for the loan during such 
 time as A. should forbear, and give day of pg,yment for the 
 same.(<) 
 
 The 1 Vict. c. 80, a temporary act, exempted from the opera- 
 tion of the usury laws bills and notes not having more thapi, 
 twelvemonths to run. 
 
 The 2 & 3 Vict. c. 37, exempts from the operation of the usury 
 laws bills and notes not having more than twelve months to 
 run, and all £ontraois{u) for the loan of money above the sum of 
 ten pounds, providing that the act shall not extend to loans on 
 landed security.(a;) But a loan of money on security of a 
 lease, a warrant of attorney, and a promissory note, are not 
 protected.(t/) 
 
 The question is, on what security was the money lent? If 
 on a mortgage, and the bill were taken afterwards, there is no 
 
 fendant may avail himself of 9 Anne, c. 14, and is entitlpd to a nonsuit if he 
 prove the bill to^be given for a gaming consideration. Hitchcock v. Way, 
 6 Ad. & EJl. 943 (33.E. C. L. R.) ; 3 Nev. & P. 72, S..C. 
 
 (r) Cluck V. Sainsbury, 11 C. B. 695 (73 E. 0. L. R.) ; Nixon v. Phillips, 
 7Exch. 188; Semple v. Cornwall, 10 Exch. 617; Ex parte Warrington, 3 De 
 Gex, M. & G. 159 ; 23 L. J., Bank. 33, S. C. ; Langton v. Haynes,.35 L. J., 
 Exch. 319 ; 1 H. & N. 366, S. C. 
 
 (») Connop V. Meaks, 4 Nev. & Man. 303 ; 2 Ad. & E. 336 (31 E. C. L. B.), 
 8. C. ; Lane v. Horlock, 25 L. J., Chan. 253 ; 5 H. L. Cas. 580, S. C. 
 
 (0 Vallance v. Siddel, supra, note (5). 
 
 («) Thibault v. Gibson, 13 M. & W. 88. 
 
 (it) So that, as the law recently stood, persons who have security to offer, 
 and require no protection, were protected ; but those who had no security to 
 ' offer, and thei'efore most needed protection, were improtected. 
 
 (.y) Berrington v. Collis, 5 Bing. N. C. 332 (35 E. C. L. R.) ; 7 Scott, 302, 
 S. C. As to renewals and agreements.to give bills at a future time, see Holt 
 V. Miers, 5 M. & W. 168 ; King v. Braddon, 10 Ad. & B. 675 (37 E. C. L. 
 R-) ; 2 Per. & D. 546, S. 0. 
 
480 OF INTEREST. 
 
 valid loan ; if on a bill, and the mortgage were taken after- 
 wards, there is a good debt.(^) Where a party borrowed a sum 
 of 6,700?. on the security of a mortgage and a promissory note, 
 which was discounted by the, lender at five per cent., so that 
 the interest to be paid was more than five per cent, on the sum 
 actually advanced, the mortgage was held valid, the jury find- 
 ing,that the primary object of the parties was the discounting 
 . of the note.(a) The discount *of bills is not illegal, 
 *- -' though the amount be secured by a warrant of attorney, 
 which may become a charge on land. (6) 
 
 The statute 2 & 3 Vict. c. 37,(c) is not disabling or retrospec- 
 tive, and therefore if a real security be given for the amount of 
 bills, discounted at more than five per cent, before the statute, 
 under the 1 Vict. c. 80, the real security is not tainted with 
 usury.((i) 
 
 But now the statute 17 & 18 Vict. c. 90 sweeps awaythe 
 usury laws altogether. And it has been held, that bills ac- 
 cepted since the repeal, in renewal of usurious bills accepted 
 before the repeal, are not without consideration.(e) 
 
 In a declaration or plfea, grounded on the statute of 12 Anne, 
 .St. 2, c. 16, it is not necessary to negative the exception intro- 
 
 (z) Downes v. Garbutt, 13 L. J., Q. B. 269 ; 2 Dowl. N. S. 939 ; S. C. ; 
 
 Fussell V. Daniel, 10 Bxch. 581 ; and see Hodgkinson v.. Wyatt, 4 Q. B. 749 
 
 . (45 E.G. L. K.) ; FoUett v. Moore, 19 L. J., Exch. 6 ; 4 Exch. 410, S. C. ; 
 
 Ex pane Warrington, 3 De Gex, M. & G. 159 ; 22 L. J., Bank. 33, S. C. But 
 
 se^ Langton v. Haynes, 25 L. J., Exch 319 ; 1 H. & N. 366, S. C. 
 
 (a) This transaction was before tlie statute 2 & 3 Vict. c. 37. Doe v. King, 
 12 L. J., Exch. 820 ; 11 M. & W. 333, S. C. Qumre, whether an advance oa 
 llie deposit of a policy of insurance, though the insurance company have real 
 securities, and though the assured be a member of llie company, is a loan 
 secured by an interest in land. March v. The Attorney-General, 5 Beavan, 
 433. 
 
 (i) Lane v. Horlock, 16 L. J., Q. B. 87 ; 25 L. J., Chan. 253 ; 5 H. L. 
 . CSS. 580, S. C. 
 
 (c) This act was extended by the 4 & 5 Vict. c. 54, to the Ist January, 1844 ; 
 by 6 & 7 Vict. c. 45, to. the 1st January, 1846 ; by the 8 & 9 Vict. c. 102, to 
 the Isl January, 1851, and by 13 & 14 Vict, c. 56, to 1st January, 1856. 
 
 (d) Bell V. Coleman, 15 L. J., C. P. 2 ; 2 C. B. 268 (52 E. C. L. B.), 8. C. 
 («) Fliglit V. Read, 82 L. J. 265 ; 1 H. & C. 703, S. C. 
 
OF THE ALTEKATION OF A BILL OR NOTE. 481 
 
 ( 
 
 duced by the 2 & 3 Vict. c. 37. The exception must come from 
 the other side.(/') 
 
 And in stating that exception it lies on the party intro- 
 ducing it to aver not only that the contract was after the 
 passing of the statute of Victoria, but that it did not relate to 
 land.(^) 
 
 *CHAPTER XXIV. 
 
 [*318] 
 
 OF THE ALTERATION OF A BILL OR NOTE. 
 
 EFFECT OF ALTERATION AT COM- 
 MON I/AW, .... 318 
 
 OF DEEDS, 3X8 
 
 OF BI HD KOTES, . . 319 
 
 TINDEB THE STAMP ACTS, . . 320 
 
 WHERE AN ALTERATION WILL 
 
 NOT VITIATE, .... 320 
 
 BEFORE BILL ISSUED, , . . 821 
 
 IN CORRECTION 01' A MISTAKE, . 322 
 
 WHEN THE ALTERATION OF THE 
 INSTRUMENT EXTINGUISHES 
 
 THE DEBT, .... 322 
 
 RENEWAL OF ALTERED BILL, . 323 
 WHEN ALTERATION NEED NOT 
 
 BE PLEADED, .... 323 
 WHEN IT MUST BE PLEADED, . 324 
 REQUISITES OF PLEA, . . 324 
 
 BURTHEN OF PROOF, . . . 324 
 
 In treating of the alteration of a negotiable instrument, we 
 will consider the effect of alteration ; first, at common law j 
 and, secondly, under the Stamp Acts. 
 
 First, at common law. If a deed, well and sufficiently made 
 in its creation, shall be afterwards altered by rasure, interlin- 
 ing, addition, drawing a line through the words, though they 
 be still legible, or by writing new letters upon the old in any 
 material place or part of it, either by the party that hath the 
 deed, or any other whomsoever, unless the alteration be by him 
 who is bound by the deed (for he shall not take advantage of 
 his own wrong), or by his consent, the deed has lost its force 
 and is become void.(a) 
 
 And by a recent solemn decision, a deed, bill of exchange, 
 
 (/) Thibault v. Gibson, 12 M. & W. 88. 
 
 (S) Wiislibourne v. Burrows, 16 L. J., Exch. 266 ; 1 Exch. 107, S. C. 
 
 (a) SUcppard's Touchstone, 68. And a deed is not it seems vacated at 
 common law, if the alteration, though material, were with the consent of all 
 tlie parties. Markham v. Gonaston, Cro. Eliz. 627 ; Zouch v. Clay, 2 Lev. 
 85 ; Com. Dig. Fait, F. 1. 
 
 31 • 
 
482 X)F THE ALTERATION OF A BILL OR NOTE. 
 
 promissory note, guatantie, or any other executory written 
 contract, is avoided by an alteration in a material part, made 
 while it is in the custody of the plaintiffs, although that altera- 
 tion be by a strainger.(6)(l) For a person who has the custody 
 of an instrument is bound to preserve it in its integrity. And 
 r*Qi QT ^^ ^* w;ould be avoided by his fraud in *altering it himi- 
 self, so it shall be avoided by his laches in suffering 
 another to alter it. 
 
 The rules relating to alteration or rasure of deeds apply (at 
 least for the most part) to other written contracts, and to bills 
 and notes. Thus, where a bill was drawn payable to A. B., 
 and whilst in his possession the date was altered, and the bill 
 was subsequently .indorsed to the plaintiffs for value, it was 
 held that they could not recover against the acceptor.,(2) "It 
 
 (6) Davidson v. Cooper, 11 M. «fc "W. 778 ; affirmed in error, 13 M. & W. 
 843 ; Bank of Hindustan v. Smith, 86 L. J., C. P. 241. 
 
 It is held in America that an alteration by a stranger, though material, will 
 not render the instrument inoperative. See 5th American ed. of Byles on 
 Bills, p. 473. 
 
 (1) An alteration by a stranger, though material, will not render the in- 
 strument inoperative. NichoUs v. Johnson, 10 Conn. 193 ; Medlim v. Platit 
 County, 8 Missouri, 285 ; Davis v, Carlisle, 5 Alabama, 707; Ford v. Fowl, 
 17 Pick. 418 ; Waring v. Smyth, 3 Barb. Ch. Rep. 119 ; Lee v. Alexander, 9 
 B. Monroe, 25 ; Labljeriiig; v. Kohlbrecher, 23 Missouri, 596. Alteration by 
 payee's wife, without his knowledge, avoids the note. . Morrison v. Welty, 18 
 Maryland, 169. An alteration by the agent of the maker in good faith does 
 not .avoid it. Yan Brunt v. Eoff, 35 Barbour, 501. 
 
 (2) An alteration by the payee or holder of a bill or note in any matejjsl 
 respect avoids the instrument as tp tlie maker, and all parties except the per- 
 son making the alteration, even in the hands of an innocent indorsee for value. 
 Stephens v. Graham, 7 Serg. & Rawle, 508 ; Cloud v. Stout, 5 Litt. 205 ; 
 Pankey v. Mitchell, 1 Breeze, 301 ; Mitcliell v. Ringgold, 3 Bar. & Johns. 
 159 ; Trigg v. Taylor, 37 Missouri, 345 ; Hodge v. Gilman, 30 Illinois, 437. 
 Even though it could not be detected by the most careful scrutiny. Wade v. 
 Withington, 1 AUeji, 561. Though by the alteration the day of payment is 
 ■protracted, the note is nevertheless void. United States Bank v. Bussell, 3 
 Yeates, 391; Miller v. Gilleland, 19 Penna. State Rep. 119 ; Owings v. Arnot, 
 33 Missouri, 406 ; Lisle v. Rogers, 18 B. Monroe, 528. If tjie note was dated 
 wrong by miaiake, yet an alteration witjjojit the maker's consent, express or 
 •implied, rendeisit void. Bowers v. Jewell,. 2 New Hamp. 543, See Hpcker 
 V. Jamison, 3 "Walts & Seijg. 438 ; HendeI80^ v. Wilson, 6Hpw, Misa. licp, 
 65. Writing in the niargin "payable at the Bank of America," h^d tp bs » 
 material alteration. Woodworth v. Bank of Ameripji^ 1,9 Jobps- 391 ; SiispsOB 
 
OF THE ALTERATION OP A BILL OR NOTE. 483 
 
 Beems admitted," says Ashhurst, J., " that if this had been a 
 deed, the alteration would have vitiated it. Now, I cannot 
 
 V. Btaclchouse, 9 Barr, 186 ; Hill v. Cooley, 10 Wright, 259 ; Sturges v. Wil- 
 liams, 9 Ohio (N. S.), 443; Southwark Bank v. Gross, 11 Casey, 80. An 
 accoDimodalion bill was drawn for the purpose of being discounted at a bank, 
 and at the foot of it was a memorandum, signed by the last indorser, direct- 
 ing the proceeds of the bill to be credited to the drawer. On the trial of a 
 £nit on the bill by the last against a prior indorser, it appeared that Ibis memo- 
 randum had been cut off. It was held that the memorandum was no part of 
 the bill, and that its being taken off in no way affected the lights of the parlies 
 to the bill. Hubbard v. Williamson, 25 Iredell, 397. 
 
 If Wank spaces be left to be filled after execution, the consent of the pai'ty 
 executing that they shall be afterwards filled is to be implied. Wiley v. Moon, 
 17 Serg. & Rawle, 438 ; Smith v. Crooker, 5 Mass. 538 ; Jordan v. Neilson, 3 
 Wash. 164; Boardman v. Gore, 1 Stewart, 517 ; Bank v. Curry, 2 Dana, 142 ; 
 Slahl V. Berger, 10 Serg. & Rawle, 170 ; Commonwealfh Bank v. McChord, 4 
 Dana, 191 ; Douglass v. Scott, 8 Leigh, 43 ; Richmond Manufacturing Co. v. 
 Dads, 7 Blackford, 412 ; Ives v. Farmers' Bank, 2 Allen, 236. In the case 
 of the printed form of a note, filled up by the maker, and then indorsed for 
 his accommodation by another, and then altered by the maker to a larger sum, 
 by taking advantage of some vacant space in the form, held that the indorser 
 was only liable for the smaller sum. Worrall v. Gheen, 3 Wright, 388. An 
 alteration which does not vary the meaning of an instrument does not avoid 
 it, though made by the party claiming under it. Nicholls v. Johnson, 10 Conn. 
 192; Granite Railway Co. v. Bacon, 15 Pick. 239 ; Morrill v. Otis, 12 N. Hamp. 
 466 ; Peqnawket Bridge v. Mathes, 6 N. Hamp. 139 ; Mathis v. Mathis, 6 Dev. 
 & Batt. 60; Harris v. Bradford, 4 Alabama, 214 ; Gardner v. Sisk, 3 Barr, 326 ; 
 Barnham v. Ayer, 35 New Hamp. 351 ; Moye v. Herndon, 30 Miss. 110 ; 
 Humphreys v. Crane, 5 California, 173. A promissory note was made pay- 
 able to a partnership under one name, and indorsed by a surety, and was 
 afterwards altered by the maker and payee, without the knowledge of the 
 surety, so as to be payable to the same partnership by a different name ; held, • 
 in an action by the payee against the surety, that the alteration was imma- ' 
 terial, and did not affect the validity of the note. Arnold v. Jones, 2 Rhode 
 Island, 345. 
 
 When a person not present at the execution of k promissory note afterwards 
 puts his name thereto as a witness, by the procurement of the payee, it avoids 
 the note. Homer v. Wallis, 11 Mass. 309. Alifer where a person present at 
 the execution, afterwards affixes his name as a witness without any fraudulent 
 intent. Smith v. Dunham, 8 Pick. 249 ; see Marshall v. Gougler, 10 Serg. & 
 Eawle, 164 ; Ravisies v. Alston, 5 Alabama, 297 ; Stewart v. Preston, 1 
 Branch, 10; Blackwell v. Lane, 4 Dev. & Batt. 113 ; Adams v. Prye, 3 Met- 
 calf, 103 ; Henning v. Werkheiser, 8 Barr, 518 ; Thornton v. Appleton, 29 
 Maine, 298 ; State v. Gherkin, 7 Iredell, 206. The alteration of a note, pro- 
 cured by the payee, by the addition of the name of another party as maker, 
 after its execution and delivery by the former parties, and without their con- 
 sent, avoids it as to such original parties. Bowers v. Briggs, 20 Indiana, 139 ; 
 Henry v. Coats, 1 7 Ibidi 161. W here the payee wrote his name under the namea 
 
484 OF THE ALTEKATION OF A BILL OE NOTE. 
 
 see any reason why the principle on which a deed would have 
 been avoided, should not extend to a case of a bill of exchange; 
 There is no magic in parchment or wax, and the principle to 
 be extracted from the case is, that any alteration avoids the 
 contract. If A. B. had brought this action, he could not have 
 recovered, because he must suffer from any alteration of the 
 bill whilst in his custody ; the same objection must hold against 
 the plaintiffs, who derive title from him."(c) So, where the 
 drawer, without the consent of the acceptor, added to the accept- 
 ance the words " Payable at Mr. B.'s, Chiswell Street," it was 
 held that' this was a material alteration, discharging the ac- 
 ceptor.(d) And the same point has been repeatedly decided 
 
 (c) Master v. Miller, 4 T. B. 320 ; in error, 2 H. Bl. 140 ; Hirsclinian v. 
 Budd, L. R, 8 Ex. 171. 
 (^d) Cowie V. Halsall, 4 B. & Al. 197 (6 E. C. L. E.) ; 3 Stark. 36, S. C. 
 
 of the makers, and added after his own name the word "security," it was 
 held to be a material alteration. Chappell t. Spencer, 23 Barbour, 584. 
 Alteration by adding " with interest," though without fraudulent intent, 
 vitiates the note. Fay v. Smith, 1 Allen, 477. If the maker, after it is in- 
 dorsed, add "with interest," it avoids the note, even though the alteration 
 was made before delivery to the payee. Waterman v. Vose, 43 Maine, 501. A 
 note made by two subsequently, altered by one, is no longer binding on the other. 
 Crockett v. Thomason, 5 Sneed. 342. If the payee make a material altera- 
 tion, he can neither recover on the note nor on the contract for which the note 
 was given. White v. Hass, 32 Alabama, 430. The payee of a note given for 
 the price of goods sold, having altered it without fraud, may recover on the 
 common counts. Merrick v. Bonry, 4 Ohio (N. S.), 60. ' 
 
 For cases in which an alteration has been held to be material, see McVean 
 V. Seott, 46 Barb. 379 ; Hall's Adra'x v. McHenry, 19 Iowa, 521 ; Grimes v. 
 Piersol, 25 Indiana, 246 ; Hill v. Cooley, 10 Wright, 259 ; Miller v. Beed, 8 
 Grant, 51 ; Mahaiwe Bank v. Douglass, 31 Conn. 170 ; Cole v. Hills, 44 K. 
 Hamp. 227; Chad wick v. Eastman, 53 Maine, 12; Wood v. Steele, 6 Wal- 
 lace (S. C), 80 ; Low v. Argrove, 30 Geo. 139; Elbert v. McClelland, 8 Bush, 
 577 ; Wallace v. Jewell, 21 Ohio St. 163 ; Holmes v. Trumper, 22 Mich. 427; 
 Kennedy v. Crandell, 3 Lansing, 1 ; Flint v. Craig, 59 Barb. 319 ; Wait v. 
 Pomeroy, 20 Mich. 425 ; Lincoln v. Lincoln, 12 Gray, 45 ; Kountz v. Hart, 
 17 Indiana, 329. 
 
 For cases of immaterial alteration, see McCramer v. Thompson, 31 Iowa, 
 244 ; Terry v. Hazlewood, 1 Duvall, 104 ; Levi v. Mendell, Ibid. 77 ; Holland 
 V. Hatch, 15 Ohio St. 464 ; Corcoran v. Doll, 32 Cal. 83 ; Jones v. Berryhill, 
 35 Iowa, 389 ; Todd v. Bank of Kentucky, 3 Bush, 626 ; Smith v. Lockridge, 
 8 Bush, 423 ; Derby v. Thrall, 44 Verm. 413 ; Bridges v. Winter, 43 Miss. 
 135 ; Houghton v. Francis, 29 Illinois. 244 ; McCaughey v. Smith, 27N. Tofk, 
 39, 
 
OF THE ALTERATION OF A BILL OR NOTE. 485 
 
 since the 1 & 2 Geo. 4, c. 78. " Suppose," says Abbott, C. J., 
 " a bill 60 altered to be indorsed to a person ignorant of the al- 
 teration ; his right to sue his endorser would, as the bill appears, 
 be complete, upon default made where the bill is payable ; 
 whereas, in truth, the acceptor, not having, in reality under- 
 taken to pay there, would have committed no default by such 
 non-payment. I am of opipion, therefore, that the alteration is 
 in a material part of the bill, and the acceptor is, in conse- 
 quence, discharged."(e) 
 
 But it has been held by the same learned Judge,(/) and 
 %y the Court of Exchequer, that a similar addition, p^„n„-, 
 with the consent of the acceptor, •wovi]^ not invalidate the L J 
 instrument, either at common law or under the Stamp Act. 
 Where a bill was addressed to A., B. & Co., and the acceptance 
 was by A. and B., and the address was afterwards altered to 
 correspond with the acceptance, as the acceptors would be 
 liable either way, the alteration was held to be immaterial.(^) 
 An alteration of a foreign bill by adding either on the face of 
 the bill or to the indorsements the rate of exchange, according 
 to which the bill is to be paid, is fatal.(A) 
 
 The addition of the words " interest to be paid at six per 
 cent, per annum," written at the comer of the note, and not in 
 the body, is a material alteration, avoiding the note (i) 
 
 (e) M'lntosh v. Haydon, R. & M. 362 (21 E. C. L. R.) ; Desbrowe v. 
 Weatherby, 1 M. & Rob. 438 ; 6 C. & P. 758 (25 E. C. L. R.), S. C. ; Taylor 
 V. Moseley, 1 M. & Rob. 439, n. ; Semple v. Cole, 8 L. J., Exch. 155. These 
 decisions have been recently under review and confirmed by the Court of 
 Queen's Bench in Burchfield v. Moore, 23 L. J., Q. B. 261 ; 3 E. & B. 683 
 (77 B. C. L. R.), S. C. ; Gardner v. Walsh, 5 E. & B. 83 (85 E. C. L. R.). 
 
 (/) Stevens v. Lloyd, M. & M. 292 (22 E. C. L. R.) ; and see Jacobs v. 
 Hart, 6 M. & S. 142 ; Walter v. Cubley, 2 C. & M. 151 ; but in Walter v. 
 Cnbley tlie attention of the Court was not drawn to Gibb v. Mather, 8 Bing. 
 221 (21 E. C. L. R.) ; 1 Moore & S. 387 ; 2 C. & J. 254, S. C. Would not 
 the alteration have been material in an action against the drawer? Stevens 
 V. Lloyd, M. & M. 292 ; and if so, was not the legal effect of the instrument 
 altered ? 
 
 (ff) Farquhar v. Sonthey, M. & M. 17 ; 2 C. & P. 497 (12 E. C. L. R ), 
 S. C. ; Hamelin v. Bruck, 15 L. J., Q. B. 343 ; 9 Q. B. 306 (58 E. C. L. R.), 
 S. C. 
 
 ,. W Hirschfield v. Smith, 35 L. J., C. P. 177; L. R., 1 C. P. 340, S. C, 
 tjiqngh the additions were in red ink. 
 (»■) Warrington v. Early, 23 L. J., Q. B. 47. 
 
QF THE ALTERATION OF A BILL OR NOTE. 
 
 But, eecbh^ly, even if the consent of all parties have beete ob- 
 tained to an alteration in a material part, such alteration, never- 
 thelessj avoids the bill under the stamp laws; for it is becomef 
 a new and different instrument, and therefore requires a new 
 stamp; which stamp cannot, as we have seen, then be aMxed.{j) 
 Any alteration in the date, sum,(A) or time of payment, the 
 insertion of words rendering negotiable an instrument which 
 before was not so, altering the words, " value receiijed" into an 
 expression of the particular consideration which passed, are re^ 
 speetively material alteirations, avoiding the bill under the 
 Stamp Act8.(?) But the addition of another name to a joint 
 and several note on a different part of the face of the note, with 
 the assent of all parties, has been held ut res mengis vdeat to 
 operate as an iindorsenieiit.(my 
 
 There are,; however, two cases in which an alteration, though 
 in a material part, will not vacate the instrnment ; first, wheFa 
 - such an alteration is made before the bill is *is8ued, or 
 ^ -' become an available instrument ; and, secondly, where 
 the bill is altered to correct a mistake, or supply an omission^ 
 and in furtherance of the original intention of the partie3.(»)(l) 
 
 0') Wilson r. Justfce, Bayley, 6th ed. 118 ; Bowman t. Nichol, 5 T. B. 
 537 ; 1 Esp. 81, S. C. 
 
 (fc) Hamelin v/Brock,, 15 L, J.» Q. B. 343 ; 9 Q. B. 306 (58 E. C. L. R.), 
 S. C, 
 
 (0 Bathe v. Taylor, 15 East, 412 ; Walton v. Hastings, 4 Camp, 333 ; 1 
 Stark. 315 (2 E. C. L. B.)* S. C. ; Onthwaite t. Luntley, 4 Camp. 179; Knill 
 V. Williams, 10 East, 431. 
 
 (m) Ex parte Yates, 27 L. J., Bank., 9 ; 2 De 6. & J., 191, S. Q. But see 
 Gardner v. Walsh, 5 E. & B. 83 (85 E. C, L. R.). 
 
 (n) Catton v. Simpson, 8 Ad. & E. 136 (35 E. C. L. R.) ; overruled by 
 iSardner y. Walsh, 5 E. & B. 83 (85 E. C. L. R.) ; but see Ex parte Yates, 
 supra,; and Dodge v. Pringle,, 29 L. J., Exch. 115 ; Aldons v. CornwalJ, L. 
 R., 3 Q. B. 573 ; 37 L. T. 201 ; 9 B. & S. 607. 
 
 (1) Retracing the name of obligor which has faded or been blotted witlif 
 ink and obscured, does not avoid the obligation. Dunn v. ClemenfS, 7 Jones 
 (Law)', 58. To write over with ink words written in pencil is no material 
 alteration. Reed v. Roark, 14 Texas, 339. When a third person who Had 
 written, the note; and with whom it was left, in good faith changed the date, 
 but on its being disapproved by the maker restored the original date, it waS 
 held that he was liable on the note. Collins v. Malcepeacei 13 Indiana, 448. 
 Noting the residences of indorsers after their naiiies does not affect its identity, 
 
OF THE ALTERATION OF A BILL OR NOTE. 487 
 
 Thus, where the drawer of a hill, payable to his own order; 
 sent it to the drawee for acceptance, and the drawee requested 
 that a longer time might be allowed for payment, and an 
 alteration to that effect was accordingly made with the consent 
 of the drawer, and the bill was afterwards accepted y it was 
 held that, the alteration being made before the bill was an 
 available instrument against any party, a new stamp was un- 
 necessary, (o) Upon the same principle, where three persons 
 joined, as drawer, acceptor, and indorser, in the fabrication 
 of an accommodation bill, and the date was altered before it 
 came into the hands of a holder for value ; it was held that, as 
 the accommodatioTi parties could not sue upon it inter se, it 
 was not, till it came into the hands of a holder for value, an 
 available instrument, and therefore that an alteration befoipci 
 that time did not vitiate it. "The, question," says Abbott, C. 
 Ji, "is. whether this alteration made it a new bill? Now, 
 ntidoubtedly, when an accommodation bill has the different 
 |)arties written upon it, it is, in some sense of the word, a bill 
 of exchange, but it is utterly unavailable as a security for 
 money, until it is issued to some real holder for a valuable 
 cooiBideration. It first becatne a bill of exchanges when it 
 
 o 
 
 (o) Kennerly v. Nash, t Stark. 452 (2 E. C. L. R!). 
 
 nor avoid it as to any of the parties to it. Struthers y. Kendall, 5 Wright, 
 214. The holder of a hill indorsed' " A. B., Cashier,'' may add the name of 
 the Bank. Bank of Genesee v. ,Pafchln Bank, 3 Keriian, 309. The introduce 
 tion of i dwUar niark, followed by numerals, which may be omitted without 
 affecting, its sense, doea not impair the validity of a note. Houghton v. Francis, 
 29 Illinois, 344. The alteration of a note in a material respect by one of 
 several makers, assuming to have authority so to do, and for the honest- pur- 
 pose of making if conform to the original intention of the parties, without the 
 express, though with the implied assent of the holder, will not pi-cveht a re- 
 covery by the latter against all the makers declaring upon tlie note, as though 
 in the form oiTglnally delivered. Murray V. Graham, 29 Iowa, 520. In the 
 absence of evidence of fraudulent intent, a note is not void which has been 
 altered arter indf)rseraent without the knowledge of the indorser, if again re- 
 stored to its original condition. Kountz v. Kennedy, 13 P. F. Smith, 187. 
 
 An error in dating a note may be corrected by the holder, so as to make th? 
 note mature at the time in fact intended by the parties. Jessup v. D'erini^ori, 
 3 Disney, 150 ; Dreker v. Franz, 7 Bush, 373. Both parties intended to make 
 a note payable to B. C, but accidentally it was vrritten B. R. C. ; held, that 
 tlie erasure of the R. by the payee after delivery was immaterial. Cole v. Hills, 
 44 New Hamp. 327 ; Ames v. Cblbiirn; 11 Gray, 390. 
 
488 QS THE ALTERATION OF A BILL OR NOTE. 
 
 was issued to the indorsee for a valuable consideration." 
 "Here," adds Best, J., "at the time when the alteration 
 was' made, the bill was a perfect bill in form, but it did not 
 constitute a valid contract between the parties. A bond is a 
 perfect instrument before delivery ; but still an alteration made 
 before delivery will not vitiate it."(p) But if either payee or 
 indorsee have given value for it, so that the drawer is liable, 
 an alteration, though before acceptance, vacates the bill. "In 
 such a -case," says Lord EUenborough, " it does not remain in 
 fieri till acceptance. As to the drawer, it was before then a 
 perfect instrument. (7) When the date was altered, a new 
 r**?291 *'^^'^ ^^® drawn, and that could not be done without 
 a new stamp, "(r) So, if a promissory note be signed- 
 by A., and subsequently by B., as surety for A., whilst the 
 note is in the hands of the payee, it will be void, unless the 
 signature of B. is in pursuance of a previous agreement at the 
 time of making the note.(s) And an altered bill will be void 
 in the hands of an innocent indorsee, as well as in the hands of 
 parties cognizant of the alteration.(<) 
 
 If, again, the alteration were merely to correct a mistake, or 
 to make a bill what it was originally intended to be, it will not 
 avoid it under the Stamp Act. Thus, wh^re the drawee in- 
 tended to make the bill negotiable, and indorsed it over, but 
 had omitted the words " or order" their subsequent insertion in 
 pursuance of the original intention was held not to vacate the 
 bill.(w) So, where a bill having been dated, by mistake, 1822, 
 instead of 1823, the agent of the drawer and acceptor, to 
 whom it had been given to be delivered to the indorsee^ with- 
 
 (p) Downes v. Richardson, 5 B. & Aid. 674 (7 B. C. L. R.) ; 1 D. & R. 
 332, 8. C. ; Tailelon v. Shingler, 7 C. B. 813 (63 B. C. L. R.) As to the 
 alteration of a deed after execution by one party, see Jones v. Jones, 1 0. & 
 M. 721 ; before complete delivery, Spicer v. Burgess, 1 C, M. & R. 139 ; 4 
 Tyr. 598, 8. C. 
 
 (?) Walton v. Hastings, 4 Camp. 238 ; 1 Stark. 315 (3 E. C. L. R), S. C. 
 
 (r) Outhwaite v. Luntley, 4 Camp. 179. 
 
 («) Clerk V. Blackstock, Holt, N. P. C. 474 (3 E. C. L. R.). See Ex parte 
 White, 3 Deac. & Chit. 384. 
 
 (0 Outhwaite v. Luntley, 4 Camp. 179. 
 
 (m) Kershaw v. Cox, 3 Bsp. 346 ; 10 East, 487 ; Jacobs v. Hart, 3 Stark. 
 45 (3 E. C. L. R.) ; 6 M. & Sel. 143, 8. C. ; Byrom v. Thompson, 11 Ad. & 
 Bll. 31 (89 E. C. L. R.) ; 3 P. & D. 71-, S. C. 
 
OF THE ALTERATION OF A BILL OE NOTE. 489 
 
 out their knowledge or consent, corrected the mistake ; it was 
 held, that such alteration did not vacate the bill.(x) So, again, 
 a man who has agreed beforehand to be a surety, may, after 
 the advance to another maker, sign the note.(?/) . A bona fide 
 
 holder of a bill of exchange, accepted payable to -, or 
 
 order, may insert his own name as payee, and indorse it, and 
 the bill may be declared on as payable to the party who has 
 inserted his name. " One," says Best, C. J., " who accepts a 
 bill in this form, undertakes to be answerable for it in the 
 shape of a bill. That "being so, he undertakes to be answerable 
 for it in the form which a bona fide holder has a right to give 
 it, and the description in the declaration is made out against 
 him. No new stamp is necessary ; the first stamp gives au- 
 thority for the insertion.(2) "Whether the intent of the altera- 
 tion were to vary the original contract, or merely to correct a 
 miistake, is a question of fact for the jury .(a)(1) 
 
 (a) Brutt V. Picard, R. & M. 37 (31 E. C. L. R.). 
 (y) Dodge V. Pringle, 29 L. J. , Exch. 115. 
 
 (z) ,Attwood V. Griffin, R. & M. 425 (21 B. C. L. R.) ; 2 C. & P. 368 (13 
 E. C. L. R.), S. C. 
 (a) Ibid. 
 
 (1) Tlie acceptor of a bill may alter the date before he accepts, and if this 
 be concurred in by the other parties, it will bind them. Ratcliff v. Planters' 
 Bank, 2 Sneed, 425. 
 
 Where a parly to a negotiable bill or note containing blanks, whether in the 
 date or amount, intrusts it to another, especially if indorsed in blank or paya- 
 ble to bearer, such a transaction carries on its face an implied authority in the 
 person to whom the bill or note is intrusted to fill up the blanks at his discre- 
 tion. Michigan Bank v. Eldred, 9 Wallace (S. C), 544 ; Smith v. Lockridge, 
 8 Bush, 423. 
 
 The innocent holder of a note forge^d over an autograph, given in blank for 
 mere purposes of identification, held not entitled to recover. Caulkin v. 
 Whisler, 29 Iowa, 495. 
 
 Where a person signed an instrument to be filled up as an order for a certain 
 article, and intrusced it to another for such purpose, who filled it up as a 
 promissory note, the maker is liable to a bona fide holder, who had paid value 
 before maturity. McDonald v. Muscatine National Bank, 27 Iowa, 319. 
 
 One who signs a note written partly in ink, but containing a material con- 
 dition in pencil, is liable to a holder in good faith, who takes it after the pen- 
 cil marks have been erased. Harvey v. Smith, 55 Illinois, 234. 
 
 Where the form of a bill of exchange is signed in blank, and the holder, 
 without the knowledge or consent of the signer, has filled the blanks in such 
 a manner as to make a promissory note,- and thus change its legal tenor and 
 
490 Of THE ALTERATION OP A BILL OR UOlfi. 
 
 An alteration by the drawer and payee of the bill, or the? 
 payee of a note, though it avoids the instrument, does not 
 pooq-i *extingui8h: the debt •,{b) but an alteration by an in- 
 dorsee not only avoids the security as against all 
 parties, but also extinguishes the debt duetto the indorsee from 
 the iHdorser.(c) For it would be unjust that the indorsee should 
 eompel the indorser to pay his debt, when the indorsee has de- 
 stroyed the instrument on which alone, ifl some cases, and on 
 which perferably in all cases, the indorser should sue. To make 
 the indorser liable on the consideration and give hirii across 
 action against the indorsee for the alteration, would be to 
 oblige him to rely on the indorsee instead of the antecedent 
 paiFties, and to prove a fact of which he might have no evidenoe-J 
 it would besides introdnce a needless circuity of action- A 
 bona fide transferee for value of an altered bill is in no bettei* 
 position as to his remedy on the bill than his transferor.(«i)(l} 
 
 (J) Sutton V. Toomev, 7 B. & C. 416 (14 E. C. L. R.) ; 1 M. & R. 1^5, 
 8. C. ; Atkinson v. Howdon, 2 Ad. <fe E. 628 (31 E. 0. L. R.) ; 4 N. & M. 
 409 ; 1 H. & W. 11, S. C. ; see Sloman v. Cox, 1 C, M. & R. 471 ; 5 Tyr. 
 174, S. C. Unless the bill or note were taken in satisfaclion of the debt. 
 McDowall V. Boyd, 17 L. J., Q. B. 295. 
 
 (c) Alderson v^ Laflgdale, 3 B. & Ad. 660 (23 E. C. L; Rr>. 
 
 (d> Burchfield V. Moore,, 23 L. J., Q., B. 261 ; 3 E. & B. 683 (77 E, C. L. 
 R.), S. C. 
 
 etfect, the signer will be released from responsibility upon such note while in 
 the hands of the persbn *lio has made the alteral'ioJi. Lilelleil v. Hare, 3S! 
 Ind, 211. 
 
 Garl'ai-d si'gne'd a printed note, in the blank of which was written "one 
 hundred," teaVfn'g a blank space between that and "dVillars,'' which' wis iri 
 print ; this, after delivery, was filled with " fifty" in the same hand, and'notli- 
 ihg in the appearance to raise a suspicion that it was not all right ; held', that 
 Gfatrard w'as liable for ttie face 6f the note to a bota fide liolJer foi' valued 
 Garrard v. Haddan, 17 P. F. Smith, 82. 
 
 ■(f) Whete an agreement is reduced to writing, livhetJier under seat df tint, 
 so as to ffietge the origins;! promise, and the Written agreemest is so altefed sis 
 to avoid it, (he pai'ty cannot resort to the original cOnti'aci;. NeWell v. Miiy-" 
 berry, 3 Leigh, 250 ; Wheelock t. Freeman, 13 Pick. 165 ; Mills v. Starf, 3 
 Baifey, 359. 
 
 The payee of a note fraudulently altered by him, cannot recovef on tlid 
 original consideration. Smith v. Mace, 44 New Hamp. 553; BigeloW f- 
 Stilplien, 35 Vermont, 521. An alteration made by the payee in go6d failh, 
 supposiiig himself authorized by the maker, will tiot preclude him from a re- 
 corery on the original consi'deratioti. Krause V. Meyer, 33 Iow«, 566. All 
 
oi 
 
 THE ALTEEAIIOU 01 A BILL OR NOTE. 491 
 
 If a bill b6 altered eo that a man dtherwise liable on it is 
 discharged, he is not liable on a bill given In renewal of thd 
 altered bill, unless he were actually apprised of the alteration 
 at the tiftie he gave the substituted bill.(e) 
 
 It is conceived, notwithstanding some recent cases, that the 
 alteration of a bill or note need not, when the plaintiff declares 
 on the instrument in its altered state, be specially pleaded. 
 When altered, it is no longer the same instrument that the de- 
 fendant signed, and, moreover, there is no stamp applicable to 
 the altered instrument, so that it cannot be looked at by th« 
 jury to prove the new contract. Therefore the defendant may, 
 under the plea that he did not make, accept or indorse the in* 
 stmraent set forth in the declai'ation, show the alteration, and 
 thereby prove that he executed another instrument, and not 
 that in qiuestion,( /) or, if there *be no fresh stamp, that 
 
 there is no instrument which the jury can look at. 
 
 [*324] 
 
 But where the declaration is on the instrument, in its ori- 
 gibal dOadition,the alteration must be specially pleaded.(5f) 
 
 The plea, where it merely relies on the absence of a proper 
 
 (e) Hfians of knowledge are not equivalent to actual knowledge. Bell v. 
 Gafdiner,. 11 L. J., G. P. 195 ; 4 M. & G. 11 (43 E. 0. L. R.), S. C. 
 
 (/) Cock r. CoxWell, 2 C, M. & R. 291 ; 4 Dowl. 187 ; 1 Gale, 177, S. C. ; 
 Calvert t. Baker, 4 M. & W. 417 ; 7 Dowl. 17, S. C. ; Langtoii v. Lazarus, 
 5 M. & W. 629 ; Enight V. Clements, 8 Ad. & E. 215 (35 E. C: L. R.) ; Field 
 V. Woods, 7 Ad. & E. 114 (34 E. C. L. R.) ; Grotty v. Hodges, 4 M. & G. 
 563 (43 E. G. L. R.) ; and Clifford v. Parker, 3 M. & G. 909 (40 E. C. L. R.). 
 
 iff) Hemming v. Trenery, 9 Ad. & E. 926 (36 E. C. L. R.) ; 1 Per. & Dav. 
 661, S. C. ; Bridgman v. Slieehan', cor. Parke, B., at Nisi Prius, T. T. 1843 ; 
 Mason v. Bradley, 12 L. J , Exch. 435 ; 11 M. & W. 590, S. C. But this dis- 
 timction does not appear to have been recognized in some of the cases. See 
 Vtny V. Nichotson, 13 M. & W. 778. B'Ut the most recent decision is iit 
 accordance with the view of the law taken in the text. Hirschmatt v. Budd, 
 L. E., 8 Ex. 171. 
 
 alteration of an instrument by the holder, although such as to destroy' it^ 
 identity, will not cancel a debt of wliich the instrument Was evidence, unless 
 Made fraudulently. Togle v. Ripper, 34 Illinois, 100. An unauthorized and 
 material aTteration of a note, made without fraudulent intent, but under a 
 mistake of facts, avoids the note, but leaves the original debt unpaid. Lewis 
 V. Schenct, 3 Green, 459. 
 
492 OF THE ALTERATION OP A BILL OR NOTE. 
 
 stamp on the altered instrumentj must show that the bill or 
 note could not he made good by being stamped before the trial,(A) 
 
 Where an alteration appears on the face of a bill or note, it 
 lies on the plaintiff to show that it was made under such cir- 
 cumstances as not to vitiate the in8trument.(i) And this rule 
 is most reasonable ; for, if it lay on the defendant, on an acqeptpPj 
 for example, sued by an indorsee, to show that an alteration 
 was improperly made, it might be a great hardship; for 
 he may have no means of proving that the bill went unaltered 
 from his hands, or of showing the circumstances of a subse- 
 quent alteration. But the burthen of explaining an alteration 
 imposes no hardship on the plaintiff", for if the bill was altered 
 while in his hands, he may, and ought, to account for it ; if 
 before, then he took it with a mark of suspicion on its face, 
 P^Qgr-| which ought to have induced *hira either to refuse it, 
 or to require evidence of the circumstances under which 
 the alteration was made.(A;)(l) 
 
 (A) Bradley v. Bardsley, 15 L. J., Exch. 115 ; 3 D. & L. 476 ; 14 M. & W. 
 873, S. C. 
 
 (j) Johnson v. Duke of Marlborough, 2 Stark. 313 (3 E. C. L. R.) ; Hen- 
 man V. Dickinson, 5 Bing. 183 (15 E. C. L. R.) ; 3 M. & P. 281, S. C. ; 
 Knight V. Clements, 3 N. & P. 375 ; 8 Ad. & E. 215 (35 E. C. L. R.), B. C. ; 
 Bishop V. Chambre, M. & M. 116 (23 E. C. L. R.) ; 3 C. & P. 55 (14 E. C. 
 L. R.), S. C. In Sibley v. Fisher, 7 Ad. & E. 444 (34 E. C. L. R.) ; 2 N. 
 & P. 420, S. C, the making of the bill, sis described in the declaration, was 
 admitted on the record. See Earl of Falmouth v. Roberts, 9 M. & W. 471 ; 
 Disbrowe v. Weatherley, 6 C. & P. 758 (25 E. C. L. R.) ; Semple y. Cole, 
 8 L. J., Exch. 155 ; 3 Jurist, 268, S. C. And whether the alteration were 
 before or after the completion of the bill, has been left as a question of fact 
 to the jury. Taylor v. Moseley, 6 C. & P. 273 (35 E. C. L. R.) ; and see 
 Leykrieff V. Ashford, 12 Moore, 281 (22 E. C. L. R.). 
 
 It is said that the presumption against the legality of an alteration is con- 
 fined to the cases of a bill of exchange or promissory note and a will. See 
 Doe v. Catamorei 16 Q. B. 745 (71 E. 0. L. R.) ; and Doe v. Palmer, 16 Q. 
 B. 747 (71 E. C. L. R.) ; and the note to Master v. Miller, in 2 Smith's Lead- 
 ing Cases, 
 
 (Js) The American cases on this subject are not harmonious. The weight 
 of authority, however, sustains the positions in the text. Byles on Bills, 5tli 
 American ed. p. 481. 
 
 The question of the burthen of proof in auch cases arose in the Supreme 
 
 (1) The American cases on this subject are not harmonious. The weight 
 of authority, however, sustains the position in the text; There are several cases 
 
OF THE ALTERATION OF A BILL OR NOTE. 493 
 
 Court of Pennsylvania, in Simpson v. Stacljhouse, 9 Barr, 186, and it was 
 lield tliat tlie onus of showing that an alteration in a material part of a nego- 
 tiable instrument was lawfully made, is on the holder ; and that where the 
 place of payment is in a diil'erent handwriting from the body of the instru- 
 ment, there is a presumption of alteration. See the 5th American ed. of Bylcs 
 on Bills, p. 483. 
 
 which leave the question as a presumption of fact to be determined by the 
 jury. Ill some instances it has been held that the law presumes an erasure or 
 interlineation to have been made before the instrument was signed. In other 
 cases, however, it has been decided that if an erasure or interlineation appears 
 on the face of a negotiable instrument, some explanation must be given in 
 evidence before it can be allowed to go to the jury. It is then a question of 
 fad for Ihe jury wlieu, by whom, and by whose consent, it was altered ; but 
 the materiality of the alteration is in all cases a pure question of law for the 
 Court. See Jackson v. Osbourne, 2 Wendell, 555 ; Cumberland Bank v. Hall, 
 1 Halsted, 315; Bailey v. Taylor, 11 Conn. 531; Heffelfinger v. Shnte, 16 
 Serg. & Rawle, 44 ; Chesley v. Frost, 1 N. Hamp. 145 ; Jaclison v. Jacoby, 9 
 Cowen, 135 ; Prevost v. Gratz, Peters, C. C. 3G9 ; Stephens v. Graham, 7 
 Serg. & Rawle, 508 ; Bowers v. Jewell, 2 N. Hamp. 543 ; Steele v. Spencer, 1 
 Peters, 552; Rankin v. Blackwell, 3 Johns. Gas. 198; Hills v. Barnes, 11 N. 
 Hauip. 395 ; Gooch v. Bryant, 1 Shepl. 386 ; Crabtree v. Clark, 7 Shepl. 337 ; 
 Davis V. Carlisle, 6 Alabama, 707 ; Warren v. Layton, 3 Harrington, 404 ; 
 Bank v. Lum, 7 Howard, Miss. 414 ; Wilson v. Henderson, 9 Smedes & Mar- 
 shall, 375 ; Matthews v. Coaller, 9 Missouri, 705 ; Beaman v. Rassell, 30 Ver- 
 mont, 205 ; Tillou v. Clinton and Essex Ins. Co., 7 Barbour, S. C. 564 ; Paine 
 V. Esdell, 19 Penna. State Rep. 178 ; Clarke v. Eckstein, 33 Penna. Slate Rep. 
 507; Buinham v. Ayer, 35 New Hampshire, 351 ; Maybee v. Sniffen, 3 E. D. 
 Smith, 1 ; Abbe v. Rood, 6 McLean, 106 ; Hill v. Cooley, 10 Wright, 259 ; 
 White V. Hass, 32 Alabama, 430. Where an instrument has been altered, and 
 there is no evidence when the alteration was made, it will be presumed to 
 liave been done at or before the execution. Stoner v. Ellis, 6 Indiana, 153. 
 The Court will not presume that a contract of guaranty has been fraudulently 
 written over a simple indorsement from the mere fact that it is not in the 
 handwriting of the indorser. Small v. Sloan, 1 Bosworth, 858. When the 
 alteration consists in striking out a word in the printed form to make room for 
 the name of one of the payees, and to change " order" to "bearer," and it is 
 apparent that it was done at the making of the note, it will have no effect. 
 Williams V. Starr, 5 Wisconsin, 534. An alteration of date, shown only by 
 the note itself, was held insufficient to show that it was without consent. 
 Harlan v. Bevy, 4 Greene, 212. That material words were written at the end 
 of a note, with different ink and in a different handwriting from the rest, does 
 not throw the burden of proving that there was no alteration or explaining it 
 on the plaintiff. Ault v. Fleming, 7 Clarke, 143. 
 
 The question of the burden of proof in such cases arose in the Supreme 
 Court of Pennsylvania, in Simpson v. Stackhouse, 9 Barr, 186. And it was 
 held that the onus of showing that an alteration in a material part of a nego- 
 tiable instrument was lawfully made is on the holder ; and that where the 
 place of payment is in a different handwriting from the body of the instru- 
 
494 OF THE ALTERATION OP A BILL OB NOTE. 
 
 ment there is a presumption of alteration. Chief Justice Gibson, after stating 
 that as a generql rule the law presumes in favor of innocence, that an altera- 
 tion in an instrument is a legitimate part of it, till the contrary appears, but 
 that it is not according to the English cases extended to negotiable instru<- 
 .menis, remarks that the decisions in the United States are discrepant, but 
 their preponderance is iu favor of restraining the general rule to deeds and 
 vrritings not negotiable. He then observes : " But how stands the question 
 on principle ? The English decisions are founded in reason and not in con- 
 siderations growing out of the stamp acts. He who takes a blemished bill or 
 note takes it with its imperfections on its hea'd. He becomes sponsor for them, 
 and though he may act honestly, he acts negligently. But the law presumes 
 against uiegligenccias a degree of culpability ; and it presumes that he bad not 
 only satisfied himself on the innocence of the transaction, but that he had 
 provided himself with the proof of it to meet a scrutiny he had reason to ex- 
 pect. It is of no little weight, too, that the altered instrument is found in his 
 hands, and that no person else can be called on to speak of it ; for without a 
 presumption to sustain him, the maker would in every case be defenceless. It 
 may be said that the holder, with such a pi'esumption against. him, would also 
 be defenceless. But it was his fault to take such a note. As bills and notes 
 are intended for circulation, and as payees do not usually receive them when 
 clogged with impediments to their circulation, there is a pr^'sumption that snuh 
 an instrumient starts fair and untarnished, which stands till it is repelled ; and 
 » holder ought therefore to explain why he took it branded with marks of sus- 
 picion, which would probably render it unfit for his purposes. The very fact 
 that he received it is presumptive evidence that it was unaltered at the time; 
 and to say the least his folly or his knavery raised a suspicion which he ought 
 to remove. The maker of a note cannot be expected to account for what may 
 have happened to it after it left bis hands ; but a payee or indorsee who takes 
 it, condemned and discredited on the face of it, onght to be prepared to show 
 what it was when he received it." 
 
OF THE rORQERT OF BILLS AND NOTES. 
 
 495 
 
 ^CHAPTER XXy. [*326] 
 
 OF THE FORGERY OF BILLS AND NOTES. 
 
 DEFIHITION OF THE CRIME, . 336 
 
 EXI8TIS6 BTATUTES, . . . 326 
 
 TORQBRY OF TOID BILLS, . . 327 
 
 OF INVALID AND INFORMAL 
 
 BILLS, 337 
 
 FOEGBRT BY MISAPPLICATION OF 
 
 A GEKniHE SIGNATURE, . . 327 
 
 MISAPPLICATION OF HIS OWN 
 SIGNATDRE BY THE PARTY 
 fllGNING, . . ... . 328 
 
 fij SIGNATURE OF A FICTITIOUS 
 
 NAME, 328 
 
 BY FRACDULBHT SIGNATURE OF 
 
 A man's OWN NAME, . . 329 
 
 UTTERING A GENUINE SIGNA- 
 TURE, AND PERSONATING THE 
 PARTY SIGNING, . . . 329 
 
 MI8EBPRESBNTATI0N OF AUr 
 
 THORITY, 330 
 
 ALTERATION, .... 330 
 UTTERING, 330 
 
 331 
 
 331 
 332 
 
 PROCURING TO UTTER, . - '331 
 
 STATEMENT OF THE INSTRUMENT 
 IN THE INDICTMENT, . . 331 
 
 WHERE SEVERAL MAKE DISTINCT 
 PARTS OF THE INSTRUMENT, 
 
 THE PARTY WHOSE NAME IS 
 FORGED A COMPETENT WIT- 
 NESS, .... 
 
 FORGERY OF FOREIGN BILLS, 
 
 EVIDENCE IN CRIMINAL CASES, . 332 
 
 CIVIL CONSEQUENCES OF FOR- 
 GERY, 33? 
 
 WHEN THE PAYMENT OF A 
 FORGED BILL IS GOOD, . . 333 
 
 WHEN MONEY PAID IN DIS- 
 CHARGE OF A FORGED BILL 
 MAY OR MAY NOT BE RE- 
 COVERED BACE, . . . 333 
 
 INSPECTION OF A BILL SUPPOSED 
 
 TO BE FORGED, . . . 336 
 
 FoKGERT is the couiiterfeit(a) making or altering of any writ- 
 JBg with intent to defraud.(l) It is a misdemeanor at common 
 law, punishable by fine and imprisonment,(6) and a conviction 
 of it, as of any other species of the crimen falsi, makes a man 
 infamous, and formerly rendered him incompetent as a wit- 
 nea9.(c) 
 
 ' The forgery of bills or notes, or of any part of them, and the 
 
 (o) S.ee Reg v. White, 1 Den. C. C. 208. 
 (6) 4 Bl. Com. 248. 
 
 (e) Com. Dig. Testm, A. 5 ; Rex v. Davis, 5 Mod. 74. 
 tatedby 6&7 Vict. c. 85. 
 
 He is now capaci- 
 
 (1) Ame's Case, 2 Greenl. 365 ; Commonwealth v. Ladd, 15 Mass. 526 ; 
 People V. Schnll, 9 Cowen, 778 ; Bainum v. Stale, 15 Ohio, 717. 
 
496 OF THE FORGERY OFBILLS AND NOTES. 
 
 uttering of them knowing them to be forged, are respectively 
 felonies, punishable by penal servitude for life.(df) 
 
 Fraudulently obliterating or altering the crossing hf a check 
 is felony. (e) 
 
 r*3271 *The fraudulent signing of a bill or note for any other 
 person, by procuration or otherwise, without lawful au- 
 thority, or knowingly uttering the same, has, by the recent act, 
 24 & 25 Vict. c. 98, s. 24, for the first time been erected into a 
 felony.(/') 
 
 Inducing a person by violence or threats to execute a bill or 
 note or other valuable security, is now also for the first time 
 made a felony. (^) 
 
 Fraudulently to obtain by false pretences a signature to a 
 bill or note, or the destruction of the instrument in whole or 
 in part, is now a misdemeanor.(/i) 
 
 Forging or uttering such a bill or note as the Legislature has 
 declared void is not within the statutes, as, for example, a bill 
 or note for less than 205., or a bill or note for less than 5^., which 
 did not comply with the requisites of 17 Qeo. 3, c. 30,(j) in the 
 former state of the law. 
 
 Where there is no payee, or no maker's name, it has been 
 held that the offence is not within the act.(J) 
 A mere informality, as the omission of the words pounds in 
 
 (d) 24 & 25 Vict. c. 98, s. 23. 
 
 (e) Ibid. B. 25. 
 
 (/ ) See as to tlie law before this statute, Maddock's Case, 3 Russ. C & M. 
 499 ; Reg. v. Wliite, 1 Den. C. C. 208 ; 3 C. & K. 404 (61 E. C. L. R.). 
 
 ig) 24&25 Vict. c. 96, s. 48. See Rex v. Pbipoe, 2 Leach, 673; Rex v. 
 Edwards, 6 C. & P. 521 (25 E. C. L. R.). 
 
 (A) 24 & 25 Vict. c. 96, s. 90. See Reg. v. Danger, I D. & B. C. C. 307. 
 
 (i) Rex V. Moffat, 1 Leach, 431 ; 2 East, P. C. 954, S. C. 
 
 U) Rex V. Richards, R. & R., C. C. 193 ; Rex v. Randall, R. & R., 0. C 
 195 ; and see as to other fatal defects, Rex v. Jones, Dong. 387 ; Rex v 
 Pateman, R. & R. 455, where there was no maker's name ; Rex v. Burke, 
 R. & R. 496 ; Rex v. Wilcox, Bayley, 6th ed. 11. To constitute the forgery 
 of a bill of exchange within 1 Will. 4, c. 66, s. 4, the instrument must be 
 complete. Reg. v. Turpin, 2 C. & K. 830 (61 E. C. L. R.) Forging, an ac- 
 ceptance to an instrument in the form of a bill, but without the drawer's name, 
 is not within the Statute. Reg. v. Butterwick, 2 Moo. & R. 196. 
 
OF THE FORGERY OF BILLS AND NOTES. 497 
 
 the body, where t?ie letter £, precedes the figures 50 in the 
 raargin,(A) does not prevent the crime amounting to forgery. 
 
 In order to constitute forgery, it is not necessary that the in- 
 strument should be duly stamped, or stamped at &\\.{l) 
 
 The most common species of forgery is, fraudulently writing 
 *the name(ffi) of an existing person. But a fraudulent r*.joo-| 
 misapplication of the genuine signature of another man 
 is as much forgery as counterfeiting his signature. Thus, where 
 the prisoner, having in his possession the genuine signature of 
 one Thomas G-ibson, wrote over it a promissory note for 6,400^ , 
 he was indicted and convicted of having forged the note.(n) 
 And where the same prisoner, having the genuine signature of 
 Samuel Edwards, wrote on the other side of the paper a promis- 
 sory note, payable to Samuel Edwards, and so turned the genu- 
 ine signature into an indorsement, he was convicted of forging 
 the indorsement.(o) So if a clerk be intrusted to fill up a blank 
 check signed by his master with a particular sum, and he 
 fraudulently inserts a larger sjim, it is a forgery of the check.(p) 
 
 There may be an innocent misapplication of his own genuine 
 signature by the party himself: Thus, where a man was in- 
 duced to sign his name to a bill by a fraudulent misrepresenta- 
 tion of the nature of the instrument, it was held that, if not 
 guilty of negligence, he was not liable even to an innocent 
 holder, any more than if he had been blind or illiterate, and 
 the instrument had been falsely and fraudulently read over to 
 him.(g') 
 
 (S) Eex V. Post, R, & R. 101, and Bayley, 11 ; and see ColUnson's case, 
 2 Leach, 1048. 
 
 (!) Teague's case, 2 East, P. C. 979 ; R. & R. 33, S. C. ; Rex v. Hawkes- 
 wood, 1 Leach, 257 ; 2 East, P. C. 955, S. C. ; Rex v. Lee, 1 Leach, 258, n. ; 
 Merlon's case, 2 East, P. C. 955 ; and see 33 & 34 Vict. c. 97, s. 17. 
 
 (m) Making a mark, and suffering the assumed name to be written against 
 it, is forgery. Rex v. Dunn, 1 Leach, 57; 2 Bast, P. 0. 963. Putting the 
 address of an existing person to u name, being the name of another person, is 
 forgery. Keg. v. Blenkinsop, 1 Den. C. C. 276. 
 
 (.n) Rex V. Hales, 17 St. Tr. 161. 
 
 (o) Ibid. 209, 229. 
 
 (P) Reg. V. Wilson, 17 L. J., M. C. 82 ; 1 Den. C. C. 284, S. C. ; Rex v. 
 Han, 1 Moo. C. C. 4-'6 ; 7 C. & P. 652 (32 E. C. L. R.), S. C. ' 
 
 (?) Foster v. Mackinnon, L. R., 4 C. P. 704 ; and the English and Ameri- 
 can authorities tliere cited. 
 
 32 
 
498 OF THE FORGERY OF BILLS AND NOTES. 
 
 To sign the name of a fictitious or nou-existiTig person is 
 forgery.(r) Where the prisoner was convicted of forging aa 
 order for payment of money, and it appeared that he had bought 
 goods from the prosecutor, and paid for them with a draft signed 
 in the fictitious name of H. Turner, although the prosecutor 
 had sworn that he gave credit to the prisoner aod not to the 
 draft, it was held that the prisoner was rightly convicted. The 
 Judges said that it was a false instrument, not drawn by any 
 j-^ogq-i such person as it purported *to be, and that the using 
 a fietitioTis name was only for the purpose of decdv- 
 ing.(s) But the signing a fictitious name will not amount to 
 forgery, if it were used on other occasions as well as for that 
 very fraud, or system of frauds, of which the forgery forms a 
 part.(<) Where proof is given of the prisoner's real name, and no 
 proof of any change of name until the time of the fraud com- 
 mitted, it lies on the prisoner to show that he has before as- 
 sumed false name on other occasions, and for other purposes 
 unconnected with forgery.;(M) ' 
 
 It is a forgery, also, to sign a man's own name with inten- 
 tion that the signature should pass for the signature of an- 
 other person of the same name.(») And where a person, whose 
 name was Thomas Brown, was indicted for forging a promis- 
 sory note signed Thomas Brown, and it appeared that he had 
 tittered the note as a note of Captain Brown, a fictitious per- 
 son, and the prisoner was convicted, the Judges held the con- 
 viction right.(x) But the adoption of a false description and 
 addition, where a false name is not assumed, is not forgery. 
 Thus were the prisoner drew a bill, and directed it to " Mr. 
 Thomas Bowden. baize manufacturer, Romford, Essex;" and 
 it was accepted by one Thomas Bowden^ but there was no 
 
 {r) Rex V. Francis, Bayley, 6th ed. 572 ; Russ & Ry. 209 ; Lockett's case, 
 1 Leacb, 94; East, P. C. 940; Tafl's case, 1 Leach, 172; Bast, P- 0. 959; 
 or in the prisoner's own name to represent a fictitious firm ; Reg v. Roger?, 
 8 C. & P. 629 (34 E. C. L. R.). 
 
 (s) Sheppard's case, 1 Leach, 226 ; 2 East, P. C. 967 ; Whiley's case, R. 
 & R. 90. 
 
 (0 Rex V. Bontien, R. & R. 260. 
 
 (m) Peacock's case, R. & R. 278. 
 
 (d) Mead v. Young, 4 T. R. 28. 
 
 (a) Rex V. Parkes, 2 Leach, 773 ; 2 East, P. 0. 963, S. C. 
 
X)F THEPOKGERY OF BILLS AND NOTES. 499 
 
 Thomas Bowden of Romford, it was held by a majority of the 
 Judges, that the giving a false description of Bowden on the 
 .bill, with intent to defraud, was not forgery.(y) 
 
 Where the signature on the bill is genuine, an uttering by an- 
 other person, with a representation that he is the person whose 
 .signature is on the bill, is not forgery, or a felo^nious uttering. 
 The prisoner uttered a bill purporting to be payable to Bernard 
 M'Carthy, or order, and having the indorsement B. M-Carfchy 
 ithereon: he was indicted for forging that indorsement, and 
 uttering it knowing it to be forged ; the jury found that there 
 was such a man as B. M'Carthy, and that the indorsement was 
 his handwriting, but that the prisoner passed himself off as 
 that B. M'Carthy when he uttered the bill. The Judges were 
 unanimous, *that as the indorsement was not forged the r*>jq m 
 prisoner was not liable to be convicted. («) 
 
 .Writing a principal's name " per^procuration," but without 
 authority, was not until the recent statute(a) forgery ;(6) nor, as 
 it should seem, writing Bierely another man's name under a 
 fake pretence of authority ,(c) without any intention of imita- 
 ting his handwriting. 
 
 Every fraudulent alteration, whether by subtraction, addi'- 
 tion or substitution, is forgery, and would be so within the 
 statutes, even did they not contain the word aJAer, as was decided 
 on 2 Geo. 2, c. 15, which did not contain that word.(ci) The 
 statute 11 Geo. 4 & 1 Will. 4, c. 66, contains the word " alter " 
 as well as "forge." Nevertheless, an alteration may be de- 
 scribed in the indictment as forgery.(e) So, e converso, the dis- 
 
 (y) "Webb's case, E. & R. 405 ; 3 B. & B. 329 (7 E. C. L. K.), S. C. ; Rex 
 T. W§tts, R. & R. 436 ; 6 Moore, 443 (17 B. ~fc. L. R.) ; 3 B. & B. 197 (7 E. 
 C. L. R.), S. C. ^ 
 
 (3) Rex V. Hevey, 1 Leach, 329 ;- 2 East, P. C. 556, S. C. ; Bayley, 577. 
 
 (a) Vide ante, p. 327. 
 
 (J) Reg. V. White, 1 Den. C. Q. 208 ; 3 C. & K. 404 (61 E. C. L. R.), S. C. 
 
 (c) Ibid. ; but see Awde v. Dixon, 6 Exch. 869. 
 
 (ri) Rex V. Elsworth, Bayley, 6th ed. 574 ; 2 East, P. C. 986 ; Reg. v. Blen- 
 kinsop, 1 Den. C. C. 376. 
 
 (e) Rex V. Teague, R. & R. 33; 2 East, P. C. 979, S. C. ; Rex v. Post, 
 E. & R. 101 ; Rex T. Treble. 2 Taunt. 328 ; 2 Leach, 1040 ; R. & R. 164, S. C. 
 
500 OF THE FORGBKY OF BILLS AND NOTES. 
 
 charging one indorsement and the insertion of another maj be 
 described as the alteration of an indorsement.( /■)(!) 
 
 Procuring a man to forge is an offence within the statute.{g') 
 
 It has been decided, that, in order to constitute an uttering, 
 the instrument must be parted with, or tendered, or offered, or 
 used in some way to get money or credit upon it.(A) Therefore, 
 where the defendant, in order to persuade an innkeeper that he 
 was a man of substance, pulled out of. his pocket-book a 500i, 
 and 50^. note saying, and that he did not like to carry so much 
 property about him, delivered them to the innkeeper to take 
 charge of them for him, it was held that this did not amount 
 to an uttering.(i) 
 
 *Procuring to utter has been held a common law 
 '- -' felony only.(A) 
 
 But procuring to utter, if the person procured were innocent 
 of the felony, is a statutable felony in the procurer.(^) 
 
 Before certain recent Acts of Parliament it was necessary to 
 set out the forged instrument in the indictment in words and 
 figures correctly ; the slightest variance, would have entitled 
 the defendant to an acquittal. But the 14 & 15 Yict. c. 100, s. 
 5, in order to prevent justice from being defeated by clerical or 
 verbal inaccuracies, enacted that, in all indictments for forging, 
 or uttering any instrument, it shall not be necessary to set 
 
 (/) Rex V. Birkett; K. & R. 251. 
 
 (ff) Rex V. Morris, Bayley, 6lli ed. 580 ; R. & R. 270, S. C. 
 
 (h) Rex V. Shukard, R. & R. 200 ; and see Reg. v. Radford, 1 Den. C. C. 
 59 ; Reg. V. Ion, 2 Den. C. C. 475. 
 
 (J,) Ibid. ; and see Holden's case, R. & R. 154; 3 Leach, 1019, S. C; 
 Palmer's case, R. & R. 72 ; 3 Leach,. 978, S. C. ; Rex v. Morris, K. &R. 270; 
 Reg. V. Hill, 2 M. C. C. 30. 
 
 ik) Rex V. Morris, Bayley, 6th ed. 580 ; R. & R. 370 ; 2 Leach, 1096, S. C. 
 But see now 24 & 25 Vict. c. 94, ss. 1, 3, 49. '^ 
 
 (0 Bayley, 6th ed. 581. ' 
 
 (1) If a merchant write his name pn blank pieces of paper, and intrust 
 them to his clerk for the purpose of having promissory notes filled out, and a 
 person by false pretences obtains possession of one of them, and fills up a note 
 lor his own use, he does not thereby commit the crime of forgery, Putnam 
 Y. Sullivan, 4 Mass. 45. 
 
\ 
 OF THE FORGERY OF BILLS AND NOTES, 501 
 
 forth any copj' or fac-simile thereof, but it shall be sufficient 
 to describe it by any name by which it would be usually 
 kiiown.(m) 
 
 An indictment for the larceny, and therefore now for the 
 forgery bf a bill or note, may describe it, generally, as a bill of 
 exchange or promissory note for the payment of the sum 
 therein mentioned, without setting out the instrument.(n) But 
 if it be alleged in the indictment to have been signed or made 
 by any person, the signature must be proved.(o) 
 
 If several make distinct parts of the instrument, they are 
 each chargeable with the forgery of the entire instrument.(p) 
 Those who knowingly prepare the paper or plates for the pur- 
 pose are forgers.(g') 
 
 Before the 9 Geo. 4, c. 32, s. 2, a rule of evidence existed 
 equally anomalous and inconvenient, that in a ci'iminal prose- 
 cation for forgery, the party whose name was forged was 
 incompetent as a witness, but now he is made competent by 
 *that statute in all indictments or informations for 
 forgery or uttering, either against principals or acces- L J 
 sories, by common law or statute. 
 
 A doubt also formerly existed, whether the making or utter- 
 ing of an instrument, payable abroad, was an offence within 
 some of the repealed statutes.(r) But the statute 11 Geo. 4 & 
 1 Will. 4, c. 66, 8. 30, brought within the operation of the acts 
 against forgery, instruments made, or purporting to be made, 
 
 (m) And see now 24 & 25 Vict. c. 93, ss. 42, 43. 
 
 (n) Milne's case, Worcester Sommer Assizes, 1800, decided by all the 
 judges ; East's P. C. 603, S. C. Before tliis act it was held that, in an indict- 
 ment for forgery, a bank post bill could not be described as a bill of exchange^ 
 but might be described as a bank bill of exchange. Rex v. Birkelt, R. & R. 
 251. 
 
 <o) Rex V. Craven, R. & R. 14 ; 2 East, P. C. 601, S. C. The new statute 
 14 & 15 Vict. c. 100, gives most extensive powers of amendment ; and as to 
 the form of the indictment, see 24 & 25 Vict. c. 98, ss. 43, 43, 44. See also 
 16 & 17 Vict. c. 2. 
 
 (p) Rex v; Bingley, R. & R. 446 ; Rex v. Kirkwood, 1 Mood. C. C. 304 ; 
 vide Reg.. V. Cook, 8 C. & P. 583 (34 E. C. L. R.). 
 
 (?) Rex V. Dade, 1 Mood. C. C. 807. 
 
 ()•; Rex V. Dick, 10 Leach, 8 ; Rex v. M'Kay, R. & R. 71. 
 
502 OE THE FORGERY OF BILLS AND NOTES. 
 
 or payable, or purporting to be so, oat of England.(s) The 
 statute uow in force- is 24 & 25 Vict. e. 98, s. 40. 
 
 Where the prisoner is indicted for using a fictitious name, 
 some evidence must be given by the prosecutor that it is not 
 his real name,(<) But where the prisoner's real name is proved, 
 it lies on him to show that he has before assumed the fake 
 name for other purposes.(M) 
 
 Upon an indictment for u-ttering forged notes, evidence that 
 the prisoner has uttered other forged notes is admissible as 
 evidence of his knowledge of the forgery.(a;) But such notes 
 must be produced, and proved to be k)rgeries.(^) The admissi- 
 bility of evidence, as to uttering forged bills of a difierent kind,, 
 has been doubted. (2;) 
 
 Where the title to a bill or note is necessarily made through 
 a forgery, even a bona fide holder for value has in general no 
 right to sue upon it,(a) or even retain it ;(6) and, therefore, as a 
 general rule, if the acceptor or maker pay one who derives his 
 title through a forgery, that will not discharge him.(e) 80, if 
 a bill or check be altered and made payable *for a 
 *- -I larger sum than that originally iinserted, should the 
 drawee, banker or acceptor pay it, he cannot charge the drawer 
 for the difierence.(c?) 
 
 (s) The 18th section of 11 Geo. 4 & 1 Will. 4, c. 66, applies to plates of 
 promissory notes of persons carrying on the business of bankers in the pro- 
 •vince of Upper Canada. This act is repealed now, 24 & 35 Yict. c. 98, s. 16, 
 ' (0 Rex V. Peacock, Bayl'ey, 6th ed. 579 ; K. & R. 378 ; Bontien's case, 
 E. & R. 263. 
 
 («) Rex V. Peacock, R. & R. 378. 
 
 (x) Wylie's case, 1 Ney. R. 93 ; Hough's case, R. & R. 120 ; Reg. v. Green, 
 3 C. & K. 209. 
 
 (S^) Rex V. Millard, R. & R. 245. 
 
 (z) S. C, Russ. & Ry. 247. As to the prisoner's admission relating to other 
 bills, see Reg. v. Cook, 8 C. & P. 586 (34 E. C. L. R.) ; Reg. v. Oddy, 3 Den. 
 C. C. 264 ; Reg. v. (3reen, 3 C. & K. 209. 
 
 (o) Burchfleld v. Moore, 23 L. J., Q. B. 261 ; S E. & B. 683 (77 B. C. L. 
 E.), S. (J. . See ante. Chapter on Acceftancb. 
 
 C*) Esdaile v. Lanauze, 1 You. & Col. 394 ; Johnson T. Windle, 3 Bing. 
 N. 0. 225 (33 E. C. L. R.) ; 8 Scott, 608, S. 0. 
 
 (c) But a banker who pays a draft on Mm»elf, payable to order on demand, 
 need not prove the genuineness of the first or any subsequent indorsement 
 16 & 17 Vict. c. 59, s. 19. 
 
 id) Hall V. Puller, 5 B. & O. 750 (11 E. C. L. R.) ; 8 D. & Ry. 465, 8. C. ; 
 Smith V. Mercer, 6 Taunt. 76 (1 E. U. L. R.) ; 1 Marsh. 453, S. 0. 
 
OF THE FORGERY OF BILLS AND NOTES. 603 
 
 But, In ^ase any act of the drawer facilitated or gave occa- 
 gion to the forgery, he must bear the loss himself. A customer 
 of a banker, on leaving home, intrusted to his wife several 
 blank forms of checks, signed by himself, and desired her to 
 fill them up according to the exigency of his business. She 
 filled up one with the words, ffty pound's^ two shillings, begin- 
 ning the word fifty with a small letter in the middle of a line. 
 The figures, 62 : 2 were also placed at a considerable distance 
 to the right of the printed £. She gave the check thus filled 
 up, to her husband's clerk, to get the money. He, before pre- 
 senting it, inserted the words " three hundred" before the word 
 fifty and the figure 3 between the printed £ and the figures 62 : 
 2. It was presented and the bankers paid it. Held, that the 
 improper mode of filling up the check had invited the forgery, 
 and, therefore, that the loss fell on the customer and not on the 
 banker.(e) 
 
 . So, if the acceptor of a bill tear the bill in two animo can- 
 enUandi, and the pieces are picked up in his presence and after- 
 wards joined together so as to convey no notice of the can- 
 cellation to a stranger, a bona fide indorsee for value may 
 acquire a title.(/) 
 
 It ia a general rule of law, that money paid under a mis- 
 take, as to faels^ may be recovered back. On this principle, 
 ?if a forged note be discounted, the transferee, on dis- p^„„ .^ 
 covery of the forgery, may recover back the money '■ J 
 
 ' («) Young V. Grote, 4 Bing. 253 (13 B. C. L. R.) ; 12 Moore, 284, S. C. 
 See Ingham v. Primrose, 28 L. J., C. P. 294 ;- 7 C. B., N. S. 82 (97 E. C. L. 
 E.), S. C. ; Ex parte Swan, 30 L. J., 0. P. 113 ; 7 C. B., N. S. 400 (97 B. C. 
 }j. R.), 8. 0. ; Orr T. Union Bank of Scotland,, 1 Macq. H. of L. Cases, 513 ; 
 British Linen Company v. Caledonian Insurance Company, 4 Macq. H. of L. 
 Cases, 107 ; Foster v. Green, 6 Hurlst. & Norm. 163. And it has been held 
 that a principal who, through his own agent, sends money to his creditor, 
 *hich is misapplied by the agent, is not responsible any further to the credi'- 
 tor, if the creditor's conduct facilitated the agent's fraud. Horsfall v. Faunt- 
 lerpy, 10 B. & C. 755 (21 E. C. L. R.). 
 
 (/) Ibgham V. Primrose, supra. Tliis doctrine of estoppel has never been 
 extended to itistrumtnts under seal ; such an extension was attempted in Ex 
 pane Swan, 30 L. J., C. P. 113 ; 7 C. B., N. 8. 400 (97 E. C. L. R.), S. C. 
 But the Court of Common Pleas being equally divided, the rule dropped. 
 The Coiirt of Exchequer Chamber held that there was no estoppel. Ibid., 
 32 L. J., Exch. 273. 
 
504, OF THE FORGERY OF BILLS AND NOTES. 
 
 paid, the imagined consideration totally failing.(^) But aiiy 
 fault or negligence on the part of him who pays the money on 
 the note will disable him from recovering. Thus, where two 
 bills of exchange falling due at different times were drawn on 
 a man, and he p^id the first without acceptance, and accepted 
 and paid the second, and the signature of the drawer was some 
 time afterwards discovered to be a forgery, Lord Mansfield 
 held, that an acceptof is bound to know the handwriting of 
 the drawer, and that it is rather by his fault or negligence than 
 by mistake, if he pays on a forged signature.(A) So, where a 
 forged acceptance of the drawee was made payable at the 
 plaintiff's, the drawee's bankers, and they paid the amount to 
 the defendant, as a bona fide holder, but seven days, afterwards, 
 upon discovering the acceptance to be a forgery, informed the 
 defendant of it, and demanded the money ; it was held that 
 they could hot recover, for that a banker ought to know his 
 customer's handwriting. Part of the Court held the defendant 
 discharged, on the ground that, by the plaintiff's delay in giv- 
 ing notice of the forgery, he had lost his remedy against the 
 antecedent parties.(i) "Where the fault is not entirely on the 
 side of the party paying, he may still recover. Certain bills 
 of e!xchange, purporting to bear, amongst others, the indorse- 
 ment of A., were refused payment ; the notary took them to 
 the plaintiff, the London correspondent of A., and asked him 
 to take up the bills for A.'s honour. The" plaintiff, accordingly^ 
 paid the money to the defendants, holders of the billsj and 
 struck out all the indorsements subsequent to A.'s. The same 
 morning it was discovered that the respective signatures of A., 
 the drawer, and acceptor, were forged. Plaintift'-immediatelyj 
 sent notice to the defendants, in time for them to advise their 
 indorser. The Court held, that the plaintiff' was entitled to 
 recover his money back, and said, " A bill is carried for pay- 
 ment to the person whose name appears as acceptor entirely as, 
 a niatter of course. But it is by no means a matter of course 
 
 (j7) Jones v. Rydr, 5 Taunt. 488 (1 E. C. L. R.) ; 1 Marsh. 157, 8. C. ; 
 Biuoe V. Bruce, 6 Taunt. 495 (1 E. C. L. R.) ; 1 Marsh. 165, S, C. ; Gurney, 
 V. Womersley, 4 E. & B. 133 (83 E. C. L. R.). 
 
 (Ji) Price V. Neal, 3 Burn 1354 ; 1 W. Bi; 390,' S. C. 
 
 (i) Smith V. Mercer, 6 Taunt. 76 (1 E. C. L. R.) ; 1 Marsh. 453, S. C. See, 
 as to delay, Pooley v. Browne, 11 0. B., N. S. 566 (103 E. C. L. E.). 
 
or THB FORGERY OF BILLS AND NOTES. 505 
 
 to call upon a person to pay a bill for the honour of an in- 
 dorser ; and such a call, therefore, imports, on the part of the 
 person making it, that the name of a correspondent^^ for whose 
 honour payment is asked, is *actual]y on the bill. The 
 person thus called upon ought, certainly, to satisfy him- '- ■' 
 self that the name of his correspondent is really on the bill ; 
 but still, his attention may reasonably be lessened by the asser- 
 tion that the call itself makes to him en fact, though no asser- 
 tion may be made in words. And the fault, if he pays on a 
 forged signature, is not wholly and entirely his own, but begins, 
 at least, with the person who thus calls upon him. And though, 
 where all the negligence is on one side, it may, perhaps, be 
 unfit to inquire into the quantum ; yet, where there is any 
 fault in the other party, and that other party cannot be said to 
 te wholly innocent, he ought not, in our opinion, to profit by 
 the mistake into which he may, by his own prior mistake, 
 have led the other ; at least, if the mistake be discovered be- 
 fore any alteration in the situation of any of the other parties ; 
 that is, whilst the remedies of all parties entitled to remedy 
 are left entire, and no one is discharged by laches. We think 
 the jpayment, in this case, was a payment by mistake, and 
 without consideration, to a person not wholly free from blame. 
 The striking out an indorsement by mistake cannot, in our 
 opinion, discharge the indorser."(A) 
 
 Where bankers who had paid a forged bill gave notice of 
 the forgery, and demanded the money bj' one o'clock in the 
 afternoon of the following day, the Court took time to con- 
 sider, and at length unanimously held, that the money could 
 oot be recovered back. "In this case," they say, "we give 
 no opinion upon the point, whether the plaintiff's would have 
 been entitled to recover if notice of the forgery had been given 
 to the defendants on the very day on which the bill was paid 
 so as to enable the defendants on that day to have sent notice 
 to other parties on the bill. But we are all of opinion that the 
 holder of a bill is entitled to know, on the day when it became due, 
 whether it is an honoured or dishonoured bill ;{l) and that if he 
 
 (h) Wilkinson. V. Johnson, 3 B. & C. 438 (10 E. C. L. R.) ; 5 D. & Ry. 
 403, S. C. 
 
 (!) But if a banUer, on whom a check is drawn, be also the banker of the 
 bolder, who pays in the check without any intimation of the character in 
 
506 OF THE FORGERY OF BILLS AND NOTES. 
 
 receives the money, and' is suffered to retain it during the whole 
 of that day, the parties who paid it cannot recover it back. 
 The holder, indeed, is not bound by law (if the bill be dishon- 
 Ii*336n ^^^^^ ^y *''^® acceptor) to take any other steps; agaiiref 
 the other parties to the bill till the day after it is dfs-. 
 honoured. But he is entitled so to do if he think fit ; and the 
 parties, who pay the bill ought not, by their negligence, to de- 
 prive the holder of any right to take steps against the parties 
 to the bill on the day when it becomes duei"{??i)(l) 
 
 / 
 In an action on a forged bill, a Judge, on an affitiavit of the 
 forgery, will order that the defendant and his witnesses may 
 inspect it, the defendant giving to the plaintiff a list of the 
 witnesses to whom he proposes to exhibit it.(n) 
 
 wliich he desires the banker to receive it, whether as drawee, or as his, the 
 holder's, agent, it will be presumed that the banker took it as the ag'-nt of the 
 ]iolder, and therefore the banker nnay, in the course of the next day, inform 
 tlie liolder that there are no effects, and, thn-t the check will not be paid. Boyd 
 V. Emmerson, 3 Ad. & Ell. 184 (29 E. C. L. R.) ; 4 N. & M. 99, S. C. ; and, 
 see Kilsby v. Willfams, 5 B. & Aid. 815 (7 E. C. L. R.) ; 1 D. & C. 476, 
 S. C. ; Pollard v. Ogden, 3 E. & B. 459 (75 K C. L. R.). 
 . (to) Cocks V. Masferman, 9 B. & C. 902 (17 E. C. L. R.) ; 4 M. & Ey. 676 ; 
 Dans. & LI. 339, S. C, and see Mather v. Lord Maidstone,, 18 C. B. 373 (86 
 E. C. L. R.) ; 25 L. J., C. P. 311, S. C. ; Bollard v. Ogden, 2 E. & B. 459 
 (75E. C. L. R.) 
 
 («) Post, Chapter on Actions, and see Thomas v. Dtinn, 6 M. & 6. 274 
 (46 E. C. L. R.). It may even be done without an affidavit. Woolner v. 
 Devereux, 9 Dow, 672. 
 
 (t) Where a party becSame the holder of a forged draft before it had been ac- 
 cepted, and afterwards it was accepted and paid, and the acceptors imme- 
 diately, upon ascertaining the fact of the forgery, gave notice of the fact to 
 the holder, it was held that the acceptors were not estopped from proving the 
 forgery and recovering back the money they had paid throiigh error. Mc- 
 Kleroy v. Southern Bahte^ 14 Louisiana Annual, 458. 
 
OF THE STATUTE OE LIMITATIONS, ETC. 507 
 
 *CHAPTER 2XVI, 
 
 [*337J 
 
 OP THE STATUTE OF LIMITATIONS IN ITS APPLICATION 
 TO BILLS AND NOTBS. 
 
 POLICY OF THE, LAW, . . . 337 
 
 ■ffHBK INTKODUCED, . . . 338 
 
 THE PKESENT STATUTE, . . 838 
 
 DIVISION OF THE BDBJBCT, . 338 
 
 QEHERAL OPERATION OF THE 
 
 STATBTB, 339 
 
 SOBS NOT DESTROY THE DEBT, . 339 
 PORBIGN STATUTE OF LIMITA- 
 TIONS, 310 
 
 WHAT LEGAL PKOCBBDINGS IT 
 ■ LIMITS, .... 340 
 merchants' ACCOUNTS, . . 340 
 EFFECT OF STATUTE ON TITLE 
 OF A SUBSEQUENT TRANS- 
 FEREE, 340 
 
 WHEN IT BEGINS TO RUN, . . 341 
 
 ON BILL PAYABLE AFTER DATE, 341 
 PAYABLE ON A CONTINGENCY, . 341 
 PAYABLE BY INSTALMENTS, . 341 
 
 AGAINST AN ADMINISTBATOB, . 341 
 ON A BILL AFTER SIGHT, . . 341 
 
 BILL PAYABLE AT SIGHT OR ON 
 
 DEMAND, 343 
 
 AFTER DEMAND, .... 342 
 IN CASE OF FRAUD, . . . 343 
 IN THE CASE OF AN ACCOMMODA- 
 TION BILL 343 
 
 WHEN THERE HAS BEEN BOTH 
 NON-ACCEPTANCE AND NON- 
 PAYMENT, . . . .343 
 TIP TO WHAT PERIOD THE TIME 
 
 OF LIMITATION IS COMPUTED, 343 
 DEATH OF PARTIES AFTER AC- 
 WON, . . . , .344 
 HOW THE OPERATION OF THE 
 STATUTE IS OBVIATED BY IS- 
 SriNG A WRIT, ,. . .344 
 IHB SAVING CLAUSE, . . .345 
 INFANTS, 345 
 
 imprisonment^ .... 345 
 Plaintiff's absence beyond 
 SEAS, 345 
 
 defendant S ABSENCE BEYOND 
 
 SEAS,, 346 
 
 SUCCESSIVE DISABILITIES, . . 346 
 
 WHAT ACKNOWLEDGMENTS WILL 
 TAKE A DEBT OUT OF THE 
 
 STATUTE, 347 
 
 LORD TENTERDBN'S ACT, .. . 347 
 
 DIVISION OF THE SUBJECT, . 347 
 
 OF WHAT SORT THE ACKNOWL- 
 EDGMENT MUST BE, . . 347 
 EVIDENCE OF DATE, . . . 349 
 CONSTRUCTION, .... 349 
 MUTUAL RUNNING ACCOUNT, . 349 
 
 DEVISE, 349 
 
 ACKNOWLEDGMENT BY EXECU- 
 TORS 350 
 
 NOTICE IN NEWSPAPERS, . . 350 
 
 PART PAYMENT, .... 350 
 APPROPRIATION OF PAYMENTS, .'350 
 PAYMENT BY BILL, . . . 351 
 
 PAYMENT BY GOODS, . . . 351 
 
 STAMP ON ACKNOWLEDGMENT, . 351 
 STATEMENT OF ACCOUNT, . .351 
 
 PAYMENT OF INTEREST, . . 352 
 
 WHEN ACKNOWLEDGMENT MUST 
 
 BE MADE, 352 
 
 PAYMENT OF MONEY INTO COURT, 353 
 BY WHOM ACKNOWLEDGEMENT 
 
 MUST BE MADE, . . . 352 
 
 TO WHOM, ..... 355 
 WHAT EVIDENCE IS REQUIKED 
 
 OP THE ACKNOWLEDGMENT, . 356 
 HOW THE STATUTE IS TO BE 
 
 TAKEN ADVANTAGE OF, . . 357 
 
 FORM OF THE PLEA, . . . 357 
 
 REPLICATION OF THE STATUTE, 358 
 REPLICATION TO A. PLEA OF THE 
 
 STATUTE, ..... 358 
 WHEN, INDEPENDENTLY OF THE 
 STATUTE, LAPSE OF TIME IS A 
 
 BAB 358 
 
508 OF THE STATUTE OF LIMITATIONS 
 
 "Without a limitation of actions no man can be secure in the 
 enjoyment of his property. Prescription is the original 
 '- -■ *source of all title. After the lapse of years, evidence 
 is weakened or destroyed. And a claimant who has long slept 
 on bis demand has no right to complain, if, for the public ad- 
 vantage, it is at length taken from him. In practice it is 
 fonnd that no statutes are so useful as those of limitation, com- 
 pelling, as they do, investigation, whilst the means of investi- 
 gation subsist, and supplying the loss of those means, by a 
 general act of settlement, applicable to each man's case. 
 
 Though an act of limitation, in respect of re^l property, was 
 passed In this country in the year 1270, yet, partly from the 
 comparatively inconsiderable amount of personal property, 
 partly from the frequency of the sales in market overt, and 
 partly from the circumstance, that debts above 40s. were com- 
 monly secured by bond or single bill, and debts below that 
 amount werie not tried in the superior Courts, no limitation to 
 personal actions was introduced till the year 1623, when the 
 present Statute of Limitations (the 21 Jac. 1, c. 16, supple- 
 mented by 3 & 4 Will. 4, c. 42) was passed 
 
 The enactments of that statute, so far as they are applicable 
 to our present purpose, are as follows:' 
 
 By s. 3, all actions on the case (other than such account8,(a) 
 as concern the trade of merchandise between merchant and 
 merchant, their factors and servants), and all actions of debt, 
 grounded on any lending or contract without specialty, must 
 be brought within six years of the cause of such actions, and 
 not after. 
 
 By s. 4, if judgment for the plaintiff be arrested or reversed, 
 or the defendant be outlawed and afterwards reverse the out- 
 lawry, the plaintiff, or his executor, may commence a new ac-, 
 tion within a year. 
 
 Section 7 provides: that if any person entitled to the action 
 shall, at the time of the cause of action accrued, be, first, an in- 
 fant, secondly, feme covert, thirdly, non compos menu's, fourthly, 
 imprisoned, or, fifthly, beyond the seas, then such person may 
 bring the action within six years after their full age, dis-. 
 
 (a) The exception of merchants' accounts is repealed by 19 & 20 Vict. c. 
 97, s. 9. 
 
IN ITS APPLICATION TO BILLS AND NOTES. 509 
 
 icoverture, sound memory, eulargement, or return from beyond 
 the seas. 
 
 In treating of the effect of this statute in its relation to bills 
 and notes, we shall considei-, 1, its general operation, and 
 whether it destroys the debt or only bars the remedy ; 2, what 
 actions or legal proceedings on those instruments it 
 *linnts ; 3, from what period the statute begins, to run ; '- ^ 
 4, to what period the time of limitation is computed ; 5, how 
 the statute may be avoided by issuing a writ and continuing it 
 down ; 6, the proviso as to persons labouring under disabilities ; 
 7, what promises, acknowledgments, or payments, will take a 
 bill or note out of the statute ; 8, how the statute is to be taken 
 advantage of; and, lastly, when, independently of the statute, 
 lapse of time will be a bar to an action on a bill or note. 
 
 First as to the general operation of the statute. 
 
 The Statute of Limitations is a godd_ plea in equitj^ as well 
 as at law. It is also an answer to proof under a petition for 
 adjudication in bankruptcy. (6) It was formerly a doubt 
 whether the statute was a bar in the Admiralty Cotirts to a 
 suit for seamen's wages.(c) But that doubt was removed by 4 
 Anne, c. 16, s. 17, which enacts, that all suits and actions in 
 the Court of Admiralty for seamen's wages shall be commenced 
 and sued within six. years next after the cause of such suits or 
 actions shall accrue, and not after. 
 
 The Statute of Limitations does not destroy a debt, but only 
 bars the remedy.(rf)(l) Therefore, it must in all cases be 
 
 (J) Ex parte Dewdney, 15 Ves. 479. 
 
 (c) Ewer v. Jones, 6 Mod. 25. 
 
 id) As to an agreement not to rely on tlie statute, see East India Company 
 V. Paul, 14 Jur. 253 ; 7 Moo. P. C. C. 85 ; Lj.de v. Trill, 6 Jur. 272 ; Watirs 
 V. Thanes, 2 Q B. 757 (42 E. C. L. Ji.)- 
 
 . (1) The operation of the statute was suspended during the civil war of 1861-5 
 so far as regards the enforcement of contrails between residents of both' sec- 
 tions of the United States then iu arms. Levy v. Stewart, 11 Wallace, 244 ; 
 Stewart V. Kahn, Ibid. 493, C03 ; United States v. Wiley, Ibid. 508, 513 ; Brown 
 T. Hlatt,l Dillon, 872; Coleman v. Holmes, 44 Ala. 124; Mixer v. Sibley, 53 
 Illliiois, 61 ; Brann v. Sauerwein, 10 Wallace, 218; Stiles v. Easley, 57 Illi- 
 nois, 275. , , 
 
510 OF THE STATUTE OF LIMITATIONS 
 
 pleaded, and cannot bp given in evidence, even under tKe plea 
 of nil debet, or the replication of nil debet to a set-oif.(e) There- 
 fore, also a promissory note more than six years old, though 
 not a good petitioning creditor's debt as against the bankrupt 
 (who may object that the renaedy by a petition in bankruptcy 
 as well as by action is taken away), is nevertheless a' good 
 -petitioning creditor's debt as against 8trangers.(/") "It is 
 settled," says Lord Mansfield, "that the Statute of Limitations 
 does not destroy the debt, it only takes aw^ay the remedy ; the 
 objection lies in the mouth of the bankrupt himself, but not in 
 the mouth of a third person."(^) Therefore, again, a lien may 
 be enforced,(A) * where an action for its amount wotfld 
 '■ -' be barred Iby the statute. 
 
 A foreign Statute of Limitations is no defence to an action 
 on a foreign contract in the English Courts, unless it have the 
 efiect of extinguishing the contract, and the parties are living 
 in the foreign country at the time of the extinction. For a 
 Statute of Limitations usually affects the remedy merely, and 
 not the construction of the contract.(2) 
 
 Secondly, as to the actions and legal proceedings which the 
 statute limits. 
 
 It will be sufficient for the present purpose to remark that 
 actions of debt and of assumpsit are limited to six year8.(A)> That 
 though the statute does not in terms apply to proceeding in 
 equity, courts of equity adopt its provisions as a rule.(/)' " With 
 regard to that statute," says Sir William Grant, " though it 
 
 (e) Chappie v. Duiston, 1 C. & J. 1, overruling the opinion of Lord Holt 
 at Hertford Assizes, 1690; Anon., 1 Salk. 378; Draper v. Glassop, 1 Ld. 
 Raym. 153. 
 
 (/) S-waine v. Wallinger, 2 Stra. 746. 
 
 (.g) Quanlock v. England, 5 Burr. 3638 ; 3 W. Bl. 703, S. C. See the same 
 doctrine laid dow.n by Lord Ellenborough and Bayley, J., in Williams v. 
 Jones, 13 East, 450 ; and by the Court of Exchequer, in Chappie v. Durslon, 
 1 C- & J. 1 ; Mavor v. Pyne, 2 C. & P. 91 (13 E. C..L. B.). 
 
 (,7i) Spears v. Hartley, 3 Esp. 81. 
 
 (0 Huber v. Steiiier, 3 Bin^. N. 0. 203 (29 E. C. L. E.) ; 8 Scott, 304, 8. 
 C. ; Harris v. Quine, L. R., 4 Q. B. 653. See the Chapter on Forbmn Law. 
 
 (k) Sect. 3. 
 
 (,1) Johnson v. Smith, 3 Burr. 961 ; Prince v. Hcylin, 1 Atk. 493. 
 
IN 
 
 ITS APPLICATION TO BILLS AND NOTES. 511 
 
 (Joesltiot ajpply to any equitable demand, yet equity adopts it, 
 or at least takes the same limitation, in cases that are analogous 
 to those in which it applies in law,"(m) But the statute does 
 not bar a trust,(m) nor a legacy .(o) We have already seen that 
 the statute is a bar in bankruptcy. 
 
 The exception as to merchants' accounts (which, as we have 
 seen, is now repealed) applied only to an action of account, or 
 perhaps, also, to an action on the case for not accounting, but 
 uot to an action of indebitatus debt, or assumpsit.(p)(l) 
 
 It is conceived, that if the statute have run out against ihe 
 holder of a bill or note, payable at a day certain, and he then 
 transfers it, the transferee's right of action is barred. For he, 
 as transferee of an overdue bill, can stand in no better situation 
 than his transferor. He, like his transferor, has a debt due to 
 him, but has lost the right of action, and has notice of the loss 
 of it.(g) And, perhaps as to the *Statute of Limita- 
 tions, the holder for the time being is a trustee of the '- -■ 
 action, so that prior, or subsequent indorsees are, as between 
 themselves and earlier parties, prejudiced by his laches. (r) 
 
 Thirdly, as to the time from w^hich the statute runs. 
 
 The Statute of Limitations begins to run on a bill or note, 
 
 (m) Starhouse v. Barnstnn, 10 Ves. 466. 
 (») Heath v. Hanley, 1 Cha. Ca. 20. 
 (o) Anon , 2 Freem. 22. 
 
 (p) Inglis V. Haigh, 8 M. & W. 769 ; and see Cottam v. Paitriclge, 4 M. & 
 G. 271 (43 E. C. L. R.) ; 3 Scott, N. R. 174, S. C. 
 (j) See Scai'pelini v. Atcheson, 7 Q. B. 864 (53 E. O. L. R.). 
 (r) See Webster v. Kirke, 17 Q. B. 947 (79 E. C. L."r.). 
 
 (1) Phillips V. Cage, 12 Smedes & Marshall, 141. Contra, Mandeville v. 
 Wilson, 5 Cranch, 15 ; Brackenridge v. JSaltzell, 1 Smith, 217. As to what 
 are merchants' accounts, Slacumbs v. Holmes, 1 Howard, Miss. 780 ; Fox v. 
 Fish, 6 Ibid. 328 ; Bevan v. Cullen, 7 Barr, 281 ; Brackenridge v. Baltzell, 1 
 Smith, 217 ; Marseilles v. Kenton's Exch., 17 Penna. State Rep. 238. The 
 exception is available in merchants' accounts though none of the items come 
 within six years. Bass v. Bass, 8 Pick. 187 ; Dyott v. Letcher, 6 J. J. Mar- 
 shall, 541 ; McLellan v. Crofton, 6 Greenl. 308. 
 
512 OP THE STATUTE OP LIMITATIONS 
 
 as well as on any other contract, from the time that the ac- 
 tion(s) first accrued to the party.(l) 
 
 Thereforei on a bill payable at a certain period after date, 
 the statute runs, not from the time the bill was drawn, but 
 from the time when it fell due.(i) And this is so also as to the 
 account stated, of which the bill may be evidence.(M) 
 
 So, where the maker of a note gave it to a third person, to 
 be delivered to the payee after certain events should happen, 
 the statute was held to run, not from the date of the note, but 
 from the time of its delivery to the payee.(a;) 
 
 It is conceived, that if a note be payable by instalments, 
 and contain a provision that, if default be made in payment 
 of one instalment, the whole shall be due, the statute runs 
 fcom the first default against the whole amount of the note.(y) 
 
 And so in an action on a bill by an administra,tor, who had 
 not taken out administration till after the bill became due, it 
 was decided that the statute ran, not from the time the bill 
 fell due, but from the time of granting letters of administra- 
 tion, for there can be no action till there is a party capable of 
 ,suing.(2)(2) 
 
 (») Though at that time an aclioa and^judgment would have been fruitless. 
 Emery v. Day, 1 C, M. & R. 345 ; 4 Tyr. 695, S. C. 
 
 (0 Witlersheim v. Lady Carlisle, 1 H. Bl. 631. 
 
 (u) Fryer v. Eoe, 12 C. B. 437 (7.4 E. C. L. R.), 
 
 (,x) Savage v. Aldren, 3 Stark. 382 (8 E. C. L. R.). 
 
 (y) See Hemp v. Garland, 4 Q. B. 519 (45 E. C. L. R ). 
 
 (z) Murray v. East India Company, 5 B. & Al. 204 (7 E. C. L. R). But 
 this interval is now to be computed where the administrator claims a chattel 
 
 . (1) It begins to run only from the time the right of action accrued. Kich- 
 man v. Richman, 5 Halsted, 114 ; Odlin v. Greenleaf, 3 I^T. Hamp. 270 ; Banks 
 v. Coyle, 3 Marshall, 564 ; Jones v. Conway, 4 Teates, 109 ; Bennett v. Her- 
 ring, 1 Branch, 387; Dobyns v. Schoolfield, 10 B. Monroe, 311. It begins to 
 run from the last day of grace. Pickard v. Valentine, 1 Shepl. 412. It does 
 not begin to run against a bill of exchange made payable at a particular place, 
 until after a demand at such place and a dishonor there. ^ Picquet v. Curtis, 1 
 Sumner, 478. • ' ' ' ' ' 
 
 (3) Where an action does not accrue until after the death of the creditor, 
 
IN IXS APPLICATION TO BILLS AND NOTES, 513 
 
 As upon a bill drawn payable after sight, there is no 
 right of action till presentment ; so without such presentment 
 *the statute does not begin to run.(a) If a note be pay- rsq^oT 
 able at a certain period after sight,(6) the statute runs 
 from the expiration of that period, after the exhibition of the 
 note to the maker. 
 
 . But we have seen, that if a bill or note be payable " at 
 sight" or "on demand," those words are held not to constitute 
 a condition precedent, but merely to import that the debt is 
 due and payable immediately ;(c) or, at any rate, an action is 
 sufficient demand. Therefore on a bill or note payable on de- 
 mand, unless the note be accompanied by some writing restrain- 
 ing or postponing the right of action, the statute runs from the 
 date of the instrument, and not from the time of the de- 
 mand.(rf)(l) Where a note payable on demand was given to a 
 
 real, 3 & 4 Will. 4, c. 27, s. 6. The statute runs against an executor from the 
 time the bill tails due, for he can commence an action before probate. 
 ■ (a) Holmes v. Kerrison, 2 Taunt. 323. 
 
 (6) Sturdy v. Henderson, 4 B. & Al. 592 (6 E. C. L. R.) ; Sutton v. 
 Toomer, 7 B. & C. 416 (M B. C. L. R.) ; 1 M. & Ry. 125, S. C. ; Holmes v. 
 Kerrison, 2 Taunt. 323 ; and see Dixon v. Nuttall, 1 C, M. & R. 307 ; 6 0. & 
 P. 320 (25 E. C. L. R.), S. C. 
 
 (c) Capp V. Lancaster, Cro. Eliz. 548 ; Rumball v. Ball, 10 Mod. 38; Col- 
 lins V. Bennin?, 13 Mod. 444; Mcintosh v. Haydon, R. & M. 363 (21 E. C. 
 L. R.). 
 
 (d) Christie v. Fonsick. Sel. N. P. 9th ed. 351. This case is said to have 
 been overruled in K. B. , sed qumre. If, indeed, a bond is conditioned to be 
 
 the statute does not begin to run Until administration is granted, but if it ac- 
 crues before his death the running is not thereby suspended. Beauchamp v. 
 Mudd, 2 Bibb, 537 ; Hobart v. Connecticut Tnrnpike Co., 15 Conn. 145 ; Jack- 
 son v. Hitt, 12 Vermont, 285 ; Abbott v. McEIroy, 10 Smedes & Marshall, 100. 
 Where A. has a demand against B. which is not barred, and B. dies intestate, 
 the statute will not begin to run until letters of administration are taken out. 
 Burnet v. Bryan, 1 Halsted, 377. The running of the statute against a claim 
 on the estate of a person deceased is suspended during the time in v»rbich the 
 administrator is not liable to an action thereon. Houpt v. Shields, 3 Porter, 
 247. 
 
 Where asui-ety pays a note, his right of action as[ainst the maker accrues 
 from the date of the payment, and the statute of limitations commences running 
 from that time. Burton v. Rutherford, 49 Mo. 255 ; Bennett v. Cook, 45 Nev/^ 
 York, 268. So it runs against indorser who is compelled to pay from the time 
 of payment. Godfrey v. Rice, 59 Maine, 308. 
 
 (1) In general the statute begins to run from the date of a note payable on 
 
 33 
 
514 OF THE STATUTE E LI M I T A T 10 N S 
 
 bank, accompanied by an agreement that the note should be 
 lield as a security ior advances, the Court of Exchequer de- 
 cided, in a recent case, that the statute did not begin, to run 
 against the note till after advances made, and a claim, niadeaa 
 for a debt., The learned judge, howeyser (Mr. Baroa Martin), 
 who tried the case, appears to have thought otherwise, or, at 
 least, to have doubted. Where a loan was made by a check 
 the statute was held to run, not from the date.of the check, 
 but from the time the check was cashed.(e) 
 
 If a note is made payable at a certain period aftCir demand^ 
 it is like a note payable after sight ; the demand and the lajse 
 of the specified time after the demand are conditions precedent, 
 and the statute runs from the time when the note falls due.(/) 
 And if a bill be made payable twelve months after noiieej the 
 statute does not begin to run till after notice and the twelve 
 months subsequent.(^)(l) 
 
 r^qiq-i *It has been suggested that where the. plaintiff has 
 been the subject of fraudj he may by a special replica- 
 tion avoid a plea of the statute, and postpone its applica- 
 
 void on payment on demand, a demand must be proved, or the bond is not 
 forfeited. Carter v. Ring, 3 Camp. 459. "In Megginson v. Harper, 3 0. & M. 
 322 ; 4 Tyr. 94, S. C, it was assumed that tlie statute ran from ihe date of 
 the note, which was payable on demand. Qucere tamen, if the note hie a re- 
 issuable one, and re-issued, or if it be payable at a particular place; and see 
 pp. 179, 215. 
 
 (e) Garden v. Bruce, L. K., 3 Ex. 300 ; 37 L. J. 112, S. C. 
 
 (/) Thorpe v. Booth, R. & M. 888 (31 E. C. L. R.). . ,, 
 . ig) Clayton v. Gosling, 5 B. & C. 360 (11 E. C. L. R) ; 8 D. & Ry. 110, 
 S. C. 
 
 demand. Easton v. McAllister, 1 Missouri, 663 ; Larason v. Lambert, 7,Halr 
 sted, 247 ; Newman v. Kettell, 13 Pick. 418 ; Wenman v. Mohawk Ins. Co.,, 
 13 Wendell, 267 ; Wilks v. Robinson, 3 Richardson, 183 ; Hill v. Henry, 17 
 Ohio, 9, But see Wolfe v. Whiteman, 4 Harrington, 346. Where reasonable 
 presentment of a draft on demand is made, the statute does not commence to 
 run as against the drawer, until payment is refused by the drawee. Wood,T< 
 HcMeans, 23 Texas, 48f. 
 
 (1) In case of a note payable at a given day after demand, it commences to 
 run only from the time of the demand. Wenman v. Mohawk Ins. Co., 13 
 Wendell, 367 ; Little v. Blunt, 9 Pick. 488 ; Wright v. Hamilton, 3 Bailey, 51. 
 
IN ITS APPLICATION TO BILLS AND NOTES. 615 
 
 lion. (A)(1) It is now, however, Bettled that sneh a replication 
 isibad.(i) But possibly the fraudulent coucealing of a cause of 
 action on the part of a defendant till tlie plaintiff's remedy is 
 gone, may constitute a substantive' ground of action. 
 
 Upon the contract which the law implies to indemnify an 
 accommodation acceptor, it has been held, that the statute be- 
 gins to run from the time at which, the plaintiff is damnified 
 by actual payment.(y )(2) 
 
 If a bill be dishonoured by non-acceptance, and afterwards 
 by non-payment, the statute runs from the refusal to aecept.(/t) 
 
 Fourthly, as to the period up to which the time of limitation 
 is computed.(3) 
 
 (h) South Sea Company v. Wymondsell, 3 P. Wms-. 143 ; Bree v. Holboch, 
 Doug. 630;.Glaik v. Hougham, 2 B. & C. Ii9 (9 E. C. L. E.) ; 3 D. & Ry. 
 328, S. C. ; Ex parte Bolton, 1 Mont. & Ayr. 60 ; Granger v. George, 5 B. & 
 C. 149 (11 E. C. L. R.) ; Browne v. Howard, 2 B. & B. 73. 
 ' (t) Imperial' Gas Company v. London Gas Company, 10 Exch. 39. 
 
 U) Reynolds v. Doyle, 1 M. & 6. 753 (39 E. C. L. R.) ; Collinge v. Hey- 
 wood, 9 Ad. & E. 033 (86 B. C. L. R.) ; but see Webster v. Kirk, 17 Q. B. 
 , 944 (79 E. C. L. R.). 
 
 <*) Wbiteliead v. Walker, 9 M. & W. 506. 
 
 (1) In a contract tainted with fraud, the statute runs from the time of its 
 (liseovery. Peunoelt v. Freeman, 1 Watts, 401 ; Sherwood v. Sutton, 5 Mason'; 
 148 ; Turnpike v. Field, 3 Mass. 201 ;.Mdi.s v. Beny, 1 Hill, S. C. 296 ; Frank- 
 fort v.Marldey, 1 Dana, 373 ; Cole v. McGlathry, 9 Greenleaf, 131. A fraudu- 
 lent concealment of the plaintifi's cause of action will not protect him against 
 tlie operation of the statute. Smith v. Bishop, 9 Vermont, 110 ; Fee v. Fee; 
 10 Ohio, 469 ; Allen v. M-ille, 17 Wt-nd. 202 ; Baines v. Williams, 3 Iredell, 481. 
 
 (8) When a surety on a promissory noie pays it before maturity, his cause 
 of action accrues against his principal for indemnity only when the note be- 
 comes payable. Tillotson v. Rose, 11 Mete. 299; Farmers' Bank v. Gibson, 
 6 Barr, 57 ; Jackson v. Adamson, 7 Blackford, 597. Where one not a party 
 to a note divides with the maker the consideration for which it was given, 
 promising the maker to pay his half of the amount when the note becomes due, 
 ilie statute will begin to run in bar of a suit for a breach of this promise, as 
 soon as the note becomes due and unpaid ; nor will its subsequent payment iu 
 fijll, by the maker, raise an implied assumpsit to him by the party who made 
 such promise for money paid and advanced. Joiner v. Perry, 1 Strolihart, 76. 
 Interest is never barred till the principal is. Thus, if interest is payable yearly, 
 on a note having several years to run, the statute does not begin against the 
 interest uutil the principal is due. Grafton Bank v. Doe, 19 Vermont, 463. 
 
 (3). The day on which the cause of action accrued is to be included, as an 
 
516 OF THE STATUTE OF LIMITATIONS 
 
 The words of the statute 21 Jac. 1, c. 16, s, 3, are all actions 
 of trespass, &c., shall be commenced and sued within six years, 
 &c. 
 
 Therefore, when, according to the old practice, writs bore 
 teste of a day beibre the day of issuing-them, it was held that 
 the time within which the action should be brought must be 
 computed not to the teste but to the issuing of the writ.(/) 
 
 At present no difficulty on this subject can exist, as the dak 
 and teste of the writ are the same.(m) 
 
 Where an -action is commenced in an inferior court, and re- 
 moved into a superior court, the time of limitation is to be com- 
 puted oply to the commencement of the action in the inferior 
 court.(n) 
 
 To bar a set-off the six years must have expired before action 
 bi'ought.(o) 
 
 P^„ . ., *When the statute once begins to run, it never stops, 
 except in the cases mentioned in the fourth section, 
 although circumstances should arise in which it is impossible 
 to sue, as if, for example, the debtor die before action, and uo 
 executor be appointed.(o) 
 
 But where an action has been commenced in time, and then 
 the plaintiff dies, and the period of limitation has expired,Hhe 
 courts, by a strained construction of the statute, have allowed 
 the personal representative to commence another action within 
 a year from the plaintiff' 's death. 
 
 And where the defendant dies, a year is also given, and a 
 yiear from the grant of administration where there is no execu- 
 tor. In the case of the detendant's death, the allowance of a 
 ■year rests not only on the analogy to the case of a plaintiff, but 
 also upon the general rule that where an action abates by the 
 
 (0 Jolinson V. Smith, 2 Burr. 950. 
 
 (m) 2 Will. 4, c. 39, s. 12. 
 
 (ra) Bevin v. Chapman, 1 Sid. 228 ; Matthews v. Phillips, 2 Salk. 434. 
 ■ (b) Walker v. Clements, 15 Q. B. 104C (69 B. C. L. K.). 
 
 (o) Rhodes v. Smethurst, 4 M. & W. 42 ; affirmed in error, 6 M. & W.,351, 
 post, 346. 
 
 action might have been commenced on that day. Presbrey v. Williams, 15 
 Mass. 193. In computing, time under the statute, the first day is to be ex- 
 cluded, and the last to be included.. Smith v. Cassily, 9 B. Monroe, 496. 
 
IN ITS APPLICATION TO BILLS AND NOTES. 517 
 
 act of God, the same plaintiff may have a new writ by jour- 
 ney's accounts.(p) 
 
 Fifthly, as to the mode in which the operation of the statute 
 may be obviated by issuing a writ and continuing it down. 
 
 According to the old practice, the plaintiff might issue a 
 writ, and without serving it on the defendant, keep it in his 
 pocket, and,- get it returned at any time within the six years,(5') 
 then file it (for it must have been filed),(r) and enter continu- 
 ances, at any time, down to the writ on which the appearance 
 was, and, by replying the writ with the continuances, obviate 
 the effect of the 8tatute.(s)(l) 
 
 But this practice was abolished by theUniformity of Process 
 Act.{t) By that act, no first writ affects the operation of the 
 statute, unless the defendant has been arrested or served with 
 it, or proceedings to outlawry have been had upon it, or unless 
 the writ and every continuing writ is returned non est inventus, 
 and entered of record within one calendar month from its ex- 
 piration ; and each succeeding writ must issue within a month 
 of the expiration of the preceding, *and contain a r*Q4c-| 
 nie,morandum(M) specifying the date of the first writ. 
 The return of bailable process is to be made by the sheriff: of 
 non-bailable, by the plaintiff or his attorney. 
 
 Now, by the 15 & 16 Vict. c. 76, ss. 11, 12, the writ is to be 
 
 (p) CurlewiB V. Lord Mornington, in error, 37 L. J., Q. B. 439. 
 
 (?) Taylor v. Hopkins, 5 B. & AI. 489 (7 E. C. L. R.). 
 
 (r) Harris v. Woolford, 6 T. R. 617. 
 
 («) The first instance of a latitat replied is in Coles v. Sybsye, Styles's R. 
 156, A. D., 1649 ; and see Dacy v. Clinch, 1 Sid. 53. As the form of the plea 
 now is, that the action did not accrue within six years hefore the commence- 
 ment of the salt, it is not proper to I'eply the writ, but to traverse the plea and 
 ■give the writ in evidence by producing the roll. Dickenson v. Teague, 1 C, 
 M. & R. 341. 
 
 (0 3 Will. 4, c. 39, s. 10. 
 
 (u) Of whicli the roll is no evidence. Walker v. Collick, 4 Exch. 171. 
 
 (1) The commencement of a suit to defeat the statute must be the same suit 
 to which the plea is pleaded. Delaplain 7. Crowninshield, 3 Mason, 839 ; 
 Soulden v. Van Rensellaer, 3 Wend. 743 ; Davis v. West, 5 Ibid. 63 ; Sherman 
 v. Barnes, 8 Conn. 188; Callis v. Waddy, 3 Munf. 511 ; Harris v. Dennis, 1 
 Serg. & Rawle, 336; Ontario Bank v. Rathbun, 19 Wendell, 391; Ivins v. 
 Schooley,.3 Harrison, 269 ; Cheney v. A.rcher, Riley, 195 ; Connell v. Moulton, 
 3 Denio, 13. 
 
518 OF (THE STATUTE OF LI IMITATIONS 
 
 the plaintiff, say the Court of C. P,, "is a foreigner, and doth 
 renewed every six months, and the original writ. marked with 
 a seal bearing the date of renewal. 
 
 A bill in equity, filed by one creditor on bdli-alf of himself 
 and the other creditors, will prevent the Statute of Linitta- 
 tions from running against any of the creditors who come in 
 under the decree.(if;) 
 
 Sixthly, as to the saving clause in favor of infants, married 
 women, lunatics, persons imprisoned or beyond seas. 
 
 An infant would have been bound had he not lieen ex- 
 pressly excepted,(r) For infants may, during the six years; sue 
 by their guardians.(y) An infant cestui que trust is bound by 
 i\i&laches of his trustee, even in equity.(2) 
 
 The plaintiff's imprisonment now no longer postpones the 
 running of the statute. (a) 
 
 In the old Statutes of Limitations, passed before the union 
 with Scotland, the saving clause in favor of absent claimants 
 protected claimants "^ut of the realm;" but the statute 24 
 Jac. 1, c. 16, being after the union of the crowns, changed the 
 ^expression " out of the realm," to the expression " beyond the 
 seas." Scotland, therefore, is not within the saving,(6) but 
 Dublin, or any other place in Ireland, India,(c) or the colonies, 
 was. By the 3 & 4 Will. 4, c. 42, s. .7, no part of the British 
 Isles is to be deemed beyond the sca8.(rf) And now, from the 
 meaning of the expression " beyond seas," whether applied to 
 plaintiff or defendant, are excluded by the 19 & 20 Vict. c. 97, 
 s. 1,2, all Great Britain and Ireland, the Islands of Man, Jersey, 
 Guernsey, *Alderney and Sark and the islands adjacent. 
 '- J Foreigners were within the benefit of this saving. " If 
 
 (w) Sterndale v. Hanldnson, 1 Sim. 393. 
 
 ix) Prideaux v. Webber, 1 Lev. 31. 
 
 (y) Chandler v. Yilett, 3 Saund. 131, a. 
 
 (z) Wych V. East India Company, 3 P. Wins. 309. 
 
 («) 19 & SO Vi.ot. c. 97, 8. 10. 
 
 (i) King V. Walker, 1 W. Bl. 387. 
 
 (c) Parnther v. Gaitskell, 13 East, 433. 
 
 (d!) See Nightingale v. Adams, 1 Show. 91. 
 
IN ITS APPLICATION TO BILLS AND NOTES. 519 
 
 not come to England in fifty years, he still hath six years after 
 his coming into England to bring his action. And if he 
 never comes into England himself, he has always a riirht of 
 action while he lives abroad, and so have his executors or 
 administrators after his death."(e) If one only of several 
 plaintiffs were abroad, the case was not within the excep- 
 tion.(/Xl) 
 
 But now the plaintiff's absence beyond the seas is no disa- 
 bility, and gives no further time.(^) 
 
 This statute is not retrospective.(A) 
 
 The defendants absence beyond seas is not a case within the 
 24 Jac. l,c. 16j(!) though it is one in which the saving is much 
 more necessary than when the plaintiff himself is absent, as 
 an absent plaintiff may sue a defendant in England, but a 
 •defendant beyond seas could not formerly have been sued in 
 England at all. To remedy this hardship, the statute 4 & 5 
 Anne, c. 16, s. 19, enacts, that if at the accruing of the action 
 the defendant be beyond the seas, the plaintiff' may bring his 
 action within six years after the defendant's return. A mere 
 Betting foot on English ground is not a return within the stat- 
 ute8.(A) If one of several co-defendants, in an action ex contractu^ 
 were abroad, the Statute of Limitations did not begin to run 
 
 («) Slrithorst v. Gi-seme, 3 Wils. 145 ; 2 W. Bl. 733, S. C. ; Le Veux v. 
 Berkeley, 5 Q. B. 836 (48 E. C. L. R.) ; Townsend v. Deacon. 18 L. J., 
 Exch. 298 ; 3 Excli. 706, S. C. ; Lafond v. Euddock, 13 C. B. 813 (76 E. C. 
 L. R.). Query, whether the executors are limited to six years after the testa- 
 tor's death. Townsend v. Deacon, supra. 
 
 (/) Perry v. Jackson, 4 T. R. 516 ; secu), of one of several defendants. 
 Fannin v. Anderson, 7 Q. B. 811 (34 E. C. L. R.). 
 
 (9) 19 & ao Vict. c. 97, s. 10. 
 
 </i) Flood V. Patterson, .SO L. J., Chan. 486 ; but see Corn ill v. Hudson, 8 
 E. & B. 439 (92 E. C. L. R.). 
 
 (i) Hull V. Wyborn, 1 Show. 98 ; Swayn v. Stephens, Cro. Car. 333. 
 
 '(*) Gregory v. Hurrill, 1 Bihg, 24 (8 E. C. L. R.) ; 8 Moore, 189, S. C. 
 
 (1) Thewords "beyond seas" in the statute of limitations of a State, means 
 out of the limits of that State. Murray v. Baker, 3 Wheat. 541 ; Shelby v. 
 'Gray, 11 Wheat. 361 ; Bank of Alexandria v. Dyer, 14 Peters, 141 ; Pancoast 
 V. Addison, 1 .Har. -& Johns. 350 ; Richardson v. Richardson, 6 Ham. 125 ; 
 Field V. Dickenson, 3 Pike, 409. Contra., W4iitlocke v. Walton, 2 Murph. 23 ; 
 Earle v. McDowell, 1 Dev. 16 ; I'hurslon v. Dawes, 9 Serg. & R. 288. 
 
'520 OF THE STATUTE OF LIMITATIONS 
 
 •against any of thern,(^) But tlie statute 19 & 20 Vicf. c. 97, s. 
 11, preserves the protection of the statute to such of the de- 
 fendants as were within seas at the time of action accrued. 
 
 "When a disability is removed, and the statute once begins to 
 run, no supervening disability will stop it.(?w){l) 
 
 P^g ,--] *Seventhly, as to the promises, acknowledgments, or 
 payments, which take a bill or note out of the statute; 
 It was at first held, tha;t nothing short of an express promise 
 would take a debt out of the statute ;(n) then that a mere ac- 
 knowledgment would, as evidence of promise; and that a part 
 •payment of principal or interest amounted to an acknowledg- 
 ment.(o) The effect of these decisions was nearly to repeal the 
 statute. Their consequences were somewhat restrained by the 
 case of Tanner v. Smart,(p) in which it was decided that a new 
 'promise or acknowledgment did not operate by drawing down 
 the original promise to a subsequent date, but by giving a new 
 cause of action ; and that the promise stated in the replication 
 
 (0 Fannin v. Anderson, 7 Q. B. 811 (53 E. C. L. R.).; Toivns v. Meail, 16 
 
 ' C. B. 123 (81 E. C. L. R.) ; Forbes v. Smith, 24 L. J., Exch. 399 ; 10 Exch. 
 
 ■ 717. S. C. ; and see Forbes v. Smith, 11 Exch. 161. As to what evidence for 
 
 the jury of a person not having been in England, see Koch v. Shepherd, 18 
 
 C. B. 191 (86 B. C. L. R.). 
 
 (to) Doe d. Duroure V. Jones, 4 T. R. 310; Smith v. Hill, 1 Wils. 134; 
 Gray v. Mendez, 1 Stra. 556; Rhodes v. Smethui'st, 4 M. & W. 43 ; 6 M. & 
 W. 351, in error. 
 
 (ra) Diclsson v. Thomson, 3 Show. 136. 
 
 (o) Hollis V. Palmer, 2 Bing. N. C. 713 (39 E. C. L. R.) ; 3 Scott, 265, 
 S. C. 
 
 (p) 6 B. & C. 603 (13 E. C. L. R.). 
 
 (1) The disability which entitles a party to the benefit of the proviso must 
 exist when tlie riglit of action first accrues, and if several disabilities'exist 
 together, the statute does not begin to run iintil the whole are removed. 
 Jackson v. Johnson, 5 Cowen, 74; Jackson v. Wheat, 18 Johns. 40; Butler 
 V. Howe, 1 Shepl. 397 ; Starke v. Starke, 3 Richardson, 438. Where the stat- 
 ute has commenced to run, no subsequent disability can stop it. Peck v. 
 Randall, 1 Johns. 165 ; Rogers v. Hillhouse, 3 Conn. 398 ; Crosier v. Oana, 1 
 Bibb, 257 ; Mercer v. Selden, 1 Howard, U. S. 37 ; South v. Thomas, 7 Mon- 
 roe, 59 ; McDonald v, Johns. 4 Yeager, 358 ; Den v. Richards, 3 Grcenl. 34T; 
 Dillardv. Philson, 5 Strobhajt, 313. 
 
IN ITS APPLICATION TO BILLS AND NOTES. 521 
 
 ia to be considered as the promise laid in the declaration, and 
 must be consistent with it.(l) / 
 
 (1) The jiclcnnwledgment mast be clenr and explicit, not inconsistent with' 
 an immediate proniise to pay absolutely or unconditionally. Harrison v. 
 Hsndley, 1 Bibb, 443; Ash v. Piitton, 3 Serg. & Rawle, 300; Head v. Man- 
 ners, 5 J. J. Marsh. 25 ; Bell v.'Morriaon, 1 Peters, 351 ; Bradley v. Field, 3 
 Wendell, 272 ; Lnwrence v. Hopkins, 13 Johns. 288; Alwood v. Coburn, 4 
 N. Hamp. 315 ; Tichenor v. Colfax, 1 Southard, 153 ; Bank v. Sullivan, 6 N. 
 Eamp. 124 ; Russell v. Cobb, 5 N. Hamp. 154; Marshall v. Diilliber, 5 Conn. 
 480; Fries v. Boisdelet, 9 Serg. & Rawle, 128; Hudson v. Carey, 11 Ibid. 
 10 ; Bailey v. Bailey, 14 Ibid. 195 ; Bracket v. Mountfort, 3 Faiif. 72 ; Roger 
 V. Waters, 2 Gill & Johns. 64; Hancock v. Bliss, 7 Wend. 207; Allison v. 
 Pennington, 7 Watts & Serg. 180 ; Fellows v. Gnimann, Dudley, Geo. 100. 
 There must be either an absolute promise to pay the debt, or a conditional 
 promise accompanied by proof of performance of the condition, or an unam- 
 biguous acknowledgment of the debt as still existing and due. Porter v. Hill, 
 
 4 Greenl. 41 ; Deshon v. Eaton, Ibid. 413 ; Bell v. Morrison, 1 Peters, 851 ; 
 Bush V. Barnard, 8 Johns. 407 ; Robbins v. Otis, 1 Pick. 368. There must 
 be an express promise to pay, or an admission of a subsisting debt which the 
 party is willing to pay. Horlbeck v. Horlbeck, 1 McMuIlan, 197 ; Waples v. 
 Layton, 8 Harr. 508 ; Brown v. Joynes, 1 Richardson, 210 ; Kelly v. Sanborn, 
 9 N. Hamp. 46; Williamson v. King, 2 McMullan, 505 ; Davidson v. Morris, 
 
 5 Smedes & Marsh. 564 ; Cocks v. Weeks, 7 Hill, 45 ; Farley v. Kustenbader, 
 3 Barr, 418 ; Manning v. Wheeler, 18 N. Hamp. 486 ; Ventris v. Shaw, 14 
 Ibid. 422; Kensington Bank v. Patten, UPenna. State Rep. 479; Brown v. 
 State Ban!?, 5 English, 134 ; Harbold's Ex'rs v. Kuntz, 16 Penna. State Rep. 
 210. The acknowledgment must admit that the debt continues due at the 
 time of the acknowledgment. Bangs v. Hall, 2 Pick. 368 ; French v. Frazier, 
 
 7 J. J. Marshall, 425; Wetzell v. Bussard, 11 Wheat. 310; Oliver v. Gray, 1 
 Bar. & Gill. 204 ; Ferguson v. Taylor. 1 Hayw. 20 ;. Belles v. Belles, 7 Halst. 
 339 ; Purdy v. Austin, 3 Werid. 187 ; Barlow v. Bellamy, 7 Vermont, 54. • 
 
 It has been held in some cases, that a general acknowledgment of a sub- 
 sisting indebtedness, without specifying the amount of the debt or the balance 
 due, is sufficient. Lord v. Harvey, 3 Conn. 370 ; Whitney v. Bigelow, 4 Pick. 
 110. But the weight of authority undoubtedly is, that the acknowledgment 
 ' must clearly refer to the very debt in dispute between the parties. Clarke v. 
 Butcher, 9 Cowen, 074 ; Bell v. Morrison, 1 Peters, 351 ; Lockhart v. Eaves, 
 Dudley, S. C. 321 ; Pray v. Garcelon, 5 Shepl. 145 ; Dinsmore v. Diusmore, 
 
 8 Ibid. 433 ; Davis v. Herring, 6 Missouri, 21 ; Thompson v. French, 10 
 Yerger, 453 ; Robbins v. Farley, 3 Strobliart, 348 ; Martin v. Broach, 6 
 'Georgia, 21 ; Davis v. Steiner, 14 Penna. State Rep. 275 ; Arcy v. Stephen- 
 son, 11 Iredell, 86. An admission by an individual that there is something 
 due from him on account, with a promise of payment, will take a case out of 
 the statute, but ivill justify a recovery only for a nominal sum. Kittridge v. 
 Brown, 9 N. Hamp. 877. When part of' an account is barred, an admission 
 of indebtedness and a general promise to settle and pay, is not such a new 
 promise as will take the case out of the statute, for it may refer to that part 
 unaifecled by the statute. Morgan v. Walton, 4 Barr, 331. A conditional 
 
522 OF THE STATUTE OF LIMITATIONS 
 
 At length, further to restrain the mischief, the late learned 
 Lord Chief Justice of the King's Bench introduced the act.;9 
 Geo. 4, by which it is enacted,(g') that uo acknowledgment or 
 
 (?) Cap. 14, B. 1. 
 
 promise to pay a specified demand, where the other party refuses -to accede to 
 the condition annexed, is not sufficient to take the demand out of tlie opera- 
 lion of the statute, either as a promise to pay or an admission of present in- 
 debtedness. McLean v. Allbee, 5 Shepl. 184; Didier v. Davidson, 3 Sandf. 
 Ch. Re,p. 61. Where tlie promise is conditional, the plaintiff must show that 
 the terms have been fulfilled so as to make the promise absolute. Brown v. 
 Joyner, 1 Richardson, 210; Tompkins v. Brown, 1 Denio, 347; Farmers' 
 Bank v. Clarke, 4 Leigh, 603 ; Shaw v. Newall, 1 Rhode Island,.4«8. Where 
 the acknowledgment, is accompanied with circumstances or declarations, show- 
 ing an intention to .insist on the benefit of the statute, no promise to pay can 
 be implied. Bangs v. Hall, 2 Pick. 368; Danforth v. Culver, 11 Johns. 146; 
 Hay V. Kramer, 3 Watts & Serg. 137 ; McGlensey v. Fleming, 4 Dev. & Batt. 
 129. A promise not to plead the Statute of Limitations will take a case out 
 of the operation of the statute. Lowry v. Dubon, 3 Bailey, 435 ; Warren v. 
 Walker, 10 Shepl. 453. Such a promise must itself of course be within the 
 time. The acknowledgraent revives the old debt, and does not create a new 
 obligation. Newlin v. Duncan, 1 Harrington, 204 ; Love v. Hackett, 6 
 Georgia, 486. But see Sims v. RadclifTe, 8 Richardson, 287 ; Austin v. Bost- 
 wick, 9 Conn. 496. Under a general replication to a plea of the statute, evi- 
 dence of an acknowledgment or promise to pay within the time is admissible. 
 Hunter v. Ptarkes, 8 Humphrey, 656. An acknowledgment or promise to pay 
 a debt, sufficient to take it out of the statute, may he made after the com- 
 mencement of the suit. Danforth v. Culver, 11 Johns. 146. 
 
 A promise made by the maker will not take the case out of the statute as 
 against the indorser. Dean v. Munroe, 33 Georgia, 38. Acknowledgment or 
 promise must be exprefs, must clearly identify the debt, and must be made to 
 the party in interest. Ringo v. Brooks, 36 Arkansas, 540 ; Green v. Goble, 
 7 Kansas, 247 ; Wooters v. King, 54 Illinois, 343 ; Johns v. Lantz, 13 P. F. 
 Smith, 334 ; Chambers v. Furey, 47 Mo. 99 ; Simonton, v. Clark, 65 North 
 Car., 53o ; Norton v. Colby, 53 Illinois, 198 ; Gray v. McDowell, 6 Bush, 47.5.; 
 Lee V. Wyse, 35 Conn. 384 ; McClelland v. West, 9 P. F. Smith, 487 ; Yaw 
 V. Kerr, 11 Wright, 333 ; Wolfensberger v. Young, Ibid. 516 ; Crease v. Defe- 
 .ganiere, 10 Bosworth, 133 ; Brayton v. Rockwell, 41 Vermont, 621 ; Hunter v. 
 Kittridge's Estate, Ibid. 359 ; Knight v. House, 29 Maryland, 194; McCor- 
 mick V. Brown, 36 Cal. 180 ; McDonald v. Grey, 29 Texas, 80 ; Conway's 
 Ex'rs V. Reyburn's Bx'rs. 23 Ark. 390 ; Dawson v. King, 20 Maryland, 442. 
 
 Where several claims against a party are barred, a general acknowledgment 
 of indebtedness will not take any of them out of the operation of the statute. 
 Walker V. Griggs, 33 Georgia, 119; Smith v. Moulton, 13 Minn. '353; Boyd 
 V. Hurlbut, 41 Mo. 264. An acknowledgment or new promise made on Sun- 
 day, Is, admissible in evidence to recover the bar of the statute. Thomas v. 
 Hunter, 39 Maryland, 406. 
 
IK ITS APPLICATION TO BILLS AND NOTES. 523 
 
 protnise by words onlif shall take a case out of the statute, unless 
 ,in writing, and signed by the party chargeable. 
 
 That where there are several joint contractors or executors 
 one shall not lose the benefit of the statute through a written 
 acknowledgment signed by the other, but the plaintiff shall re- 
 cover against theacknovvledging party only. 
 
 That the eflect of papnent of principal or interest, by any 
 person, shall remain as before the statute.(r) 
 
 In considering the operation of this arid other parts of the 
 act 9 Geo. 4, c. 14, on the 21 Jac. 1, c. 16, in respect of acknowl- 
 edgments, promises or payments, as to bills or notes otherwise 
 barred by the Statute of James, we shall inquire, first, what 
 Bort of an aclcnowledgraent, promise or payment, it must be to 
 take a debt out of the statute ; secondly, at what time it must 
 be made ; thirdly, by whom ; fourthly, to whom ; and, lastly, 
 by what evidence it must be proved. 
 
 First, as to the sort of acknowledgment, promise or payment, 
 which will save the statute. 
 
 *An acknowledgment, before the 9 Geo. 4, c. 14, must F*q4Q-i 
 have been such an acknowledgment as imples a promise 
 to pay, and must be so still. " That statute," says Tindal, C. 
 J., "did not intend, as it appeared to us, to make any altera- 
 tion in the legal construction to be put upon acknowledgments 
 or promises made by defendants, but merely to require a differ- 
 ent mode of proof, substituting the certain evidence of a writing 
 signed by the party chargeable instead of the insecure and pre- 
 carious testimony to be derived from the memory of wit- 
 nesses, "(s) Therefore, the acknowledgment must not be ae- 
 ifi&mpanied with expressions repelling the inference of a promise 
 to pay ;(<) accordingly a letter written without prejudice will 
 
 (r) See 19 & 20 Vict. c. 97, s. 14. 
 
 («) Haydon v. Williams, 7 Bing. 166 (20 E. C. L. K.) ; 4 M. & P. 811, 
 .8.0. 
 
 (0 Fearn v. Lewis, 6 Bing. 349 (19 E. 0. L. R.) ; 4 M. & P. 1, S. C. ; 
 Scales V. J«cob, 3 Bing. 038 (11 E. C. L. R.) ; 11 Moore, 653, S. C. ; Ayton 
 V. Bolt, 4 Bing. 105 (13 E. C. L. R.) ; 13 Moore, 305, S. C. ; Kennett v. Mil- 
 Iwnk, 8 Bing 38 (31 E. C. L. R.) ; 1 M. & Scott, 102, S. C. ; Biigstock v. 
 Smith, 1 C. & M. 483 ; Spong v. Wright, 9 M. & W. 629 ; Cawley v. Tur- 
 
524 OP THE STATUTE OF LIMITATIONS 
 
 ■ 
 
 not suffice ;(m) and if a payment be made, accompanied by ex- 
 pressions which render the intention of the payment doubtful, 
 then the meaning of any such expressions is a question of fact 
 for a jury.(w) If the promise be conditional, the condition 
 must be shown to have been performed.(a;) " There must," 
 says Rolfe, B,, " be a promise to pay ; but from a simple ac- 
 knowledgment the law implies a promise."(y) It is sufficient 
 if the acknowledgment or promise ascertain, either expressly 
 r*?4Q1 °'' ^^ reference, the *amouut due,(2) or if it leave the 
 amount to be supplied by parol evidence. Where in 
 an action against the acceptor of a bill of exchange, to take 
 the case out of the statute, a letter by the defendant, promising 
 " to pay the balance," was produced, but the letter did not 
 specify its amount, the plaintiff was held' entitled to recover 
 noniinal damage8,(a) 
 
 nell, 12 C. B. 291 (74 E. C. L. TJ.) ; Smith v. Tliorne, 18 Q. B. 134 (33 E. C, 
 L. R); Rackham v. Marriott, 25 L. J., Excli. 324 ; 1 H. & N. 234, S. C. ; 
 Goate V. Goate, 1 H. & N. 29 ; Cornforlli v. Smithard, .5 H. & N. 13 ; 29 L. 
 J . Excli. 228 ; Everett v. Roliertson, 1 E. & E. 16 (102 E. C. L. R.) ; Collin- 
 son V. Margesson, 27 L. J., Excli. 305 ; Godwin v. Culley. 4 H. & If . 373. 
 
 (m) Ex parte Mitcliell, L. R., 6 Clian. Ap. 833. 
 
 (b) Wainman v. Kynman, 1 Excli. 118. 
 
 (a!) Tanner v. Smart, 6 B. •& C. 603 (13 E. C. L. R.) ; 9 D. & R. 549, S. C. ; 
 Kennett v. Kilbanls, 8 Bing. 38 (21 E. C. L. R.) ; 1 M. & Scott, 102 S. C. ; 
 Linsell v. Bonser, 3 Bing. N. C. 241 (39 E. C. L. R.) ; 2 Scott, 399, S. C. ; 
 Humplireys v. .Tones, 14 M. & W. 2 ; see Howcutt v. Bonser, 3 Excli. 499. 
 It does not appear necessary to declare on the conditional promise. Irving 
 V. Veitch, 3 M. & W. 90 ; Edmunds v. Downes, 2 C. & M. 459 ; 4 Tyr. 17H, 
 S. 0. ; Hiiydon v. Williams, 7 Binsi. 168 (20 B. C. L. R.) ; 4 M. & P. 811, 8. 
 C. ; Gardner v. McMahon, 3 Q. B. 561 (43 E. C. L. R.). 
 
 (j() Hart V. Prendergast, 14 M. & W. 741 ; Williams v. Griffith, 18 L. .7., 
 Exch. 310 ; 3 Exch. 335, S. C ; Phillips v. Phillips, 3 Hare, 299 ; Buckmas- 
 icr V. Russell, 4 L. T. (N. S.) 553 ; Lee v. Wilmot, 35 L. J., Exch. 175; L. 
 R., 1 Ex. 364. But the acknowledgment must be made for the purpose of 
 recognizing the debt. An acknowledgment made in other affairs and alio 
 intuitu is not sufficient. Cockerill v. Sparke, 1 H. & Colt. 699; Everett v. 
 Robertson, 1 E. & E. 16 (103 E. C. L. R.) ; Rowe v. Hopwood, 38 L. J., Q. 
 B. 1 ; L. R., 4 Q. B. 1. 
 
 («) Lechmere v. Fletcher, 1 C. & M. 623. The amount mny be ascertained 
 by extrinsic evidence. Bird v. Gammon, 3 Bing. N. C. 883 (32 E. C. L. R.J > 
 5 Scott, 213 S. C. ; Waller v. Lacy, 1 M. & Gr. 54 (39 E. 0. L. R.). 
 
 (a) Dickinson v. Hatfield, 1 M. & Rob. 141 ; 5 0. & P. 46 (24 E. 0. L. R.). 
 S. C. ; see Kennett v. MilbanU, 8 Bing. 38 (21 E. C. L. R.) ; 1 M. & Scott, 
 102, S. C. 
 
IN ITS APPLICATION TO BILLS AND NOTES. 525 
 
 The date of a letter acknowledging a debt may be supplied 
 by parol evidence.(6) 
 
 The construction of an ambiguous written document given 
 in. evidence, to save the statute, is for the Court, and not for 
 the jury .(c) 
 
 Where there was a mutual and running account between 
 the plaintiff and the defendant, any item on either side within 
 six years would formerly have taken the whole account out of 
 iiie statute, but an item in an account not mutual would not.{d) 
 But since Lord Tenterden's Act there must be either payment 
 by the defendant or a signed acknowledgment.(e) 
 
 An account once stated is within the statute.(/) 
 
 A devise, in trust to pay a particular creditor, will take a 
 debt out of the statute in equity. But a devise for the pay- 
 ment of debts in general will not revive a debt if the statute 
 has run but,( g) but will, in equity , prevent the statute from 
 running out.(A) In a recent case. Lord Brougham held, 
 *reversing a contrary decision of Sir John Leach, M. pqiA-i 
 E., that a bequest of personal estate for the payment of 
 debts will have the same effect.(j)(l) 
 
 (J) Edmunds v. Do>ynes, 2 C. & M. 459. 
 
 Cc) Morrell v. Frith, 3 M. & W. 403. But it is a general rule, that parol 
 evidence is admissible to explain technical terms in mercantile iustiuments, 
 tUougU the construction of the instrument is for the Court; ibid. Bowman 
 T. Horsey, 3 M. & Rob. 85 ; sec, too, Bonrdier v. Greenwood, L. R., 13 Eq. 
 2^1 ; 41 L. J. 73. 
 
 . {d) Rothery v. Mnnnings, 1 B, & Ad. 15 (20 E. C. L. R.) ; Cotes v. Harris, 
 B. N. P. 149 ; Cranch v. Kirkmiin, Peake, 121 ; Catling v. Skoulding, 6 T. 
 B. 193. 
 
 . («) Williams v. Griffiths, 2 C, M. & R. 45. The exception of merchants' 
 accounts applied only to an action of account, or to an action on the case for 
 not accounting. Englis v. Haigh, 8 M. & W. 769. 
 
 (/) Farrington v. Lee, 1 Mod. 268 ; Renew v. Axton, Garth. 3 ; Chievly 
 V. Bond, 4 Mod. 103 ; Tickell v. Short, 2 Ves. sen. 339. 
 
 (ff) Burke v. Jones, 3 Ves. & B. 275 ; Gulliver v. Gulliver, 1 H. & N. 174. 
 . (A) Hughes V. Wynn, 1 Turn. & R. 307 ; Hargreaves v. Mitchell, 6 Madd. 
 336 J Moore v. Petchell, 32 Beav. 173 ; Jacquet v. Jacquet, 37 Beav. 3S2. 
 
 (8) Jones v. Scott, 1 Russ.- & M. 255. But see Spong v. Wright, 9 M. & W. 
 
 (1) Campbell v. Sullivan, Hardin, 17; Man v. Warner, 4 Whart. 455; 
 
526 OF THE STATUTE OF lilMtTATIONS 
 
 As a debt due from, a testator's estate may exist, and' yet 
 the executor not be liable to paj', a mere acknowledgment of 
 a debt by an executor is not sutKcient to take a debt out of the 
 statute ; there must be an express prornise.(/i) And it seems 
 that a part payment by one executor will not take the case out 
 of the statute as against his co-executor.(^j(l) 
 
 It seems, that a notice in the newspaper, by a personal rep- 
 resentative, that he will pay all debts justly due Irom his tes- 
 tator, will prevent a debt from being barred by the Statute of 
 Limitations. (m) 
 
 A payment must appear to be the payment of a debt, of the 
 debt for which the action is brought, and a part paymcnt'of a 
 larger sum.(?i) " The principle," says Parke, B., " upon which 
 
 (k) Tullock V. Dunn, B/& Moo. 416 (21 B. C. L, R.) ; and see AtUins v. 
 tieclgold, 2 B. & C. 23 (9 B. C. L. R.) ; 3 D. ifc Ry. 200, S. C. ; Furdhani v. 
 Wallis, 22 L. J., Chan. 548. 
 
 (0 Scholey v. Walton, 12 M.,& W. 510. 
 
 (to) Jones V. Scott,, 1 Russ, & M. 253- 
 
 (re) Tippiits V. Heane, 1 C. M. & R. 252 ; 4 Tyr. 772, S. C. But the sum 
 
 Agnew V. Felterman, 4 Barr, 56 ; MuiTay v. Mechanics' Bank, 4 Edw. Cli. 
 567 ; Smith v. Porter, 1 Biuney, 209. The Statute' of Limitations does not 
 operate as between a trustee and his cestui que trust to bai' a trust claim. Everts 
 V. Nason, 11 Vermont, 122. Trusts wliioh are not barred are those continu- 
 ing trusts which are not cognizable at law, but fall within the proper, pecu- 
 liar, and exclusive jurisdiction of a court of equity. Finney v. Cochran, 1' 
 Watts & Serg. 112. ' ' , ' 
 
 (1) An acknowledgment by an executor or administrator will not avail. 
 Fritz V. Tliomas, 1 Whart. 66 ; Tliompson v. Peter, 12 Wheat. 565 ; Parkins 
 V. Bennington, 1 Harrington, 209 ; Galley v. Washington,. 2 Ibid. 204; Peck 
 V. Botsford, 7 Conn. 172 ; Oakes v. Mitchell, 8 Shepl. 860; Forney v. Bene.> 
 diet, 5 Barr, 225. Contra,, Baxter v. Pennim^n, 8 Mass. 133; Emerson v. 
 Thompson, 16 Ibid. 421 ; Larason v. Lambert, 7 Halsted, 247; Newhouse v. 
 Rt'dwood, 7 Alabama, 598 ; Hord v. Lee, 4 Monroe, 36 ; Niemce-wictz v. Barl- 
 lett, 13 Ohio, 271. The promise of an executor or administrator to pay a debt 
 barred in the lifetime of the testator or intestate, will not be binding; aliter, 
 when the debt is not barred. Reigne v. Despartes, Dudley, 8. C. 118; Mc- 
 Kee y. Ferguson, Riley, 159 ; Pearce v. Zimmerman,.Harper, 305; Forney v. 
 Benedict, 5 Barr, 225 ; Seig v. Acord, . 21 Grattan, 865 ; Huntington v. Hab- 
 bitt, 46 Miss. 528. 
 
 Part payment by executor or administrator of claim already barred is not 
 sufflcieijt. McLaren v. McMartin, 36 New York, 88 ; but altter while the 
 statute is running. Heath v. Qrenell, 61 Barbour,. 190. 
 
IN ITS APPLICATION TO BILLS AND NOTES. 527, 
 
 part payment takes a debt out of the statute is that it admits 
 a greater debt to be due at the time of the part payment. 
 Unless it amounts to an admission that more is due, it cannot 
 operate as an admission of any still existing debt,"(o)(l) 
 
 Where a, debtor owes his creditor some debts from a period 
 longer than six years, and others from, a period within six 
 years, ^ad pays a sum without appropriating it to any particu- 
 
 need not then be ascertained. Walker v. Butler, 25 L. J., Q. B. 377 ; 6 E. & 
 
 B. 506 (88 E. C. L. K.), S. C. la Burn v. Boulton, 15 L. J., C. P. 97; 2 
 
 C. B. 476 (52 E. C. L. R.), it was held that there was a difFeience between a 
 debt on a promissory note and a debt on a quantum meruit. Tliat, thurefore, 
 if a payment is made, less llian the amount of the note, it need not be proved 
 by,auy expressions at tlie time of payment to be a part payment; and see 
 Worlhiugtiin v. Grimsdilch, 7 Q. B. 479 (84 E, C. L. R.). 
 
 (0) Worthington v. Grimsditch, 7 Q. B. 479 (34 E. C. L. R.). See Gowan 
 V. Torsler, 3 B. & Ad. 510 (23 E. C. L. R.). 
 
 (1) Part, payment of an account, barred by the statute, removes the bar as 
 to the remainder. Strong v. McConnell, 5 Vermont, 338 ; Carshore v. Huyck, 
 6 Barb. S. C. 583 ; Slate Bank v. Woody, English, 638 ; eonira, Smith v. 
 Westmoreland, 12 Smedes & Marshall, 063. An indorsement made on the 
 back of a note in the handwriting of the payee is not such evidence of a part 
 payment as to take llie note out of the operation of tlie statute. Clapp v. 
 Ingersoll, 2 Fairfield, 83 ; see Coffin v. Buchanan, 3 Fairfield, 471 ; McGehee 
 V. Giue, 7 Porter, 537 ; Connelly v. Pierson, 4 Gilman, 108. Contra, if proved 
 to have beenmade before the bar had attached. Addams v. Seitzinger, 1 Watts 
 & Serg. 243 ; Conckliu v. Pearson, 1 Richardson, 391 ; Alston v. Stale Bank, 
 4 Bnglisb, 455. As the effect of part payment, see Egery v. Decrea, 53 Maine, 
 393 ; Dyer v. Walker, 54 Maine, 18 ; Noble v. Edcs, 51 Maine, 84 ; Holmes 
 v. Uurell, Ibid 201; Galpim v. Barney, 37 Vermont, 027; Eaton v. Gillet, 
 17 Wis. 435 ; Hopkins v. Stout, 6 Bush, 375. 
 
 Where a debtor admits a certain sum to be due by hiiii, and denies that a 
 larger sum claimed is due, a.payment of the exact amount admitted, is not a 
 payment on. account to take the debt out of the statute. United States v. 
 Wilder, 13 Wallace, 354. Part payment by indorser as assignee of maker, does 
 iidt take the case out of the statute as to such indorser. Merchants' ISank v. 
 Watson, 10 Wright, 3.10. 
 
 A payment by the principal or maker:does not avail as against tlie indorser 
 or surety, unless he was a party to such payment. Hunter v. Robertson, 30 
 Georgia, 479. Payment of interest by one of two joint makers, without the 
 iuowledg^and consent of the other, takes the debt out of the statute. Corlies 
 T. Fleming, 1 Vroom, 349. Indorsements of partial paytnents made upon 
 promissory notes in. the handwriting of the payee, do not of themselves lur- 
 nisk any competent evidence of such payments to take the notes out of the ' 
 statute of limitations. Davidson v. Delano, 11 Allen, 533. 
 
528 OF THE STATUTE OF LIMITATIONS 
 
 lar debt, such payment is not a payment on account, to take 
 out of the Statute of Limitations the debts due longer than six 
 r*3511 y^^*"^? ^^^ the creditor may at any time *apply such 
 payments to the debts due longer than six year8.(p) 
 
 The giving of a bill is sufficient as a payment or acknowl- 
 edgment to obviate the 8tatute.(g') But the orawing of the 
 bill is payment or acknowledgment at the time of the drawing, 
 and not at the time of the payment by the drawee.(r)(l) ■ 
 
 Goods treated as money are a sufficient payment.(s) 
 
 An acknowledgment, made necessary by the statute 9 Geo. 
 4, c. 14, is exempted by the eighth section from the Stamp Act, 
 to which, as an agreement, it would otherwise have been sub- 
 ject.(<) But if it amount to a promissory note, the exempting 
 clause does not apply, and a stamp is necessary.(u) 
 
 A mere parol statement of an antecedent debt,, without any 
 new contract or consideration made within six years before 
 action brought, does not constitute a sufficient cause of action 
 to prevent the operation of the Statute of Limitations.(a;) But 
 where there are cross demands of which there is a mutual set- 
 
 (p) Mills V. Fowkes, 5 Bing^. N. C. 455 (35 E. C. L. R.) ; 7 Scott; 444, S. 
 C. ; Waller v. Lacy, y L. J., C. P. 217 ; 1 Scott, 186 ; 1 M. & Gr. 54 (39 E. 
 C. L. R.), S. C. ; Nash v. Hodgson, 1 Kay, 650 ; 23 L. J., Chan. 780, S. C. ; 
 but see 25 L. J., Chan. 180 ; 6 De G., M. & G. 474, and ante, p. 225. 
 
 (?) Tuiney v. Dodwell, 3 E. ,& B. 136 (77 E. 0. L. R.) ; Irving T. Veitch, 
 3 M. & W. 90. 
 
 (!•) Gowan v. Forster, 3 B. & Ad. 507 (23 E. C. L. R.). 
 
 (s) Hart V. Nash, 2 C, M. & R. 337 ; Hooper v. Stevens, 7 C. & P. 260 
 (32 E. C. L. R.) ; 4 Ad. & E. 71 (31 E. C. L. R.) ; 5 N. & M. 635 ; 1 Har. 
 & W. 480, S. C. ; and see as to the evidence, Moore v. Strong, 1 Bing. N. 0. 
 441 (27 E. C. L. R.); Bodyer v. Archer, 10 Exch. 333. 
 
 (n) Morris v. Dixon, 4 Ad. & E. 845 (31 E. C. L. R.) ; 6 N. & M. 438, S. 0. 
 
 (m) Jones V. Ryder, 4 M. & W. 32; Holmes v. Mackrell, 3 C. B. N. S. 789 
 (91 E. C. L. R.) ; Parmiter v. Parmiter, 30 L. J., Ch. 508, per Lord Camp- 
 bell. 
 
 (x) Jones v. Ryder, 4. M. & W. 33, overruling Smith v. Forty, 4 C. & P. 
 136 (19 E. C. L. R.). 
 
 (1) A negotiable note given by a debtor for part of a debt is" payment of 
 such part, and lakes the debt out the statute. Ilsley- v. Jewett, 2 Mete. 168. 
 
IN ITS APPLICATION TO BILLS AND NOTES. 529. 
 
 tiement by the statement, of a balance, the case is taken out of 
 the statute,(y) because, as observed by Mr. Baron Alderson, 
 " The truth is, that the going through an account, with items 
 on both sides, converts the set-off into payments. "(2)(1) 
 
 *Payment of interest is in general sufficient to take p„ „,.,-. 
 the principal out of the 8tatute,(a) but a payment of L "'-' 
 
 Q/) Asliby V. James, 11 M. & W. 543 ; Woithington v. Grimsditch, 7 Q. 
 B. 479 (53 E. C. L. R.) ; Poll v. Clegg, 16 M. & W. 387 ; 16 L. J., Bxch. 
 210. 
 
 (z) Bodyer v. Archer, 10 Exch. 333 ; Amos v. Smith, 81 L. J., Exch. 423 ; 
 Woithington v. Grimsclilclj, 7 Q. B. 479 (53 E. C. L..R.). See, however, 
 Clark Y. Alexander, 13 L. J., C. P. 133. One item only is enough. Knowles 
 T. Mitchell, 13 East, 249 ; Highmore v. Primrose, 5 M. & S. 65. See Lemere 
 T. Elliott, 6 H. & N. 656. 
 
 . (a) Piirdon T. Pardon, 10 M. & W. 562 ; Bamfield v. Tapper, 7 Bxch. 27 ; 
 Miiber v. Maber, 36 L. J., Exch. 70 ; L. R., 2 Ex. 153 ; but not necessarily 
 bo; Morgan v. Rowlands, L. R., 7 Q. B. 493 ; 41 L. J., 187, where payment 
 of interest was made under pressare of legal process. * 
 
 (1) If there be mutual running accounts between others than merchanta, and 
 any of the items have accrued within the time of the statute, this amounts to 
 an acknowledgment of the previous account, and prevents the operation of 
 the statute. Fitch v. Hilliary, 1 Hill, S. C. 293 ; Belles v. Belles, 7 Halst. 
 339; Burnett V. Bryant, 1 Halst. 377; Chamberliu v. Cuyler, 9 Wend. 12fi ; 
 Wor>d V. Barney, 3 Verm. 86'.) ; Davis v. Smith, 4 Greenl. 337 ; Abbott v. 
 Keith, 11 Verm. 525 ; Van Swearingen v. Harris, 1 WaKs & Serg. 356 ; Thom- 
 son V. Hopper, Ibid. 467. But items in an account charged within six years 
 do not take items charged more than six years before suit out of the statute, 
 unless there are mutual accounts between the parties. Bonnet v. Davis, 1 N. 
 Hamp. 19 ; Kimball v. Brown, 7 Wend. 333 ; Miller v. Colwell, 3 Southard, 
 577 ; Bantin v. Logow, 1 Blackford, 373 ; Tucker v. Ivers, 6 Cowen, 193 ; 
 Cbipman v. Bates, 5 Vermont, 143 ; Gold v. Whitcomb, 14 Pick. 188 ; Blair 
 V, Drew, 6 N. Hamp. 385 ; Smith v. Ruecastle, 8 Hals'. 357. To constitute 
 niutual accounts, there must be items, within the period limited by statute, on 
 lioth sides of the account. Gulick v. Turnpike Co., 3 Green, 545. Where 
 there was an account of hats sold, and a credit of cash paid and one hat re- 
 turned, it was held that this was not a mutual account. Hay v. Cramer, 3 
 Watts & Serg. 137; Lowber v. SmitTi, 7 Barr, 381. Where all the items of 
 an account between the plaintiff and defendant as merchants, bore date more 
 than twenty years antecedent to the commencement of the action, it was held 
 that a small item to the debit of the defendant, dated within twenty years, but 
 at a time when the defendant had ceased to be a merchant, such item not 
 heing of a mercantile character, would not revive the whole account against 
 the defendant. Hancock v. Cook, 18 Pick. 30. 
 
 3i 
 
530 OF THE STATUTE OF LIMITATIONS 
 
 principal (except in the case of bills or notes) will not revive a 
 claim for intere8t.(6)(l) 
 
 Secondly,, as to the time wten the acknovyledgment must be 
 made. 
 
 Except in the cases which have been mentioned of devises 
 and bequests for the payment of debts^ it makes no difference 
 whether the promise, acknowledgment or paymenf were made 
 before or after the expiration ot six years.. An, acknowledg- 
 ment which prevents the running out of the statute will also 
 revive a debt already barred. 
 
 It was formerly held, that the acknowledgment might be, 
 after action brought.(c) But as the acknowledgment is now/ 
 considered as the ground of action and the subject of the dec- 
 Ijiration, the promise, a,cknowledgment or payment must clearly 
 be before action brought.(rf) 
 
 . Payment of money into Court will not take a bill or note^ out 
 of the statute, except as to the amount paid in.(c) 
 
 Thirdly, as to the person by whom the promise, acknowledg- 
 ment or payment may be made.(2) 
 
 (S) Collier v. Willock, 4 Bing. 313.(13 K C. L. R.) ; 12 Moore, 557', S. G. i 
 Bealy v. Greenslade, 2 C. & Ji 61. 
 
 (c) Tea V. Fouraker, 2 Burr. 1099 ; Lloyd v. Maund, 2 T. E. 760; Buckei' 
 V. Hannay, 4. East. 604, n. 
 
 (d) Tanner v. Smart, 6 B. & C. 6C3 (18 E. C. L. Hi) ; 9 D. & R. 549, S. 
 Q. ; Rew v. Peltetj 1 Ad. & E. 196 (28 E. C. L. R.) ; 8 N. & M. 456, S. C. ; 
 Bateman v. Finder, 3 Q. B. 574 (43 E. C. L. R.). 
 
 (e) Reid v. Dickons, 5 B. & Ad. 499 (27 E. C. L, E.) ; 2 N. & M. 369, S. 
 U. ; and see Long v. Greville, 3 B. & C. 10 (10 E. C. L. R.) ; 4 D. & R. 682, 
 S. C. 
 
 (1) Trustees v. Osgood, 8 Shepl. 176 ; Walton v. Robinson, 5 Iredell, 341 ; 
 Sanford v. Hayes, 19 Conn. 591 ; Craig v. Calla^way County Court, 12 Mis- 
 souri, 94. 
 
 (2) The acknowledgment, need not be made to the party himself or hia. 
 agents. Oliver y. Gray, 1 Har. & Gill. 204; Whitney v. Bigelow, 4 Pick. 
 110; St. John v. Garrow, 4 Porter, 228 ; Minkler v. Minkler, 16 Veraiontt 
 194 ; Watkins v. Stevens, 4 Barbour, S. C. 168 ; Carshore' v. Huyck, 6 Ibid.. 
 
IN ITS APPLICATION TO BILLS AND' NOTES. 531 
 
 ItiMay be made by an &gent,{f) and therefore by a wife act- 
 in<' as agei'it,(^) and by one partner even after dissolution 
 
 (/) Burt V. Palmer, 5 Bsp. 145. But an acknowledgment in writing, signed 
 by an agent, lias been held insufflcient. Hyde v^ Jolinson, 2 Bing. N. C. 776 
 (29 E. C. L. R.) ; 3 Scott, 289, S. C. Bed qucefe. This case, liowever, has 
 beeh several times recognized, and a question has evef been made whether a 
 written acknowledgment signed by one of several partners in trade, has any 
 other effect than an acknowledgment by one of several ordinary joint contrac- 
 tors. Clarke v. Alexander, 13 L. J., C. P. 133. But now by 19 & 20 Vict, 
 c. 97, s. 13, the signature of an agent suffices. 
 
 (j) Evidence of admissions by an agent may be admissible without calling 
 the agent. Palethorpe v. Furnish, 2 Esp. 511 ; Anderson v. Sanderson, 2 
 Stark, 204 (3 E. C. L. R.) ; Holt, N. P. C. 591 (3 E, C. L. B), S. C. ; 
 Gregory v. Parker, 1 Camp. 394 ; but see Gibson v. Baghott, 5 C. P. 211 
 {U E. C. L. R.). 
 
 583. Contra, Kyle v. Well, 17 Penna. State Repi 286 ; Gillingham v. Gil- 
 lingUam, Ibid. 302. . 
 
 Perhaps no cases illustrate better than the two last cited the progress of 
 legal decisions upon the subject of the Statute of Limitations. The time was 
 ■#hen this defence was frowned upon by the Courts ; the man who resorted to 
 it was presumed to be a dishonest man, who wished^to avail himself of the 
 supineness or indulgence of his creditors to defraud them df their property. If 
 sharp practice had succeeded in obtaining a judgment by default, the Courts 
 did not consider it as within the exercise of a sound and equitable discretion- 
 to open the jiudgment to let in such a defence. Almost any expression refer- 
 ring to the former existence of the claidi was allowed to operate as an acknowl- 
 edgment. If a man admitted the debt, but coupled it with a determination 
 never to pay it, it was held sufficient to go to a jury. Lord Erskine is said to 
 hafve advised a client, that if applied to on the suliject of a demand against 
 which the statute had run, it would be dangerous to remain silent merely, his 
 only safety lay in knocking the claimant down. The opinion of the Supreme 
 Court of Pennsylvania, as delivered by Lowrie, J., presents with great force' 
 and succinctness the present evident tendency of the judicial mind, though it 
 maybe the courts of other States do not practically go the same length, espe- 
 ciailly when the overruling of former cases is in volvedi ' ' The highest moral- 
 ity of a judicial or other public officer," says Judgte Lowrie, "consists in 
 keeping himself within and yet fully performing the law of his office, because 
 that is the rule of official duty. But the private citizen is not thus restricted, 
 for the law falls far short of being the rule of individual duty. There is a 
 boundary of honor and even of honesty, however undefined, beyond which 
 the la;w has no jurisdiction ; tliere are duties which it cannot and many others 
 which it should not enforce. And it is well that it is so ; for where duty is 
 compelled, it is performed without merit, and that is a base-born morality that 
 is begotten by statute. In order that a man may improve he must have ability 
 to do wrong as well as right, and his nature is violated and his development 
 stinted, when the machinery of the law is too often applied to give form to his 
 actions. When a claim is barred by the Statute of Limitations, it ceases to 
 
632 OF THE STATUTE OF LIMITATIONS 
 
 *ofthe partnership,(A) if he makes a payment. But if 
 '-, ^ an agent exceed his authority in making the payment, 
 it will not take the debt out of the statute.(i)(l) It may be 
 
 W Wood V. Braddick, 1 T^aunt. 104. 
 
 (0 Linsell t. Bonsor„2 Bing. N. C. 241 (29 E. C. L. R.) ; 2 Scott, 399, 
 S. C. 
 
 be a Ipgal right, and becomes a mere moral right. The duty is not discharged ; 
 but the remedy is transferred irom the forum of law to the forum of conscience. 
 But because in some hard cases this latter forum refused rel.ef, the law was 
 stretched and the province of morality invaded by deciding that a moral 
 duty, followed by a promise, became a legal duty ; and now such is the law, 
 though the reasoning is inconsequential." The Judge then proceeds to apply 
 to the case the maxim of the Koman law — per extraneim personam, nihil 
 acquiri nobis potest If the defendant had expressly told the witness that he 
 would call and pay, this would have been but the expression of a determina- 
 tion, revocable at pleasure, and would have created no legal duty. It is, how- 
 ever, tile distinct and uuequivocal admission of a debt at that time subsisting 
 in full force, with knowledge of the lapse of time, that constitutes the difS- 
 culty of the case. If the declaration to a third person admitted that it had 
 been kept alive by renewed promises to the creditor himself, it could not con- 
 sistently with the weU-settled rules of evidence be held unavailable. Both the 
 cases in which this new principle has been advanced, were cases, however, i? 
 which the bar of the statute was already complete at the time of the alleged 
 acknowledgment, and it may be questioned whether the same court vpould 
 apply the rule to a case where the time had not yet run out. 
 
 (1) The acknowledgment by one of several joint debtors is sufficient to 
 take the case out of the statutes as to them all. Gelchell v. Heald, 7 Greenl. 
 20 ; White v. Hale, 3 Pick. 291 . Bound v. Lathrop, 4 Conn. 386 ; Shepley v. 
 Waterhouse, 9 Shepl. 497; Clark v. Sigourney, 17 Conn. 511. Gonira: Coit 
 V. Tracey, 8 Conn. 268 ; 9 Ibid. 1. An acknowledgment by one partner after 
 the dissolution, binds the other partner. Patterson v. Choate, 7 Wend. 441 ; 
 Smith V. Ludlow, 6 Johns. 267 ; Austin v. Boslwick, 9 Conn. 408 ; Wheelock 
 V. Doolittle, 18 Vermont, 440. Contra: Bell v. Morrison, 1 Peters, 351 ; Sea- 
 right V. Craighead, 1 Penna. Rep. 135 ; Brewster v. Hardeman, Dudley, Geo. 
 138 ; Steele v. Jennings, 1 McMullan, 297 ; Mun v. Donaldson, 2 Humph. 166 ; 
 Van Kewen v. Parmelee, 2 Comstock, 523. If a promise or acknowledgment 
 by one partner after dissolution, is made before the bar of the statute has at- 
 tached, it will keep the debt alive as to all, but such promise or acknowledg- 
 ment will not revive a debt once barred. Brewster v. Hardeman, Dudley, 
 Geo. 138 ; Fellows v. Guimon, Ibid. 100 ; Mclntire v. Oliver, 2 Hawkes, 209 ; 
 Walton V. Robinson, 5 Iredell, 341 ; Beardsley v. Hall, 36 Conn. 270. Con- 
 tra : Graham v. Selover, 59 Barbour, 313. One partner, after dissolution, can- 
 not by a payment in part, before the statute has run, affect the bar as to the 
 other partners. Myattsv. Bell, 41 Ala. 232. An, acknowledgment by prin- 
 cipal is good as against the surety. Erye v. Barker, 4 Pick. 382 ; Zcnt v. 
 Hart, 8 Barr, 337 Contra: Lowther v. Chappell, 8 Alabama, 353. A partial. 
 
IN ITS APPLICATION TO BILLS AND NOTES. 533 
 
 made by an infant for nece8sarie8.(A) Payment of interest by 
 an indorser of a promissory note does not take the note out of 
 the statute as against the maker.(i) 
 
 The 9 Geo. 4, c. 14, introduced, as we have seen, a distinction 
 between acknowledgments and ^romiaes by words only,{m) and 
 payments. The former, in the case of joint contracts, affected 
 only the party acknowledging ; the latter retained their former 
 efl'ect. 
 
 Where there is a joint contract, the parties were under the 
 old Statute of Limitations, respectively agents for each other 
 in respect of that contract, till the joint liability had deter- 
 mined.(n) In a joint action, therefore, against the makers of 
 a joint and several promissory note, a payment by one would 
 have revived the debt against the other.(o) So, if the action 
 had been brought againt one alone, ■payment by his companion 
 would have bound the defendant,(p) though made fraudu- 
 ]ent]y.(j) And it made no difference that the statute had run 
 
 (4) Willins v. Smith, 4 E. & B. 180 (82 E. C. L. R.). 
 . (0 Hardinge v. Edgecumbe, 28 L. J., Exch. 313. 
 
 (m) As to the effect of an acknowledgment by an executor, see Fordham v. 
 Wallis, 22 L. J., Chan. 548. See Emery v. Day, 1 C, M. & R. 249 ; 4 Tyr. 
 695, S. C. 
 
 (n) Wood V. Braddick, 1 Tnunt. 104. 
 
 (0) Perham v. Rayual, 2 Bing. 306 (9 E. C. L. R.) ; 9 Moore, 556, S. C. 
 Though made by a partner after a dissolution of partnership. Uoddard v. 
 Ingram, 12 L. J., Q B. 9 ; 3 Q. B. 839 (43 E. C. L. R.), S. C. 
 
 (p) Whitcomb v. Whiting, Doug.- 629, overruling Bland v. Haselrig, 2 
 Vent. 151 ; and see Burleigh v. Stott, 8 B. & C. 36 ^15 E. C. L. R.) ; 2 M. & 
 E. 93, S. C. 
 
 (5) Goddard v. Ingram, 3 Q. B. 839 (43 E. C. L. R.). 
 
 payment by one of two joint makers does not take the case out of tlie statute 
 as to the other. Hathaway t. Haskell, 9 Pick. 43 ; Coleman v. Forbes, 22 
 Penna. State Rep. 156. Contra: Joslyn v. Smith, 13 Vermont, 353; Real 
 Estate Bank v. Harlfleld, 5 Pike, 551 ; Davis v. Coleman, 7 Iredell, 424 ; 
 Patch v. King, 29 Maine, 448 ; Caldwell v. Sigourney, 19 Conn. 87 ; Turner 
 V. Eoss, 1 Rhode Island, 88. A partial payment, by one of two obligors of a 
 joint and several bond, will not take the case out of the statute as against the 
 other obligor, unless such payment be made while their joint liability con- 
 tinues. . Disborough v. Bidleman, 1 Spencer, 275 ; Zent v. Hart, 8 Barr, 337 ; 
 Lane V. Doty, 4 Barb. S. C. 530 ; Biscoe v. Jenkins, 5 English, 108. Pay-, 
 ment in part by indorser will not keep the claim alive against the maker. 
 Bibbv. Peyton, 11 Smedes & Marshall, 27*. 
 
534 OF THE STATUTE OF LIMITATIONS 
 
 ^out, when the payment by the other joint contractor was 
 made.(r) But after the joint liability had been determined by 
 the death of one of the parties, payment by the survivior would 
 not have taken the note out of the statute against the ex- 
 ecutors of the deceased ;{s) nor would a payrnent by the ex- 
 ecutor of the deceased have a#ected the survivor.(<) And it has 
 been held, that nothing short of an express promise will take a 
 „„r i-, .d^t)t out of the statute againfit *an fixeci|itQir.(it) And 
 if the plaintiff rely on a payment, it must distinctly ap 
 pear that the payment was made by the executor in his repre- 
 sentative, and not in his personal, capacity.(a;) And it seems 
 that payment by one executor would not ot itself have taken 
 the case out of the statute as against his co-executor.(^) When 
 one of two makers of a joint and several note made his com- 
 panion his executor, and died, and the survivor afterwards 
 paid interest on the note out of his own pocket, this being an 
 acknowledgment in his personal, and not in his representative 
 capacity, was held not to revive the debt as against the ex- 
 ecutors.(2) But the executors of the deceased were bound, if 
 the payment were made by the survivor before the death of 
 their testator.(a) 
 
 So, where a joint note was made by a man and a woman, 
 and the woman afterwards married, and a joint action -was, 
 brought against the husband and wife and the other maker, 
 laying the promise by the other maker and the woman dum sola, 
 and the defendants pleaded that the action, did not accrue 
 within six years, evidence of a promise by the other m^ker 
 after the marriage was held to be out of the issue.(6) 
 
 (r) Channell v. Ditchburn, 5 M. & W. 494. 
 
 (s) Atkins y'. Tredgold, 2 B. & C. 23 (9 E. C. L. E.) ; 3 D. & R. 200, 
 S. C. 
 
 (0 Slater v. Lawson, 1 B. & Ad. 396 (30 E. C. L. R.). 
 
 (u) Tnilock V. Dunn, 1 R. & M. 416 C31 E. C. L. R.). 
 
 (a;) Scholey v. Walton, 12 M. & W. 510 ; see, however, Griffin y. Asliby, 2 
 Gar. & K. 139 (61 E. C. L. R.). 
 
 (y) Ibid. 
 
 («) Atkins V. Tredgold, 2 B. & C. 23 (9 E. C. L. R.) ; 3 D. & Ry. 200, 
 S. C. 
 
 (a) Burleigh v. Stott, 8 B. & C. 36 (15 E. 0. L. R.) ; 2 M. & By. 93, 
 8. C. 
 
 (J) Pittam V. Foster, 1 B. & C. 248 (8 E. C. L. R.) ; 2 D. & Ry. 363, 
 S. C. When a single woman gives a promissory note and marries, and the 
 
IN ITS APPLICATION TO BILLS AND NOTES. 535 
 
 *The distinction, however, between the operation of r*qcK-i 
 payments and acknowledgments, is abolished by the 19 
 & 20 Vict. G. 97, s. 14, which statute restrains the eftect of the 
 acknowledgment implied from payment, and confines it to the 
 party making it, as the 9 Geo. 4, c. 14, had restrained the effect 
 of an express Saokiiowledgment. But the statute is not retro- 
 Bpeetive.(c) 
 
 It has been held, that payment of a dividend under a com- 
 miesion of bankruptcy against one of two makers of a joint and 
 several note, would take the note out of the statute against the 
 solvent ma]cer.{d) But that is doubtful, for it has since been 
 more correctly held that payment of a dividend by the as- 
 signees of an insolvent will not take a note out of the statute 
 as against his co-raakers, for there is no acknowledgment of 
 more being due.(e) 
 
 note is more than six years old, tliei-e are great diflaculties in suing, although 
 acknowledgments and payments have been made within the six years, but 
 after marriage a husband can only be sued for the debt of his wife dum sola 
 during coverture ; Com. Dig. Baron and Feme, C. 2 ; and therefore a promise 
 ip Mm to pay would extend his liability, and is void unless upon a new con- 
 sideration. Mitchinson v. Hewson, 7 T. R. 348. An acknowledgment or 
 payment, therefore, by the husband, would not suffice. An acknowledgment 
 or promise by the husband and wife, or by the wife alone, could have- no 
 bperation, the wifebeing incompetent to contract. Morris v. Norfolk, 1 Taunt. 
 212. If the husband's promise were considered as a promise to pay during 
 coverture, it would still extend his liability, for an action for not paying dur- 
 ing coverture would lie after the coverture. If, as a promise to pay, pro- 
 vided judgment be recovered during coverture (for the judgment fixes the 
 husband with the debt, Com. Dig. Baron and Feme, B. 2), it would still be 
 subject to these exceptions ; first, there would be no cause of action till judg- 
 ment recovered, which is absurd ; secondly, the judgment in such an action, 
 being against the husband alone, would charge him to a greater extent than a 
 judgment against husband and wife ; for, on a joint judgment, if the husband 
 survive, real execution would be against his wife's lands as well as his ; and if 
 the wife survive, personal execution would, it is conceived, survive against 
 her, and real execution would still be joiat, whereas on a judgment against the 
 husband alone he is subject, notwithstanding his pre-decease, to personal exe- 
 cution, and has no contribution in real execution. 
 
 (c) Jackson v. Woblley, 27 L. J., Q. B. 448. This statute had been held 
 to be retrospective, and to take away the effect of a payment by a joint con- 
 tractor as against his companion, though madfe before the statute. Thompson 
 V. Waithman, 26 L. J., Chan. 134 ; Jackson v. WooUey, 27 L. J., Q. B. 181. 
 
 id) Davies v. Edwards, 31 L. J., Exch. 4. 
 
 («) Jackson v. Fairbank, 3 H. Bl. 840, recognized in Perham v. Rayilal, 3 
 
536 01' THE STATUTE OF LIMITATIONS 
 
 Fourthly, as to the person to whom the acknowledgnlent, 
 promise, or payment must be. 
 
 - It has been held, that the acknowledgment or promise need 
 not, in point of fact, be made to the plaintift", but may be made 
 to a stranger.(/) Therefore, a letter by one joint and several 
 maker of a promissory note to another, has been decided to take 
 the note out of the' statute as against the writer ;(^) and from 
 the cases above cited, it should seem it would, before the 9 Geo. 
 4, c. 14, have had the same effect as against the other maker 
 to whom it was addressed. So alsb, in an action by indorsees 
 against acceptors of a bill, a deed between the acceptors and 
 third persons, reciting' that the bill was outstanldihg and unpaid, 
 was held to take it out of the statute.(A) So an acknowledg- 
 ment to a prior holder of a bill or note, enures to the benefit of 
 P^o-n, a subsequent *holder.(i) So a payment to an adminis- 
 trator, under void letters of administration, will take a 
 note out of the statute in an action by an administrator under 
 valid lettersj(A) 
 
 Lastly, as to the evidence by which a promise, acknowledg- 
 ment or payment must be proved, in order to its taking a debt 
 but of the statute. 
 
 "Where the same debt is secured by different instruments 
 payment of intjergst on one will take the others out of the 
 statute.(Z) 
 
 The statute 9 Geo. 4", n. 14, requires that an acknowledgment 
 or promise by words only should be in writing, signed by the 
 party chargeable.(m) 
 
 Bing. 306 (9 E. C. L. R.) ; 9 Moore, 556, S. C. ; but see Biandram v. Whar- 
 ton, 1 B. & Al. 463. 
 
 (/) Petei-s V. Brown, 4 Bsp. 46. As to payment to an agent of the holder, 
 see Megginson v. Harper, 3 C. & M. 322 ; 4 Tyr. 94, S. C. 
 
 (^) Halliday v. Ward, 3 Camp. 33. 
 
 (h) Mountstephen v. Brooke, 1 B. & Aid. 324. 
 
 (»■) Gale V. Ciipern, 1 Ad. & Ell. 103 (38 E. C. L. R.) ; 3 N. & M. 863, 8. 
 C. ; see, however, Cripps v. Davis, 13 M. & W. 159. 
 
 . (Jc) Clark v. Hooper, 10 Bing. 480 (35 E. C. L, R.) ; 4 Moore & S. 353^ 
 S. C. 
 
 (0 Dowling V. Ford, 11 M. & W. 329. 
 
 (m) See ante, p. 346. 
 
IN ITS APPLICATION TO BILLS AND NOTES. 537 
 
 . It was formerly held, that a promise or payment could not 
 be proved by a verbal or unsigned written acknowledgment.(n) 
 But it waa also held, that the appropriation of the payment to 
 a particular debt might.(o) Payment may, however, now be 
 proved like any other fact.(p) 
 
 This part of the statute is retrospective, and therefore an oral 
 acknowledgment or promise, though made before 1st January, 
 1829, when the. statute came into operation, is inadmissible in 
 evidence,(g') 
 
 ' Entries on the bill, of payment of interest or principal, in the 
 handwriting of the plaintiff, were formerly evidence to take 
 the debt out of the statute ; but now the 9 Geo, 4, c. 14, s. 3, 
 enacts, that no indorsement or memorandum of any payment, 
 written or made after the 1st January, 1829, upon any promis- 
 sory note, bill of exchange or other writing, by or on behalf of 
 the party to whom such payment shall be made, shall be 
 deemed sufficient proof of such payment, so *as to take r*qc7-i 
 the case out of the operation of the statute. It may 
 now, therefore, be advisable that any indorsement of payment 
 of interest, or part payment of principal, should be written by 
 the debtor and signed by both parties ; signed by the creditorj 
 as evidence in favour of the debtor ; written and signed by the 
 debtor, to keep the security alive in favour of the creditor. 
 
 Indorsements of the payment of interest are presumed to 
 have been written at the time they bear date.(r) 
 
 As an entry by a person deceased against his interest is evi- 
 dence in an action brought by his personal representatives, such 
 an entry of payment of interest is admissible in an action by 
 them on a bill or note for the purpose of proving payments, 
 
 («) Willis V. Newham, 3 Y. & J. 518 ; Baildon v. Walton, 1 Exch. 633 ; 
 Waters v. Tompkins, 2 C, M. & R. 723 ; 1 Tyr. & Gr. 137, S. C. ; Bayley v. 
 Ashton, 4 P. & D. 204; Magliee v. O'Neil, 7 M. & W. 531 ; see, however, 
 Eastwood V. Saville, 9 M. & W. 615. 
 
 (o) Waters v. Tompkins, supra ; Bevan v. Gething, 3 Q. B. 740 (43 E. C. 
 li. E.) ; Baildon v. Walton, 1 Exch. 632. 
 
 (.p) Cleave v. Jones, in error, 6 Exch. 573. 
 
 (a) Towler v. Chatterton, 6 Bing. 258 (19 E. C. L. R.) ; 3 M. &P. 619, 8. 
 C. ; Billiard v. Lenard, Moo. & M. 297 (22 E. C. L. R.). 
 
 (r) Smith v. Battens, 1 M. & Rob. 341. 
 
538 OF THE STATUTE OF LIMITATIONS 
 
 But if tte entry be on the bill or note itself, pq,ymenteo proved, 
 tliougb admissible, would not by the express words of the stat- 
 ute lae sufflelent to take the debt out of the statute. Yet if 
 the entry were on some other paper it seems it would not only 
 be admissible but sufficient. For the expression " other writ- 
 ing" in the statute only means any other writing containing 
 the contraet.(s) 
 
 Eighthly, as to the mode in which the statute is to be taken 
 advantage of. 
 
 A public act need not in general, before the recent altera- 
 tionsof the law,(<) have been pleaded. But to this rule (except 
 in an action of ejectment) the Statute of Limitations, 21 Jac, 
 1, c. 16, was an exception. It was once held, that the statute 
 need not be pleaded where it appeared on the face of the dec- 
 laration that the plaintiff was too late.(w) But it was after- 
 wards settled that it must, even in that case, be pleaded ; for 
 peradventure the plaintiff may be within one of the saving 
 clauses.(a;) . 
 
 It must now be pleaded in all cases. 
 
 There are two modes of pleading the Statute of Limita- 
 tions : " Tliat theckfendani did not limdertake within six years;" 
 — " tliat ihe action did not accrue within six years.'\y) 
 
 P4fnr Q, *"Wherever the contract is executory, the former plea 
 •'is bad.(2) 
 
 <») Bradley v. James, 33 L. J., C. P. 193 ; 13 C. B. 833 (76 E. C. L. R.), 
 B.C. 
 
 it) E. H. T. 4 Will. 4. 
 
 (m) Brown 7. Hancock, Cro. Car. 115. 
 
 {x) Hawbings v. Billhead, Cro. Car. 464 ; Puckle v. Moor, 1 Vent. 191 ; 
 Lee V. Rogers, 1 Lev. 110 ; Gould v. Johnson, 3 Ld. Raym. 838. 
 
 (jl) Before the Uniformity of Process Act, the plaintiff might (except in ac- 
 tions ty original) at his election, have treated either the writ or the hill as the 
 commencement of the suit, and therefore might have pleaded that the action 
 did not accrue within six years before the exhibiting of the bill, or before tJie 
 commencement of the suit, and the latter is the proper mode of pleading now. 
 C. L. P. Act, 1853, Sched. (B.) 
 
 A writ should not replied specially, but given in evidence. Dickenson j. 
 Teagne, 1 C, M. & R. 241. 
 
 (z) Gould V. Johnson, 3 Salk. 433 ; 3 Ld. Raym. 838, S. C. 
 
IN ITS APPLICATION TO BILLS AND NOTES. 639 
 
 The latter form is the safest and best plea in all actions, 
 whether on contracts or for wrong8.(a) 
 
 To a plea of setoff, the Statute of Limitations must be re- 
 plied specially .(6) 
 
 A replication of the statute admits all the facts alleged in 
 the plea, and only raises the question whether the cause of 
 set-off accrued to the defendant within six year8.(c) Thus, 
 where the defendant pleaded that the plaintiff had given his 
 promissory note to C, that 0. was dead, and that P. was C's 
 administrator, who had before the action indorsed the note to . 
 the defendant, and the plaintiff replied that the cause of set-off 
 had not accrued to the defendant within six years, it was held 
 that all the facts stated in the plea were admitted,(d) 
 
 A replication in assumpsit to a plea of the statute must be 
 consistent With the promises laid in the declaration. For ex- 
 ample, if the original promise were absolute, the promise laid 
 in the replication must not be conditional.(e) 
 
 The plaintiff may reply to a plea of the statute, that he 
 is within the saving clause, or rather such parts as are unre- 
 pealed. 
 
 m 
 
 Lastly, independently of the statute, if a note be twenty 
 years o\d,[f) it will be presumed to have been paid, in the 
 *3b8ence of pirciimstances tending to repel the pre- r»QKn-i 
 sumption.(^) 
 
 (a) 1 Saund. 33, /. A plea stating that a debt accrued more than six years 
 ago, without statiug that it did not accrue within the six years, is bad. Bush 
 T. Martin, 3 H. & Colt. 311.. 
 
 (i) Chappie v. Dnrston, 1 C. &. J. 1. 
 
 (c) Gale V. Capern, 1 Ad. <fe Ell. 102 (28 E. C. L. R.) ; 3 N. &M. 863, S. C. 
 
 ((0 Ibid. 
 . f«), Tanner v. Smart, 6 B. & C. 606 (13 E. C. L. E.) ; 9 D. & Ry. 549, S. 
 C, ; Haydon v. Williams, 7 Bing. 168 (20 E. C. L. R.) ; 4 M, & P. 811, S. 0. 
 
 (/) Such, for two hundred years, has been the common law as to a bond. 
 The derence was Introduced into Ireland by statute 8 Geo. 1, c. 4, and into 
 England by the 3 & 4 Will. 4, c. 43, s. 3. 
 
 (.g) Duffield V. Creed, 5 Esp. 53. 
 
540 OF THE LAVOP SET-OFF AND MUTUAL CREDIT 
 
 The lapse of thirteen years has been held sufficient to raise 
 a presumption of the repayment of a loan not secured by a 
 note.(/i) 
 
 [*360] 
 
 *OHAPTER XXVII. 
 
 OF THE LAW OP SET-OFF AND MUTUAL CREDIT IN RELA- 
 TION TO BILLS AND NOTES. 
 
 NATURE -OP SET-OFF, . 
 
 UNKNOWN TO THE COMMON LAW, 
 
 RECOGNIZED IN EQUITY, 
 
 INTRODDCED BY STATUTE, . 
 
 DIVISION OF THE SUBJECT, 
 
 THE GENERAL STATUTES OF SET- 
 OFF, 
 
 THE SUMS TO BE SET OFF MUST 
 BE DEBTS, 
 
 LEGAL DEBTS, 
 
 SUBSISTING DEBTS, 
 
 ACTUALLY DUB, . 
 
 AND AT TIME OF TRIAL, 
 
 MUTUAL, 
 
 STATUTES PERMISSIVE, NOT IM- 
 " PERATIVE, 
 
 PLEADING, . 
 
 SET-OFF IN BANKRUPTCY, 
 
 WHEN THE MUTUAL CREDIT 
 MUST HAVE EXISTED, 
 
 360 
 361 
 361 
 361 
 362 
 
 362 
 
 362 
 3(i3 
 363 
 363 
 368 
 
 364 
 365 
 365 
 
 865 
 
 FRADULENT SET-OFF, . . .366 
 
 ATTEMPT TO DEPRIVB OF SET- 
 OFF, ...... 867 
 
 MUTUAL CREDIT, . . . .867 
 
 NEED NOT BE OF MONEY, . . 367 
 
 THE DEBTS NEED NOT BE DUE, 367 
 MUTUAL CREDIT NEED NOT BE 
 INTENDED, . . . .363 
 
 BREACH OF TRUST, . , . 368 
 
 EFFECT OF NOTICE, . . . 368 
 
 DOES NOT EXTINGUISH A LIEN, 869 
 HOW MUTUAL CREDIT IS TO BE 
 
 TAKEN ADVANTAGE OF, . . 369 
 HOW UNDER COMPANIES ACT, . 869 
 SET -OFF IN EQUITY, . . .370 
 OF^ CASES WHERE A STIPULA- 
 TION, NOT THE SUBJECT OF A 
 SET-OFF, IS A BAR TO THE 
 ACTION, 870 
 
 CoMPENSATio, in the Roman law, corresponds with set-off in 
 the English law : but the provisions in the civil law, for setting 
 one deinand against another, are more liberal and extensive 
 than in ours. Compensatio is defined by the civilians, debiti 
 
 ET CREDITI INTER SE CONTRIBDTIO (a) 
 
 Set-off signifies the subtraction, or taking away of one de- 
 mand from another opposite or cross demand, so as to extin- 
 guish the smaller demand and reduce the greater by the amount 
 of the less, or if the opposite demands are equal, to extinguish 
 both. It was also, formerly, sometimes called stoppage, be- 
 
 (A) Cooper v. Turner, 2 Slaik. 49? (3 E. C. L. R.). 
 (o) .Dig. 16, a, 1. 
 
IN KELATION TO BILLS AND NOTES. 541 
 
 cause the amount sought to be set off was stopped, or deducted 
 from the cross demand. 
 
 Set-off is in all cases useful to prevent circuity of action ; 
 but where one of the parties is dead, insolvent, bankrupt, or 
 removed beyond the jurisdiction of the English Courts, it is 
 absolutely necessary, to prevent gross injustice. 
 
 *Tet it should seem that set-off is unknown to the p„„,^-, 
 common law, perhaps because it was thought very ■- ^ 
 fhconvenient to try two cross demands in a single action, and 
 because, in the early stagesof our jurisprudence and commerce, 
 its necessity was hot so apparent. Some writers have indeed 
 held, that there is such a thing as a set-off by action at common 
 lavv;(6) but it is conceived that the authorities cited in support 
 of this doctrine are cases rather of conditional contract, or of 
 payment, than of set-off. It is true that Lord Mansfield says,(c) 
 that " where the nature of the transaction consists in a' vart^ty 
 of receipts and payments, the law "allows the balance only to 
 be the debt; " but that is, because the entries of each side of 
 an account current are by the usage and understanding of trade 
 mutual payments rather than mutual cross demands. 
 
 Where, indeed, parties agree that mutual debts shall be set 
 otf, that agreement amounts to payment. But the law itself 
 does not apply mutual payments in extinguishment of each 
 other.(d) 
 
 But though the practice of set-off was unknown to courts of 
 law before the statutes, it was recognized in courts of equity 
 long before :(e) and the want of it at law was found productive 
 of great injustice. " The natural sense of mankind," says Lord 
 Mansfield, " was first shocked at this doctrine in the case of 
 bankrupts ; they thought it hard that a person should be bound 
 
 ■ (*) Montague on Set-off, pp. 1, 3. 
 
 (c) Green v. Farmer, 1 W. Bl. 651 ; 4 Burr. 2214, S. C. 
 
 ((2) See tbe American authorities:, Byles on Bills, 5tU American ed. p. 530. 
 
 (e) In equity i[ iheie lie cross demands and one demand be equitable, and 
 the other legal, there is set-off, if there would have been set-off at law, had 
 both the demands been legal. Freeman v. Lomas, 9 Hare, 109 ; Cochrane t. 
 Green, 30 L. J., C. P. 97 ; 9 C. B., N. S. 443 (99 E. C. L. R.), 8. C. ; Wil- 
 son V. Gabriel, 4 B. & Smith, 243 (116 B. C. L. R.). 
 
542 OF THE LAW OF SET-OFF AND MUTUAL CREDIT 
 
 to pay the whole that he owed to a bankrupt, and receive only 
 a dividend of what the bankrupt owed him." 
 
 Thisdefect, therefore, was supplied in the case of bankruptejr,, 
 by the statute 4 Anne, c. 17.(/) Afterwards by the statutea 
 of Geo. 2, the same equitable provision was made for the set-; 
 off of debts generally in the courts of law, and especially after 
 the death of one of the parties. Then' the Lords' Act, and the 
 Acts for the Relief of the Insolvent Debtors, adopted the same, 
 provision ; and,, lastly, the courts of law, anxious to do justice; 
 • ^^ *^® termination as well as at *the commencement of 
 •^ •'a suit, in the exercise of their equitable jurisdiction 
 over their respective suitors, have allowed the set-off of costsi 
 and judgmentSi 
 
 In examining the subject of set-off and mutual credit, in its 
 relation to negotiable instruments,, let us consider, first, the 
 provision of the general statutes of set-off; secondly,, of the' 
 Bankrupt Act, and the Acts for the Eelief of Insolvent 
 Debtors ; and thirdly, the doctrine of the Courts of equity. The- 
 lourth branch of the subject, I mean the set-off oi costs andi 
 judgments' in different Courts, is, perhaps, foreign to the design 
 of this Treatise ; but it may be proper to notice, lastly, a few 
 cases, in which a stipulation, though not properly the subject' 
 of a set-off, is yet held to be a bar to the action. 
 
 First, The general statutes of set-off are, the 2 Geo. 2, c. 22, 
 B. 13, and. the. 8 Geo. 2, c. 24, s. 4. These statutes only give a 
 set-off in case- of mutual debts; that is, of ascertained money 
 diie.mands.(^) 
 
 Hence it follows, that there can be no setoiff unless the de- 
 mand for which the action is brought, and the counter- demand 
 sought to be set-off, are both of them, debts properly so called. 
 Therefore, there can be no set-off at all to an action in form ex 
 delicto, as trover, nor to an action ex contractu, unless brought 
 
 (/) Green V. Farmer, 1 W. Bl. 651 ; 4 Burr. 3214, S. C. 
 {g) Though secured by a penalty, 8 Geo. 3, q. 34, b. 5. See Collins v. Col- 
 lins, 2 Burr. 830 ; Lee v. Lester, 7 C. B. 1008 (63 E. C. L. R.)^ 
 
IN RELATION TO BILLS AND NOTES. 543 
 
 for a liquidated sum.(A) Therefore, also, a guarantee cannot 
 beB6t-off.(i^l) 
 
 (Ji) In America it has been held that damages are unliquidated where there 
 is no criterion provided by the parties,. or by the law operating on the con- 
 tract, by which to ascertain the amount. But in Pennsylvania and Illinois an 
 unliquidated cross demand, aiisiug I'rom a distinct contract may be set-off. 
 This arises from the absence of a separate administration of equity. Byles 
 on Bills, 5th American ed. p. 525. 
 
 (i) Crawford v. Stirling, 4 Esp. 20T; Morley v. Inglis, 4 Bing. N. C. 58 
 (33 B. C. L. E.) ; 5 Scott, 314, S. C. Se& Crampton v. Walker, 30 L. J., Q. 
 B. 19. 
 
 (1) Id an action for damages for negligence in keeping the plaintiff's sheep,, 
 founded upon a special written contract, the defendant will not be permitted to 
 deduct from the damages the compensation which he claims for lieeping the 
 sheep. Such a compensation, if any lie due, must be sought in adistiuct ac 
 lion. Crowninshield v. Hobinson, 1 Mason, 93. So no set-off is admissible.' 
 in an action on an open policy of insurance, although the demand be for a 
 total loss, as the damages are uncertain and unliquidated. Gordon v. Bowne, 
 2 Johns. 150. But premium notes may be deducted' under an express stipu- 
 latjoain the policy to that etfect. Cleveland v. Clap, 5 Mass. 201 ; Oodge v. 
 Union Marine Ins. Co. 17 Ibid. 471. In an action for the recovery of dama- 
 ges for the breach of a warranty in the sale of goods, defendant is not en- 
 tilled to a set-off of demands against the plaintiff. Wilmot v. Hurd, 11 
 Wendell, 584. See also Dowd. v. Fawcett, 4 Devereux, 92 ; George v. Ga- 
 hawba Railroad Co., 8 Alabama, 234. ' 
 
 An unliquidated demand cannot be pleaded in set-off. Detastett v. Crous- 
 sillat, 2 Wash. C. C. 132 ; Slate v. Welstead, 6 Halsted, 397 ; Hepburn v. 
 Hoag, 6 Conn. 613 ; McCord v. Williams, 2 Alabama, 71 ; Woodruff v. 
 Laflin, 4 Pike, 527 ; Homas v. McConnell,, 3 McLean, 81 ; Whitaker v. Rob- 
 inson, 8 Smedes & Marshall, 349 ; Hawks v. Lands, 3 Gilman, 227 ; Smith v. 
 Smith, 1 Smith, 337 ; Crenshaw v. Jackson, 6 Georgia, 509. Damages result- 
 ing from the breach of a contract are unliquidated where there is no criterion, 
 provided by the partiesj or by the law operating on the contract, by which to 
 ascerlain the amount of the damages. McCord v. Williams, 2 Alabama, 71. It 
 is a general rule that where indebitatus assumpsit will lie upon a simple con- 
 tltact, the debt due thereon may be pleaded in set-off. Austin v. Feland, 8 
 Missouri, 309. A debtor draws and delivers to his creditor an order on a. 
 third person payable at sight, and directs- the amount, when received, to be 
 placed to the credit of his account. The creditor, without the knowledge or 
 assent of the drawer, takes the drawee's acceptance payable at sixty daysy 
 and before the expiration thereof the acceptor dies insolvent. Held, that the 
 drawer's claim against his creditor on account of the draft was a claim for 
 unliquidated and uncertain damages, for the. failure to collect it, and could not 
 bs allowed as a set-off in a suit brought by the creditor to recover the original 
 demand against the drawer. HaiTison v. Wortham, 8 Leigh, 296. But un- 
 li:quidated damages may be set-off,, under the plea of payment, in an action 
 arising from the same transaction. It is admitted in such cases rather as an. 
 
544 OP THE LAW OP SET-OFP AND MUTUAL CREDIT 
 
 The subject of set-off at law, must be a legal, and not a raere 
 equitable debt ; and, therefore, the assignee of a bond cannot 
 set-oflf the amount secured by that in8trument,(A;) but the 
 indorsee or assignee of a bill or note may set it off, because 
 negotiable instruments are assignable at law. 
 
 *It must be a subsisting legal debt ; therefore, a debt 
 '- -' barred by the Statute of Limitations cannot be set 
 off.( I )(1) So, a debt, satisfied in contemplation of law by a 
 discharge of the debtor out of execution, cannot be set off.(?ji) 
 But the defendant may set off a debt due to him, though he 
 have obtained a verdict against the plaintiff in a former 
 a,ction,(?i) or a judgment, or though he have even taken him in 
 execution, if the debtor has not been discharged.(o} But the 
 debt to be set off need not necessarily be one for which an 
 action could be brought. Therefore an unsigned attorney's 
 
 (k) Wake v. Tinkler, 16 East, 3S. But an equitable debt may be set off 
 by an equitable plea. See ante, p. 361, n. («) 
 (0 Bull. N. P. 180. 
 (to) Jacques v. Withy, 1 T. R. 5o7. 
 (?i) Baskerville v. Brown, 2 Burr, 1229. 
 (0) Peacock V. Jeffrey, 1 Taunt. 426*. 
 
 equitable defence than in strictness a set-off. Hubler v. Tamn6y, 5 Watts, 
 51 ; Gogel v. Jacoby, 5 Serg. & Rawle, 117 ; Henion v. Morton, 2 Aslimead, 
 150 ; Abercrombie v. Owings, 2 Richardson, 127 ; Turnpike Co. v. Harris, 8 
 Humphrey, 558 ; Elliott v. Heath, 14 N. Hamp. 131. In Pennsylvania, how- 
 ever, an unliquidated cross demand, arising from a distinct and independent 
 contract may be set-off. EUmaker y. Franklin Eire Ins. Co., 6 Watts & 
 Serg. 489 ; Phillips v. Lawrence, Ibid. 150. So also in Illinois. Edwards v. 
 Todd, 1 Scam. 462; Kaskaskia Bridge Co. v. Shannon, 1 Gilman, 15; 
 Wheeler v. Raymond, 5 Cowen, 281 ; 9 Ibid. 295 ; Gilchrist v. Leonard, 3 
 Bailey, 185 ; Bell v. Horlon, 1 Alabama, 418 ; Carew y. Northrup, 5 Ibid. 
 367 ; Smith v. Taylor, 9 Ibid. 633 ; Bowen v. Sngll, 11 Ibid. 379. In those 
 States, however, in which there is no separate administration of equity, but 
 the principles of equity are adopted and enforced through common law forms, 
 as in Pennsylvania, a different rule of necessity prevails. Murray v. William- 
 son, 3 Binney, 135 ; Morgan v. Bank of North America, 8 Serg. & RaWle,f88; 
 Beesley v. Crawford, 19 Ohio, 126. 
 
 (1) Gilchrist v. Williams, 3 Marshall, 235 ; Williams v. Gilchrist, 3 Bibb, 
 49 ; TurnbuU v. Strohecker, 4 McCord, 210 ; Crist v. Garner, 2 Penna. Rep. 
 251; Madden v. Madden, 2 Rep. Const. Court, 350 ; Jacks v. Moore, 1 
 Yeates, 391. ■ ... 
 
IN RELATION TO BILLS AND NOTES. 545 
 
 liill may be. set offi(p) And the debt must exist not only at 
 the commencement of the action, but at the time of plea 
 pleaded, and the plea must aver that the plaintiff still is in- 
 debted to the defendant.(g') i 
 
 The deraand must have been a debt strictly so called ; that 
 is, a debt actually due and payable at the commencement of 
 the action. (r) Therefore a bill or note cannot be set off unless 
 due, and in the defendant's hands before the issuing of the 
 wri.t.(s) 
 
 And it must be a debt still due at the time of trial. There- 
 fore it may be replied that since the plaintiff has paid the, 
 debt.{0(l) 
 
 (p) Harrison v. Turner, 16 L. .!., Q. B. 295 ; 10 Q. B. 482 (59 E. C, L. B), 
 S. C, 
 
 (?) Dcndy v. Powell, 3 M. & W. 442. 
 
 (r) Richards v. James,- 2 Exch. 471. 
 
 (s) Evans v. Prosser, 3 T. R. 186 ; and see BraitUwaite v. Coleman, 4 Ncv. 
 & Man. 654 (30 E. C. L. R.). 
 
 (t) Eyton V. Littledale, 18 L. J., Exch. 369 ; 4 Excli. 159, S. C. ; Briscoe 
 V. Hill, 10 M. & W. 735. 
 
 (1) The debt must be existing between the parlies at the commencement of 
 plaintiff's suit. Jefferson County Bank v. Chapman, 19 Johns. 322 ; Carpen- 
 ler V. Butterfield, 3 Johns. Cas. 145 ; Huling v. Hugg, 1 Watts & Serg. 418 ; 
 Cox V. Cooper, 3 Alabama, 256 ; Carfrew v. Canavan, 4 Howard, Miss. 370; 
 Kelly V. Garrett, 1 Gil man, 649 ; Johnson v. Comslock, 6 Hill, 10 ; Whitalier 
 T. Turnbull, 3 Harrison, 172 ; Varney v. Brewster, 14 N. Hamp. 49 ; Edwards 
 V. Temple, 2 Harrington, 322. A permission to the defendants to use a bill 
 as a set-off, and to be liable to the owner only in the even.t of his being able 
 to set it off, is not such a property in the bill, as makes it the subject of 
 set-off. Adams v. McGrew, 2 Alabama, 675 ; McDonald v. Harrison, 12 Mis- 
 souri, 447. Where a note, not negotiable, was assigned for a valuable con- 
 sideration, and an action was brought for the benefit of the assignee in the 
 name of the payee, it was held that the maker might set off a debt due to him 
 at the time of the assignment. Sanborn v. Little, 3 N, Hamp. 539. The de- 
 fendant sued by the assignee of a note cannot set off a claim against; the; 
 assignor, unless he shows that he held it at the time of the notice of the 
 assignment. Ritchie v. Moore, 5 Munford, 388 ; Stewart v. Anderson, 6 
 Cranch, 203. In case of mutual demands existing at the death of a decedent, 
 they may be set off in an action by the executor or administrator. Bordman 
 V. Smith, 4 Pick, 212. Light v. Lieninger, 8 Barr, 403. In an action by an 
 administrator for a debt due to his intestate, the defendant cannot set off a 
 debt due from the intestate, purchased by the defendant after the death of the 
 
 35 
 
646 OF THE LAW OF SET-OFF ANDMUTUAL CREDIT 
 
 The debts must be mutual ; for the statutes only authorize 
 the setting oft" of mutual debts. 
 
 Therefore, in the case of partnership debts, if the firm sue, 
 only a debt due from all the partners can be set oft". So, if the 
 firm be sued, they cannot set off a debt due to one or more of 
 the partners, but not to all.(ii) But one partner mayseWfe.a 
 debt due to the firm, by setting off against it a debt due from 
 himself,(a;) and though, as it seems, he should in so doing be 
 r*Q«Ai ^''ti"? ^" fraud of his co-partners. The debts *and 
 ■- ^ credits of a firm survive at law to the surviving partner, 
 and a Court of law will hot take notice of his equitable claims 
 and liabilities. His separate debts and credits, and his debts 
 and credits as representative of the firm, are considered as of 
 the same nature, and may, theretore, be set off against one 
 another. Thus, when a surviving partner sues for a partnership 
 debt, a separate debt due from him may be set oft". So, when 
 he sues for his separate debt, a debt due from the former part- 
 nership may be set oft". When he is sued for a partnership 
 debt, he may set off a debt due to him individually. And 
 when be is sued for a separate debt, may set oft' a debt due to 
 
 (m) But the Roman law was otherwise ; one partupr might claim a set-off 
 due to his partner "ex causa societatis." Dig. 45, 3, 10 ; Cujacius in Cod. 4, 
 31, 9. 
 - (x) Wallace v. Eelsall, 7 M. & W. 864. 
 
 intestate. Root v. Taylor, 20 Johns. 137. A debt due from an intestate in 
 his liretime, cannot be set off against one which has accrued to the adminis- 
 trator since the death of the intestate. Wolt'ersberger v. Bucher, 10 Serg. & 
 Rawle, 10 ; Colby v. Colby, 2 N. Hamp. 419 ; Fry v. Evans, 8 "Wandell, 530; 
 Mills V. Lumpkin, .1 Kelly, 511. In suits by or against executors or admin- 
 istrMtors, when the estate is insolvent, a debt not due at the time of the death 
 of the testator or intestate, although it became due before the commence- 
 ment of the suit, cannot be set off. It is otherwise if the estate be solvent ; in 
 that case it makes no difference that the debt proposed to be set off was not 
 due at the time of the death of the testator or intestate, if it were due when 
 the suit was commenced. Bosler v. Exchange Bank, 4 Barr, 32. See Raw- 
 son v. Conplad, 3 Barbour, Ch. Rep. 166'; Ray v. Dennis, 5 Georgia, 357. 
 There cannot be a set-off against a set-off. Ulrich v. Berger, 4 Watts & 
 Serg. 19 ; Hudnall v. Scott, 2 Alabama, 569 ; Gable v. Parry, 13 Penna. Stale 
 Rep. 181. , * 
 
 When an assigned note is pleaded as a. set-off to a suit on a note by an as- 
 signee, it must be averred that the note offered as a set-off was assigned to the 
 defendant before notice of the assignment of the note sued on to the plaintiff. 
 Sayres v. Linkhart, 25 Indiana, 145. 
 
IN KELATION TO BILLS AND NOTES. 547 
 
 the firtn.(?/) And if one of two joint contractors is sued alone, 
 he may plead in bar that the promises were made by him and 
 another jointly, and that a set-off is due from the plaintiff to 
 him and his co-contractor.(e)(l) 
 
 ■ The indorsee of an overdue note is not liable to the set-off of a 
 debt due from his indorser to the maker.(a)(2) 
 
 To examine minutely what are mutual debts when the 
 eharacters of principal and agent, of executors and adniinis- 
 trators,(6) and of husband and wife intervene, would be to 
 deviate from our main subject.(c)(3) 
 
 (y) Slipper v. Sti^stone, 1 Esp. 47 ; 5 T. R. 493, S. C. 
 (3) Stackwood v. Dunn, 3 Q. B. 828 (43 B. C. L. R.). 
 (a) BuiTough V. Moss, 10 B. & C. 558 (21 E. C. L. R.) ; and see p.' 167. 
 (J) See Blakesley v. Smallwood, 8 Q. B. 533 (55 E. C. L. R.) ; Rees v. 
 Watts, 11 Exch. 410 ; Mardall v. Thellusson, 6 E. & B. 976 (88 E. C. L. R.); 
 (c) See, however, Byles on Bills, 5th American ed. p. 529. 
 
 (1) A joint debt cannot he set off against a sepaiate debt, nor a separate 
 debt against a joint debt. McDowell v. Tyson, 14 Serg. & Rawle, 300 ; Por- 
 ter V. Nekervis, 4 Randolph, 359 ; Howe v. Sheppard, 2 Sumner, 409 ; Wood 
 y. Carlisle, 6 N. Hamp. 27 ; Henderson v. Lewis, 9 Berg. & Rawle, 379 ; 
 State Bank v. Armstrong, 4 Devereux, 5.9 ; Vose v. Philbrook, 3 Story, 335 ; 
 Billiard v. Dorsey, 7 Smedes & Marshall, 9 ; Albright v. Aldrich, 2 Texas, 
 166; Burgwin v. Baboock, 11 Illinois, 28. One of several defendants who 
 are eued upon a joint note may set off a demand due to himself from the plain- 
 tiff, against the demand due upon the joint note. Powell v. Hogue, 8 B. 
 Monroe, 443. Where a note was made payable to one of a firm for partner- 
 ship property, and passed to a creditor of the firm, to whose use a suit was 
 brought in which setoff was pleaded of individual notes of the payee, held 
 competent to show in answer that the note was by fraud or mistake made 
 payable to one of the firm. Bourne v. Wooldridge, 10 B. Monroe, 492. One 
 of two defendants may set off a debt due to him by the plaintiff', unless there 
 !8 some superior equity in a third person. Stewart v. Coulter, 12 Serg. & 
 Rawle, 2.52 ; Childerson v. Hammond, 9 Serg. & Rawle, 68. One of several 
 partners sued for a separate debt may set off a debt due' by the plaintiff to the 
 firm, provided that it appears that the set-off is made with the express assent 
 »f the other partners and the plaintiff is insolvent. Wrenshall v. Cook, 7 
 Watts, 464. See Craig v. Henderson, 2 Barr, 261. 
 
 : (2) In what cases set-off is allowed against tlie indorsee of claims against 
 the maker of a note indorsed after maturity. Collins v. Allen, 12 Wendell; 
 356 ; Sargent v. Southgate, 5 Pick. 312 ; Driggs v. Rockwell, 11 Wendell, 504 ; 
 Hughes T. Large, 2 Bai-r, 103 ; Unseld v. Stephenson, 33 Missouri, 161 ; An- 
 derson V. Busteed, 5 Duer, 485 ; Bond v. Fitzpatrick, 4 Gray, 89 ; Williams 
 y. Banks, 11 Maryland, 198 ; Kilonan v. White, 6 Florida, 45 ; Shipman v. 
 Bobbins, 10 Iowa, 208; Odiorne v. Woodman, 39 New Hampshire, 541; 
 Pliipps V. Shegogg, 30 Mississippi, 241. 
 
 (3) Hurlbnt v. Insurance Co., 2 Sumner, 471 ; McKinney v. Bellows, 3 
 
548 OF T.5B JiAW OF SET-OFF AND MUTUAL CREDIT 
 
 If a note be given to a married woman, the husband may, as 
 we have seen, either sqe alone or join his wife. If he sue jii 
 his own name, he is not liable to a set-otF due from his wife, 
 dum sola, but he is to a set-off due from hiniself.,(fl?) If he join 
 her, it should seem, he is liable to a set-off due fi-om bis wife, 
 but he is not to one due from himself.(e)(l) 
 
 The general statutes of set-off are permissive, not impera» 
 tive. Therefore, if a defendant have a cross dej:nand, he may 
 
 id) Buriough v. Moss, 10 B. & C. 558 (21 E. C. L. E,). 
 («) Ibid. ; and see ante, Married Women, p. 63. 
 
 Blackford, 31 ; Scott v. Rivers, 1 Stewart & Porter, 19 ; Durroek y. Hay, 2 
 Yeates, 308; Morrison v. Furnhum, 1 Marshall, 41; Wain v. Wilkins, 4 
 Teates, 461 ; Gordon v. Bowiie, 2 Johns. 150 ; Warner v. Barker, 3 Wendull; 
 400 ; Pitkin v. Pitkin, 8 Conn. 325 ; Bullard v. Dorsey,' 7 Smedes & Mar- 
 shall, 9 ; Minifee v. Ball, 3 English, 530 ; Hilliard v. Walker, 11 Illinois, 644. 
 A claim against the plaintiff in a representative capacity cannot be set off in 
 a suit brought in an individual capacity. Grew v. Burdilt, 9 Pick. 265 ; Snow 
 V. Conant, 8 Verm. 308; Cummings v. Williams, 5 J. J. Marshall, 384; 
 Wright v. Rogers, 3 McLean, 229. Claims against an agent, known to be 
 such when the contract upon which suit is brought was entered into, can- 
 riot be set off against a debt due the principal. Wilson v. Codraan, 3 Cranch, 
 193 ; Gordon v. Church, 2 Caines, 299 ; Broune v. Robinson, 2 Caines' Gas. 
 341 ; Foster v. Hoyt, 2 Johns. Cas. 327 ; Carman v. Garrison, 13 Penna. State 
 Bep. 158. A claim of a surviving partner is liable to a set-off of his individual 
 debt, unless there be some equitable interest in another, which a court of law 
 can protect. Lewis v. Culbertson, 11 Scrg. & Rawle, 4S ; Mcader v. Scott, 
 4 Vermont, 26 ; Cowder v. Elliott, 2 Missouri, 60 ; Holbrook v. Lackey, 13 
 Metcalf, 132. In an action Upon a promissory note against principal and 
 Surety, a demand due from the plaintiff to the principal may be set off. Ma- 
 burin v. Pearson, 8 N. Hamp. 539 ; Harrison v. Henderson, 4 Georgia, 198; 
 Contra : Woodruff v. State, 2 English, 333. So in an action against the 
 surety alone, such set-off may be made -with the assent of the principal. 
 Lynch v. Bragg, 13 Alabama, 773. 
 
 (1) Where a suit has been brought by husband and wife for the rent of 
 premises belonging to the wife, the tenant may set off a demand against the 
 husband alone. Ferguson v. Lothrop, 15 Wendell, 625 ; Wishart v. Downey, 
 15 Serg. & Rawle, 77. In an action by husband and wife for a legacy left to 
 the wife " for her own use," a debt due from the husband to the testator can- 
 not be set off. Jamison v. Brady, 6 Serg. & Rawle, 466. The debt of the 
 husband cannot be set off after divorce, though the wife's claim accrued during 
 coverture. Fink v. Hake, 6 Watts, 131. 
 
IN &ELATION TO SILLS AND NOISES. 549 
 
 either set it oft", of bring a cross action for it, at his 
 dption.(/^)(l) 
 
 And he rhay (supposing his demand to be greater than the 
 demand against which he sets it oft") plead his set-off and bring 
 an action at the same time for the same sum. If he has a 
 verdict in the action where he is plaintiff, and also a verdict on 
 his plea of set-off in the action where he is defendant, 
 *he must consent to reduce his verdict in the action 
 where he is plaintiff, by the amount to which he has ■- -• 
 made his set-off available in the action where he is defends 
 aisit.(5') : 
 
 A discharge under the Insolvent Debtors' Act must have 
 heen replied specially.(A) 
 
 Under the informal replication that the plaintiff' never was 
 indebted, he cannot prove payment, as he might under the 
 tommon replication that he was not, nor is, indebted. (i) The 
 ^aintiff naay under the common replication show want of 
 mutuality.^') 
 
 If a defendant does not deliver particulars of set-off in com- 
 pliance with a Judge's order, he is precluded from giving evi- 
 dence of it at the trial.(A) 
 
 Secondly, Set-off under the Bankrupt Act. 
 
 (/) Baskcrville. v. Brown, 3 Burr. 1229. 
 
 (;) tbid. By the new Act, 1873, a defendant may hare judgment for the 
 balance in his favour, if there be any. 
 
 <fi) Ford V. Dornford, 8 Q. B. 583 (55 E. C. L. B.). 
 
 (0 .Stqckbridge v. Sussams, 3 Q. B. 289 (43 E. C. L. R.) ; Miller v. Atlee, 
 3 Exch. 799. 
 
 0) Arnold v. Bainbridge, 9 Exch. 153. 
 
 (ft) Ibbett V. Leaver, 16 M. & W. 770 ; Young v. Geiger, 18 L. J., C. P. 
 43 ; 6 C. B. 552 (60 E. C. L. R.), S. C. 
 
 ■ (1) The law does not apply mutual debts in extinguishment of eaiih other! 
 Carmalt v. Post, 8 Watts, 410 ; Post v. Carmalt, 2 Watts & Serg. 70 5 Ulrich 
 V. Berger, 4 Ibid. 19 ; Morton v. Bailey, 1 Scam. 213. A set-off is in the 
 nature of a cross-action, and may be withdrawn in analogy to suffering a non- 
 ^uit( where the evidence is found to be too weak to support it ; but like a non- 
 ' suit, the withdrawal of it ought to be explicit. Muirhead v. Fitzpatrick, 5 
 ^Ma & Serg. 506. 
 
550 OF THE LAW OF SET-OFF AND MUTUAL CREDIT 
 
 Set-off in bankruptcy was first given by the 4th Anne, c. 17* 
 s. 11, re-enacted by 5 Geo. 2, c. 38. These statutes enact that 
 the mutual credit must have been before the bankruptcy •, and, 
 therefore, it was decided, where a debtor to the estate claimed 
 to set off notes of the bankrupt, that it was for him to show 
 that he took the notes before the act of bankruptcy. (Z) The 46 
 Geo. 3, c. 135, s. 8, enacted, that one debt or demand might be 
 set off against another, notwithstanding a prior act of bank- 
 ruptcy, provided the credit were given to the bankrupt two 
 months before the date of the commission, and provided the 
 person claiming the set-off had no notice of an act of bank- 
 ruptcy, or that the bankrupit was insolvent, or had stopped 
 payment. The 6 Geo, 4, c, 16, s. 50 (repealed, but re-enacted 
 by the 12 & 13 Vict. c. 106, s. 171),(m) goes still further, and 
 allows all debts to be set off, whether contracted before or after 
 the act of bankruptcy, provided no notice of a specific act of 
 bankruptcy when the credit was given can b? brought home to 
 the debtor. In case, therefore, of a country banking-house 
 *stopping payment, there does not now seem any 
 . -' necessary legal objection to a set-off by the debtors of a 
 firm, of notes bought up by them in the interval between the 
 stopping payment and the issuing of the commission. If, in^ 
 deed, when the doors and windows of a bank are closed, the 
 bankers either withdraw from the bank, or shut themselves up 
 in it, and so avoid any communication with their creditors, 
 they commit an act of bankruptcy by keeping house or absent- 
 ing themselves, with intent to defeat their creditors. (n) But if, 
 on stopping payment and closing the bank, they are, froin 
 illness, unable to be seen, or the creditors are referred to them 
 at their banking-house, or at their private houses, the mere cir- 
 cumstance of stopping payment is not an act of bankruptcy ; and 
 notes taken by a debtor to the firm, after knowledge that the 
 firm had stopped payment, may be 8et-off.(o) Notice of acts of 
 
 (0 Marsh v. Chambers, 2 Stra. 1234 ; Dickson v. Evans, 6 T. R. 57 ; Ough- 
 terlongv. Easterby, 4 Taunt. 888; Moore v. Wright, 6 Taunt. 517 (B. 0. 
 L. R.) ; 3 Marsh. 309, S. C. ; In re Ryder, L. R., 6 Chan. Ap. 413 ; 40 L. J. 
 63. 
 
 (»») Not repealed or altered in this respect, by the 24 & 35 Vict. c. 134. 
 
 (w) Cuinming v. Bailey, 6 Ring. 368 (19 E. C. L. R.) ; 4 Moo. & P. 36, 
 S. C. 
 
 (rt) Hawkins v. Whitten, 10 B. & C. 317 (31 E. C. L. R ) ; 5 Man. & R. 
 219, S. C. ; Dickson v. Cass, 1 B. & Ad. 343 (30 E. C. L. R ). 
 
IN RELATION TO BILLS AND NOTES. 551 
 
 bankruptcy by some members of a banking firm, without 
 notice of an act of bankruptcy by another member, will take_ 
 away the right to 8et-off.(p) But a man cannot buy up and set 
 off notes and bills, known by him to have been given by the 
 bankrupts for the accommodation of other persons. (g') 
 
 , A debtor to the bankrupt's estate cannot set off a bill or note 
 transferred to him by the real owner, even before the bank- 
 ruptcy, for the mere purpose of being set off against a demand 
 by the bankrupt's estate, so that the real owner might receive 
 20s. in the pound.(r) For in such a case the debtor is a mere 
 trustee for others, and having no real cross demand of his own 
 against the estate, cannot be allowed to set off another man's.(s) 
 But if the notes were handed over to the debtor to the estate 
 for an antecedent debt due to him from the owner of the notes, 
 they may be set of£.(t) Mere legal debts, without any bene-, 
 fic'ial interest in the creditor, may be set off under the general 
 statutes of set-off, but not under the mutual credit clause. 
 "The object of the mutual credit clause," says Parke, B., " is 
 to do substantial *justice between the parties, where a p^„„„, 
 debt is really due from the bankrupt to the debtor to '• ^ 
 his e8tate.'*(M) 
 
 Nor can the assignees of the bankrupt deprive a man of a 
 set-off, once existing.(a;) 
 
 We have seen, that the general statutes of set-off only au- 
 thorize a set-off of mutual debts ; but the Bankrupt Acts have 
 long authorized the set-off of mutual credits, as well as of a 
 mutual debt. The recent act, 32 & 33 Vict. c. 71, s. 39, intro- 
 duces a set-off, not only where there have been mutual debts 
 and credits but mutual dealings. 
 
 (p) Dickson v. Cass, 1 B. & Ad. 343 (20 E. C. L. R.) ; and see Craven v. 
 EJmoadson, 6 Bing. 734 (19 E. C. L! R.) ; 4 Moo. & P. 623, S. C. 
 , (?) Ex piute Stone, 1 G. & J. 191. 
 
 . (r) Fair v. M'lvor, 16 East, 130 ; Lackington v. Combes, 6 Bing. N. C. 71 
 (37 E. C. L. R.) ; 8 Scott, 312, S. C. 
 ,, (s) Forster v. Wilson, 12 M. & W. 191. 
 i (9 IM- 
 
 (m) Forster v. Wilson, 12 M. & W. 191. 
 
 (i) Eilnieads v. Newman, 1 B. & C. 418 (8 E. C. L. R.) ; Bolland v. Nash, 
 8B. & 0.105 (15 E. C. L. R.). 
 
3§2 OF THE LAW OFBET-OFF AND MUTUAL CREDIT 
 
 ;!; It'haa been decided tliat the term mutual credit is morecbm-' 
 prebeiisive than the expression mutual debts. 
 
 ■ In .the first place, it has been held, that credit need not neces-' 
 sarily be of money. Therefore, where a trader, beiiig indebted 
 to a packer olj a note of hand, sent him,cer);ain goods to pack, 
 the trader having become bankrupt, Lord Hardwicke thought 
 tbat the packer was entitled to set off against the price of the 
 goods, not only the charge for packing, but the money due on 
 the note.(«/) This decision, however, goes further than any 
 other, and was qualified yery soon after by the same learned 
 person .(^r) The law is now taken to be, tbat, in order to set off 
 goods, the property must have been deposited with an authority 
 to turn it into money ; in other, words, the mutua,l credit must 
 be such as was intended to terminate in a debt.(a) Therefore 
 it has been held, that where, in consideration of the bankrupt's 
 acceptance, defendant promised to indorse a bill to the bank- 
 rupt, such promise was not a subject of mutual credit.(6) And 
 the mutual credit must have actually existed between the barik- 
 jrnpt himself and the other party.(e) 
 
 There may be mutual credit in bankruptcy, though one of 
 |he,debfcs constituting it be not due ; as if it be a bond, bill, or 
 note payable at a future day.(ri) 
 
 ' Cyy Ex parte Deeze, 1 Atk. 238. 
 ' • (z) Ex parte Ockenden, 1 Atk. 335. 
 
 , (a) Glennie v. Edmunds, 4 Taunt. 775 ; Rose v. Hart, 8 Taunt. 499 (4 E« 
 C. L. R.) ; 3 Moo. 547, S. C. ; Easum v. Cato, 5 B. & Al. 861 (7 E. C. L. 
 R.) ; 1 Dowl. & R. 530 ; Sampson v. Burton, 3 B. & B. 89 (6 E. C. L. R.) ; 
 'Russell V. Bell, 8 M. & W. 377. A mere liability is insufficient. Abbott v. 
 Hicks, 5 Bing. N. C. 578 (35 E. C. L. B.). 
 
 (6) Rose V. Sims, 1 B. & Ad. 521 (80 E. C. L. R.) ; but see Gibson t. Bell, 
 1 Bing. N. C. 743 (37 E. 0. L. R.) ; 1 Scott, 713, 8. 0. 
 
 (c) Young V. Bank of Bengal, 1 Moore's P. C. C. 150. But as to this case, 
 see Naorojl v. CbarteJed Bank of India, L. R., 3 C. P, 444. 
 , (d) Ex parte Prescott, 1 Atk. 280 ; Atkinson v. Elliott, 7 T. R. 378. But 
 the mutual dredit must bave existed before the bankruptcy ; thus a bill drawn 
 by the debtor and accepted by the creditor aftei; debtor had executed a deed 
 of assignment, but before registry thereof, cannot be set off against debtor's 
 previous acceptance, inasmuch as at the (fate of the deed there was no mtitual 
 credit. Ex parte Ryder^ L. R., 6 Chan. Ap. 418 ; 40 L. J. 63; Selby v. 
 •tfraveS, L. R., 3 C. P. 594. 
 
IN RELATION TO BILLS AND NOTES. 553 
 
 . *An acceptance of the bankrupt's may be set off as r*qcQ-| 
 an ingredient in mutual credit, notwithstanding that it 
 was not due at the time of the bankruptcy, and was in the 
 hands of an indorsee.(6) 
 
 And where a bill is indorsed, credit may be deemed to be 
 given to the.indorser as well as to the acceptor, and therefore 
 if the indorser become bankrupt, th« indorsement may be an 
 ingredient in mutual credit.( f) A bill accepted for the accom- 
 modation of the bankrupt is within the mutual credit clause.f^) 
 and may, under that clause, be set off against a demand by the 
 assignees for money had and received to their use after the 
 bankruptcy.(A) 
 
 It is not necessary to constitute mutual credit, that the parties 
 l)Oth intended there should be mutual credit; it is suffiei'ent 
 though one take, by indorsement from a third party, the note 
 oracceptance of another without his knowledg«.(«) 
 
 But where goods or bills are deposited with a direction to 
 turn them into money and apply the proceeds in a particular 
 manner, if the party receiving the property is guilty of a breach 
 of trust, he cannot claim the benefit of a set-off under this 
 section. (_;■) 
 
 > 
 
 When a man's private account at a bank was overdrawn, 
 but there was'a balance on a trust account which he kept there 
 also under a differentname, it was held that the banker who 
 
 (e) Collins v. Jones, 10 B. & C. 777 (21 B. C. L. R.) ; Bolland v. Nash, 
 8 B. & C. 105 (15 E. C. L. R.) ; 2 Man. & R. 189, S. C. ; Russell v. Belli 
 8 M. & W. 277. 
 
 (/J Alsager v. Currie, 13 M. & "W. 755 ; and see Stary v. Barns, 7 East, 
 435 ; see Young v. Bank of Bengal, 1 Moore's Privy Council Oases, 150. 
 
 (S) Smith V. Hodson, 4 T. R. 311 ; Ex parte Bayle, Cooke's Bkt. Law, 
 542 ; Ex parte Wagstaff, 13 Ves. 65 ; Bittleston v. Timmis, 14 L. J., C. P. 
 117; 1 C. B. 38» (50 E. C. L. R.), S. 0. 
 
 {h) Bittleston v. Timmis, and see Hulme v. Muggleton, 3 M. & W. 30. 
 The mistake in the marginal note of that case is corrected in Bittleston v. 
 Timmis, ubi supra. 
 
 (i);Hankey v. Smith, 3 T. R. 507. 
 
 U) Key V. Flint, 8 Taunt. 21 (4 E. C. L. R.) ; 1 Moo. 451, S. C. ; Ex parte 
 Flint, 1 Swanst. 80 ; Buchanan v. Findlay, 9 B. & Q. 738 (17 E. C. L. R.) ; 
 4 M. & Ry. 593, S. C. 
 
554 OF THE lAW OF SET-OFF AND MUTUAL CREDIT 
 
 r*^fiQl *^^'^ notice of the trust could not set off the balance 
 against the deticit.(/(;) 
 
 But mutual credit will not destroy a lien created by express 
 contract. 0. held M.'s acceptance for 2iL, and sent M. an 
 article to be repaired by him. It was agreed that C. should 
 pay M. the amount of the repairs in ready money. Before the 
 repairs were completed M. beca^ae bankrupt. Held that C. 
 could no^, by virtue of hia cross-demand on the acceptance, sue 
 M.'s assignee^ in trover for the , article before paying the 
 amount of the repairs.(^) 
 
 Set-off in bankruptcy may be either in an action at law, or 
 before the commissioners. 
 
 A set-off under the Bankruptcy Act is available in all actions; 
 whether for debt or damages. No plea or notice was formerly 
 necessary, though it was usual to plead or give notice as under' 
 the general statutes. But now by Rule 8,T. T. 1853, re-enact- 
 ing R. II., 4 Will. 4, mutual credit must be pleaded. Where 
 the assignees affirm the bankrupt's dealings,'they let in his set- 
 off.(w!) An assignment under the old Insolvent Debtors Act 
 had no relation back to the commencement of the imprison- 
 ment, and therefore the assignees having declared on a sale 
 by the insolvent, after the imprisonment, and before the assign- 
 ment, not ou a sale by themselves, were subject to the defend- 
 ant's set-off against the insolvent. (w) 
 
 To an action for a debt due to the assignees in their official 
 character, the defendant cannot plead a set-oft' due from the 
 bankrupt before his bankruptcy.(o) But such a set-off may be 
 the subject of mutual credit.(j») 
 
 But where, there being no bankruptcy, a company in process 
 
 (ft) In re Gross, L. R., fl Ch. App. 633. 
 
 (0 Clarke v. Fell, 4 B. & Ad. 404 (34 B. C. L, E.) ; 1 Nev. & Man. 344, 
 S. 0. 
 
 (ot) Smith V. Hodson, 4 T. R. 311. 
 
 (71) Sims V. Simpson, 1 Bing. N. C. 306 (37 E. C. L. R.). 
 
 (o) Groom v. Mealy, 3 Bing. N. C. 138 (29 E. C. L. R.) ; 3 Scott, 171, 8. 
 C. ; Wood V. Smith, 4 M. & W. 523. 
 
 (p) See Bittleston v. Tlmmls, 14 L. J., G. P. 117 ; 10. B. 389 (oO E. C. 
 L. R.). 
 
IN RELATION TO BILLS AND NOTES. 555 
 
 of winding up held acceptances of S., not yet duo, but S., the 
 acceptor, held bills drawn and indorsed by the company, which 
 bills, the drawees having refused acceptance, had therefore be- 
 come a present debt due from the company to S. ; it was held, 
 on appeal, that the official . liquidator of the company had a 
 right to negotiate the acceptances *of S., because there p^g^,,, 
 was no mutual credit, the case not being within the ^ -'' 
 provisions of the Bankruptcy Act.(g') 
 
 Thirdly, Set-off in equity. 
 
 The jurisdiction of Courts of equity in set off does not depend 
 on the statute law ; it existed before any act of Parliament on 
 the subject : and has, since the statutes, been exercised in cases 
 which they will not reach.(r') 
 
 Thus, where A. S. directed her bankers to invest a sum of 
 money in the public funds, which they led her to believe they 
 had done, when in fact they had not, A. S. afterwards joining 
 her brother, J. S., in a joint and several note to the bankers for 
 money advanced by them to J. S., and the bankers failing,' 
 Lord Eldon directed the sum due to A. S. to be set off(s) 
 against the demand in a suit by the assignees against J. S. 
 
 Equity will not relieve a party, who has neglected to plead a 
 set off at law.(<) But if the set-off were a mere equitable de- 
 mand, not available at law, equity would, assiBt.(M) 
 
 There are. cases in which a stipulation between the parties, 
 though not the subject of a set-off, is a bar to the setoff. 
 
 A release is, as w^e have seen, a discharge of the action, 
 whether, at the date of the release, the bill were due or not. 
 And a covenant not to sue at all is equivalent to a release. So, 
 a release upon condition, or a general covenant not to sue upon 
 condition, are each of them, after condition performed, a good 
 
 (?) In re Commercial Bank of India, L. R., 1 Ch. App. 538. See in re 
 Agra and Maslerman, L. R., 3 Eq. 337 
 
 (r) Story's Equity Jurispradence, s. 1435. 
 
 (») Ex parte Stevens, 11 Ves. 34; and see Ex parte Hansom, 13 Ves. 346. 
 
 (0 Ex parte Ross, Buck. 137. 
 
 («) Townrow v. Benson, 3 MaJ. 303, An equitable set-off may now be 
 pleaded by way of equitable plea in an action at law. And see Cocbrane v. 
 Green, 9 C. B., N. S. 443 (99 E. C. L. R.) ; 30 L. J., C. P. 79, S. U. 
 
OF A LOST BILL OR NOTE. 
 
 defeaoe. But a covenant not to sue for a certain tirae(2;) is 
 neither an absolute discharge of the action, for that was not the 
 intention of the parties, nor a suspension of it ; beca^use it is a 
 rule of law, that a personal action, once suspended by the act of 
 the parties, is gone forever.. 
 
 In general, where an instrument is not the subject of a set.-' 
 off, it can only bar the action by operating as a release. So 
 that, if not under seal, it has no effect in barring the action, 
 and no effect at all if made without consideration. 
 
 t*371] 
 
 *Bnt in favour of commerce, this rule has been re- 
 laxed in the case of bills of exchange. We have seen, 
 that an express renunciation by the holder of his claim on the 
 acceptor has been held a bar to an action by the holder against 
 the acceptor. So, it has been decided, that an absolute or con- 
 ditional simple agreement .between parties to a bill, that a 
 party liable shall not be sued, operates as a defeasance or release. 
 And it has been decided, that an indemnity has the same 
 effect. (!/) 
 
 [*372] 
 
 *CHAPTEIl XXVIII 
 
 OF A LOST BILL OR NOTE. 
 
 TITI/E OF THK PINDBB, . . 373 
 
 PROPBK COUBSE FOB THB LOSEB 
 
 TQ TAKE, 372 
 
 NOTICE OP LOSS, .... 373 
 PRESENTMENT AND NOTICE OF 
 
 DISHONOUU OP A LOST BILL, . 374 
 BILL IK THE HANDS OP AN AD- 
 VERSE PARTY, .... 374 
 WHETHER AN ACTION LIES ON A 
 
 DESTROYED BILL, . . . 374 
 
 ■WILL NOT LIE ON A LOST BILL, 375 
 TTNLESS NOT NEGOTIABLE, . . 376 
 
 376 
 
 376 
 377 
 
 377 
 377 
 
 PLEADING, 
 
 LOSS AFTER ACTION BROUGHT, . 
 
 LOSS OF HALF-NOTE, . 
 
 TROVER FOR LOST BILL, . | . 
 
 REMEDY FOR LOSEB IN EQUITY, 
 
 AT LAW, 
 
 NEW STATUTABLE JURISDICTION 
 OF COURTS OF LAW, 
 
 ON WHOM THE LOSS OF A, BILL 
 TRANSMITTED BY POST, 40., 
 WILL FALL, .... 
 
 PRESUMPTION AS TO STAMP ON, 379 
 
 379 
 
 379 
 
 Though the finder of a lost bill or note acquires no property 
 
 (iu) Ayliff V. Sorimshire, 1 Show. 46 ; nnte p. 237. 
 
 iy) Uarr v. Stephens, 9 B. & 0. 758 (17 E. 0. L. R.) ; 4 Man. & E. 590, 
 B. 0. 
 
OP A LOST BILL OR NOTE. 557 
 
 iu it, 80 as, on the one hand, to enable him to defend an action 
 of trover brought by the rightful ovvner, or, on the other, to 
 sue the acceptor or maker, yet we- have ah'eady seen that, if 
 the tinder transfer a lost bill or note, which may pass by delivery 
 mly, his transferee, provided he took it honestly, is entitled 
 both to retain the instrument against the loser, and to compel 
 payment from the parties liable thereon. 
 
 Let us now inquire what steps the loser should take. And, 
 in the first place, it is settled that if bills or notes be lost or 
 stolen out of letters put into the post office, no action lies 
 against th? Postmaster-General. " The case of the Postmaster," 
 says Lord Mansfield, " is in no circumstance whatever similar 
 to that of a common carrier ; but he is like all other public 
 officers, such as the Lords Commissioners of the Treasury, the 
 Commissioners of the Customs and Excise, the Auditors of the 
 Exchequer, &c. ; who were never thought liable for any negli- 
 gence or misconduct of the inferior officers, in their several de- 
 partments, "(a) But *a deputy postmaster is liable for r*qi7q-i 
 neglect in not duly delivering letters.(6j(l) 
 
 It is advisable that the loser should immediately give notice 
 of the loss to the parties liable on the bill ; for they will thereby 
 be prevented from taking it up without due inquiry.(2) Public 
 advertisement of the loss should also be given ; for, if any per. 
 son whosoever discounts it with notice of the loss, that will be 
 such strong evidence of fraud that he can acquire no property 
 
 (a) 'Whitfield v. Lord Le Despencer, Cowp. 754 ; Lane v. Cotton, 1 Salk. 17. 
 (J) Rowning v. Goodchild, 3 Wils. 443 ; 2 W. Bl. 906 ; 5 Burr. 2716 ; 
 Honlern v. Dalton, 1 C. & P. 181 (13 E. C. L. R.). 
 
 (1) Maxwell v. McIIroy, 3 Bibb, 311 ; Franklin v. Low, l^olins. 306 ; Dun- 
 lop V. Monroe, 7 Cranch, 243 ; Bolan v. Williamson, 3 Bay, 551 ; S. C. 1 Bre- 
 vard, 181 ; Bishop v. Williamson, 3 Fairfield, 495 ; Schroyer v. Lynch, 8 
 Watts, 453 ; Teall v.'Felton, 3 Barbour, S. C. 1 Comstock, 537. 
 
 (2) Held not to be necessary to entitle the owner to maintain an action to 
 recover the contents of a lost note. Dormady v. State Bank, 2 Scam. 236. 
 It ia proper for the loser to give immediate notice to the parties, and to pub- 
 lish notice of the loss ; but public notice, not brought home to the buyer, will 
 not affect his title ; nor will the failure to give, public notice preclude the 
 owner from, showing by other proof that the buyer took the note mala fide: 
 Matthews v. Poylhress, 4 Georgija, 287. 
 
S68 OF A LOST BILL OR NOTE. 
 
 r*S741 '^^ 'T^i-{<^) But public notice is *of itself neither on the 
 one hand sufficient nor on the other indispensable. To 
 operate at all it must be brought home to the party to be 
 affected by \t.{d) 
 
 We have already seen that, if the bill be transferable only by 
 
 (c) A public nolijication of the loss Is not only advisable to prevent the 
 transfer of lost or stolen bills or notes into the hands of bona fide holders, but 
 there are cases in which it was formerly considered essential to the plaintiff's 
 right to recover of those who might have taken the instrument. See the 
 observatfons of Best, C. J., in Snow v. Pe/icock, 3 Bing. 411 (11 E. C. L. 
 E.) ; 11 Moo. 386, S. C. The law formerly was, that If a man took a lost 
 1)111 or note negligentlj', he acquired no title against the rightful owner ; but 
 if the loser had neglected to publish his loss, and tlie receiver took the note, 
 not dishonestly, but negligently, then the negligence of the loser equalled the 
 negligence of the receiver, and potior erai, conditio possidentis. Snow v. Pea? 
 cock, 3 Bing. 411 (11 E. C. L. R). ; 11 Moo. 284 ; Strange v. Wigney, 6 Bing. 
 677 (19 E. C. L. R.) ; 4 M. & P. 470, S. C. Thus, where the plaintiff was 
 robbed nf his pocket-book, containing an indorsed bill, and then advertised 
 the pocket-book, saying nothing of the bill, but, on the contrary, stating in 
 the advertisement that the contents of the pocket-book were of no use to any 
 but the owner": the Court of C, P. held that he was not entitled lo recover 
 against a negligent receiver ; for that Iiis notice, that the contents of the 
 pocket-book were of no use to any but the owner, tended rather to mislead 
 than to assist parties to whom' the bill might be offered. Beckwith v. Corral, 
 3 Bing. 444 (11 E. C. L. R.). If due notice had been given of the loss, then, 
 though the receiver took the instrument bona fide and without suspicion, yet 
 if he failed to exercise proper care and caution, as if he discounted or changed 
 a bill or note of considerable amount for a stranger, without inquiry, he must 
 have refunded. Gill v. Cubitt, 3 B. & C. 4C6 (10 E. C. L. R) ; 5 Dowl. & R. 
 834; Strange v. Wigney, 6 Bing. 677 (19 E. C. L. R.) ; 4 Moo. & P. 470, 
 S. p. But the law on this subject is now entirely changed. See the Chapter 
 on Traksfer, and the observations of Lord Denman in Bartrum v. Caddy, 
 9 Ad. & E. 280 (36 E. C. L. R) ; 1 Per. & Dav. 207, S. C. The plaintiff 
 went to a public meeting in London with more than 500J. in his pocket, arid, 
 entertaining some apprehensions of the company in which he found himself, 
 kept his hand on his pocket, but notwithstanding that precaution was robbed, 
 and, among other propert}-, lost a Bank of England note for 200J., payable to 
 bearer. He advertised his loss in the newspapers. Nearly two years after, 
 this note was traced to the possession of the defendant, who received it, as he 
 said, in payment of a debt on the Derby stakes, but could not recollect from 
 whom. The plaintiff' sued him in trover, and the Court held the negligence 
 of the plaintiff not being connected with the defendant's conduct, could not 
 be set up as an answer to his claim, and that the defendant had not exercised 
 due caution in taking the note. Easley v. Crockford, 10 Bing. 243 (25 E. C. 
 L. R) ; 3 M. & Scott, 700, S. C. ; see Snow v. Sadler, 3 Bing 610 (11 E. C. 
 L. R) ; 11 Moo. 506, S. C. The caution required of a person discounting 
 yvas held to increase with the amount. See ante, Chapter on Transfer. 
 
 (d) See Byles on Bills, 5th American ed, p. 538. 
 
OP A LOST BILL OE NOTE. 559 
 
 indorsement, a forgery can convey no title, and a payment by 
 the acceptor or other party to a man, claiming under the forged 
 indorsement, will not exonerate him. 
 
 The party who has lost or destroyed a bill must, nevertheless 
 make application to the drawee for payment at the time it is 
 due,(e) and give notice of dishonour ; for the hill might still 
 have been paid, with or without an indemnity, and the prior 
 parties, by not having been advised of the dishonour, may have 
 1)6611 prevented from pressing their respective remedies against 
 parties liable to tbem.(/)(l) 
 
 ; There are three cases in which a plaintiif cannot produce a 
 bill : it may be in the defendant's hands ; it fnay be destroyed ; 
 or it may be lost. 
 
 If it be in the defendant's hands, the plaintiff may give him 
 notice to produce it ; and if the defendant will not do so, the 
 plaintiff may give secondary evidence of its conteut8.(^) 
 
 ;. If it can be proved that the instrument, whether negotiaMe 
 or not, has been destroyed, it was once held that secondary evi- 
 dence of its contents was admissible, and that the rightful 
 owner was entitled to recover. " If a bill be proved to be de- 
 stroyed," says Lord Ellenborough, " I should feel no difficulty 
 in receiving evidence of its contents, and directing the jury to 
 find for the plaintiff. Even on a trial for forgery, the destruc- 
 tion of the instrument, charged by the indictment to be forged, 
 is no bar to the proceedings. I remember a case before Mr. J. 
 fuller,. where the prisoner had destroyed a bank note he was 
 
 (e) It has been Leld in Amcrioa that the loss of a bill is an excuse for a 
 reasonable delay in demanding payment. Byles on Bills, 5th American ed. 
 p. S39. 
 
 (/) Thackray v. BlacUett, 3 Camp. 164. 
 
 (S) Smith V. M'Clnre, 5 East, 477 ; 2 Smith, 433, S. C. 
 
 . (t) Hinsdale v. Miles, 5 Coun. 331. The fact that a bill is lost is an excuse 
 for delay in making a demand upon the drawee, but for no moie than rea- 
 sonable delay. Aborn v. Bosworth, 1 lihode Island, 401. In order to charge 
 tbe indorser of a lost promissory note, the owner must tender an indemnity 
 l« hii)i and the maker at the time of demand and notice. Smith v. Rockwell, 
 2 Hill, 482. 
 
560 OF A LOST BILL OR NOTE. 
 
 accused of having forged, by swallowing it; and the learned 
 Judge who presided held that he might have been convicted 
 r*Q7si without the production *of the bank note ; and this 
 doctrine was approved of by the whole profession. "(A) 
 But this dottrine is now overruled as to negotiable instruments, 
 and it is settled that the owner of a destroyed bill or note, if ne- 
 gotiable, cannot, at law,{i) recover against the other' parties,(y) 
 whether the bill be actually indorsed or not.(^) Nor can he 
 even sue on the consideration. (^)(1) 
 
 (A) Pierson v. Hutchinson, 2 Camp. 211 ; 6 Esp. 126^ S. C. 
 
 (,%") 1. e., without the help of the recent statute, post, 379. 
 
 (i) Hansard v. Robinson^ 7 B. & C. 90 (14 B. C. L. R.) ; 9 D. & R. 860, 
 S. C. But see Wooilford v. Whiteley, Moo. & M. 517 (32 E C. L. R.), and 
 Wain V. Bailey, 10 Ad. & E. 616 (i7 E. C. L. R.) ; 2 Per. & Dm. 507, 3. C.i 
 see Price v. Price, 1 6 M. & W. 343 ; Ramuz v. Crowe, 1 Exeh. 187. 
 
 (ft) Ramuz v. Crowe, supra. 
 
 (i) Crowe V. Clay, in eiror, 9 Exch. 604. 
 
 (1) A recovery cannot be had on a note merely lost and not destroyed, if it 
 had been indorsed before it was lost. Pintard v. Tackington, 10 JohnB..il04; 
 Baker v. Dumbollon, Ibid. 240; Rogers v. Miller, 4 Scam. 333. Contra: If 
 the payee had not indorsed it. Depew v. Wheelan, 6 Blackford, 485 ; White- 
 sides V. Wallace, 2 Speers, 194 ; Dean v. Speakman, 7 Blackford, 317 ; Branch 
 Bank v. Tillman, 13 Alabama, 214. The holder of a negotiable promissory 
 note in an action against the maker is not required to give direct and positive 
 evidence of its destruction, where he has not produced the note on trial, al- 
 though such note is overdue. It is sufiBcient if he give such proof as shows 
 that tlie defendant cannot afterwards be compelled to pay the amount, to a 
 boiM fide liolder. Swift v. Stephens, 8 Conn. 431. That an action at law 
 may be maintained upon a negotiable bill or note proved to be deBtroyed,,see 
 Rowley v. Ball, 3 Cowen, 303. 
 
 When plaintiff could have declared on the note as lost, it is suflScient to 
 state the facts which show that the instrument is lost. Butler v. Anderson, 27 
 Indiana, 117. When it does not appear whether a lost note was or was not 
 negotiable, it will not be presumed to liave been negotiable.. And if shown 
 to have been negotiable, it will not be presumed to have been indorsed in 
 blank. Clark v. Hornbeck, 3 Green, 430. In an action on a note alleged to 
 be lost, the defendant in equity may demand an indemnity ; a/sWim when 
 it is in the liands of an adverse claimant. Berry v. Berrj', 6 Bush, 594. 
 Where a note is wrongfully withlield by the defendant, testimony of one who 
 has seen the note, that it is in the handwriting of the defendant, and bears his 
 signature, is admissible. Prescott v. Ward, 10 Allen, 203. In an action 
 against the maker on a note where the petition neither showed that the note 
 was lost or destroyed, but slated that it was wrongfully held by a third party, 
 it was held that the action could not be maintained. Hook v. Murdoch, 38 
 Missouri, 224. 
 
OF A LOST BILL OR NOTE. 561 
 
 ' And it is also now clear that, if a bill, note or check, negoti- 
 able either by indorsement or by delivery on1y,(jn) be last, no ac- 
 tion will lie at the suit of- the'loser against any one of the parties 
 to the instrument, either on the bill or note itself, or on the 
 ,Cpiilsideration.(n) "Upon the question," says Lord Tenterden, 
 ."whether an action can be brought on a lost bill, the opinions 
 of the Judges, as they are to be found in the cases, have not 
 been uniform, and cannot be reconciled to each other. Amid 
 conflicting opinions, the proper course is to revert to the prin- 
 ciple of these actions on bills of exchange. The custom of 
 merchants is that the holder of a bill shall present the instru- 
 ment, at its maturity, to the acceptor, demand payment of its 
 amount, and, upon the receipt of the money, deliver up the bill. 
 The acceptor, paying the bill, has a right to the possession of the 
 instrument for his own security, and for his voucher and dis- 
 charge pro tanio, in his account with the drawer. As far as re- 
 gards his voucher and discharge toward the drawer, it will be 
 .the same thing whether the instrument has been destroyed or mislaid. 
 With respect to his own security against a demand by another 
 Jjolder, there may be a difference. But how is he to be assured 
 of the fact, either of the loss or destruction of the bill ? Is he to 
 rely upon the assertion of the holder, or to defend an action at 
 the peril of costs? And, if the bill should afterwards appear 
 and a suit be brought against him by another holder, a fact 
 not absolutely improbable in the case of a lost bill, is he to 
 seek for the witnesses to prove the loss, and to prove that 
 the new plaintiff" must have obtained it after it became due ? 
 We think the custom of merchants does not authorize us 
 *to say that this is the law." And the law is the r*gYg-i 
 same though the bill had never been indorsed ,(o) 
 and whether the bill be due or not.(p) Where a bill made 
 or become payable to bearer is loet, the acceptor, or oiher 
 party, is not liable, though the bill was lost after a promise to 
 pay by the acceptor. " If," says Lord Tenterden, " upon an 
 offer of payment, the bolder should refuse to d^^liver yp the bill, 
 
 (to) Sevan v. Hill, 2 Camp. 381. 
 (k) Crowe v. Clay, 9 Exelj. 604. 
 (o) Ramuz v. Crowe, 1 Exch. 167. 
 0)) Clay T. Crowe, 9 Exch. 608. 
 86 
 
562 OP A LOST BILL OR NOTE. 
 
 can it be doubted that the acceptor might retract his offer,vand 
 retain his money ?"(?)(!) 
 
 But if a bill or note not negotiable (that is to say, an instru- 
 ment payable to the payee only, and not" to his order or to 
 bearer), be lost, it is conceived(r) that an action will lie eithei* 
 on the bill or on the consideration. (s) 
 
 The defence that the bill was lost before action brought must, 
 in the superior Courts, be raised by plea, otherwise the plain- 
 tifts may recover by producing the ordinary secondary evi- 
 
 tt 
 
 ((?) Hansard v. Robinson, 7 B. & C. 95 (14 E. C. L. B.) ; Davis v. Dodd, 4 
 TUunt. 603. 
 
 (r) In Amerlua Uie general rule seems to be that an action will lie on a de- 
 stroyed bill though negotiable, and on a lost bill though negotiable if noting- 
 dorsed. See the American authorities, Byles on Bills, 5th American ed. p. 
 540. 
 
 • (s) Wain V. Balloy, 10 Ad. & E. 61C (37 E. C. t. R.) ; Price YrPrice, 16 
 M. & W. 243; Ramuz v. Crowe, 1 Exch. 167; Hansard v. Robinson, 7 B. & 
 O. 90 (14 E. C. L. R.) ; 9 D. & R. 860, S. 0. ; but see Woodford v. Whiteley, 
 Moo. & M. 517 (22 E. C. L. R.) ; Bevan v. Hill, 2 Camp. 381 ; see, however, 
 Ramuz v. Crowe, 1 Exch. 172 ; Long v. Bailie, 3 Camp. 314, n..; Champion 
 v". Terry, 3 B. & B. 295 (7 B. C. L. R.) ; 7 Moo. 130, S. C. ; Rolt v. Watson, 
 4 Bing. 273 (13 E. C. L. H.) ; 13 Moore, 510, S. C. 
 
 (1) When the existence, amount and loss of promissory, notes are shown, 
 and it does not appear that they were negotiable, the plaintiff is entitled to 
 recover on the lost notes. McNair v. Gilbert, 3 Wendell, 344; Pintard v. 
 Tuckinglon, 10 Johns. 104 ; Hough v. Barton, 20 Vermont, 455. A recovery 
 can be had at law upon a note lost after it fell due ; if it Was lost before due, 
 the remedy is, it seems, in Chancery, where the owner can be required to in- 
 demnify the maker. Thayer v. King, 15 Ohio, 243. If the note is alleged to 
 be lost, the defendant has a right to show that the note was passed by the 
 payee by delivery without assignment. Buston v. Dees, 4 Yeager, 4. A 
 plaintiff cannot give evidence of a lost promissory note, without first proving 
 its loss, so as to repel an inference of fraudulent design in the loss or destruc- 
 tion. Blade v. Noland, 13 Wendell, 173. If a negotiable note, indorsed in 
 blank by the payee, be lost by the indorsee, and he afterwards assigns to 
 another, the right thereto, the assignee cannot maintain an action at law in 
 his own name upon such lost note. Willis v. Cresey, 5 Shepley, 9. The 
 paj-ee of a promissory note, not under seal, which is dost, may maintain as- 
 sumpsit for the amount, but must aver a consideration. Stephens v. Crost- 
 Vflit, 3 Bibb, 223. 
 
OF A LOST BILL OR NOTE. 563 
 
 Aence.{i) And a Judge has no power to order a stay of pro- 
 ceedings until an indemnity be given.(M) 
 
 If a bill be lost after action brought, and the defendant 
 suffer judgment by default, the Court will, on a copy verified 
 by affidavit, retfer it to the Master to see what is due.(a;) But 
 if, in such a case, the defendant resists the action, and puts the 
 plaintiff to prove the bill under the ordinary issues, the loss is 
 no excuse for the non-production of it.(y)(l) 
 
 *It has been said, that where a man takes half a note, r*qi7Yi 
 he takes it necessarily under suspicious circnmstan- 
 c(is,{z) and cannot recover to the injury of the maker. Thus, 
 where the holder sued on the half of a 51. note, the other half 
 having been stolen from the Leeds mail. Lord EUenborough 
 said, "Payment can be enforced at law only by the production 
 of an entire note, or by proof that the instrument, or the part 
 of it which is wanting, has been actually destroyed. The half 
 of this note taken from the Leeds mail may have immediately 
 got into the hands of a bona fide holder for value ; and he would 
 have had as good a right of guit upon that as the plaintiff has 
 upon this. But the maker of a promi^ory note cannot be 
 liable, in respect of it, to two parties at the same time. "(a) It 
 is doubtful how far the argument, from the liability of the 
 maker on the second half, would be held valid at this day. 
 The.holder of the first half has a good title and no notice ; the 
 holder of the second half has a bad title and notice. But it 
 
 (0 Blackie v. Piddine, 6 C. B. 196 (60 B. C. L. R.) ; Charnley v. Grundy, 
 14 C. B. 608 (78 E C. L. R.). ■ 
 
 (u) Aranguren v. Scholfit-ld, 1 H. & N. 464. 
 
 (x) Brown v. Messiter, 3 M. & Sel. 281 ; Allen v. Miller, 1 Dowl. 420 ; 
 Clarke V. Quince, 3 Dowl. 26 ; Flight v. Browne, 2 Tyr. 312. 
 
 (y) Poole V. Smith, Holt, N. P. 144 (3 E. C. L. R.). See the American au- 
 thorities, Byles on Bills, 5th American ed. 
 
 («) Bayley, 6th ed. 379. 
 
 (a) Mayor v. Johnson, 3 Camp. 324 ; Mossop v. Eaden, 16 Ves. 436. 
 
 (1) In an action on a note which is lost, it is not necessary to declare on 
 the note as lost. If such note is lost after the suit is commenced, evidence 
 may be given of its contents. Viles v. Moulton, 11 Vermont, 470 ; Vanawkeii 
 T. Hornbeck, 2 Green, 178 ; Easton v. Friday, 3 Richardson, 427. 
 
564 OF A LOST BILL OR NOTE. 
 
 tnay be a question whether a half-note be for all purposes a 
 negotiable in8trurnent.(/') 
 
 ' ' If a lost bill or note be in the hands of a party who has no 
 right to retain it, as if, for example, it be still in the possessioh 
 of the finder, or of a transferee, who has taken it from him 
 under circumstances amountiiig to fraud, the true owner may 
 bring an action of trOver; or, if it had been paid by the ac- 
 ceptor or maker to such wrongful holder, the amount is recover- 
 able in an action for money had and received. (e) And we have 
 seen that, if the maker or acceptor pay it improperly, the 
 amount will not be allowed him in account with the payee or 
 drawer.(rf) 
 
 But, where no action lies on the lost bill, or on the consideration, 
 as, where the bill has been indorsed in blank, and where no ac- 
 tion can be brought against a wrongful holder, fitter in trover ot 
 assumpsit, the loser was not absolutely without remedy ieven 
 before the recent statute ; he might then resort to a court of 
 iequity for relifef. 
 
 r*3781 *'^^^ 9 & 10 Will, 3, d, 17, s. 3, enacted, that " in casfe 
 any such ioland bill shall happen to be lost or miseatrted 
 "within the time before limited for the payment of the same, 
 then th© drawer of tlie said bill is and phall be obliged to give 
 another bill of the same tenor with that first given ; the pers6n 
 to whom it is delivered giving security, if demanded, to the 
 drawer, tO indemnity him against all persons whatsoever in case 
 the said bill, so alleged to be lost or miscarried, shall be found 
 again."(fe) 
 
 (b) The Bank of Eaglifihd ha*e alVays been in the hijbit of paying hlilf- 
 notes on an indemnity. And it has been held that the iyrovi'SioiiB'of the Com- 
 ilion Law Procedure Act, 1854, s. 87, apply to the case of half notes. Per 
 Willes, J., at Chambers, Bedmayne v. Burton, 8 'Jur. 21 ; Smith v. MoBday', 
 6 Jur. 977. 
 
 (c) Down V. Hailing, 4 B. & C. 330 ([lO E. C. L. R.) ; 6 D. & Ey. 4S5; 2 
 C. & P. 11 (12 E. C. L. R.), S. C. ; Lovell v. Martin, 4 Taunt 799. 
 
 (d) As to the liability of a party wrongly paying, see ante, Chapter on 
 P4*MBST. 
 
 («) The 3 & 4 AnUB, c. 9, «xt'ehds, as it seems, this enadtmcfit to protnisstrfy 
 taotes. 
 
OF A LOST BIJiL OR NOTE. 565 
 
 This provision is not peculiar to the law of England, but 
 agreeable to the mercantile la\r of other countriea.( /) 
 
 Notwithstanding some authorities to the contrary ,(^) it is now 
 clearly settled that a Court of common law has no jurisdiction , 
 under this statute ; a Court of law, it was said, not being able 
 to enforce the giving of a new bill, or qualified to judge of the 
 safficiency of an indemnity.(A) 
 
 The relief, however, administered hy Courts of Equity is not 
 confined within the letter of the statute. It will be aftbrded 
 not only on such bills as are mentioned in the statute, but on 
 others; not only before they are due, but after; not only on 
 bills but on notes ; not only a,gainst the drawer, but against the 
 indorser, or the acceptor ; not only may a new bill be required, 
 but payment.(i') But the Court will not call on a party to 
 renew or pay a lost bill, without providing him with a satis- 
 factory indemnity.(A) Neither will the court entertain a suit 
 by an intended indorsee against the acceptor where there has 
 been no actual indorsement by the payee, the bill never having 
 become negotiable and being de8troyed.(0 To a suit in equity 
 by the last indorsee of a lost bill against the accei.itor, the prior 
 indorsers need not be made parties. (m)(l) 
 
 *And now at law by the 17 & 18 Vict c. 125, s. 87, in notra-i 
 case of any action founded upon a bill of exchange, or 
 
 (/) Code de Commerce, Liv. 1, tit. 9, art, 151, 153 ; Ordonnance de Com^ 
 iperce de Louis XIV., tit. 5, art, 19. 
 
 (jT) Walmesley v. Child, 1 Ves. sen. 346 ; Hart v. King, 12 Mod. 309 ; 
 Holt, 118, 8. C. 
 
 Q.) Ex parte Greenway, 6 Ves. 813 ; Davies v. Dodd, 4 Price, 176 ; Toul- 
 min V. Price, 5 Ves. 338 ; Bromley v. Holland, 7 Yes. 19, 30, 249. 
 
 (8) Walmesley v. Child, 1 Ves. sen. 346 ; Powell v. Monnier, 1 Alk. 611 ; 
 TBJilmin v. Price, 5 Ves. 238; Ex parte Greenway, 6 Ves, 813; Mossop v. 
 Eaden, 16 Ves. 430 ; Hiinsard v. Robinson, 7 B. & C. 90 (14 E. C. L. R.) ; 9 
 p. & E. 860, 8. C. ; Davis v. Dodd, 4 Taunt. 602. - 
 
 (J) Such also is the rule of equity in America, Byles on Bills, 5th American 
 ed. p. 545. 
 
 (!) Edge V. Bumford, 81 L. J., Ch. 805. 
 
 (m) Macartney v. Graham, 2 Sim. 385. 
 
 (1) In a suit in equity to recover on a lost promissory note, the complain- 
 ant may be required, by decree of the court, to indemnify the defendant by 
 bond and security against all claims on the note, and may be authorized to 
 recover on compliance therewith, and on payment of costs. Burrows v. 
 Goodhue, 1 Iowa, 48. 
 
566 
 
 HOW FAE A BILL OR NOTE 
 
 other negotiable instrument, the Court or a Judge has powerto 
 order " that the loss of such instrument shall not be set up, pro- 
 vided an indemnity is given to the satisfaction of the Court or 
 Judge, or a Master, against the claims of any other person upon 
 euch negotiable instrument. "(n) 
 
 Where a debtor remits his creditor a bill or note, by a con- 
 veyance which the creditor directs, or by post, if that be the 
 ordinary vehicle of transmission between them, and the bill or 
 rote be lost or stolen, the loss will fall on the party to whom 
 the bill was intended to be remitted.(o) 
 
 As we have before seen, the presumption of law is that a lost 
 bill or note was duly stamped, unless the contrary be shown.Q>) 
 
 [*380] *GHAPTER XXIX. 
 
 HOW FAR A BILL OR NOTE IS CONSIDERED AS PAYMENT. 
 
 SUSPENDS THE KEMBDT ON A 
 
 SIMPLE CONTRACT, . . . 380 
 
 BILL GITEN AS COLLATERAL SE- 
 
 CTTRITY, 381 
 
 FORM OP PLEADING, . . .381 
 
 BUT NOT ON A CONTRACT UNDER 
 
 SEAL, 882 
 
 DOES NOT SUSPEND DISTRESS, . 382 
 PAYMENT OP ATTORNEY, . . 8S3 
 
 CONSEQUENCE OP A CREDITOR 
 TAKING BILLS OF A THIRD 
 PERSON, 382 
 
 OF THE creditor's AGENT 
 TAKING THE DEBTOR'S BILL, . 383 
 
 ■WHAT A CREDITOR WHO HAS 
 BEEN PAID BY A DISHONOURED 
 BILL MUST PBOTB, . . , . 384 
 
 WHERE THE TRANSFEROR KNEW 
 THE INSTRUMENT TO BE OF 
 NO VALUE, .... 384 
 
 A LOST OR DESTROYED BILL, 
 
 WHEN PAYMENT, . . . 384 
 
 PAYMENT BY BANK NOTES OB 
 BILLS OR NOTES PAYABLE TO 
 BEARER 385 
 
 WHERE A BILL IS RENEWED, . 385 
 
 TAKING A BILL DETERMINES A 
 LIEN, 385 
 
 BUT NOT ON LAND, . . . 3f6 
 
 IS EARNEST, .... 386 
 
 (re) Bank notes are within this act. M'Donnell v. Murray, 9 Ir. Com. Law 
 Rep. 405. And half-notes ; per Willes, J., at Chambers, Redmnyne v. Bur- 
 ton, 9 Jur. 21. In case of neglect to give an indemnity, plaintiff has been or- 
 dered to pay defendant's costs up to the time of so doing. King t. Zimmer- 
 man, L. R., 6 C. P. 466 ; 40 L. J. 278. 
 
 (o) Warwick v. Noakes, Peake, 67. 
 . (p) Marine Insurance Company v. Haviside, L. R., H. of L. 625; and see 
 p. 116. 
 
IS CONSIDERED AS PAYMENT. 567 
 
 Though it be a general rule of law, that one simple contract 
 cannot be satisfied by another similar executory contract,(a) for 
 that is merely substituting one cause of action for another, yet 
 the delivery of a valid bill or note suspends the creditor's 
 remedy for a debt, and if he either receive the money on the 
 instrument, or be guilty of laches, it operates as a complete 
 satisfaction.(6)(l) " The law," says Lord Kenyon, " is clear, that 
 if, in payment of a debt, the creditor is content to take a bill or 
 note payable at a future day, he cannot legally commence an 
 action on his original debt, until such bill or note becomes pay- 
 able, and default is made in the payment ; but, if a bill or note 
 is of no value, as if, for example, drawn on a person who has 
 no efl:ects of the drawer in his hands, and who, therefore, refuses 
 it, in such case he may consider it as waste paper, and resort 
 to the *original demand and sue the debtor on it."(c) r*oQi-| 
 The taking a bill or note from the original debtor, or 
 from a third person,(d) amounts to an agreement to give the 
 debtor credit for the time it has to run, but when that time has 
 expired, and the bill or note is in the hands of the creditor 
 
 (a) But see Com. Dig. Accord. B. ; Good v. Cheesman, 3 B., & Ad. 328 
 (■32 E. C. L. R.) ; 4 C. & P. 513 (19 E. C. L. B), S. C. ; Cartwiight v. Cook, 
 3 B. & Ad. 701 (23 E. C. L. R.) ; Garrard v. Woolner, 8 Bing. 258 (21 E. C, 
 L. B.) ; 1 M..& Sc. 327, S. C. ; Carter v. Wormald, 1 Exch. 81. 
 
 (S) 3 & 4 Anne, c. 9, s. 7 ; Sibree v. Tripp, 15 L. J., Exch. 318 ; 15 M. & 
 W. 23, 8. C. 
 
 (c) Stedmnn v. Gooch, 1 Esp. 3 ; Kearslake v. Morgan, 5 T. R. 513. An 
 unsatisfied judgment on the bill alone will not destroy the original debt. 
 Tarleton v. AUhnsen, 2 Ad. & EII. 32 (29 E. C. L. R.). 
 
 {d) Belsh'aw v. Bush, 11 C. B. 131 (73 E. C. L. R.) ; Bottomley v. Nut- 
 tall, 28 li. J., C. P. 110 ; 5 C. B., N. S. 122 (94 E. C. L. R.), S. C. 
 
 (1) When the check of a third party is received by a creditor from his 
 debtor, th» presumption is that it was received as a conditional payment. 
 Mclntyre v. Kennedy, 5 Casey, 448. The payee who takes from the maker 
 a bill as conditional payment, must present and give due notice of the dis- 
 honor of the bill. Star v. Kerr, 31 Mississippi, 199. The reception of a draft 
 as conditional payment suspends the plaintiff's original right of action till 
 the draft is properly presented for payment and such payment is refused. 
 Phoenix Ins. Co. v. Allen, 11 Michigan, 501. A note is prima facie evidence 
 of a settlement of accounts to its date. Thornton v. Williams, 14 Indiana, 
 618; Gaskins v. "Wells, 15 Ibid. 253 ; Spencer v. Chrisman, Ibid. 215. 
 
5'68" HOW FAR A BILL OR NOTE 
 
 iitipaid, the liability of the debtor on the original debt^ife- 
 vives.{e)(l) 
 
 (e) The law on this subject in the TJnited Stales is not uniform, and subject 
 to many distinctions. Byles on Bills, 5tJi American ed. p. 547. 
 
 (]) Okie V. Spencer, 2 Wharton, 253 ; Mniira, Wfeakley v. Bell, 9 Watts, 273. 
 A bill or note is not satisfaction of a pre-existing debt, unless it be so agreed ; 
 or the debtor is injured by the laches of the creditor who receives it. Hoar 
 V. Clute 15 Johns. 334 ; Woodcock V. Bennet, 1 Cowen, 711 ; Denni^ton v. 
 Irabrie, 3 Wash. C. C. 396 ; Doiigal v. CoWles, 5 Da}', 511 ; HaTt v. Boiler, 
 15 Serg. & Rawle, 162 ; McGinn v. Holmes, 2 Watts, 121 ; Churlain v. Cox, 
 2 Bailey, 574 ; Bill v. Porter, 9 Conn. 28 ; Gardner v. Gorham, 1 Douglass, 
 507 ; Weed v. Sno^, 3 McLean, 365 ; Hay v. Stone, 7 Hill, 128 ; Kelsey v, 
 itosborough, S iRichai'iison, 241 ; J^IcConnell v. Stetlinius, 3 Oilman, 707 ; 
 Steamboat v. Hammond, 9 Missouri, 59 ; Morgan v. Bitzeuberge'r, 3 Gill, 850 ; 
 Elwood V. Deifendorf, 5 Barbour, S. C. 398 ; Gordon v. Price, 10 Iredell, 385 ; 
 Pmilh V. Smith, 7 Foster, 244 ; Thompson v. .Briggs, 8 Foster, 40 ; Citizens'' 
 Bank, 33 Missouri, 191 ; Howard v. Junes, 33 Ibid. 583 ; Graham v. Sykes, 15 
 Louisiana Annual, 49 ; Devlin v. Chamblin, 6 Minnesota, 468 ; Sough v. Mc- 
 l^itt, Ibid. 513 ; Morrison v. Welty, 18 Maryland, 169 ; McOfafy v. Carrington,' 
 35 Alabama, 698; Blunt v. Walker, 11 Wisconsin, 334; Jobbill v. Gouiidry, 29 
 Barbour, 509 ; Berry v. GriflBn, 10 Maryland, 37 ; Dickinson v. King, 3 Wil- 
 liams, 373 ; Slocum v. Lurty, 1 Hempstead, 431 ; Jose v. Baker, 37 Maine, 
 465 ; Barnet v. Smith, 10 Foster, 356 ; Coburn v. Odell, Ibid. 540 ; Caldwell 
 V. Fifield, 4 Zabriskie, 150 ; Bassett v. Sanborn, 9 Cushing, 57 ; King v.' 
 Lbwry, 20 Barbour, 532 ; Appleton v. Kennon, 19 Missouri, 637 ; Meriick v. 
 Bowry, 4 Ohio, 60. Aiiter, if it is accepted as payment. Abercrombie V. 
 Manly, & Potter, 145 ; Slocnmb V. Holmes, 1 Howard (Miss.), 139 ; Cate v. 
 Hall, 5 Missouri, 59 ; Watson v. Owens, 1 Bichardson, 111 ; Mims v. Mc- 
 Dowell, 3'Georgia, 183. And not then, if it was the party's own note, and 
 not th6 note of IV third person. Cole v. Lachett, 1 Hill, 516 ; Waydell v Law, 
 6 Hill, 448 ; Elwood v. Dfeifehdorf, 5 Barbour, S. C. 398. In Maine, Vermont 
 find Massachusetts, it is presumed to have been intended as payment. Desca- 
 dillas V. Hkfris, 8 Greenl. 398 ; Wallace v. Agiy, 4 Mason, 343 ; Cornwall v. 
 Gould, 4 Pick. 444. See Hutchins v. Olcutt, 4 Vermont, 555 ; Costar v. 
 Davics, 3 English, 313 ; Arnold v. Sprague, 34 Vermont, 402 ; Collamer v. 
 Langdon, 3 Williams, 32 ; Page v. Hubbard, Sprague, 335. If the debt was 
 re-existing, the presumption is against the acceptance of a bill, or note in 
 satisfaction; if contemporaneously contracted, the creditor must show that 
 it was not so accepted. Noel v. Muriay, 3 Kernan, 167. See Mooring v. 
 Mobile Marine Ins. Co., 37 Alabama, 354. The onus is on the debtor to show 
 that a bill or note was received as payment. It is sufl3cient if he shows that 
 the parties so intended without an express agreement. Kandlet v. Herren, 20 
 New Hampshire, 102 ; Whitney v. Goin, Ibid. 354. Where there is an express 
 agreement to sell goods for a particular note, delivery of the note is full pay- 
 ment of the debt. Ferdon v. Jones, 2 E, D. Smith, 106 ; Soffe v, Gallagher, 
 8 E. D. Smith, 507. A negotiable promissory note, executed by a debtor in 
 
IS CONSIDERED AS PAYMENT. 569 
 
 But a ereditor may agree to take for a debt already due a 
 bill as a collateral security, without affecting his present right 
 
 setllement of his debt, to a third person at the instance of the creditor or to 
 the creditor himself,' is prima facie a payment of the original debt. Smalley , 
 V. Edey, 19 Illinois, 207. An omission to require the debtor's indorsement on 
 llie bill or note is prima facie evidence that it was received in payment. 
 Union Bank v. Smiser, 5 Sneed, 501. Where tlie note of a third person is 
 Ijvken by the vendor of property at the time of sale, there is a presumption 
 tliat it was in payment, but this presumption may be,rebutted. Torry v. 
 Hadley, 27 Barbour, 192. Where upon receipt of a note a receipt in full of 
 all demands is given by the creditor, it is a question of fact for the jury. 
 Seltzer v. Coleman, 8 Casey, 493. A promissory note may be satisfied by a 
 new note. But if for any reason such new note is void, the party is remit- 
 ted to his original claim. Sheppard v. Hamilton 29 Barbour, 150 ; Central 
 Bank v. Dana, 32 Ibid. 296. A creditor taking a note which he indorses and 
 gets discounted, but is afterwards obliged to pay, has not received payment 
 thereby of an antecedent debt. Kcan v. Dufresne, 3 Serg. & Rawle, 233. If 
 tlie bill or note of a third person' is transferred for a debt contracted at the 
 time, the presumption is that it is received in satisfaction ; but if for a prece- 
 dent debt, then it is received as collateral security merely : but in either 
 case the presumption may be rebutted. Bayard v. Shunk, 1 Watts & Serg. 
 92. The taking of such note raises a presumption that a settlement is then 
 made of all outstanding accounts between the parties, but this is a presump- 
 tion which may be rebutted by other presumptions, or by other facta and 
 circumstances. Butts v. Dean, 2 Mctcalf, 76 ; Ilsley v. Jewett, Ibid. 168 ; 
 Maynard v. Johnson, 4 Alabama, 116. The receipt by a creditor of a less 
 sum of money and the promissory note of a third person for a portion of the 
 balance in full of a demand is an extinguishment of the original indebted- 
 ness. Conkling v. King, 10 New Yorl?, 440 ; see Higby v. New York Rail- 
 roiid Co., 3 Bosworth, 497. 
 
 For other cases on payment by notes or checks, see Govern v. Littlefield, 
 13 Allen, 127 ; Lentell v. Getchell, 59 Maine, 135 ; Stevens v. Anderson, 30 In- 
 diana, 391 ; Lawson v. Gudgell, 45 Mo. 480 ; Bates v. Rosekrans, 87 N. York, 
 409 ; Dennis v. Williams, 40 Ala. 633 ; MeshUe v. Van Doren, 16 "V^isc. 319 ; 
 Lee V. Peckhara, 17 Ibid. 383 ; Woodville v. Reed, 26 Md. 179 ; Milliken v., 
 Whitehouse, 49 Maine, 527 ; Farwell v. Salpaugh, 32 Iowa, 582 ; Wright v. 
 Lawton, 37 Conn. 167; Mosely v. Floyd, 31 Geo. 564; Bowers v. Still, 13 
 Wright, 65 ; Schallenlierger v. Seldi)nridge, H)id. 83 ; Strong v. King, 35 
 Illinois, 9 ; Crabtree v. Rowand, 83 Illinois, 421 ; Fickling v. Brewer, 38 
 Ala. 685; White v. Jones, 38 Illinois, 159; Burlington Co. v. Greene, 22 
 Iiiwa, 508; Lindsay v. McClelland, 18 Wise. 481; Middlesex v. Thomas, 20 
 N, Jersey, 39 ; Gibson v. Toby, 53 Barb. 191 ; Roberts v. Fisher, Ibid. 69 ; 
 Myatts v. Bell, 41 Ala. 222 ; Hardin v. Branner, 25 Iowa, 364 ; McLaren v. 
 Hall, 36 Ibid. 297 ; Crane v. McDonald, 45 Barb. 476 ; Archibald v. Argall, 
 53 Illinois, 307 ; Burlington Gas Light Co. v. Greene, 28 Iowa, 289 ; Guion 
 v. Doherty, 43 Miss. 538 ; Palmer v. Elliott, 1 Clifford, C. C. 03 ; Applelon v. 
 Parker, 15 Gray, 173 ; Baker v. Draper, 1 Clifford, C. C. 420 ; Paine v. 
 Dwinel, 53 Maine, 52 ; Day v. Stickney, 14 Allen, 355 ; Thorn v. Wilson, 27 
 
670 HOW FAR A BILL OR WOTB 
 
 to sue for that debt. A' creditor who takes fi-orn his debtor as 
 collateral security only a bill indorsed by his debtor, as he is 
 trustee of the rights, so he is bound by the duties of a holder, 
 and if he neglects to present or give notice of dishonour to his 
 debtor, the debtor is discharged, for no one but the actual 
 holder can perform these duties.(/) 
 
 It is not essential to plead the taking of a negotiable instru- 
 ment, either as payment, or as satisfaction. In answer to an 
 action for a debt, it is sufficient to allege that a bill or note, 
 payable to order or bearer, was delivered for and on account 
 of the sum due,(5')and that the bill or note has been or is run- 
 
 (/) Peabock v. Pursell, 32 L. J. 256. 
 
 (g) Kearslake v. Morgan, 5 T. R. 513 ; see Griffiths v. Owen, 13 M. & W. 
 58. 
 
 Inclinna, 370 ; Kimball v. The Anna Kimball, 2 Cliffpicl, 0. C. 4 ; Hudson v. 
 Bradley, Ibid. 130 ; Ward v. Bourne, 56 Maine, 161 ; Mehlberg v. Tisher, 
 24 Wis. 607. 
 
 The giving of a check on the presentment of a draft to the drawee, does not 
 amount to the payment of the draft if the check is not paid. Kelty v.v Second 
 Bank, 52 Barbour, 328 ; Smith v. Miller, 6 Robertson, 413 ; Bradford v. Fox, 
 88 New York, 289 ; Johnson v. Bank of North America, 5 Robertson, 554 ; 
 United States v. Thompson, 33 Maryland, 575 ; Syracuse Railroad Co. v. 
 Collins, 3 Lansing, 29 ; Burkholter v. Second National Bank, 42 New York, 
 538 ; 40 Howard Pr. 324. 
 
 The holder of a check drawn upon a bank, cannot avail himself of a cus- 
 tom by which banks belonging to an association, called the clearing house, of 
 which the drawee was one, are bound to return checks presented throngli the 
 clearing house, and which they have no funds to pay upon, the same day or 
 before banking hours of the next day, under penalty of being liable for the 
 same. Overman v. Hoboken City Bank, 1 Vroora, 61. 
 
 Where a parly to whom a draft has been delivered for collection, receives 
 in payment therefor the check of the company on which the draft is drawn 
 upon a bank, and neglects to present the same during the business hours of 
 the next day, and the company fail, he will be held liable to the parly from 
 whom he leceived the draft. Nunnemaker v. Larnier, 48 Barb. 234. 
 
 Though the delivery of the note of a third party is not payment of a prece- 
 dent debt, but merely suspends the remedy, yet if the holder is guilty of 
 laches, it operates as a complete satisfaction. Shipman v. Cook, 1 Green, 
 251. See Kephart v. Butcher, 17 Iowa, 240. Middlesex v. Thomas, 20 New 
 Jersey, 39 ; Smith v. Miller, 43 New York, 171 ; Lean v. Friedlandei', 45 
 Miss. 559. 
 
 The effect of taking a note payable at a future— though not in payment— is 
 to extend the time. Happy v. Mosher, 43 New York, 313. 
 
IS CONSIDER ED AS PAYMENT. 571 
 
 ivihgj or that it is in the hands of a third person.(A) But a 
 
 ■plea is not double, which alleges both that the bill was taken 
 
 for and on account, and also in payment.(2) But the liberty of 
 
 pleading that a bill or note was given or taken on account is 
 
 confined to the case of such instruments. It must appear on 
 
 the face of the plea that the bill or note was payable to order 
 
 or to bearer, otherwise the plea is bad, even after verdict.(A) 
 
 The payment of a substituted note, though given by a 
 
 Istranger, has been held, in an action on the first note, 
 
 . [3821 
 
 admissible under a plea of payment.(Z) '- -' 
 
 The taking a bill or note from a party bound by a con- 
 tract under seal does not extinguish or suspend the remedy on 
 the specialty, unless the bill or note be actually paid. Thus, 
 where one of three joint covenantors gave a bill of exchange 
 for part of a debt secured by the covenant, it was held that the 
 bill only operated as a collateral security, not afliecting the 
 remedy on the covenant, and even though judgment had been 
 obtained on the bill ; Le Blanc, J., observing, " The giving of 
 another security, which, in itselfj would operate as an extin- 
 guishment of the original one, cannot operate as such by being 
 pursued to judgment, unless it produce the fruit of a judg- 
 ment."(??i) 
 
 Where a tenant gave a note of hand for arrears of rent, it 
 was held that the landlord miaht nevertheless distrain, for the 
 note was no alteration of the debt till after payment.(n)(l) 
 
 (h) Price v. Price, 16 M. & W, 233 ; but see Mercer y. Cheese, 13 L. J., C. 
 P. 56; 4 M. & G. 804 (43 E. C. L. R.), S. C. ; Crisp v. Griffiths, 2 C, M. & 
 E. 159. 
 
 (»') Maillord v. Duke of Araiyle, 6'M. & G. 40 (46 E. C. L. R). And an 
 allegation that a bill was given " on account of and in payment and dis- 
 charge," is not equivalent to an allegation that it -was given in satisfaction. 
 M'Dowell v. Boyd, 17 L. J , Q. B. 295 ; Kemp v. Watt, 15 M. & W. 672. 
 
 (k) James v. Williams, 13 M. & W. 828. 
 
 (0 Thorne v. Smilh, 20 L. J., C. P. 71 ; 7 C. B. 659 (63 E. C. L. R.). 
 • (m) Drake v. Mitchell, 3 East, 351 ; and see Curtis v. Rush, 2 Ves. & B. 
 416. 
 
 (b) Harris v Shipway, 1744 ; Ewer v. Lady Clifton, C. B., Trin. T. 1735 ; 
 
 (1) Wolyamest v. Bruner, 4 Har. & McHenry, 89 ; Snyder v. Kunkleman, 
 3 Penna. Rep. 487. 
 
5T2 HOW PAR A BILL OR NOTE 
 
 The Attorneys and Solicitors Act, 6 & 7 Viot. e. 73, s. 21, 
 etjaets that an application to tax an attorney's or solicitor's 
 bill must be raiade witbiu twelve months after payment. 
 Where a promissory note is given for an attorney's bill, paya- 
 ble at a future day, the twelve months run from the time the 
 note was paid, and not from the time it was given, unless it 
 were treated as payment at that time.(o) 
 
 If the debtor, instead of paying the creditor, directs him to 
 take a bill of a third person, which the creditor does, and the 
 bill is dishonoured, the liability of the original debtor revives ;(p) 
 and it is not necessary to give the original *debtor 
 '- ^ notice of the di8honour.(g') The bill or note must be 
 presented within a reasonable time.(r) 
 
 So if the creditor not having the option of taking cash, takes 
 of his own accord a bill of his debtor's agent, the debtor is hot 
 discharged.(s) But if the debtor refer his creditor to a third 
 jierson for payment generally, and the creditor having the 
 option of taking cash, elects to take a bill which is dishonoured' 
 the original debtor is discharged.(;i) " 
 
 The consequence of giving a bill to an agent, an auctioneer, 
 for example, who has no authority to receive anything but cash, 
 is, that the party giving the bill is not discharged from thede- 
 
 B.ull. N. p. 183 ; Palfrey v Baker, 3 Price, 573 ; Davis v. Gyde, ? Ad. * El), 
 623 (39 E. C. L. R.) ; 4 N. & M. 462, S. C. Even a bond given for rent does' 
 not extinguish it. R^nt, though due on a parol lease, is of as high a nature as 
 an obligation. 11 Vin. Ab. 389. 
 
 (o) Bayer v. Wagstaff, S Beav. 415 ; In re Harj-ies, 18 M. & W. 3; la re 
 Wilton, Q B. 847. 
 
 ip) Marsh v. Pedder, 4 Camp. 357 ; Holt, N. P. C. 73 (3 B. C. L. E.), S. C; 
 Ex parte Dickson, cited 6 T. R. 143 ; Taylor v. Briggsj M. & M. 28 (33 E. C. 
 L. R.) ; aTid see Robinson v. Read, 9 B. & C. 449 (17 E. 0. L. R.) ; 4 Man. 
 & Ry. 349, 8. C. 
 
 (j) Swinyard v. Bowes, 5 M. & S. 63. 
 
 (r) Chamberlyn v. Delnrive, 2 Wilson, 354. 
 
 («) Robinson v. Read, 9 B. & C. 444 (17 E. C. L, R.) ; Marsh v. Pedder, 
 Holt, N. P. C. 72 (3 E. C. L. R.) ; 4 Camp. 257, S. C. 
 
 (0 Strong V. Hart, 6 B. & C. 160 (13 E. C. L. R.) ; 9 D. & R. 189 ; 2 C & 
 P. 55, S. C. ; Smith v. Ferrand, 7 B. & C. 19 (14 E. C. L. R.) ; 9 D. & R. 
 803, S. C. ; and see Baillie v. Moore, 15 L. J., Q. B, 169 ; S Q. B. 489 (55 E. 
 C. L. R.), S. C. 
 
IS CONSIDERED AS PAYMENT. 573 
 
 mand of the principal, altliougt the bill fall due at the period 
 when the debt ought to have been discharged, and be regularly 
 paid to the holder .(u) 
 
 The taking of his separate bill frona one of several partners 
 for a joint debt, will^ as we have seen, discharge the others. 
 Such a transaction imports an agreement between the creditor 
 and the firm, that the creditor shall rest on the liability of the 
 one partner alone, and shall discharge the others ; that is, an 
 accord — and the separate bill is a satisfaction. For the separate 
 liability of the one partner may in many cases, be more advan- 
 tageous than his joint liability with others. It is not extin- 
 .guished, at law, by his pre-decease ; in the event of a separate 
 ladjudication of bankruptcy against him, it would be satisfied 
 •before joint debts,(a;) and it avoids difficulties which might arise 
 in suing him with another defendant^(2/) 
 
 Where the creditor's rights against an original debtor are 
 *re8erved, whether by express agreement,(2') or by the r^ooih 
 nature of the transaction, or by the original debtor's 
 •name being on the new bill, the taking of the bill of one of 
 several, or of a stranger, does not discharge the original debtor. 
 
 Where a debtor indorses a bill to his creditor, the creditor 
 cannot sue for his debt without proving presentment of the bill 
 and notice of dishonour.(a) But where he d,oes not indorse it, it 
 seems suflicient for the creditor when suing for the original debt 
 to show that the bill still remains in his hands, without proving 
 presentment(6) or notice of dishonour ;(c) for that is presump- 
 
 («) Sykes v. Giles, 5 M. <fc W. 645 ; Williams v. Evans, 1 Law Rep., Q^ 
 
 B. 353 ; Catterall v. HiDdle, 1 Law Rep., 0. P. 186. A check duly honoured 
 Is equivalent to cash ; thus, when the steward of a manor received payment 
 from a copyholder by a crossed check, which was duly honoured, the pay- 
 'liient was held good as against the lord, although the l)ankers, through whose 
 hands ihe check necessarily passed being Crossed, detained tlie proceeds on ac- 
 count of a debt due to them from the steward. Bridges v. Garratt, L. R., 5 
 
 C. P. 451 ; 39 L. J. 251. 
 
 (s') 6 Geo. 4, c. 16, s. 63 ; 12 & 13 Vict. c. 106, s. 140. 
 <JI) Evans v. DrUmmOnd, 4 Esp. S3 ; Reed v. White, 5 E«p. 133 ; Thompson 
 "V. Percival, SB. & Ad. 983 (37 E. C. L. R.) ; 3 N. & M. 6B7, 8. C. 
 
 («) Bedford v. Deakin, 3 Stark. 178 (3 E C. L. R.) ; 3 B. & Aid. 210, S. C. 
 (a) Eearslake v, Morgan, 5 T. R. 513 ; Bridges v. Berry, 3 Taunt. 130. 
 (J) Goodwin V. Coates, 1 M. & Rob. 231. 
 (c) Bishop V. Rowe, 3 M. & Sel. 362. 
 
574 HOW FAK A BILL OR NOTE 
 
 tive evidence of dishonour, sufficient to throw it on the defend- 
 ant to show that the bill has been paid. 
 
 If the party who gave the billin payment as a good bill 
 knew at the time that it was of no value, or fraudulently mis- 
 represented the solvency of parties to it,{d) the holder, on dis- 
 covering the fraud, may immediately sue such party on hi's 
 original liability ; or if the bill were given for goods, delivered 
 at the time, he may disaffirm the contract, and sue in trover for 
 the goods. Thus where a vendee, under terms to pay for goods on 
 delivery, obtained possession of them by giving a cheek, which 
 was afterwards dishonoured, Lord Tenterden, said, " If this 
 vendee had reasonable ground to expect that the check would 
 be. paid, the transaction was not fraudulent, and the property 
 would pass to him: if he had not reasonable ground for so ex- 
 pecting, the transaction was fraudulent, and the vendors are en- 
 titled to recover their property in an action of trover. "(e)(1) 
 
 A negotiable bill or note given in discharge of a debt, and 
 then lost or destroyed, is at common law payment ;(/) but 
 r^nQF-, *the recent statute 17 & 18 Vict. c. 125, s. 87, may, aa 
 we have seen, enable the owner to recover. 
 
 (,d) Byles on Bills, 5th Amencan ed. p. 553. 
 
 (e) Hiiwse v, Ciowe, 1 R. & M. 414 (21 E. C. L. R.) ; Puckfortl v. Max- 
 well, 6 T" R. 62 ; Oweiison v. Morse, 7 T. R. 64 ; Bishop v. Shillito, 3 B. & 
 Aid. 329, n. ; Taylor v. Plumer, 3 M. & Sel. 562 ; Brown v. Kewley, 2 B. & 
 P. 518 ; Gliidstone v. Hadwen, 1 M. & Sel. 517; Noble v. Adams, 7 Taunt. 59 
 (3 E. C. L. R.) ; Earle of Bristol v. Wilsmore, IB, & C. 514 (8 E. U. L. B.) ; 
 3 D. & R. 735, S. C. ; Kilby v. Wilson, 1 R. & M. 178 (21 E. C. L. R.). See 
 the American auihorities to the same effect, Byles on Bills, 5th American ed. 
 p. 553. 
 
 (/) Woodford V. Whiteley, 7 M. & M. 517 (22 E. C. L. R.) ; Crowe v. Clay, 
 9 Exch. 604. N. B. — In this Chapter the word payment is not always used 
 in its strict legal sense. 
 
 (1) Markle v. Hatfield, 3 Johns. 455 ; Ontario Bank v. Lightbody, 13 Wen- 
 dell, 101 ; Lowrey v. Murrell, 2 Porter, 380 ; Bayard v. ShunU, 1 Watts & 
 Serg. 94. 
 
 Acceptance of a counterfeit or forged note, in satisfaction, is not payment. 
 Burrill v. Wntcrtown Bank, 51 Barbour, 105 ; Offutt v. Bank of Kentucky, 1 
 Bush, 106 ; Goodrich v. Tracy, 43 Vei-mont, 314. 
 
IS CONSIDERED A:S PAYMENT. 575 
 
 , We have already seen {g) that it has been held that, where 
 a bill or note payable to bearer is delivered without indorse- 
 ment, not in payment of a pre-existing debt, but iu payment or 
 exchange for goods or other securities sold at the time, such a 
 transaction amounts in general to a sale of such a bill or note, 
 and to an election by the transferee to take it as. money with 
 all its risks, and, consequently, to complete payment by the 
 transferor.(A)(l) 
 
 If, in payment of diBh.onoured bills, other bills be given 
 for the sum due, and the first bills remain in the hands of the 
 holder, ifthe latter bill be not paid, the liability of parties on the 
 first bills reyive8.(i) And even ifthe new -bills be duly paid, 
 the holder may recover on the old bills, if the amount of princi- 
 pal and interest due thereon be not covered by the amount of 
 the new bill8.(/i:) The holder of an old bill for the full amount 
 of which a new bill is given cannot sue on it till the new one is 
 at maturity.(i)(2) 
 
 (ff) Clinpter on Transfer. 
 
 (A) Camidge v. Allenby, 6 B. & C. 373 (13 E. C. L. B.) ; 9 D. & R. 391, 
 8. C. ; Ward v. Evans, 3 Ld. Raym. 928 ; Browu v. Kewley, 2 B. & P. 418 ; 
 .Guavdians of Lichfield Union v. Greene, 26 L. J., Exch. 140 ; 1 H. & N. 884, 
 S. C. ; Smith v. Mercer, L. R., 3 Ex. 51. See the Chapter on Transfer. , 
 
 (t) Ex parte Barclay, 7 Ves. 597 ; Bishop v. Rowe, 3 M. & S. 362 ; Dillon 
 T. Eiinmer, 1 Bing. 100 (8 B. C. L. R.) ; 7 Moo. 427, S. C. 
 
 (k) Lumley v. Musgravc, 4 Bing. N. C. 9 (38 E. C. L. R.) ; 5 Scott, 230, 
 S. C. 
 
 {1} fondrick v. Lomax, 2 0. & J. 405 ; 2 Tyr. 438, S. C. 
 
 (1) Patten v. Ash, 7 Berg. & Rawle, 116 ; People v. Howell, 4 Johns. 296 ; 
 Dennis v. Hart, 2 Pick. 204 ; Bayard v. Shunk, 1 WaUs & Strg. 94. Where 
 the Tendor of goods is induced to take the note of a third person as payment, 
 by a fraudulent representation of the solvency of that person, the note is no 
 satisfaction. Pierce v. Drake, 15 Johns. 475 ; Martin v. Pennock, 2 Barr, 
 376. Where a man in payment of a debt to another gives hira a counterfeit 
 bill, if he has notice that it is counterfeit within a reasonable time, he is bound 
 to take it back, and the question of reasonable time is one for the jury. 
 Bimms v. Clark, 11 Illinois, 137 ; Ramsdale v. Horton, 3 Barr, 330; Raymond 
 V. Bauer, 13 Serg. & Rawle, 318. 
 
 • (2) A note or acceptance given for the price of goods at the time of pur- 
 chase does not .destroy the vendor's right of action on the original agreement, 
 but only suspends the right until the expiration of the credit given. Hall v. 
 Richardson, 16 Maryland, 396 ; McMurray v. Taylor, 30 Missouri, 263 ; Hig- 
 gins V. Wortell, 18 California, 380. Where a bill or nolo is taken for a prior 
 
576 BILL OR NOTE CONSIDEKBD AS PAYMENT. 
 
 The taking of a bill or note in payment will, in general, de- 
 termine a lien. Thus, where the owner of a ship having a lieu 
 on the goods, until t'he delivery of goods and approved bills, 
 took a bill of exchange in payment, and though he objected to 
 it at the time, afterwards negotiated it, it was held that such a 
 negotiation amounted to an approval of the bill by him, and to 
 a relinquishment of hi§ lien on the goods.(wi) So where, for 
 goods sold, the vendor took the vendee's promissory note, and 
 negotiated it with his banker, and it^was subsecLuently dis- 
 honoured, but continued outstanding in the banker's hands, it 
 was held that the vendor had, by taking the note and nego- 
 tiating it, relinquished his lien, and that the lien did not revive 
 on the dishonour of the note, the note continuing in the 
 banker's hands.(m) 
 
 *]3ut if a bill or note is taken, and, remaining in the 
 '- -• vendor's hands, is dishonoured, the goods not being de- 
 livered, it should seem that the lien revives.(o) 
 
 On the sale of real property the taking and negotiating a, 
 
 (to) Hoincastle v. Farran, 3 B. & Aid. 497 (5 E. C. L. R.) ; 3 Stark. 590 
 (3 E. C. L. R.), S. C. ; Alsager v. St. Kalheiine's Dock Company, 14 M, 
 & W. 784 ; Tamvaco v. Simpson. 19 C. B., N. S. 478 (115 E. C. L. R.).^ 
 
 in) Bunney v. Poyiilz, 4 B. & Aa. 568 (34 E. C. L. R.) ; 1 N. & m' 329, 
 S. U. 
 
 (o) New V. Swain, 1 Dans. & L. 193 ; Valpy v. Oakley, 16 Q. B. 941 (71 
 E. C. L. R.). 
 
 debt, the party cannot recover upon the original consideration, unless the bill 
 or note is produced and cancelled at the trial, or it appears that it cnnnot be 
 ■enforced by a third party. Miller v. Lumsden, 16 Illinois, 161. The payee 
 of a bill, acceptance and payment of which haTe been refused, may surrender 
 the bill and maintain an action on the debt for which the bill was given. 
 Derickson v. Whitney, 6 Gi-ay, 348. An action may be brought on an ac- 
 count for which a note has been given, without surrendering the note, unless 
 it ha« been negotiated ; in which case it must be sun'cndered before execution 
 can be taken out. Street v. Hall, 3 Williams, I'Co. 
 
 A creditor cannot recover on the original debt, for which he has accepted 
 another security, unless he can show the nole to have beea lost, or produces 
 it at the trial to be cancelled. Matthews v. Dare, 30 Maryland, 348. 
 
 Where a party receives a note as collateral, he is bound to use ordinary dilS- 
 gcnoe in collecting. Roberts t. Thompson, 14 Ohio (N. S.), 1. 
 
OF SETS, PARTS AND COPIES OF BILLS. 
 
 577 
 
 note or bill by the vendor does not amount to a relinquishment 
 of his lie\\(j)) on the land(j) for the unpaid purchase money. 
 
 A bill, check or promissory note is earnest, or part payment, 
 within the seventeenth section of the Statute of Frauds, so as to 
 obviate the necessity of a written contract. (r) 
 
 A covenant to pay in promissory notes implies and includes 
 a covenant to pay the notes when due.(s) 
 
 An unstamped bill or check is not payment.(<) 
 
 *CHAPTER XXX. 
 
 [*387]i 
 
 OF SETS, PARTS AND COPIES OF BILLS. 
 
 ■WHAT A BILL DRAWN IN PAETS 
 IB 387 
 
 THE WHOLE SET B0T ONE BILL, 388 
 
 TO . WHOM THE BILL BELONGS 
 WHEN THE PABTS ABB IN DIF- 
 PBBENT HANDS, . . . 3^8 
 
 HOW MANY PABTS BBQUIBED, . 388 
 
 EFFECT OF OMITTING TO EEFEK 
 
 TO THE OTHER PABTS, . . 388 
 
 LIABILITY OF DRAWEE, 
 LIABILITY OF INDORSBB, 
 COPIES OF BILLS, 
 SUBSTITUTIONS, . 
 
 . 389 
 
 . 389 
 . 389 
 . 390 
 
 Foreign bills(a) are often drawn in parts, all the parts to- 
 gether making what is called a set. 
 
 (p) Ex parte Loring, 1 Rose, 19 ; Grant v. Mills, 2 V. & B 30(5. See 
 MacveHi v. Simmons, 15 Ves. 329. See as to the effect of taking a void check. 
 Bond V. Warden, 14 L. J., Chan. 354 ; 1 Coll. 583, S. C. 
 
 (j) As to the circumstances under which the transfer of a bill is payment 
 in 'bankruptcy, see the Chapter on Bankruptcy. 
 
 (r) Chitty on Bills, 8th ed. 80, note (J), p. 84. 
 
 (s) Dixon V. Holroyd, 27 L. J., Q. B. 43 ; 7 E. & B. 903 (90 E. C. L. R.), 
 B.C. 
 
 (0 Cundy v. Marriott, 1 B. & Ad. 696 (20 E. C. L. R.) ; Bond v. Warden, 
 M L. J., Oh. 154 ; 1 Coll. 583, S. C. But now, in case of a bill payable on 
 demand, the stamp may be subsequently affixed by the drawee. 33 & 34 Vict', 
 c. 97, s. 54. 
 
 (a) II existe dans la negotiation des lettres de change un usage qui la facilile 
 et nssure leur paiement rapide ; c'est la faculty de tirer par premiere, seconde, 
 et troisieme, &c., &c., c'est a dire de souscrire plusieurs exemplaires. 
 
 Oet usage remonte i, des temps 'deja recales ; il ^tait en vigneur sous 
 I'ancienne legislation, et Cleirac en cite des exemples qui se rapportent au 
 milieu du seizieme siecle. 
 
 II n'est pas sans interet de reproduire ses observations fort sensfies : 
 
 37 
 
678 OF SETS, PAKTS ANB COPIES OF BILLS. 
 
 Exemplars or parts of the bill are made on separate pieces of 
 paper, each part being numbered, and referring to the other 
 parts. Each part contains a condition that it shall continue 
 payable only so long as the others remain unpaid. These parts 
 should circulate together ; or one may be forwarded for accept- 
 ance while the other is delivered to the indorsee, thus relieving 
 him from the necessity of forwarding his part for acceptanc e, 
 but giving him the indorser's security immediately, and 
 diminishing the chances of losing the bill.(6)(l) Every trans- 
 feror is bound to hand over to his *transteree all the 
 L -■ parts of the bill in his possession, and he may even be 
 liable to hand them over to a subsequent transferee, if he . have 
 them still in his possession. (c) 
 
 The whole set, of how many parts soever it be composed, 
 constitutes but one bill, and the regular payment and cancella- 
 tion of any one of the parts extinguishes ail.(rf) 
 
 A firm, who were both payees and acceptors of a foreign bill 
 in three parts, indorsed one part to a creditor to remain in bis 
 hands till some other security were given for it, and then in- 
 
 " Et d'autant que les lettres de change sont des papiers volans, des petits 
 poulets,, ou billets, Polizza di Oarribio, qui se penvent facilement esdiier et 
 perdre. Comme aussi le banquier coirespcndant a Paris peut manquer au 
 paiement, c'est pourquoi, tant le bourgeois qui a tirfi, que son commisaion- 
 naire residant a Pans, ont chacun besoin d'une copie poure faire leurs dili- 
 gences. A eette cause le banquier doit ^crire, et fournir par pr^cautiou deux 
 gu trois copies de la nieiue lettre de seniblable teneuT." Nouguierdes Lettres 
 de Change, 1, 104. 
 
 (6) Tlie facility wliich drawing a bill in sets affords for its presentment, 
 has l)cen held to accelerate the time witbin, whicli a bill, payable after sight, 
 ought to be presented for acceptance. Straker v. Graham, 4 M. & W. 7^1. 
 
 (c) Pinard v. Klockman, 32 L, J., Q. B. 83 ; 3 Best & Smith, 388 (113 E. 
 C. L. E.), S. C. 
 
 {d") Byles on BiUs, 5th American edition, 555. A contract to deliver up a 
 bill drawn in parts, is a contract to deliver up every part. Kearney v. West 
 Granada !Mining Company, 1 H. & N. 412. 
 
 <1) The whole of a set of exchange coDslitutes but one bill, and payment 
 or cancelling of either of the set of extinguishes all. Durkia v. Cranston, 7 
 Johns. 442 ; Ingraham v. Gibbs, 2 Dall. 134; Miller. v. HacUley, Anthon, 68. 
 As to the different sets of bills, see Kenworthy v. Hopkins, 1 Johns. Cas. 1C7. 
 
 In a suit by the indorsee of a bill againflt the aceeptoi', where the first part 
 of the bill sued on has been accepted or protested, the prodoeljon of that part 
 is prima facie sufficient. Johnson v. Offut, 4 Met. (Kent.), 19» 
 
OP SETS, PARTS AND COPIES OP BILLS. 579 
 
 dorsed another part of the same bill for value to a third person. 
 They afterwards gave the first indorsee the proposed security, 
 and took back the first part of the bill from him. Held, that 
 the holder of the second part was not precluded from recover- 
 ing against the firm: first, because the substitution of the 
 security for the first part was not a payment ; and, secondly, 
 because the firm were, as between themselves and the second 
 indorsee, estopped from disputing the regularity of their ac- 
 ceptance and indorsement of the second part.(e) 
 
 But as between bona fide holders for value of different parts 
 of the same bill, he who first obtains a title to his part is en 
 titled to the other parts,(/) and may, it has been said, maintain 
 trover for them, even against a Subsequent bona Jide holder.(^) 
 
 If a man be under an obligation to deliver a foreign bill, it 
 seems he is bound to deliver as many parts as may be applied 
 for (A) 
 
 An omission on one part to express the reference to the 
 others, and the condition relating to them, may have the effect 
 of obliging the drawer to pay more than one parf.(t) 
 
 *The drawee should accept only one part. For if two ^^-001 
 accepted parts should come into the hands of different '- "'-' 
 holders, and the acceptor should pay one, it is possible that he 
 may be obliged to pay the other part also.(;' ) 
 
 And he should not pay without taking back the part which 
 
 («) Holdsworth V. Hunter, 10 B. & C. 449 (21 E. C. L. R). 
 
 (/) Ibid. ; Peneiia v. Jopp, 10 B. & C. 450, u. (21 E. C. L. R ). 
 
 (y) For it is the duty of a person taking one of several parts to inqnire after 
 the otliers ; Lang v. Smylh, 7 Bing. 384, 294 (20 E. C. L. R.) ; 5 M. «& P. 78, 
 8. C. ; and lie is advertised by the part which he does take, 'that be takes it 
 witlioirt the others at his peril. 
 
 (A) 1 Pard. 334. But since each part is no^ subject to a stamp, if issued 
 or negotiated apart, 33 & 34 Vict. c. 9T, s. 55, it may be doubtful whether he 
 is so bound, unless the party applying will furnish the extra stamps. 
 
 (0 Davison V. Robertson, 8 D'ow. 218, 238; Beawes, 430; Poth. HI; 
 3 Pard. 367. But not an inaccurate reference or an omission to name one' 
 patt obviously by mistake. Bayley^ 6th ed. 30. 
 
 U) See Holdsworth v. Hunter, 10 B. & C. 449 (21 E. C. L. R.)j 
 
580 OFSETS, PARTS AND COPIES OP BILLS. 
 
 he has accepted ,( A;) for, having paid the unaccepted part, be 
 may be obliged afterwards to pay the accepted part also. 
 
 And if an indorser improperly circulate two parts to distinct 
 holders, he may be liable on each.(^) The forgery of the payee's 
 indorsement on one of the parts will of course pass no interest 
 even to a bona fide holder.(m) 
 
 It is conceived, that an indorser is not bound to pay any one 
 part, unless every part bearing his indorsement be delivered up 
 to him.(n) 
 
 Copies of bills are not, it is believed, mucl\ used in thig' 
 country. A protest may be made on the copy of a bill iu some 
 case8.(o) But, abroad, when a bill is not drawn in sets, it is 
 sometimes the practice to negotiate a copy, while the original 
 is forwarded to a distance for acceptance. 
 
 In such a case, the person who circulates the copy should 
 transcribe the body of the bill, and all the indorsements includ- 
 ing his own, literally, and, after all, he should write " Copy : — 
 the original being with such a person." If he should omit to 
 state that the bill is a copy, or to write his own indorsement 
 after the word copy, he may become liable on the copy as on an 
 original.(;j) ^ 
 
 (Jt) Celui qui paie nne lettre de change sur nne deuxieme, troisieme, 
 quatiieme, &c., sans retirer celle sur laquelle se trouve son acceptation, 
 n'opere point sa liberation a regard du tiers poiteur de son aceeplation. Code 
 de Commerce, Art. 148. 
 
 (J) See Holdsvvorth v. Hunter, supra. 
 
 (to) Clieap V. Harley, 3 T. R. 127 ; see Smitli v. Mercer, 6 Taunt. 80 (1 
 E. C. L. R.) i 1 Marsh. 453, S. C. ; Fuller v. Smith, 1 C. & P. 197 (13 E. C. 
 L. R.) ; Ry. & M. 49 (31 E. C. L. R.), S. C. 
 
 (re) Lorsqu'une deuxieme porte qu'elle ue sera pay6e qu'antant que la 
 premiere ne I'aura pas k\.& ; I'endosseur qui endosse les deux exemplairesn'est 
 point responsable envers le porteur de la seconde qui a requ ce litre, tandis 
 que la premiere fetait ^galement en circulation. 
 
 Dans ce cas le porteur de la seconde est averti. par les €nonciatiojis qu'elle 
 ooutient. Pour se mettre a I'abri des fraudes de son cfidant, il doit se faire 
 remettre la premiere. Conr de Cassation, 4 Avril, 1833 ; Sirey, t. 33, 1. 39. 
 
 (o) Dehers v. Harriot, 1 Show. 1G3. 
 
 {ip) L'uaage des copies, quoiqu'il ne soit pas consacrfi par la loi, n'en est 
 pas moins valable. L'endosseur qui cr6e une copie, apres avoir n6gooiS 
 I'original, est tenn de mentiouner dans la copie I'endossement qu'il a teit sur 
 le tirte mSme. Si, au contraire, apres ces xaoXspour copie, il appose unendos, 
 
OF FOREIGN BILLS AND NOTES. 
 
 581 
 
 *It is a common but not a safe practice for a drawer, 
 to whom a negotiated part has come back with many L -^ 
 indorsements on it, to substitute a new part without such in- 
 dorsements. The holder of such a substituted part may be 
 deprived of his remedy against the acceptor by the inter- 
 mediate act of the drawer.(g') 
 
 *CHAPTER XXXI. 
 OF FOREIGN BILLS AN-D NOTES. 
 
 [*391] 
 
 ■WHAT ABB FOBEIGN AND WHAT 
 INLAND EILLB, .... 391 
 
 STATUTE 19 & 20 VICT., . . 391 
 
 PRBSOMPTION OP BEING AN IN- 
 LAND BILL, .... 393 
 
 STAMP ON AN INLAND BILL PUR- 
 PORTING TO BE A FOEBIGN 
 ONE, 392 
 
 SETS OF BILLS, .... 393 
 
 PKESENTMBNT OF FOREIGN 
 BILLS, 393 
 
 ACCEPTANCE OF FOREIGN BILLS, 393 
 
 PROTEST, 393 
 
 Bills of exchange are either foreign or inland. (a) Inland 
 bills of exchange, at common law, are such as are both drawn 
 aud payable within the limits of England, Wales and Eerwick- 
 on-Tweed.(6) 
 
 Foreign bills, as distinguished from inland bills at common 
 law, are such as are drawn or payable, or both, abroad, or 
 drawn in one realm of the United Kingdom, and payable in 
 another.(c) 
 
 il fait supposer que I'original n'est pas endossfi, et il est responsable vis-a-vls 
 du porteur de bonue foi de la copie. Cour Royale de Paris, 14 Janvier, 1830 ; 
 Sirey, t. 30, 1. 172. 
 ' (?) Ralli V. Dennistoun, 6 Bxcli. 483. 
 
 (a) Holt, C. J. . "I remember when actions upon inland bills of exchange 
 did first begin, and tliere tbey laid a particular custom between London and 
 Bristol, and it was an action against the acceptor. The defendant's counsel 
 would put them to prove the custom, at which Hale, who tried it, laughed, 
 and said, they had a hopeful case on't." BuUer v. Crips, 6 Mod. 39 ; 1 Salk. 
 130; Holt, 119, S. C. 
 
 (J)' A bill drawn in England' on a person residing abroad, but drawn and 
 accepted payable in England, has been held an inland bill within the Stamp 
 Act. Amncr v. Clark, 2 C, M. & R. 468. 
 
 (c) As to the Isle of Man and the Channel Islands, see Com. Dig. Naviga- 
 tion, 3, 3 and 4. Godfrey v. Coulman, 13 Moo. P. C. C. 11. 
 
682 OF FOEBIGN BILLS AND NOTES. 
 
 Bills drawn in England and payable in Scotland, or Ireland, 
 or vice versa, were until recently foreign bills, for they were so 
 before the union between the countries, and the union does not 
 tnake-thera inland bills.(<:Z)(l) But bills drawn and payable in 
 Scotland, or drawn and payable in Ireland, were inland bills 
 within 1 & 2 Geo. 4, c. 78, to whieh an acceptjance in writing 
 was necessary.(e) 
 
 By the 19 & 20 Vict. e. 97, s. 7, bills or notes drawn *in 
 J- -I one part and payable in any other part of the British 
 Islands ( /) are inland bills •,{g) and for the purposes of the pres- 
 ent Stamp Act only those bills or notes made (or purporting to 
 be made) out of the IJnited Kingdom are to be deemed foreign 
 bill8.(A) 
 
 A bill of exchange is prima facie an inland bill. When an 
 action is brought on a foreign bill, against a drawer or indorser, 
 the declaration ought to disclose that it is a foreign bill. And 
 if it do not, the defendant will be entitled to succeed on the 
 ordinary traverses of the material allegations in the declara- 
 tion.(8) 
 
 Formerly the acceptor of a bill, purporting to be a foreign 
 bill, but really made in England, and known by the acceptor at 
 
 («i) Mahoney v. Aslilin, 2 B. «& Ad. 478 (33 E. C. L. E.). 
 
 («) Ibid. 
 
 (/) /. e., Great Britain, Ireland, Man, Guernsey, Jersey, Alderney, Sark, 
 and ttie islands adjacent to any of them, s. 7. 
 
 ig) Except so far as the late Stamp Act was concerned ; and the new statute 
 seems to be to the same effect. See GilfBn v. Weatheraby, L. R., 3 Q. B. 753 
 (43 E. C. L. R.) The new Stamp Act, 33 & 34 Vict. c. 97, s. 51, iraposcs 
 ad valorem duties on foreign bills similar to thu^e on inland bills not on 
 demand. 
 
 (Jf) 33 & 34 Vict. c. 97, ss. 51, 53. 
 
 (J.) Armani v. Castrique, 18 M. & W. 443. 
 
 (1 ) A bill drawn in one of the United States upon a person in another is a 
 foreign bill. LinviUe v. Welch, 89 Missouri, 303 ; State Bank v. Hayes, 3 
 Indiana, 400. 
 
 A bill of exchange drawn by a resident of Michigan, In favor of a Michigan 
 payee, upon a person in Chicago, and accepted there, is a foreign bill. Mason 
 T. Dousay, 35 Illinois, 431. 
 
«, OF FOREIGN BILLS AND NOTES. 583 
 
 the time of acceptance to be so, was not precluded from ohject- 
 ing, in an action by an innocent indorsee, tbat it was really an 
 inland bill and therefore void for want of a stamp (_/) But 
 there was an implied warranty by a transferor that a bill ap- 
 parently drawn abroad really was so drawn. (A) Now, however, 
 every bill of exchange which shall purport to be drawn at any 
 place out of the United Kingdom, shall for all the purposes of 
 the Stamp Act be deemed a foreign bill, and may, as we have 
 seen, be stamped accordingly .(i) By the 27 & 28 Vict. c. 56, s. 
 2 (now repealed), every bill of exchange payable on demand, 
 and purporting to be indorsed abroad, was, for the purposes of 
 the Stamp Acts, deemed to be a foreign bill. 
 
 Foreign bills are frequently drawn in sets : that is, exemp- 
 lars or parts of the bill are made on separate pieces of paper, 
 each part referring to the other parts, and containing a con- 
 dition that it shall continue payable only so long as the others 
 remain unpaid. 
 
 For the law on this subject the reader is referred to the pre- 
 ceding Chapter on Sets, Parts, and Copies of Bills. 
 
 *As to the presentment of foreign bills for acceptance r»oQq-i 
 or payment, see the Chapters on Presentment for Ac- 
 ceptance, aend Presentment for Payment. 
 
 For the English law regulating the acceptance of foreign bills 
 in this country, see the Cha,pter on Acceptance. 
 
 As to the protest of foreign bills, see the Chapter on Protest. 
 
 0') Steadman v. Dnhamel, 1 C. B. 888 (50 E. C. L. R.). 
 
 (A) Gompertz v. Bartlett, 3 E. & B. 854 (73 E. 0. L. R ). 
 
 (0 33 & 34 Vict. c. 97, ss. 51 and 53. See, too, the former enactment, 17 
 ifcl8 Vict. o. 83, s. 4 (repealed 1870), and Siordet v. Knczynski, 17 C. B. 351 
 {84E. C. L. R.). 
 
684: 
 
 OF THE EFFECT OF FOREIGN LAW. 
 
 [*394] 
 
 *CHAPTER XXXIT. 
 
 OF THE EFFECT OF FOREIGN LAW RELATING TO BILLS OF 
 EXCHANGE AND PROMISSORY NOTES. 
 
 OF THE CONFLICT OF THE LAWS 
 OF DIFFEEENT COUNTRIES BE- 
 
 liATING TO BILLS, . 
 
 
 394 
 
 GENEKAL PRINCIPLES OF 
 
 THE 
 
 
 ENGLISH LAW, . 
 
 
 395 
 
 FIVE PRINCIPAL RULES, 
 
 
 396 
 
 CASES WHERE THE LEX 
 
 LOCI 
 
 
 CONTRACTUS GOVERNS, 
 
 
 897 
 
 FOREIGN ACCEPTANCE, 
 
 
 397 
 
 FOREIGN INDORSEMENT OF 
 
 FOR- 
 
 
 EIGN NOTE, 
 
 
 397 
 
 FOREIGN DISCHARGE, . 
 
 
 897 
 
 CASES IN WHICH LEX LOCI 
 
 SOLU- 
 
 
 TI0NI8 GOVERNS, 
 
 
 398 
 
 FOREIGN INDORSEMENT 
 
 OP 
 
 
 ENGLISH NOTE, 
 
 
 398 
 
 TIME OF PAYMENT, 
 
 
 398 
 
 PROTEST AND NOTICE OF 
 
 DIS- 
 
 
 HONOUR, . 
 
 
 398 
 
 ACCEPTANCE, 
 
 
 399 
 
 RATE OF INTEREST, . . . 399 
 
 IMMORAL, ILLEGAL, AND INJURI- 
 OUS CONTRACTS, . . . 399 
 
 REVENUE LAWS OF OTHER COUN- 
 TRIES DISREGARDED, 
 
 STAMPS ON FOREIGN BILLS, 
 
 ON COLONIAL BILLS, . 
 
 BILLS PURPORTING TO BE DRAWN 
 OUT OF UNITED KINGDOM, 
 
 APPLICATION OF THE LEX FORI 
 TO FOREIGN BILLS, . 
 
 STATUTES OF LIMITATION, 
 
 SET-OFF, 
 
 POWER OP ARREST, . 
 
 STATUTE OF FRAUDS, . 
 
 PROTEST AND NOTICE OF 
 HONOUR, . 
 
 PLEADING, . 
 BURTHEN OF PROOF, . 
 
 DIS- 
 
 400 
 400 
 
 400 
 
 401 
 
 401 
 401 
 401 
 401 
 402 
 
 402 
 402 
 403 
 
 Sometimes bills drawn in England are payable in a foreign 
 country, and bills drawn dn a foreign country are payable in 
 England. Sometimes English bills circulate abroad, and foreign 
 bills circulate here ; and frequently suits on foreign bills, or bills 
 negotiated abroad, are brought in English Courts of Justice. 
 
 The laws of foreign countries, as to bills of exchange, often 
 differ widely from the law of England, and from each other. 
 But natural justice, mutual convenience, and the practice of all 
 civilized nations, require that contracts wherever enforced, should 
 be regulated and interpreted according to the laws with refer- 
 ence to which they were made, otherwise the rights and liabili- 
 ties of parties would entirely depend on the law of the country 
 where the remedy might happen to be sought. Such a state of 
 
 [*395] 
 
 things *would introduce uncertainty and confusion in- 
 
 finitely greater than arises from that measure of respect. 
 and comity, which every tribunal now shows to the law of 
 foreign nations. 
 
,- OF THE EFFECT OF FOREIGN LAW. 585 
 
 In determining how far foreign laws are to regulate foreign 
 contracts in English Courts, a great variety of circumstances 
 are often necessary to he considered. It may he essential to 
 regard the domicile of one or both, or all of the contracting 
 parties, the place where the contract is made (which place it 
 may not always be easy to determine, for the parties rnay live 
 iu different countries), the place where the contract is to be 
 performed, the place where the subject matter of the contract 
 IB locally situate, and the place where the remedy is sought. 
 
 Many nice questions, therefore, have already arisen, and many 
 more will, no doubt, in future arise in our Courts, from the 
 conflict of English with foreign law, as to bills of exchange. 
 
 The decisions of English Courts of justice on the inter- 
 national law of contracts have not been very numerous, but 
 nothing can exceed the discrepancy and irreconcilable contra- 
 riety of the doctrines ^nd opinions of foreign writers, not only 
 on the application of the principles of international law to 
 foreign contracts, but on the very principles themselves. (a) To 
 enter into the discussion of such topics would be foreign to the 
 object and exceed the limits of this little book. 
 
 But in the dearth of authoritative decisions, on the degree to 
 which foreign law is admiFsible here to govern the contracts 
 arising on bills or notes made, negotiated, or payable abroad, it 
 may not be altogether useless, with a view, as well to the right 
 understanding of ' such decisions as have already been pro- 
 nounced, as to the solution of such undecided questions on the 
 same subject as may hereafter arise, first to enumerate some of 
 the general principles which seem to have guided the English 
 Courts in determining the circumstances, and the degree in 
 which they will respect foreign laws, in interpreting contracts 
 either altogether or partially foreign, and then to adduce in- 
 stances illustrating the application of those principles to the Law 
 of Bills of Exchange. 
 
 (a) See the well known and very learned work on the OoNPLrcT or Laws, 
 for which not only his own country and the United Kingdom, but Europe 
 and the civilized world, are deeply indebted to the late Mr. Justice Story. 
 
586 OF THE EFFECT OF FORBIGN LAW. 
 
 r*3q61 *Among the established principles in the law of this 
 country, the five(6) following rules appear to'rank. 
 
 First, every contract is, in general, to be regulated by the 
 laws of the country in which it is made. For the laws of that 
 country alone are there binding propria vigcre on aliens as well 
 as on natural-born citizens or subject8,(c) and the parties to the 
 contract may generally be taken to have contemplated the 
 legal consequences which those laws deduce from their stipu- 
 lations. 
 
 Hence the formalities essential to the validity of the contract, 
 and the interpretation of that contract, are to be governed by. 
 the laws of the country where it is made.(l) 
 
 But secondly, where a contract is made in one country to be 
 performed in another, the country where the contract is to be 
 performed is deemed the country in which it was made. Such 
 seems to be the general rule of the civil la\v. " Cmtraxisse un- 
 usquisque in eo loco inttlligitur, in quo ut solverd se obligavitJ" 
 Some learned civilians have, indeed, entertained a different 
 opinion, but such is unquestionably the general rule in the 
 common law of England. " The law of the place," says Lord 
 Mansfield, "can never be the rule, where the transaction is 
 
 (S) That is to sny, as to executory contracts and contracts relating to 
 movables. But the transfer of real or immovable property is governed by 
 another rule, the lex rei titm. See Fenton v. Levington, Dom. Proc. 1859. 
 
 (c) According to some foreign writers, the domicil of persons entering into 
 contracts, while in n foreign country, is to be considered in those contracts. 
 Difficulties then arise, where the domicil of two or more of the contracting 
 parties is not the same- The common law does not, it should seem, regard 
 these niceties; Jefferys v. Boosey, 4 H. of L. Cases, 814 ; 24 L. J., Exch. 81. 
 See as to a judgment in, rem, Caslrique v. Imrie, L. R., 4 H. of L. 414 ; 8 C. 
 B., N. 8. 1 (98 E. C. L. R.). 
 
 But QuiBre, how fur the domicil of parties to bills of exchange regulates 
 their personal capacity or incapacity to contract.. 
 
 (1) Cox V. U. States, 6 Peters, 172 ; Carnegie v. Morrison, 2 Mete. 391, 
 397 ; Bulger v. Roche, 11 Pick. 86 ; Bruchett v. Norton, 4 Conn. 517 ; Sher- 
 r.ll V. Hopkins, 1 Cowen, 103 ; Ailed y. Watson, 2 Hill, S. C. 319 ; Loan Co. 
 V. Towner, 18 Conn. 249 ; Watson v. Brewster, 1 Barr, 381 ; Watson v. Orr, 
 3 Devereux, 161 ; Martin v. Martin, 1 Smedes & Marsh. 176 ; Roe v. Jerome^ 
 18 Conn. 138 ; Palmer y. Yarrington, 1 Ohio State Rep. 253. 
 
OF THE EFFECT OF FOREIGN LAW. 587 
 
 entered into with the express view to the law of another coun- 
 try, as the rule by which it is to governed."(c?)(l) 
 
 Thirdly, contracts immoral, or contrary to the law of nations, 
 or injarious to British public interests, though valid where 
 made, will not be enforced on behalf of a guilty party in our 
 0Durts.(2) 
 
 But, fourthly, one country will not regard the revenue laws 
 of another country. 
 
 *Fifthly, the remedy is to be governed by the law of r^on-j-i 
 the country, where that remedy is sotight.(3) 
 
 id) Robinson v. Bland, 3 Burr. 1077 ; 1 W. Bl. 356, S. C. ; and see Rntts- 
 chilcl V. Currie, 1 Q. B. 43 (41 B. C. L. E.) ; see Story's Conflict of Laws, 
 280 to 281 ; Allen v. Kemble, 6 Moore, P. C. C. 314. 
 
 (1) Smith v.Mead, 3 Conn. 353 ; Thompson v. Ketchara, 4 Johns. 285; 8 
 Ibid. 169 ; Warren v. Lynch, 5 Ibid. 339; Pope v. Nickergon, 3 Story, 465 ; 
 Goddin v. Sbippley, 7 B. Monroe, 575 ; Broadhead v. Noycs, 9 Missouri, 56 ; 
 Dorsey v. Hardesty, Ibid. 157 ; Slierman v. Gasset, 4 Gilman, 521 ; Tyler v. 
 Trabnr, 8 B. Monroe, 306; Hunt v. Standart, 15 Indiana, 33; Blodgett v. 
 Duigin, 33 Vermont, 361 ; Emanuel v. White, 34 Mississippi, 56 ; Cribbs v. 
 Adams, 13 Gray, 597 ; Everett v. Vendryes, 19 New York, 43 ; Brown v. 
 Newell, 3 Kernan, 390 ; Davis v. Clemson, 6 McLean, 633 ; Pomeroy v. Ains- 
 WOTlh, 32 Barbour, 118; Hawley v. Sloo, 13 Louisiana Annual, 815 ; Vinson 
 T. Piatt, 31 Georgia, 135, Able v. McMurra.v, 10 Texas, 350 ; Gaylord v. 
 Howard, 5 McLean, 448 ; Emerson v. Partridge, 1 Williams, 8 ; Barney v. 
 Neweomb, 9 Gushing, 46 ; Thorp v. Craig, 10 Iowa, 461. 
 
 (8) The laws of foreign-countries are not admitted, «a'p/'opHo mgore, but 
 only ez comitate ; and the judicial power will exercise a discretion with re- 
 spect to the laws they may be called upon to sanction. If they are manifestly 
 HtiJBst or calculated to injure our own citizens, ITiey ought to be rejected. 
 S'appan v. Poor, 15 Mass. 419 ; Cambridge v. Lexington, 1 Pick. 506. Upon 
 principles of national comity, a contract made in a foreign place and to be 
 lUere executed, if valid by the laws of that place, may be a valid ground of 
 action in the courts of this state, although not valid or even prohibited, by 
 onr laws, unless this state or its citizens would be injured by giving legal 
 efftct to it, or it would be a pernicious and detestable example to them. 
 Greenwood v. Curtis, 6 Mass. 358, 377. 
 
 (3) Titus V. Hobart, 5 Mason, 373 ; Robinson v. Campbell, 3 Wheaton, 
 313 ; Blanchard y. Russell, 13 Mass. 15 ; Smith v. SpinoUa, 3 Jokns. 198 ; 
 Andrews v'. Heriiott, 4 Cowen, 508 ; Wood v. Malin, 5 Halstead, 208 ; Ayres 
 V. Auderbon, 3 Hill, S. C. 601 ; Watson v. Brewster, 1 Barr, 381 ; Givins v. 
 "Vfestern Bank, 8 Alabiima, 397 ; Smith t. Atwood, 3 McLean, 545 ; McKis- 
 
588 OF THE EFFECT OF FOREIGN LATV. 
 
 - The following are instances of the supremacy of the lex Itiei 
 contractus according to the first general rule. 
 
 An acceptance void, or avoided by the law of the country 
 where it is given, is not binding here. By the law of Leghorn, 
 if a bill be accepted, if the drawer then fail, and the acceptor 
 had not sufficient effects of the drawer in his hands at the time 
 of acceptance, the acceptance becomes void. An acceptor at 
 Leghorn, under these circumstances, instituted a suit.at Leghorn, 
 and his acceptance was thereupon vacated. Afterwards, he was 
 sued, in England as acceptor, and now filed his bill for an 
 injunction and relief. Lord Chancellor King granted a per- 
 petual injunction, enjoining the plaintiff at law from suing on 
 the bill, (e)(1) 
 
 (e) Burrows v. Jemirao, 2 Stra. 733 ; Sel. C. 144 ; 3 Eq. Ap. 526 ; see 
 Wynue v. Calendar, 1 Russ. 395. 
 
 sick V. McKissick, 6 Hump. 75 ; Wood v. Watkinson, 17 Conn. 500 ; Broad- 
 head V. Noyes, 9 Missouri, 56 ; Dorsey y. Hardesty, Ibid. 157 ; Paine v. 
 Drew, 44 N. Hamp. 306 ; Fletclier v. Spaulding,, 9 Minn. 64. 
 ; (1) Wliere a note is made payable generally, tlie law of the place where it 
 is made must determine the construction to be given to it, and the obligation 
 and duty itiimposes. Bank of Orange Co. v. Colby, 13 N. Hamp. 520 ; 
 Stacey v. Baker; 1 Scam. 417; Rowell v. Buck, 14 Verm. 147; Bliss v. 
 Houghton, 13 N. Hamp. 136; Reddick v. .Tones, 6 Iredell. 107; Mendenhall 
 V. ' Gately, 18 Indiana, 149 ; Lawrence v. Bassett, 5 Allen, 140 ; Butler v. 
 Myer, 17 Indiana, 77; Thorp r. Craig, 10 lown, 461 ; Collins Cb. v. Burkam, 
 10 Michigan, 283 ; Olyphant v. Alwood, 4 Bosworth, 459; Stanford v.'Pruet, 
 27 Georgia, 243 ; Miller v. Mayfield, 37 Mississippi, 688 ; Kelly v. Smith; 1 
 Metciilf (Ky ), 813; Hawley v. Sloo, 13 Louisiana Annual, 815; Toung v. 
 Harris, 14 B. Monroe, 556; Vansant v. Arnold, 31 Geo. 310; Bank of Georgia 
 v. Lewin, 45 Barb. 340 ; Lee v. Selleck, 33 N. York, 615 ; Trabhe v. Short, 
 18 Louis. Ann. 3.57 ; Short v. Trabue, 4 Met. (Kent.), 399; Artisans' Bank 
 V. Park Bank, 41 Barb. 590; Pecker v. Kennison, 46 N. Hamp. 488; Re 
 Conrad, 1 Campbell, 384 ; Hull v. Augustine, 33 Wise. 383 ; Stickney v. Jor- 
 dan, 58 Maine, 106; Harmon v. Hicks, 1 DuvalJ, 333. 
 
 The making of a note, and the indorsing or assigning the same, are distinct 
 contracts, each governed by the law of the place where the acts were respec- 
 tively done. Nichol's Exr's v. Porter, 3 West Virg. 13. 
 
 The law of the place where a bill is drawn determines the rights and lia- 
 bilities of the drawer. Crawford v. Branch Bank, 6 Alabama, 12 ; Hunt v. 
 Standart, 15 Indiana, 33 ; Kuensio v. ElversV 14 Louisiana Annual, 391 ; Wood 
 V. Gibbs, 35 Mississippi, 559 ; Raymond v. Holmes, 11 Texas', 54 ; Wilson v. 
 Lazier,; 11 Grattan, 477. Tlie damages : recoverable from the drawer of a 
 foreign bill of exchange which has been dishonored are those allowed by the 
 law of the place where the bill was drawn. Price v. Page, 24 Missouri; 65 ; 
 
OFTHE EFFECT OF FOREIGN LAW. 589 
 
 A bill of exchange was drawn in France, and indorsed in 
 blank in France, without following the formalities prescribed 
 
 Piige V. Page, Ibid. 595 ; Bouldin v. Page, Ibid. 594. The law of the place 
 where the bill is drawn must govern as to damages and interest when re- 
 course is bad to the drawer, and llie liability of the different indorsers is to 
 be regulated by the law of the place where they were made. Bailey v. Heald, 
 17 Texas, 102. A. and B. were a mercantile firm, having business houses 
 bolli in Cincinnati and New Orleans. C. drew a bill of exchange at Cincin- 
 nati addressed to "A. and B., New Orleans." It was accepted by B. at Cin- 
 cinnati for the New Orleans liouse, was presented there at maturity and 
 protested for non-payment : held that the draweis were liable for damages 
 piescribed by statute on a bill drawn on a person out of the State. V\ est v. 
 yalley Bank, 6 Ohio, N. B. 168 ; State Banlt v. Kodgers, 3 Indiana, 53. A 
 bill drawn in and dated at Philadelphia in blank for the time it should ruii 
 and for the names of the payee and acceptor, was sent to an agent of the 
 drawers in London to be filled up and negotiated, which was done by him. 
 It was held that it was to be presumed that the drawers intended the bill to 
 berecuived as having been drawn in Philadelphia at the time of the date, ami 
 that the party purcbiising the bill in London was to be supposed as having in 
 coutemplation the law of Pennsylvania providing indemnity for dishonored 
 bills. Lennig v. Ralston, U Harris, 137. A domiciled here, accepts in Man- 
 chester, England, a bill drawn by B., an English merchant, resident there, 
 payable to B. or order in Lcmdqu. B. sues A. here upon the bill. This is a 
 foreign bill as if accepted, payable in London. Grimshaw v. Bender, 6 Mass. 
 157. Where a house in New York drew a bill of exchange on a house in 
 London, which was accepted and paid in London, thereby creating a debt 
 from the drawers to the acceptor, it was held, that London was the place of 
 the coutract. Lizardi v. Colien, 8 Gill, 4bO. A promissory note made be- 
 tween parties resident in New York, and there negotiated while still current, 
 bjitpaid by the maker before maturity, was afterwards sued in Vermont, in 
 tl^enape of a bona fide holder for value; held, that the maker could not 
 avail himself of the payment in defence, although by the law of Veimont, in 
 force at the time of such payment, it would have afforded a good defence to 
 the action. Harrison v. Edwards, 12 Vermont, 648. The law of Mississippi, 
 allowing to the maker of a promissory note, the benefit of ail defences against 
 the indorser wliich he had against the jjayee liefore notice of the indorsement, 
 appJlJes to a suit brought in another state, on a note payable in Mississippi, and 
 indorsed in Mississippi. Brubston v. Gibson, 9 Howard, U. 8. 263. Notes 
 ■were given in New York for a usurious loan, both parties being there at the 
 .time. When a note became payable, a new contract was made by the parties 
 for an extension of the time of payment, and new notes were made for the 
 amount due, dated in New York, which where delivered to the lender in the 
 Stale of .Connecticut, where he was then staying, and the old notes were then 
 given up. The notes were not made payable at any particular place. Held, 
 that the new contract was made in Connecticut, and to be governed by its laws 
 as to its nature, validity and effect. Jacks v. Nichols, 5 Barbour, S. C. 38. 
 Where the libellants took a promissory note of the owners of a ship in New 
 
590 OP THE EFFECT OF FOREISN LAW. 
 
 by the French law. It was held that the indorsement being 
 void by the French law was void here, for that the contract 
 and indorsement being made in France must be governed by 
 the law of France.(/)(1) 
 
 Where the deferidant gave the plaintiff, in a foreign country 
 where both were resident, a bill of exchange drawn by the de- 
 fendant on a person in England, which bill was afterwards pro- 
 tested here for non-acceptance, and the defendant afterwards, 
 while still resident abroad, became bankrupt there and obtained 
 
 (/) Tilraby v. Vignier, 1 Bing. N. C. 151 (27 E. C. L. R.) ; 4 M. & S. 
 695; 6 C. & P. 25 (25 E. 0. L. K.), S. C. ; but see Wynne v. Jackson, 
 2 Buss. 51. 
 
 York for inateiials there furnished, held that it was governed by the lex loci, 
 by which the note was only conditional payment. Bark Chusan, 3 Story, 55. 
 
 The law of a place where a note is payahle, determines what is a default by 
 tlie maker. But the contract of the iudorser is regulated by that of the county 
 where the indorsement is made. Hatcher v. McMorine, 4 Devcreux, 122 ; 
 Dow V. Russell, 12 N. Hamp. 49 ; Holt v. Salmon, 1 Rice, 91 ; Donn t. 
 Adams, 1 Alabama, 527; Yeatman v. Cullen, 5 Blackford, 240; Lowry's 
 Adm. V. Western Bank, 7 Alabama, 120 ; Holbrook v. Vibbard, 2 Scam. 465 ; 
 Mussem v. Lake, 4 Howard, U. 8. 263 ; Cox v. Adams, 2 Kelly, 158 ; Dundas 
 T. Bowler, 3 McLean, 397 ; Bank of Illinois v. Brady, Ibid. 268 ; Snow v. 
 Perkins, 2 Michigan, 238 ; Bernard v. Barry, 1 Q. Greene, 388 ; Raymond v. 
 Holmes, 11 Texas, 54; Hunt v. Standart, 15 Indiana, 33; Rose v. Thames 
 Bank, Ibid. 293 ; Stanford v. Pruett, 27 Georgia, 343 ; Everett v. Vendyres, 
 19 New York, 43 ; Bailey v. Heald, 17 Texas, 102. Where by the law of one 
 state the holder as collateral for pre-existing debt is a holder for value, it is 
 not affected by the fact that the indorsement was made in another state. Ives 
 v. Farmers' Bank, 2 Allen, 236. 
 
 (1 ) The payee of a promissory note, which was executed and made payable 
 im New York, having indorsed it in Indiana, was sued in Indiana, on his in- 
 dorsement. Held, that the indorsement must be governed by the law of New 
 York ; and that if the diligence necessary by the law of that State to fix the 
 indorsement has been used, the defendant was liable. Shanklin v. Cooper, 8 
 Blackford, 41. An indurser is liable for interest on a bill according to the law 
 of the place on which it is drawn. Mullen v. Morris, 2 Barr, 85. 
 
 That a bill or note is to be construed according to tUe law of the place where 
 it is payable, see Bright v. Judson, 47 Barb. 29 ; Summers v. Mills, 31 Texais, 
 77 ; Hunt v. Hall, 1 Ala. Set Cas. 634 ; Chatham Bank v. Allison, 15 Iowa, 
 357 ; Fant v. Miller, 17 Gratt. 47 ; Coffman v. Bank of Echtucky, 41 Miss. 
 213 ; Nichols v. Porter, 2 West Virg. 13 ; Bnckman v. Jenfca, 55 Barb. 468; 
 Rose V. Park Bank, 20 Indiana, 94 ; Shuessler v. Watson's Admr'S, 37 Ala. 
 9« ; Campbell v. Nichevls, 33 N. Jers. (Law), 81 ; Wilcox v. Williams, 5 
 Nevada, 206 ; Akers v. Demond, 103 Mass. 318. 
 
* OP THE EFFECT OP FOREIGN LAW. 591 
 
 a certificate of discharge by the law of that state, it was held 
 that such certificate was a bar to an action here, founded upon 
 an implied assumpsit to pay the amount of the bill because the 
 implied contract was made abroad.(5r) So payment of part in 
 iischarge of the whole of a, debt, though ineffectual by the law 
 of England, will nevertheless bar the whole debt even here, if 
 the payment were made in a foreign country, by the law of 
 which it would have that eftect.(A) 
 
 But a discharge by the law of a place where the contract 
 was neither made nor to be performed, is not a discharge in 
 *any other country.(i) Therefore, to an action against r*qQQ-i, 
 the acceptor of an English bill, the discharge of the 
 acceptor under a colonial bankruptcy in Australia is no de- 
 imce.{j) It is otherwise in the case of a Scotch bankruptcy, 
 for that operates under a direct enactment of the Imperial 
 Legislatnr6.(A) 
 
 An I U given for money lent in Germany, to play thereat 
 games of chance, not illegal in Germany, is valid here.(/) 
 
 The following are cases in which the lex loci solutionis has 
 been held to govern. 
 
 A promissory note, or bill of exchange payable to bearer, 
 made and payable in England, is transferable by delivery 
 abroad, although by the law of the country where the delivery 
 takes place, mere delivery is inoperative.(m) 
 
 (g) Potter v. Brown, 5 East, 124 ; 1 Smith, 351, S. C. 
 
 (A) Eiilli V. Dennistoun, 6 Exch. 483. 
 
 (i) Story's Confliet of Laws, s. 342. 
 
 U) Hartley v. Hodges,. 30 L. J., Q. B. 352! 
 
 (4) Smith V. Buchanan, 1 Eas.t, 6 ; Phillips v. Allan, 8 B. & C. 477 (15 E. 
 C. L. R). 
 
 (0 Quiurier v. Colston, 12 L. J., Cha.n. 57 ; 1 Ph. 147, S. C. 
 
 ()«) Dela Chaumelte v. Bank of England, 2 R & Ad. 385 (23 E. C. L. R.) ; 
 9 B. & c. 208 (17 E. C. L. R), S. 0. ; Lebel v. Tucker, L, £i.., a Q. B. 77 
 (43 E. C. L. E.) ; Gorgier v. Mieville, 3 B. & C. 45 (10 E. C. L. R.) ; cited 
 inilillerv. Race, Smith's Leading Cases, Vol. L 483. But see Bradlaugh 
 V. DeEin, L.R., 3 C. F. 538, where, however, it should be observed, that 
 the Cowt was not ananimo-us, and an appeal is still |)ending. Reversed on 
 appeal in the Exchequer Chamber, L. R., 5 C. P. 473 ; 39 L. J. 254, the Court 
 balding the indorsement good, either as an indnrsenient, or as a procuration 
 (to which an iodorsement in blank by the French law is equivalent. See 
 (Jodc, Art. 157 and 133). 
 
592 OF THE EFFECT OF FOREIGN LAW, 
 
 The time of payment is to be calculated accordinof to the law 
 of the country where the bill is made payable.(w) For example, 
 the days of grace. 
 
 The 'notice of dishonour given and received in a foreign 
 country must be regulated by the law of that country. 
 
 It has also been held, that not only the protest but the notice 
 of dishonour transmitted from a foreign country must be re- 
 gulated by the law of the country where the bill is payable.(l) 
 A bill was drawn in England in favour of the defendant, a 
 payee in England, on a house in Paris, accepted in Paris, fay- 
 able there, and indorsed to the plaintiff in England. The bill 
 being dishonoured, by non-payment, notice was giveor to the 
 |-^qQQ-| plaintiff in England, which notice *was good according 
 to the French law, but too late according to the English 
 law. ■ The notice was transmitted the same day 'by the plain- 
 tiff to the defendant. An action was brought in England by 
 the plaintiff, the English indorsee, against the defendant, an 
 English indorser. It was insisted by the defendant that the 
 requisites of the notice, which was received in England, should, 
 as between the indorsee and indorser both domiciled in Eng- 
 land, be regulated by the English law. But the Court of 
 Queen's Eench held, that the bill being payable in France was 
 to be considered, even as between the indorsee and indorser, as 
 a French contract, and that the French law, as to the notice of 
 dishonour transmitted from France to England, must therefore 
 so far prevail.(o)(2) 
 
 (ra) Beawes, 151 ; Marius, 75, 89 to 93, 101 to 103 ; Bayley, 6Hi .ed. 249. 
 See ante, Chapter on Pkesbntment fob Payment. 
 
 (0) Rothschild v. Uarrie, 1 Q. B. 43, doubted in Gibbs v. Fremont, 22 L. 
 J. , Exch. 5 ; 9 Exch. 31, S. C. ; and by SKny, p. 197 ; but recently recog- 
 nized and followed by the Court of Common Pleas in Hirschfield v. Smith, 
 35 L. J., C. P. 177 ; L. B., 1 C. P. 340, S. C. See also Allen v. Kemble, 
 6 Moore, P. C.»C. 314, where it was held that the drawer is liable, according 
 to the law of the country where the bill is drawn. 
 
 (1) The evidence, however, is regulated by the lex fori. The certificate of 
 a foreign notary of demand and notice as to a promissory note, though evi- 
 dence by the law of the place where the note is payable, is not therefore ad- 
 missible evidence elsewhere. Eitland v. Wanzer, 3Dner, 277. 
 
 (2) Ellis v. The Commercial Banlj, 7 Howard (Miss.), 204. 
 
OF THE EFFECT OF FOKBIGN LAW. '593 
 
 ; Where a bill is. made payable at a particular place eitber by 
 the acceptor himself or by the drawer, the law of acceptance 
 prevailing at that place governs the contract of acceptanco.(^) 
 
 But a general acceptance being a contract to pay everywhere, 
 is governed by the law of the place wher6 it is given, for it is 
 jiayable there as well as in every other place.(g')(l) 
 
 A bill was drawn in California, where the rate of interest is 
 twenty-five per cent., ou a drawee at Washington, where the 
 rate ot interest is only six per cent. ; in an English action against 
 the drawer the California rate of interest is recoverable ;(r) but 
 ii] an action against the acceptor the Washington rate of interest 
 would alone be r'ecoverable.(s)(2) 
 
 (p) See the American nutUorilies, Byles on Bills, 5tli American ed. 568. 
 
 (g) Don V. Lipman, 5 CI. & Fin., 1, 13, 13 ; Spiowle v. Legge, 1 B. & C. 
 16 (8 E. C. L. R.) ; 3 D. <S; R. 15 ; 3 Stark. 156, S. C. ; Kearney v. King, 
 2B.&Ald. 801. 
 
 (r) Gibbs V. Fremont, 9 Exch. 31. 
 
 («) See Cooper v. Earl of Waldegrave, 3 Beav. 283 ; Cougan v. Banks, 
 ChiUy on Bills, 683 ; Allen v. Kemble, 6 Moored P. C. C. 314. 
 
 (1) The liability of acceptors of a bill of exchange is to be ascertained by 
 tbe law of the place where the bill is made payable. Frazier v. Warfield, 9 
 Smedes & Marshall, 220. Wliere a bill is made payable generally and accep- 
 ted generally, the place of the address on the face of the' bill is the place of 
 payment ; and the law of that place governs the contract of acceptance, 
 allbough the acceptors reside in a different place. Frazier v. Warfield, 9 
 Smedes & Marshall, 220. Where bills are accepted, payable in London, on a 
 promise to provide funds to meet them, the contract Is governed by the law 
 of England. Bainbridge v. Wilcocks, 1 Baldwin, 536. A letter of credit 
 from persons in New Orleans addressed to one in Cincinnati, agreeing to ac- 
 cept bills of exchange to be drawn by the latter, is governed by the law of 
 Ohio, and not by that of Louisiana. Lonsdale v. Lafayette Bank, 18 Ohio, 
 186. Where the lex loci contractus requires a notice of the non-acceptance 
 of a bill presented before maturity, an omission to notify will not be excused, 
 because, by the law merchant of the place where the bill was presented, notice 
 of non-acceptance is unnecessary. Allen v. Merchants' Bank, 32 Wendell, 
 215, Where a bill is drawn in New York payable in Alabataa, which does 
 not contemplate the payment of interest on its face, and interest accrues only 
 in default of payment at maturity, the rate of interest will be governed by the 
 laws of Alabama. But where a loan is made in New York, and the interest is 
 there paid on it, and a bill is drawn there payable in Alabama, for the amount 
 of the loan, with interest at a rate usurious in Alabama, the law of New York 
 furnishes the criterion by which it is to be determined whether the contract is 
 usurious. Henrich v. Andrews, 9 Porter, 9. 
 
 (S) In an action on a note bearing interest according to the laws of another 
 
 38 
 
594 OF THE EFFECT OF FOREIGN LAW. 
 
 The third rule is, that contracts immoral, or contrary to the 
 law of nations, or injurious to British Public interests, will not 
 be enforced on behalf of a guilty party in our Courts. 
 r*400T *The reason is, that the laws of foreign countries are 
 admitted in our Courts not propria vigore but ex comitate. 
 The judicial power of every country must reserve to itself a 
 discretion as to the laws it will enforce,(<) otherwise it might in 
 some cases be governed by barbarous and pernicious rules. 
 
 The following are instances of the application of the fourth 
 rule, that the English Courts will not regard the revenue laws 
 of other countries.^M) 
 
 Bills or notes drawn or made in a foreign independent state, 
 or at sea (except those payable to bearer on demand), do not re- 
 quire, in order, to be valid in this country ,(a;) a stamp of the 
 country where they are made or drawn.(y) " In the time of 
 Lord Manstield," observes Abbott, C. J.,(2) " it became a maxim, 
 that the Courts of this country will not take notice of the 
 revenue laws of a foreign state. There is no reciprocity between 
 nations in this respect. Foreign states do not take any notice 
 of our Stamp Laws, and why should we be so courteous to 
 them, when they do not gi ve effect to ours ? It would be pro- 
 ductive of prodigious inconvenience if, in every case in which 
 an instrument was executed in a foreign country, we were to 
 receive in evidence what the law of that country was, in order 
 to ascertain whether the instrument was or was not valid."(l) 
 
 (0 See the American authorities, Byles on Bills, 5th American ed. p. 563. 
 
 (m) See Pellecat v. Angell, 2 0., M. & R. 311. 
 
 (a) But as to the new Englisli stamp on foreign bills see the Chapter on 
 The Stamp. » 
 
 iy) Kotch V. Edje, 6 T. E. 425 ; Boucher v. Lawson, Rep. temp. Hartl- 
 wicke, 198 ; Holraan v. Johnson, Cowp. 343 ; Clugas v. Penaluna, 4 T. R. 
 467. 
 
 (z) James v. Catherwood, 3 D. & R. 199 (16 E. C. L. R.) ; Wynne v. Jack- 
 son, 2 Russ. 351 ; but see the. ]iote to Story's Conflict of Laws, 2d ed. p. 341 ; 
 Bristow V. Secqueville, 19 L. J., Ex. 289 ; 5 Exoh. 275, S. C. 
 
 State, if the defendant suffers judgment by default, it is not necessary to im- 
 panel a jury to ascertain the legal rate of interest in that State, but the same 
 may be determined by the Court. Willard v. Conduit, 10 Texas, 213. 
 
 (1) Our courts will not require contracts made in Cuba to be stamped ac- 
 cording to the Cuban laws. Skinner v. Tinker, 34 Barbour, 338. 
 
OP THE EFFECT OF FOREIGN L.AV. 595 
 
 But bills drawn in England and payable abroad are, as we have 
 6een, subject to an English stamp. 
 
 , If the bill or note were made in any part of the British 
 empire, it must have the stamp appropriated by the law of the 
 plaee.(a) , 
 
 By the Stamp Act of 1854, 17 & 18 Vict. c. 83, s. 4 (re- 
 pealed 1870), every bill purporting to be drawn out of the 
 ♦United Kingdom was, for all the purposes of that act, r*4ni-| 
 to be deemed to be a foreign bill. 
 
 And now the 33 & 34 Vict. c. 97, s. 51, contains a similar 
 provision. 
 
 The following are instances of the application to bills of ex- 
 change of the last rule, viz.: — that though the lex loci conti-adus 
 must regulate and interpret the contract, yet that the lex fori 
 must govern the remedy. 
 
 Statutes of Limitation in general effect the remedy only and 
 not the substance of the contract.(6)(l) 
 
 (a) Alves v. Hodgson, 7 T. R. 241 ; Clegg v. Levy, 3 Camp. 166. A local 
 stamp law must be proved by the person who relies on it. Buchanan v. 
 Rucker, 1 Camp. 63 ; Le Cheminant v. Pearson, 4 Taunt. 367 ; Millar v. 
 Heihrick, 4 Camp. 155. 
 
 (J>) Qumre, whether that be so where the statute not merely limits the 
 remedy but actually extinguishes the debt. See Huber v. Steiner, 2 Bing. N. 
 C. 202, 311 (29 E. C. L. R.) ; 2 Scott, 304; 1 Hodges, 206, S. C. ; Don v. 
 Lipman, 5 CI. & Fin. 1, 16, 17 ; Story 2d ed. 840. In such a case it should 
 seem that the statute is equivalent to a release. " 
 
 The rule as to the application of the Statute of Limitations in America has 
 been held to depend on the law of the Stale where a note is made and the 
 length of the residence there (Byles on Bills, 5lh American ed. p. 571) ; but 
 the English rule is doubtless the true one. See Alvarez de la Rosa v. Prieto, 
 ^33 L. J., C. P. 262. 
 
 (1) Hankins v. Barney, 5 Peters, 457 ; McElmoyle v. Cohen, 13 Peters, 
 312; Richards v. Bicliley, 13 Serg. & Rawle, 395; Jones v. Hook, 2 Ran- 
 dolph, 303 ; Lincoln v. Battele, 6 Wendell, 475 ; Williams v. Preston, 3 J. J. 
 Marshall, 600 ; Cartier v. Page, 8 Vermont, 150 ; Chenot v. Lefevre, 3 Qil- 
 nian, 637 ; Estes v. Kyle, 1 Meigs, 34 ; King v. Lane, 7 Missouri, 241 ; Wat- 
 son V. Brewster, 1 Barr, 381 ; Townsend v. Jemison, 9 Howard, U. S. 407. 
 Where a cause of action is barred by the statute of limitations of the State in 
 which the subject-matter is situated, an action cannot be maintained la another 
 
596 OFTHB EFFECT OF FOREIGN LAW. 
 
 Therefore, wliefe, by the law of the country where the cc 
 tract was made the plaintiff would have had forty years 
 bring his action, yet, as he sued in England, it was held, th 
 he miist bring his action within six years.(c) So, on the oth 
 hand, though the payee of a French promissory note must, 
 he had sued in France, have brought his action thete with 
 five yeiars, it was held that he might here bring his action 
 any time within six y'ea,rB.(d) 
 
 So, the power to set off a cross debt depends on the law 
 the country where the remedy is spught.(e) 
 
 So, though a defendant may not be subject to arrest in t: 
 country where the contract is 'made, yet he is subject to arre 
 where the law of this country gives the creditor the right 
 arrest, if the remedy be sought here.(/) 
 
 So, where by the law of the foreign courirry a criminal pros 
 cution must be a preliminary to a civil action, the absen 
 
 (c) British Linen Company v. Drummond, 10 B. & C. 903 (21 E. C. 
 E.). 
 
 (d) Huber y. Sleiner, 3 Bing. N. C. 302 (29 E. C. L. E.) ; 2 Scott, 304; 
 Hodges, 206, S. C. ; Harris y. Quine, L. R., 4 Q. B. 658 (45 E. C. L. E 
 See Don v. Lipman, 5 CI. & Fin. 1, 15, 16. 
 
 («) Byles on Bills, 5th Ameiican ed. p. 573. 
 
 (/) De la Vega v. Vianna, 1 B. & Ad. 284 (30 E. C. L. E.) ; and see Shi 
 V. Harvey, M. & M. 526 (31 E. C. L. E.). 
 
 State. Cargile v. Harrison, 9 B. Monroe, 518. If the maker of a note remt 
 in the State in which it was made until an action upon it in that State is ban 
 by the statute of limitations, that may be pleaded in bar to an action ont 
 note in any other State to which he may remove. Goodman v. Mnnks, 
 Porter, 84. A., who had become a resident of Texas, made a note in Son 
 Carolina on which he was sued in Texas. He pleaded the statute of limii 
 tions of both States. Held, that the plea of the statute of South Carolina w 
 not good, as the claim was not barred at the time of his immigratibu to Texi 
 but that the plea of the statute of Texas was good. Smith v. Crosby, 
 Texas, 414. Assumpsit cannot be maintained in Maryland upon a single I 
 made in Virginia, which according to the laws of Virginia is not a speciall 
 but is according to the laws of Maryland. Trasher v. Everhart, 3 Gill 
 Johns. 334. Uontra : Watson v. Brewster, 1 Barr, 381 ; Dorsey v. Hardest 
 9 Missouri, 157. In an action of assumpsit upon a note, what is matter 
 set-ofiF must be determined by the laws of the State where the action is brougl 
 'and not by the laws of the State where the note is made. Gibbs v. Howai 
 a N. Hamp, 396. 
 
OF THE EFFECT OF FOREIGN LAW. 597 
 
 of such a previous prosecution is no defence to an action 
 \tm.{g) 
 
 *So, again, the fourth section of the Statute of Frauds 
 enacts, tha.fr no action $h(iU be brought on certain agree- ^ -* 
 meiits unless they are in writing. It has heen held that this 
 enactment does not affect the solemnities of the contract but 
 only the rules of procedure. And, therefore, though a parol 
 awtract, within the fourth section of the Statute of Frauds, be 
 made in France, and be valid there, yet that an action on it 
 will not lie in Eugland.(23) 
 
 ■ The protest and notice of dishonour are parcel of the con- 
 Ijract, and not incidents of the remedy for the breach of it. 
 They must, therefore, be regulated by the law of the country 
 where the bill is payabl'e,(5)(l) or where the contract is made, 
 or where the notice is given, and not solely by the law of the 
 country where the reniedy is sought. 
 
 When foreign law is relied dn in pleading, it is proper, first, 
 to state what the foreign law is, and then to allege the facts, 
 bringing the case within that foreign law. (r) 
 
 It will in general he assumed, that the law of a foreign 
 country is the same as the law of this country in respect of 
 negotiable instruments, till the contrary be proved. Therefore^ 
 if a promissory note made in Scotland(s) be sued upon in this 
 country, and there be any difference in the law of the two 
 countries favorable to the defendant, it lies upon the defendant 
 to prove that difference.(0(2) 
 
 (y) Scott V. Lord Seymour, 31 L. J., Excli. 457. 
 
 (p) Leroux v. Browne, 13 C. B. 801 (74 E. C. L. R.). 
 
 (}) Rothschild v. Currie, 1 Q. B. 43 (41 E. C. L. R ). See Rothschild v. 
 Barnes, Q. B. 1843. 
 
 (r) Benham v. Lord Mornington, 3 C. B. 183 (54 B. C. L. R.). 
 
 (») As to the law of Scotland, see 19 & 30 Vict. c. 60. 
 
 (0 Brown v. Gracey, D. & R. N. P. C. 41 (16 E. C. L. R.), n., per 
 Abbott, C. J. ; but see De la Chaumette v. Bank of Eigland, and Gibbs v. 
 Fremont, supra. As to the mode of ascertaining, proving and applying the 
 law of foreign countries, see 34 Vict. c. 11. 
 
 (1) Ellis v. Commercial Bank, 7 Howard, Miss. 394. 
 
 C?), Martin v.. Martin, 1 Smedes & Marsh. 176. "Where a suit was brought 
 
598 
 
 OF THE REMEDY BY ACTION ON A BILL. 
 
 [*403] *CHAPTER -XXXIII. 
 
 OF THE REMEDY BY ACTION ON A BILL. 
 
 WHO MAY SUB ON A BILL, . . 403 
 IN ANOTHEB'B NAME, . . . 404 
 JOINING gOUNT ON CONSIDERA- 
 TION, 404 
 
 AGAINST WHAT PARTIES ACTIONS 
 
 MAT BE BROUGHT, . . . 404 
 
 JUDGMENT AGAINST TWO PAR- 
 TIES, ... . . 404 
 WHERE DEFENDANT IS LIABLE 
 IN TWO CAPACITIES ON THE 
 SAME BILL, .... 404 
 PROCEEDINGS FOR COSTS, . . 404 
 COSTS OF ACTIONS THAT HATE 
 BEEN BROUGHT AGAINST THE 
 PARTY SUING, .... 405 
 TROVER OR DETINUE FOR A BILL, 405 
 
 WHO MAY SUB 405 
 
 AMOUNT OF THE "VERDICT, . 406 
 
 EFFECT OF JUDGMENT IN CHANG- 
 ING PROPERTY, . . . 406 
 RELIEF IN EQUITY, . . . 406 
 ACT FOR THE ABOLITION OF IM- 
 PRISONMENT FOE DEBT, . . 406 
 STATUTE 18 & 19 VICT. C. 67, . 406 
 
 VENUE 408 
 
 INSPECTION OF THE BILL, . . 409 
 
 PARTICULARS OF DEMAND, . . 409 
 
 TENDER 409 
 
 CONSOLIDATING ACTIONS, . . 409 
 STAYING PROCEEDINGS, . . 410 
 IN AN ACTION AGAINST THE AC- 
 CEPTOR, 410 
 
 SUMMARY INTERPOSITION OF THE 
 
 COURT, 410 
 
 SETTING ASIDE FLEAS, . .410 
 
 RE-EXCHANGE 411 
 
 OTHER DAMAGES . . . 413 
 
 ADVANTAGES OF SUING ON THE 
 BILL RATHER THAN ON THE 
 CONSIDERATION, . . . 413 
 
 INTERPOSITION OF EQUITY, . 413 
 
 BILLS OP EXCHANGE CONVEY HO 
 LIEN, . . . , . 418 
 
 WHEN EQUITY WILL RESTRAIN 
 AN ACTION, .... 413 
 
 DISCOVERY IN AID OP ACTION 
 OR DEFENCE, . . . .413 
 
 The holder of the bill at the time of action brought, i. e., the 
 person who is then entitled at law to receive its contents, is the 
 only person who can then sue on it.(«)(l) It is a good defence, 
 
 (a) Einmett v. Tottenham, 8 Ex. 884 ; Gill v. Lord Chesterfleld, lb. ; and 
 see JungWuth v. Way, 25 L. J., Exch. 257 ; 1 H. & N. 71, S. C. 
 
 In Iowa against an indnrser, upon a negotiable promissory note made in Mis- 
 souri and indorsed in Maryland, it was held, in the absence of proof of any 
 statute in the latter States to the contrary, that the indorser was liable upon 
 demand and notice, without suit against the maker, although the statute of 
 Iowa requires such suit against the makers. Bernard v. Barry, 1 Iowa, 388. 
 (1) When a note is payable to bearer or indorsed in blank the action upon 
 it may be maintained by any one lawfully in possession of it. He need not 
 be the owner or have any interest in it, provided he has not obtained it mala 
 fide. Austin v. Blrchard, 31 "Vermont, 589 ; Golder v. Foss, 48 Maine, 3fi4 ; 
 Granite Bank v. Ellis, Ibid. 367 ; Gushee v. Leavitt, 5 California, 160 ; Oi'd 
 
OP THE REMEDY BT ACTION ON A BILL. 599 
 
 that at the time of action commenced the bill was outstanding 
 in the hands of an indorsee. But if such indorsee held the bill 
 . ^ _ 
 
 T. McKee, 5 California, 515; Way v. Richardson, 3 Gray, 413; Petter v. 
 Prout, Ibid. 503 ; EUicott v. Martin, 6 Maryland, 509 ; Agee v. Medlock, 25 
 Alabama, 281 ; Perry v. Leitz, 2 Duvall, 128 ; Wimbeck v. Holt, 28 Texas, 
 673 ; Lum v. Robertson, 5 Wallace (S. C), 277 ; Nicolay v. Fritscble, 40 Mo. 
 67 ; Blown v. Nourse, 55 Maine, 330 ; Savage v. Carter, 64 N. Car. 196 ; 
 Richard v. Betzer, 53 Illinois, 466 ; Zachary v. Gregory, 32 Texas, 452 ; Pat- 
 ten v. Moses, 49 Maine, 355; Harpham v. Haynes, 30 Illinois, 404 ; Dcmutli 
 T. Cutler, 50 Maine, 298 ; Clark v. Titcomb, 42 Barb. ]23 ; Simmons v. Belt, 
 35 Mo. 461 ; Burnap v. Cook, 33 Illinois, 168 ; Cottle v. Cole, 20 Iowa, 481 ; 
 Wliitten V. Hayden, 9 Allen, 408. Wliere a note sued upon is the sepitrate 
 property of the wife, the action may be brought in the name of both husband 
 and wife. Corcoran v. Doll, 32 Cal. 83. Where a note is payable to a person 
 as executor, he may bring an action on it in his own name, without alleging 
 liis representative capacity. Carlelon v. Byington, 17 Iowa, 579. Where 
 notes are made payable to one In his capacity of receiver, and he indorses 
 them "as receiver," such indorsement prima facie transfers the ownership to 
 tlie payee individually, and in the absence of any proof to the contrary, he 
 may mniatain an action on them in his own name. Davis v. Peck, 54 Barb. 
 425. Where a bill comes back to the payee after indoisement by him, he may 
 bring an action in his own name against the drawer. He need not prove sub- 
 sequent indorsements, but may erase them at his pleasure. Canton Associa- 
 tion v. Weber, 34 Maryland, 669. By return of the note to the payee he is 
 ipio facto restored to his original title, and may sue on the note without strik- 
 ing out the indorsements. McLemore v. Hawkins, 46 Mississippi, 715. A 
 suit on negotiable paper, the legal title to which appears to have been in the 
 plaintiffs when the suit was commenced, may be prosecuted by them for the 
 benefit of a subsequent owner, provided the proceedings are in good faith, 
 anii the defendants are thereby deprived of no just defence. Newberry v. 
 Triiwbridge, 13 Mich. 263. The plaintiff must have the legal title when the 
 action is commenced, and continucmsly thereafter. He cannot transfer the 
 note after the action, and then re-purchase and rely on the new title at the 
 trial. Vila v. Weston, 33 Conn. 42. The payee of a note made to him by a 
 wrong name may sue upon it in his right name. Taylor v. Strickland, 1 Ala. 
 Sel. Gas. 571. The addition of the word "cashier" to the name of the payee 
 in commercial paper, imports that the bank of which the person named is 
 cashier, is intended as the payee. No indorsement by such cashier is neces- 
 sary to give the bank title, but it may sue on the instrument as payee. First 
 National Bank v. Hall, 44 New York, 395. Possession of note is in general 
 prima facie ey'iAence of title. Dunham v. Clogs, 30 Md. 284; Case v. Wat- 
 sin, 21 Louis. Ann. 731 ; Lyon v. Ewings, 17 Wise. 61 ; Bellows v. Folsom,4 
 Robertson, 43 ; Coxe v. Brown, 15 Richardson (Law), 262. When a note is 
 in the .possession of one who appears to have previously transferred it, the 
 legal presumption is that it has been regularly returned to him. Price v. 
 Lavender, 38 Ala. 389. After a note has been indorsed by the payee, the sub- 
 sequent possession of it by him with an erasure of tlie indorsemen', rebuts 
 all presumptions that the note was assigned for any other purpose than that of 
 
600 on THE BEMEDY BY ACTION ON A BILL. 
 
 as agent or trastee for tHe plaintiff, the plaintiff may sue, 
 •tkough not in actual possession of the bill,(S) even though 
 
 (J) Stones V. Butt, 3 0; & M. 416 ; 3 Dowl. P. C. 335 ; Dabbs v. Hum- 
 pliries, 10 Bing. 446 (25 B. C. L. R.) ; 1 Scott, 335, S. C. ; 4 Moore & S. 285, 
 S. C. ; Ancona v. Murks, 7 H. & N. 686 ; National Savings Bank t. Tranab, 
 L. R., 3 C. P. 556 ; 86 L. J. 360. 
 
 : J — - 
 
 collection. Caldwell v. Evans, 5 Bush, 380. The possession of an unin- 
 dorsed negotiable note, bill or certificate of deposit, payable to the order of 
 the payee, is not presumptive evidence of title in the holder, without extrinsic 
 evidence of his equitable title or interest. Yastine t. Wilding, 45 Missouri, 
 89. The holder of a promissory note indorsed by himself, is not bound to 
 show a transfer back to him. Merz v. Kaiser, 30 Louis. Ann. 377. The pos- 
 session of a note by a stranger, not indorsed by the payee, and taken when 
 oyer due, is not evidence of ownership. Van Bman v. Stanchfleld, 13 Minn. 
 75. A note to A. B. " secretiify, " &c., of a lodge, may be sued on by him in 
 his own name, if authorized by the lodge, though he has ceased to be secre- 
 tary. Whitcomb v. Smart, 38 Maine, 364. A bank which discounts a bill 
 payable to the order of 'its cashier, may maintain an action in its own name. 
 Barney v. Newcdmb, 9 Cnshinjr, 46. A note was made payable to a bank, 
 but the biink never discounted it, nor had any interest, in it ; it was held that an 
 action on it brought in the name of the bank, but without ils consent could not 
 be maintained. Skowhegan Bank v. Baker, 36 Maine, 154. The donee causa 
 mortis of a note, not indorsed, may mamtain an action thereon in the name of 
 the administrator of the donor, altl'iongh such administrator refuses to author- 
 ize the suit. Bates v. Kempton, 7 Gray, 382. Where a township trustee 
 loans the money of the town, and takes a note therefor payable to himself, 
 the town cannot maintain an action on the note. Bobbins v. Dishon, 19 
 Indiana, 204. Where a negotiable note, indorsed in blank, is transferred by 
 delivery during t;he pending of a suit thereon, so that the legal title to the 
 Dotte vests in the party to whom it is transfeh'ed, the action cannot further be 
 maintained. Curtis v. Bemis, 36 Conn. 1. In an action on notes, evidence 
 tending to show that the plaintiff is not the real person holding the legal in- 
 terest is admissible. Simons v. Waterman, 17 Illinois, 371. No on^ can sue 
 as bearer of a note wliich the payee or his legal representative has not trans- 
 ferred by delivery. Kirkpatrick v. Taylor, 10 Richardson (Law), 393 ; Richard- 
 son V. Gowen, Ibid. 109. An indorsement is not an equitable assignment of 
 all the payee's rights to sue, and the holder has no right to sue the drawer on 
 the original consideration. Battle v. Coil, 19 Barbour, 68. Possession by the 
 payee Is prima facie evidence that he is the owner, althougli there may be on 
 the note a special indorsement of it by him to a third person. Mendenhall v. 
 Banks, 16 Indiana, 384 ; Page v. Lathrop, 30 Missouri, 589 ; Lemon v. Temple, 
 7 Indiana, 550. That possession of a note or bill is prima facie evidence of 
 good title, see further Hunter v. Kibbe, 5 McLean, 379 ; Sealey v. Engell, 17 
 Barbour, 530; Andrews v. Chadbourne, 19 Ibid. 147; Wilson V. Lazier, 11 
 Gratlan, .477 ; Shelton v. Sherfey, 3 Iowa, 108; Kunkelv. Spooner, 9 Mary- 
 land, 463 ; Alcock v. McKain, 13 Louisiana Annual, 614; Bush v. Seaton, 4 
 Indiana, 533 ; Ktlly v. Ford, 4 Iowa, 140 ; McCann v. Lewis, 9 California, 
 
OF THE REMEDY BY ACTION ON A BIIiL. 601 
 
 the agent's authority depend on a ratification after action 
 brought.(c)(l) 
 
 *An' indorser who pays an indorsee has no ri^ht to j-^,f.A-, 
 sue a prior party in the name of the indorsee without ■- 
 his consent, and the Court has allowed the defendant, as well 
 as the indorsee, whose name has been usurped, to raise the ob- 
 jecti:on.(rf) 
 
 Where there is a count on the bill, and a count on the 
 
 («) Ancona v. Marks, ubi supra. 
 
 id) Coleman v. Bredman, 7 C. B. 871 (62 E. C. L. R.) ; but see Doe d. 
 Tine V. Figgins, 3 Taunt. 440. 
 
 246 ; Curtiss v. Martin, 20 Illinois, 517 ; Porter v. Gunnison, 2 Grant's Cases; 
 297. Mere possession without inclorseinent is not prima facie evidence of de- 
 livery by payee. Hosa v. Smith, 19 Texas, 171. Where a bill is indorsed iu 
 full by the payees, suit cannot be maintained on it in their names while the 
 indorsement stands. Southern Bank v. Mechanics' Bank, 27 Georgia, 252. 
 The possession of a note by one of two joint makers, after maturity, does not 
 iltise a presumftion as against his co-maker that the whole note was paid, by 
 himself. Heald v. Davis, 11 Gushing, 318. Possession by plaintiff of a note 
 payable to bearer, or indorsed in blank, is not alone prima facie evidence of 
 the reissue of the note after it has been paid. Hopkins v. Farwell, 33 New 
 Hampshire, 435. Indorsement by the payee of paper in another's hands is 
 presumptive evidence that it has been in circulation. Pilkington v. Woods, 
 10 Indiana, 483. 
 
 (1) After due demand and refusal of payment of a bill and notice thereof 
 to the indorser deposited in the post-olHce, an action may be commenced 
 against the indorser on the same day, although, by regular course of the mails, 
 Ibe notice would not reach him until the nexi day. Flint v. Rogers, 3 Shepl. 
 67. An action may be maintained upon a note against the maker, where the 
 writ is made after sunset on t'le last day of grace, although there is no demand 
 of payment before the writ is made. Butler v. Kimball, 5 Mete. 94. See ac- 
 cordingly, Vandesand v. Chapman, 48 Maine, 3(i2 ; Veazie Bank v. Wenn, 40 
 Maine, 63 ; Veazie Bank v. Paulk, Ibid. 109. Oonti-a.- McFarland v. Pico, 8 
 California, 636. Notice may be given on the third day of grace, and there- 
 after a suit against the indorser may be immediately commenced. Manchester 
 Bank v. Fellows, 8 Foster, 303. To maintain an action brought on the last 
 day of grace against an indorser, it must be shown that proper legal notice was 
 given before the suit was commenced. Manchester Bank v. Fellows, 8 Foster, 
 303. An indorser cannot bring suit against prior parties until he has taken up 
 the bill. Longfellow v. Andrews, 45 Maine, 75. An action may be main- 
 tained on a note payable on demand without proof of a special demand, 
 altliough averred in the declaration. Burnham v. Allen, 1 Gray, 496. 
 
602 01' THE REMEDY BY ACTION ON A BILL. 
 
 considersition, the plaintift' may be entitled to enter his verdict 
 on both counts.(e) 
 
 Wherever, to the holder of a bill, several parties are liable, 
 he is not obliged to single out one only, but may proceed at 
 once in distinct and concurrent actions against them all, or 
 against as many as he may think fit ; but a substantial and not 
 a mere technical satisfaction of the debt by any one will dis- 
 charge all subsequent partie8.( /"/l) 
 
 After a party has once levied the amount of the debt on the 
 
 goods of one party, the Court will grant a rule to restrain him- 
 
 from levying it over again on the goods of another, and have 
 
 intimated that they would punish a plaintifi who should take 
 
 *out execution on both judgnients.( g) 
 
 If a party be liable on a bill in two or more capacities, he 
 may be the object of several actions on the same bill, at the ■ 
 suit of the same plaintifi". Thus, where a party was sued jointly 
 with others, as a drawer, and separately as the acceptor, of a 
 bill, the Court, considering him liable in the two characters, 
 and the plaintiff entitled to both remedies, which could not be 
 comprised in the same declaration, refused to stay the proceed- 
 ings in either, as vexatious.(A) 
 
 Though, after the principal sum due on a bill has been once 
 paid, or levied upon the goods of the party ultimately liable, 
 
 0) Ryder v. Ellis, 8 C. & P. 357 (34 E. C. L."R.). 
 
 (/) He may now eyen join all defendauts in one writ of summons; 18 & 
 19 Vict. c. 67, s. 6. 
 (g) Windliam v. Wither, 1 Stra. 515 ; Ex parte Wildman, 3 Yes. n. 115. 
 (h) Wise V. Prowse, 9 Price, 393. 
 
 (1) Distinct remedies maybe pursued upon a joint and several nute until 
 satisfaction is obtained. Moore v. Ro;{ers, 19 Illinois, 847. On a firm note, 
 in terms promising jointly and severally, the partner who signed the firm 
 names may be sued alone. Snow v. Howard, 35 Barbour, 35. Where two 
 persons are sued on an indorsement of a note made by one with his name, the 
 action is defeated against botli. Corbet v. Evans, 1 Casey, 310. When a bill 
 of excliange is payable to and indorsed by a firm, the indorsee in declaring on 
 it need not set forth the names of the members of the firm. Haviland v. 
 Simons, 4 Richardson, 338.^ 
 
OF THE REMEDY BY ACTION ON A BILL. 603 
 
 the holder cannot recover it a again from any other of the 
 parties, yet if other actions were pending at the time of pay- 
 ment, he may proceed in them for costs, without recovering 
 any part of the principal sum.(i) 
 
 *Indorsers, who have to pay costs of actions against 
 them, cannot sustain an action for those costs against '- •' 
 the acceptor ,(_/) nor, it is conceived, against any other party. 
 
 In common language, a bill accepted or indorsed without 
 any consideration moving to the party making himself liable 
 on the bill, is called an accommodation bill ; but, in 8trictnes8,(A) 
 an accommodation bill is not merely a bill accepted or indorsed 
 without value received by the acceptor or indorser, but a bill 
 accepted or indorsed without value by the acceptor or indorser, 
 to accommodate the drawer, or some other party ; i. e., that the 
 party accommodated may raise money upon it, or otherwise 
 make use of it. This distinction is of importance ; for a party 
 accepting a bill merely without consideration (as if, for ex- 
 ample, he does not know the state of accounts between himself 
 and the drawer), and afterwards sued on that bill, cannot 
 charge the drawer with the costs of defending the action ■,{l) 
 whereas, the acceptor of an accommodation bill, properly so 
 called, who is compelled by an action to pay it, may have a 
 claim upon the drawer for all the expenses of the action.(m)(l) 
 
 (0 Toms V. Powell, 7 Bast, 536 ; 3 Smith, 554 ; 6 Esp 40 S. 0. ; Page v. 
 Wiple, 3 East, 314; Godard v. Ufinjamin, 3 Camp. 33; Holland v. Jonrdine, 
 Holt's N. P. C. 6 (3 E. C. L. R.) ; Goodwin v. Ciemer, 18 Q. B. 757 (83 E. 
 C. L. R.). 
 ■ 0") Dawson v. Morgan, 9 B. & 0. 618 (17 E. C. L. R). 
 
 (k) See ante, p. 138. 
 
 (0 Bagnall v. Andrews, 7 Bing. 317 (30 E. C. L. R ) ; 4 Moo. & P. 839, 
 S. C. SeeTlndal v. Bell, 11 M. & W. 328; Romberg v. Falkland Islands 
 Company, 0. P., T. T. 1864. 
 
 (m) Ex parte Marshall, 1 Atk. 363 ; Jones v. Brooke, 4 Taunt. 464 ; Strat- 
 ton V. Matthews, 18 L. J., Exch. 5 ; 3 Exch. 48, S. C. ; Garrard v. Cottrell, 
 10 Q. B. 679 (.59 E. C. L. R.). 
 
 (1) A person who makes or indorses an accommodation note, for the ac- 
 commodation of a party thereto, is regarded as a surety, and can charge such 
 a party with the costs of a suit for the collection of the note, which he has 
 l!»en compelled to pay. Baker v. Martin, 3 Barb. Sup. Ct. Rep. 634. The maker 
 of a promissory note, not for accommodation, is not liable for costs incurred 
 
604 OF THE REMEDY BY ACTION ON A BILL. 
 
 But an accommodation acceptor has no right to charge the 
 party accomraodated witk the costs of an action, to which the 
 accQijaoiodation acceptor had evidently no defence.(w) 
 
 An action not only lies on a bill, but for a bill. Trover or 
 dptiiiue may be brought. 
 
 Trover will lie at the suit of one who has property in the bill', 
 though no party to it,(o) or at the suit of the payee or acceptor, 
 against a defendant to whom the plaintiff's agent has wrong- 
 fully assigned it, though the defendant has a right of action on 
 the bill against the agent.(p)(l) 
 
 *In an action of trover, where th^re has been a final 
 L J appropriation of the bill, a verdict may be given for the 
 full value ; but if the defendant deliver up the bill, nominal 
 damages may be entered on the record. (j') 
 
 A recovery in an action of trover, and payment of the 
 damages, being the value of the bill, divests the property out of 
 
 (n.) Roach v. Thompson, M. & M. 487 (32 E. C. L. E.) ; Beech v. Joi^es, 
 5 0. B. 696 (57 E. C. L. R-)- 
 
 (o) Treuttel v. Baiandon, 8 Taunt. 100 (4 E. C. L. R.) ; 1 Moore, 543, S. 
 C. 
 
 . (jj) Goggei-ley v. Cuthbert, 3 N. R. 170 ; Evans v. Kymer, 1 B. & Ad. 538 
 (30 E. C. L. R.) ; see Cranch v. White, 1 Bing. N. C. 414 (37 E. 0. L. R) ; 
 1 Scott, 314 ; 6 C. & P. 767 (35 E. Q. L. R,), S, C. See also Symonds v. 
 Atkinson, 35 L. J., Ex. 313 ; 1 H. & N. 146, S. C. 
 
 (?) Ibid. Alsager v. Close, 10 M. & W. 576. As to the interest reco¥ei'a- 
 ble in IroTer, see the Chapter on Intebbst. 
 
 by the payee in defending a suit brought against him by aij iadorsee. Baffa- 
 low V. Pipkin, 8 Jones (Law), 130 ; Penn v. DugdiUe, 31 Missouri, 580. 
 'VThen a note contains a stipulation on the part of the maker that in case suit 
 is brought on the note he will pay ten dollars, attorney's fees, the ten dollars 
 is not due till after suit is instituted, and canuot be included in the judgment. 
 Nickerson v. Baboock, 39 Illinois, 497. 
 
 (1) A note payable to A. or bearer and past due was sent to B. for a par- 
 ticular purpose, and by him in violation of his trust was sold and transferred' 
 to a purchaser, and afterwards was transferred to the defendant who paid 
 value for it. Held, that A. could recover possession of the note from the last 
 holder. Weathered v. Smith, 9 Texas, 633. 
 
OP THE REMEDY BY ACTION ON A BILL. 605 
 
 tbe plaintiff, and vests it in the defendant,(r) as against the 
 plaintiff. And that from the period of the conversion. (s) 
 
 If a plaintiff fail in an action of trover, he may nevertheless 
 apply to a Court of equity to have the bill delivered up.(<) 
 
 A defendant cannot now be arrestedin England in an action 
 in a superior Court, unless the plaintiff' prove by evidence on 
 Oath to the satisfaction of a judge, that he has a good capse of 
 action to the amount of bOL{u) or upwards, and that there is a 
 probable cause for believing that the defendant is about to quit 
 England, and that his absence will materially prejudice the 
 plaintiff in the prosecution of his action.(z)) 
 
 A more speedy mode of proceeding upon bills of exchange 
 atid promissory notes than in an ordinary action has been given 
 by the 18 & 19 Vict. c. 61.{x) This statute enacts that all 
 actions upon bills of exchange or promissory notes (y) com- 
 menced within six months(2:) after the same shall have 
 *become due and payable, may be prosecuted by writ '- J 
 of summons in the special form contained in the schedule to 
 the act and indorsed as therein mentioned ;(a) and it shall be 
 
 (*•) See Holmes v. "Wilson, 10 Ad. & E. 511 (37 E. C. L. R.) ; Cooper v. 
 Willomatt, 1 C. B. 672 (50 B. C. L. R). 
 
 («) Cooper V. Sheplierd, 3 C. B. 266 (54 E. O.'L. R.). 
 
 (0 Lisle V. Liddle, 3 Austr. 649. 
 
 (n) Foimerly 201. 1 & 2 yict. c. 110, s. 3. 
 
 (s) 82 & 38 Vict. c. 62, s. 6. This section does not extend beyond final 
 judgment. Hume v. Druiff, L. B., 8 Ex. 314. Sects. 4 and 5 abolish all im- 
 prisonment for non-payment of money, except in certain specified cases. As 
 to process, see Reg. Gen. M. T. 1869. 
 
 (a) This useful act was introduced by Mr. Justice Keating. For the gen- 
 eral rules relating to this act, see Reg. Gen. M. T. 1855, 17 C. B. 1 (84 E. C. 
 L. E.). 
 
 (.y) Promissory notes are within the act; and, on a note payable on de- 
 mand, the six months run from the date. Maltby v. Murrells, 29 L. J., Exch. 
 377; 5H. &N. 813; S. C. 
 
 (z) The defendant, by acquiescence, may be prevented from objecting that 
 the writ was not issued within the six months ; Maltby v. Murrells, 5 H. & 
 N. 813 ; or the writ may be amended and made a specially indorsed writ 
 under the Common Law Procedure Act. Leigh v. Baker, 3 C. B., N. S. 367 
 (89 E. 0. L. R.). 
 
 (a) See Regula Generalis, Mich. 1855, Appendix ; Hall Y. Coates, 35 L. J., 
 
606 OF THE REMEDY BY ACTION ON A BILL. 
 
 lawful for the plaintiff, on filing an affidavit ftf personal service 
 of such writ within the jurisdiction of the Court, or an order 
 for leave to proceed as provided by the Common Law Pro- 
 cedure Act, 1852, and a copy of the writ of summons and in- 
 dorFement thereon, in case the defendant shall not have 
 obtained leave to appear, and have appeared to such writ ac- 
 cording to the exigency thereof, at once to sign final judgment 
 in. the form contained in the schedule to the act annexed (on 
 which judgment no proceeding in error shall lie) for any sum 
 not exceeding the sura indorsed on the writ, together with in- 
 terest at the rate specified (if any) to the date of the judgment, 
 and a sum for costs to be fixed by the Masters of the superior 
 Courts, or any three of them, subject to the approval of the 
 Judges thereof, or any eight of them (of which the Lord Chief 
 Justices and the Lord Chief Baron shall be three), unless the 
 plaintiff claim more than such fixed sum, in which case the 
 costs shall be taxed in the ordinary way, and the plaintiff' may 
 upon such judgment issue execution forthwith. 
 
 A Judge shaU,(6) upon application within the period of twelve 
 days from such service, give leave to appear to such writ, and 
 to defend the action, on the defendant paying into Court 
 the sum indorsed on the writ, or upon affidavits satisfactory to 
 the Judge, which disclose any legal or equitable defence, 
 whether meritorious or uot,(c) or such facts as would make it 
 incumbent on the holder to prove consideration, or such other 
 facts as the Judge may deem sufficient to support the applica- 
 tion, and on such terms as to. security or otherwise as to the 
 Judge may seem fit. 
 
 After judgment, the Court or a Judge may, under special 
 circumstances, set aside the judgment, and, if necessary, stay 
 or set aside execution, and may give leave to appear to the 
 wnt,{d) and to defend the action, if it shall appear to be 
 
 Exch. 3 ; 11 Exch. 476, S. C. ; Robinson v. Cotterell, 11 Exch. 476. The 
 omission of tlie name of the maker is an irregularity ; but the Court, on a 
 motion to set aside the writ, will allow it to be amended. Enigbt v. PococIj, 
 17 C. B. 177 (84 E. C. L. R.) ; 35 L. J , C. P. 31, S. C. 
 (J) Sect. 3. 
 
 (c) Casella v. Darton, L. R., 8 C. P. 101. 
 
 (d) The Court will not set aside the order for leave to appear on mere con- 
 tradictory affidavits. Febart v. Stevens, 30 L. J., Exch. 1. 
 
OF THE REMEDY BY ACTION ON A BILL. 607 
 
 Reasonable to the Court or Judge so to do, and on such 
 
 terms as to the Court or Judge may seem just.(e) L J 
 
 In any proceedings under the act it is competent to the 
 Court or a Judge, to order the bill or note sought to be pro- 
 ceeded upon to be forthwith deposited with an officer of the 
 Court, and further, to order that all proceedings shall be stayed 
 until the plaintiff shall have given security for the costs 
 thereof.(/') 
 
 The expenses of noting for non-acceptan.ce or non-payment 
 may be recovered where they are by law recoverable.(p') 
 
 One writ of summons may be issued against all or any num- 
 ber of the parties to the bill or note, which shall be the com- 
 mencement of an action against the parties named therein, 
 and all subsequent proceedings shall be in like manner, so far 
 as may be, as if separate writs of summons had been issued. (A) 
 
 A cheok on a banker is within the act.(i) So is a note paya- 
 ble on demand, and the six months run from the date of the 
 x\ote.{k) A count ou the consideration of the bill may be in- 
 cluded in the declaration. (i) 
 
 Notwithstanding this act, the provisions of the County Co^rt 
 ' Acts are applicable to bills of exchange.(m) 
 
 The plaintiff, may lay the venue in any county, and the 
 Court will not change it at the instance of the defendant, ex- 
 
 (e) Sect. 3. As to the jurisdiction, of the Conrt, see Mather v. Marsland, 
 27 L. J., Exch. 148 ; Clay v. Turley, 37 L. J. Exch. 2 ; Febait v. Stevens, SO 
 L. J., Bxcli. 1 ; Pollock v. Turnock, 1 H. & N. 741. Qiimre, whether an ex- 
 ecutor can be made a defendant cinder this Act. Per Knight Bruce, L. J., 
 Marriage v. Skiggs, 5 Jur., N. S. 325 ; 38 L. J., Ch, 433, S. C. ; and Leigh v. 
 Baker (Executrix), 3 C. B., N. S. 307 (89 E. C. L. E.). But it is no objec- 
 tion that the holder is an executor. 
 
 (/) Sect. 4. 
 
 (g) Sect. 5. 
 
 (A) Sect. 6. 
 
 (4) Eyre y. Waller, 29 L. J., Exch. 240 ; 5 H. & N. 813, S. C. ; Keens v. 
 Beard, 8 W, R. 469, C. P. 
 
 {k) Maltby v. Murrells, 29 L. J., Exch. 377 ; 5 H. & N. 813, S. C. 
 
 (0 R. G. H. T. 1858. > 
 
 (m) 19 & 20 Vict. c. 108, s. 4. See Harris v;' Swinburne, 33 L. J., Q. B. 
 313; Holborow V. Jones, L. R., 4 C. P. 14 ; 38 L. J. 22, S. C. 
 
OF THE BEMEDT BT ACTION ON A BILL. 
 
 cep.t upon very special grounds.(n) This rule applies to actions 
 on Specialties, bills and notes, and not to actions on other 
 written contracts.(o) A banker's check is a bill of exchange 
 within the rule.(p) 
 
 r*40Q1 *Wherie a special ground is laid for inspection, the 
 ' Cburts at common law will oblige the plaintiff to allow 
 
 the defendant to inspect the bill or note on which the action is 
 brought.(g') 
 
 It has been held, that where particulars of the plaintiff's de- 
 mand are given, and they do not state the consideration paid 
 for the instrument, such particulars will preclude the plaintiff 
 from giving the considersation in evidence, should he fail on 
 the special count.(r) 
 
 The plaintiff" may recover on a bill set out in the declaration, 
 though not mentioned in the particu!ars,(s) unless tjae form of 
 the particulars preclude him. 
 
 Particulars, which state the amount of the common counts 
 to be an amount secured by a promissory note,, on which note 
 there is a special count, make it necessary to prove the note, in 
 order to recover on the common counts.(<) Particulars are 
 not evidence, they are only an explanation of the declaration 
 or plea.(M) 
 
 An indorsement on the writ of summons is now in general 
 substituted for general particulars. 
 
 A tender, after the bill became due, is no defence by the ac- 
 
 (n) Tidd's Practice, 604. 
 
 (o) Monde! v. Steele, 8 M. & W. 640. 
 
 (p) Webb V. Inwards, 17 L. J., C. P. 157; 5 C. B. 483 (57 E. C. L. R.), S. 
 C. 
 
 (?) Threlfall v. Webster, 1 Bing. 161 (8 E. C. L. R.) ; 7 Moo. 559, S. C. ; 
 Tidd, 691 ; Blogg v. Kent, 6 Bing. 614 (19 E. C. L. R.) ; 4 Moo. & P. 433, 
 S. C. See the Chapter on Forgeky ; and Thomas v. Dunn, 6 M. & G. 374 
 (46 E. C. L. R.) ; and the provisionsof the act relating to the inspection of 
 documents, 14 & 15 Vict. c. 99. 
 
 (r) Wade v. Beasley, 4 Esp. 7. 
 
 (s) Cooper v. Amos, 3 Car. & P. 267 (12 B. C. L. R.). 
 
 (0 Roberts v. Elsworth, 10 M. & W. 653. 
 
 (m) Burkett v. Blanchard, 3 Exch. 89. 
 
OF THE REMEDY BY ACTION ON A BILL. 609 
 
 eeptor (x) But a drawer or indorser may perhaps tender within 
 afeasonable time after dishonour.(2/) 
 
 A tender should be unconditional ; the party making it can- 
 not require a receipt as a condition precedent, without invali- 
 dating the tender. But if the tender be objected to by the 
 creditor on other grounds, the requisition of a receipt becomes 
 immaterial.(2) 
 
 The Courts will sometimes consolidate actions on bills where 
 the parties and the question to be tried in each action are the 
 
 same.(a) 
 
 I 
 *If the holder bring concurrent actions against the p^ . -. /^-|. 
 
 acceptor, the drawer and the indorsers, the Court will 
 
 stay the proceedings in any one of those actions, on payment of 
 
 the amount of the bill, and of the costs in that particular action. 
 
 But they would not, until recently, have stayed proceedings 
 in an action against the acceptor, except upon the terms of his 
 paying the costs in all the other actions, he being the original 
 defaulter.(n) For, though no action lies against the acceptor 
 for these co8ts,(o) yet when he came to ask a favour, as a stay 
 of proceedings, the Court might with propriety have put him 
 under terms. IJTow, however, by a late rule of all the Courts, 
 it is ordered that in any action against the acceptor of a bill or 
 maker of a note, the defendant may stay proceedings, on pay- 
 ment of debt and costs in that action only.(^) 
 
 If the bill or note were obtained by the plaintiff from the de- 
 fendant without consideration, on an affidavit to that effect by 
 
 («) Hume V. Peploe, 8 East, 168 ; Dobie v. Larkin, 10 Exch. 776. 
 
 Q/) Walker V. Barnes, 5 Taunt. 240 (E. C. L. !{.); 1 Marsh. 36, S. C. 
 See ante. But see Siggers v. Lewis, 1 0., M. & R. 370 ; 3 Dowl. 681, S. C. 
 
 (2) Cole V. Blake, Peake, N. P. C. 179 ; Richardson v. Jackson, 8 M. & 
 W., 298. 
 
 (a) Booth V. Payne, 11 L. J., Exch. 3.'i6 ; and see Sharpe v. Lethbridge, 4 
 M.& Or. 37(43 E. C. L. R.). 
 
 (n) Smith v.- "Woodcock, 4 Tr. 691 ; Windham v. Wither, 1 Str. 515 ; Gold- 
 tag T. Grace, 2 W. Bl. 749. See Lewis v. Dalrymple, 3 Dowl. P. C. 433. 
 
 (o) Dawson v. Morgan, 9 B. & 0. 618 (17 E. C. L. R.). 
 
 (p) R. T. T. 1 Vict, and Hil. T. 16 Vict. ; and see Cornes v. Taylor, 10 
 Exch. 441. 
 
 39 
 
610 OF THE REMEDY BY ACTION ON A BILL. 
 
 the defendant, the Court will stay the proceedings ; hut where 
 there are contradictory affidavits, the Court will not interfere 
 in this summary way, but put the defendant to insist on it as a 
 defence on the trial. (g-) "Where an indorsement was made on a 
 promissory note by the plaintiff, the payee, that if the interest 
 were paid on stipulated da'ys during her life the note should be 
 given up, the Court refused to stay proceedings on payment of 
 interest and costs.(r) 
 
 A plea clearly frivolous on the face of it, or tricky and falfee, 
 or so framed as to prejudice, embarrass or delay the fair trial of 
 the action, will be set aside.(s) 
 
 "We have already seen that, unless ioterest be payable by the 
 express words of the instrument, it is in the discretion of the 
 jury to give or withhold it, or to reduce it below 5 per cent., 
 r*4.in *^'^^^b is t}^6 usual rate given. So where the interest 
 on a foreign bill is governed by the law of a foreign 
 country in which the rate of interest is high, the jury may give 
 a much higher rate.(<) 
 
 Ee-exchange is the difference in the value of a bill, occasioned 
 by its being dishonoured in a foreign country in which it was 
 payable. The existence and amount of it depend on the rate 
 of exchange between the two countries. The theory of the 
 transaction is this: A merchant in London indorses a bill fora 
 certain number of Austrian florins, payable at a future date in 
 Vienna. The holder is entitled to receive in Vienna, on the 
 day of the maturity of the bill a certain number of Austrian 
 florins. Suppose the bill to be dishonoured. The holder is 
 now, by the custom of merchants, entitled to immediate and 
 specific redress, by his own act, in this way. He is entitled, 
 being in Vienna, then and there to raise the exact number of 
 
 (g) Turner v. Taylor, Tidd's Pr. 9th ed. 530. 
 
 (r) Steel v. Bradfleld, 4 Taunt. 227. 
 
 (s) Horner r. Keppel, 10 Ad. & E. 17 (37 E. C. L. E.) ; 3 P. & D. 234, S. 
 C. ; Mitford v. Pinden, 8 M. & W. 511 ; Knowles v. Burward, 10 A. & E. 19 
 (37 E. C. L. R.) ; 2 Per. & Dav. 235, S. C. See the provisions of the Com- 
 mon Law Procedure Act, 15 & 16 Vict. c. 76, s. 52. 
 
 (0 See ante, p. 399. 
 
OF THE KEMEDT BY ACTION ON A BILL. 611 
 
 j\ustriaii florins, by drawing and negotiating a cross bill pay- 
 able at sight, on his indorser in London, for as much English 
 money as will purchase in Vienna the exact number of Austrian 
 florins, at the rate of exchange on the day of dishonour; and 
 to include in the amount of that bill the interest and necessary 
 expenses of the transaction. This cross bill is called in French 
 the retraite. The amount for which it is drawn is called in low 
 Latin nmm6iM/«, in Italian rjcamfe'o, and in French and English 
 re-exchange. If the indorser pay the cross or re-exchange bill, 
 he has fulfilled his engagement of indemnity. If not, the 
 holder of the original bill may sue him on it, and will be en- 
 titled to recover in that action the amount of the retraite or 
 cross bill, with the interest and expenses thereon. The amount 
 of the verdict will thus be an exact indemnity for the non-pay- 
 ment of the Austrian florins in Vienna on the day of the ma- 
 turity of the original bill. 
 
 According to English practice, the retraite or re-exchange bill 
 is now seldom drawn, but the right of the holder to draw it is 
 settled by the law merchant ot all nations, and it is only by a 
 reference to this supposed bill that the re-exehange, in other 
 words, the true damages in an action on the original bill, can be 
 scientifically understood and computed. 
 
 It is plain that whether the indorser gain or lose by the re- 
 exchange, depends (except in so far as relates to the expenses) 
 on the rate of exchange between the two countries. If the 
 value of the Austrian florin, measured in pounds sterling, has 
 ^sen, the holder will be entitled to recover *niore than r*4i9-] 
 the original amount of the bill in English money.(M) 
 But if the value of the Austrian florin has declined, then the 
 indorser may not be liable to repay as much English money as 
 the bill was originally drawn for, unless the interest and ex- 
 penses cover or exceed the difl[erenee.(a;) 
 
 A custom among London merchants that the holder may at 
 his election sue bis indorser, either for the sum which the in- 
 dorser received of him for the bill, or for the re-exchange is in- 
 consistent -with the obligation appearing on the bill when 
 
 (m) De Taatet v. Baring, 11 East, 265 ; 3 Camp. 65, S. C. 
 (») Suse V. Pompe, 30 L. J., C. P. 75 ; 8 C. B., N. S. 538 (98 E. C. L. E.),. 
 S. C. 
 
612 PF THE REMEDY BY ACTION ON A BILL. 
 
 interpreted .by the law merchant, and therefore evidence of 
 such a custom is inadmi8sible.(2/) 
 
 The drawer of a bill is liable to the re-exchange, though the 
 bill be returned through never so many hande.(2:) But the ac- 
 ceptor is not liable to the re-exchaiige.(a)(l) 
 
 Other damages not necessarily arising from the dishonour, as 
 noting, postages, telegraphing, &c., are not recoverable unless 
 specially stated in the declaration.(6) But it has been held that 
 postage is in some cases recoverable under the count for money 
 paid.(c) 
 
 When a bill, is dishonoured, the owner has his option to sue 
 on the bill, or on the consideration. It is advisable to sue on 
 the bill; first, because it reduces the debt to a certainty; 
 secondly, because less evidence is necessary ; thirdly, in an ac- 
 
 W Ibid. • 
 
 (g) Hellish V. Simeon, 3 H. Bl. 378. 
 
 (a) Napier v. Schneider, 12 East, 420 ; Woolsey t. Crawford, 3 Camp. 445. 
 
 (i) Kendrick v. Lomax, 2 C. & J. 405 ; 3 Tyr. 438, S. C. In which case it 
 was held, that the bill having been renewed, the plaintiff could not recover 
 the charges on the first bill while the second bill suspended the remedy on it. 
 It seems doubtful whetheuthe expense of noting an inland bill, not protested, 
 can at common law in any case be recovered. Ibid. But see the Bills of Ex- 
 change Act, 18 & 19 Vict. c. 67, s. 5. See also Rogers v. Hunt, 10 Exch. 
 474;.Prehn v. Liverpool Bank, L. R., 5 Ex. 92; 39 L. J. 41. 
 
 (c) Dickinson v. Hatfield, 1 M. & Rob. 141 ; 5 Car. & P. 46 (24 E. C. L. 
 B.). The defendant in this case directed the plaintiff to charge him with it. 
 See the Chapter on Pkotest. As to nominal damages, see Beaumont v. 
 Greathead, 3 C. B. 495 (52 E. C. L. R.). 
 
 (1) When a bill is expressed in a foreign currency, the amount due is to be 
 determined by the rate of exchange at the time of the demand of payment. 
 In the absence of such evidence, the value fixed by the Act of Congress of 
 37 July, 1853, is conclusive. Butt v. Hoge, 3 Hilton, 81. When a note is 
 made payable at a particular placaand is dishonored there, so that the holder 
 is obliged to seek payment elsewhere, he is entitled to the difference of ex- 
 change if there be any. Wood v. Kelso, 3 Casey, 341. Exchange between 
 the place of payment and the place where the recovery is had, cannot be re- 
 covered without a special agreement. Chumasero v. Gilbert, 24 Illinois, 651. 
 The acceptor of a bill of exchange is not in general liable for damages. 
 .Manning v. Kohn, 44 Ala. 843. In an action against the indorser of a pro- 
 tested bill, the holder will be entitled to damages. Orono Bank v. Wood, 49 
 Maine, 36. 
 
OF THE REMEDY BY ACTION ON A BILL. 613 
 
 tion on the bill, proof of payment of the bill lies on the de- 
 fendant ; but in an action on the consideration only, if defendant 
 show that the bill was given, plaintiff must prove that the bill 
 was not ^'a\d.{d) 
 
 *0f course it is best, where possible to join a count r^^iq-i 
 on the bill with a count on the consideration •,(e) and the 
 plaintiff rflay take a verdict on both counts.(/) 
 
 It would be foreign to the object of this little work to dis- 
 cuss, at length, the jurisdiction and proceedings of Courts of 
 equity in relation to actions on bills. The following general 
 observations may nevertheless be made. 
 
 A bill of exchange though specifically drawn against a cargo 
 does not even in equity, if unaccompanied by the bill of lading, 
 convey any lien or claim over the cafgo.(^) 
 
 A Court of equity, where the rules of judicial equity require, 
 will restrain an action on a bill, or restrain the defendant in an 
 action from availing himself of a legal defence.(A) 
 
 And where the defendant in an action would, if judgment 
 were obtained, be entitled to relief against such judgment on 
 equitable grounds, he may now plead the facts which entitle 
 Mm to such relief by way of defence.(i) Such a ple'a is only 
 allowed where final justice can be done by the Court of law in 
 the pending suit.(A) And a defendant having pleaded it, is not 
 precluded from afterwards resorting to a Court of equity.(i) 
 
 (d) Hebden v. Hartsink, 4 Bsp. 46 ; Bishop v. Rowe, 3 M. & Sel. 363. 
 
 («) A count on the consideration may still be joined, R. H. T. 1858. And 
 a count on an account stated in all cases. 
 
 (/) Vide ante. 
 
 (?) Robey v. Oilier. L. R., 7 Ch. App. 695. 
 
 (h) See Queen of Portugal v. Glynn, 1 West, 358 ; Glynn v. Scares, M. 
 &K. 450; Hodgson v. Mhrray, 3 Sim. 515; Hood v. Ashton, 1 Russ. 412; 
 Kidson v. Dilworth, 5 Price, 564 ; Druiff v. Lord Parker, 87 L. J., Chan. 
 241 ; Prothero v. Phelps, 35 L. J., Chan. 105 ; Agra and Mastermau's Bank 
 V. Bo'ffman, 34 L. J., Chan. 385. 
 
 (0 17 & 18 Vict. c. 135, s. 84. 
 
 (*) Wodehouse v. Farebrother, 35 L. J., Q. B. 18 ; 5 B. & B. 377 (85 E. 
 C. L. R.), S. C. ; Wood v. Copper Miners' Company, 17 C. B. 561 (84 E. C. 
 L- R.) ;. Clarke v. Laurie, 36 L. J., Exch. 38 ; Drain v. Harvey, 17 C. B. 
 257 (84 E. C. L. R.) ; but see Chilton v. Carrington, 34 L. J., C. P. 153. 
 
 (0 Evans v. Bremridge, 3 Jur., New Series, 134 ; 35 L. J., Chan. 334, S. 
 
614 OF THE REMEDY BY ACTION ON A BILL. 
 
 A plaintiff may, whiere it is necessary, file a bill of discovery 
 in aid of an action on a bill, or of an action relating to the pro- 
 ceeds of bills.(m) But now this will seldom, if ever be neees- 
 r*4141 ^^^y^ ^^ ^° ^^^ causes in any of the superior *Courts a 
 plaintiff may interrogate the defendant on oath, upon 
 any matter as to which discovery may be sought. (w) 
 
 If the defendant in equity be interrogated as to the considera- 
 tion for the bill, he must answer not only as to the consideration 
 given by himself, but as to that given by other parties to his 
 knowledge.(o) No bill can be filed for discovery, if it charge 
 the defendant with a crime, (jo) 
 
 But the former Gaming Act, 9 Anne, c. 14, s. S,(g) and the 
 Stock Jobbing Act, 7 Geo. 2, e. 8, s. 2,(r) deprived defendants 
 of this protection in matters to which those Acts relate.(s) 
 
 C. ; Prothero v. Phelps, 25 L. J., Chan. 105, But see Terrell v. Higgs, 36 
 L. J., Ch. 837. 
 
 (m) See Thomas v. Taylor, 3 Y. & C. 355 ; Wilkinson v. Leaugier, 3 You. 
 & C. 366 ; or of a defeuce'to an action. ■ 
 
 (n) 17 & 18 Vict. c. 135, s. 51. See Whateley v. Crowter, 5 E. & B. 709 
 (85 E. C. L. R.). 
 
 (o) Glengall v. Edwards, 2 You. & Col. 135 ; and see Culverhouse v. Alex- 
 ander, 3 You. & Col. 318. 
 
 (p) Fleming v. St. John, 3 Sim. 181 ; Whitmore v. Francis, 8 Price, 616 ; 
 2 Sim. 183. But it has been held by the Court of Common Pleas that ques- 
 tions tendiilg to criminate may be put, though they need not be answered. 
 E. T. 1862, sed gumre. 
 
 (g) Now repealed by 8 & 9 Vict. c. 109. 
 
 ()■) Made perpetual by 10 Geo. 3, c. 8 ; but repealed by 33 & 24 Vict. c. 28. 
 
 (s) See WilUinson v. Leaugier, 3 You. & Col. 366 ; Bullock v. Richardson, 
 14 Vesvy, 878 ; Rawlings v. Hall, 1 C. & P. 11 (12 E. C. L. R.) ; Thomas v! 
 Newton, 3 C. & P. 606 (13 E. C. L. R.). 
 
PLEADING AND EVIDENCE. 
 
 615 
 
 *OHAPTER XXXIV, 
 
 PLEADING AND EVIDENCE. 
 
 [*415] 
 
 DECLARATION, .... 415 
 STATEMENT OF THE PARTIES, . 4t5 
 DE9CKIPTI0N OF THE INSTRU- 
 MENT, 416 
 
 OF NOTICE OF DISHONOUR, &C.,. 417 
 MATURITY OP THE INSTRUMENT, 418 
 BREACH AND DAMAGES, . .419 
 
 PLEAS 419 
 
 ROLES OP COURT, . . . 419 
 
 TRAVERSES OP ACCEPTANCE AND 
 
 INDORSEMENT 420 
 
 ABSENCE OP CONSIDERATION, . 431 
 PLAINTIFF NOT HOLDER, . . 422 
 
 FRAUD, 423 
 
 PAYMENT AND SATISFACTION, . 433 
 STATUTABLE JURISDICTION, . 434 
 
 EVIDENCE, 
 
 RIGHT TO BEGIN, 
 
 COMPETENCY OF WITNESSES, 
 
 PARTIES' DECLARATIONS, . 
 
 PEOOP OF SIGNATURE, 
 
 PRODUCTION OP BILL, 
 
 BILLS AND NOTES, HOW PAR 
 EVIDENCE UNDER COMMON 
 COUNTS, 
 
 CHEQUES, 
 
 PROOFS IN VARIOUS iiACTIONS, . 
 
 RECEIPT, 
 
 STATEMENTS BY DECEASED PER- 
 SONS, 
 
 AMENDMENT, . . . . 
 
 424 
 
 434 
 435 
 435 
 436 
 437 
 
 438 
 439 
 439 
 430 
 
 431 
 431 
 
 The Common Law procedure Acts, 1852 and 1854, intro- 
 duced great and numerous changes in pleading, and the new- 
 Act of 1873 will introduce others hardly less important; but 
 as the latter act does not come into operation till Michaelmas 
 Term, 1874, it has been thought necessary to retain the de- 
 cisions relating to the law as it at present stands. 
 
 The declaration in an action on a bill or note was formerly 
 either in debt or assumpsit, but the distinction has been practi- 
 cally abolished by the Procedure Act, 1852. 
 
 In an action against the acceptor in a bill drawn by a firm, 
 it is a sufficient description of the drawers to say, that certain 
 persons under the name, style, and firm of A. &Co. made their 
 bill of exchange.(a) A declaration stating that *A. B. 
 drew a bill, requiring the defendant to pay to the 
 
 [*416] 
 
 (a) Tigar v. Gordon, 9 M. & W. 347. It has been held insufficient to de- 
 scribe the drawers as certain persons using the name, &c. Ball v. Gordon, 9 
 M. & W. 345. Sed qumre, and see Smith v. Ball, 9 Q. B. 361 (36 E. C. L. 
 R.) ; Bass v. Olive, 4 Camp. 78 ; 4 M. & S. 13 ; Schulz v. Astley, 7 C. & P. 
 99 (33 B. C, L. R.) ; 3 Bing. N. C. 544 (39 E. C. L. R.) ; 3 Scott, 815. And 
 ieepoat, Amendments. 
 
616 PLBADINU AND EVIDENCE. 
 
 drawer's order, without again naming him, is good,(J) or to his 
 order, the word his referring to the drawer.(c) 
 
 In all actions on bills or notes, where any of the parties are 
 designated on the instrument by, the initial letter, or some con- 
 traction of the Christian name, it is sufficient so to describe 
 them in the process and dec]aration.(«!) 
 
 In a declaration by the public officer of a banking co-part- 
 nership, established under the 7 Geo. 4, c. 46, it is sufficient to 
 describe the plaintift as a public officer duly appointed.(e) 
 
 The instrument may be described, either by setting it out in 
 hoEC verha,{ f) or by stating its legal effect.(l) If it be drawn in 
 
 (J) Knill V. Stockdale, 6 M. & W. 478. 
 
 (c) Spyer v. Thelwell, 3 C. M. & R. 693 ; 4 Dowl. 509. 
 
 {d) 3 & 4 Will. 4, c. 43, s. 13. But it must have sippeared on the count that 
 they are so described in the instrument itself; Levy v. Webb, 9 Q. B. 437, 
 443 (30 E. C. L. R.) ; Gatty v. Field, Ibid. ; Esdaile v. M'Lean, 15 M. & W. 
 377; or the declaration was specially demurrable ; Miller v. Hay, 3 Exch. 14 ; 
 Turner v. Fitt, 3 C. B. 701 (54 B. C. L. R.) ; unless the full Christian name 
 could not be discovered ; Lomax v. Landells, 6 0. B. 583 (60 B. C. L. R.). 
 But special demurrers being abolished by the C. L. P. Act, 1853, it is no longeT 
 necessary. 
 
 («; Spiller v. Johnson, 6 M. & W. 570 ; Christie v. Peart, 7 M. & W. 491. 
 
 (/) Except in cases where tliat would mislead, as where a bill is drawn 
 payable in a foreign currency of the English denomination, but of a different 
 value. Kearney v. King, 3 B. & Aid. 301 ; Spvowle v. Legge, 1 B. & C. 16 
 (8 E. C. L. R.) ; 3 D. & Ry. 15, S. C. ; see Taylor v. Booth, 1 C. & P. 386 i 
 (12 E. C. L. R.) ; Harrington v. M'Morris,. 5 Taunt. 338 (1 B. C. L. R.); 1 
 Marsh. 33, S. C. ; Simmonds v. Parminter, 1 Wils. 185 ; 4 Br'o. P. C. 604 ; 
 Stevenson v. Oliver, 8 M. & W. 234. 
 
 (1) A note may be declared on according to its legal effect. Thus, in an 
 action by the payee, it is not necessary to set out that it was drawn to order 
 or bearer. Matlack v. Paufoy, 18 Arkansas, 492. It is no variance to declare 
 on a joint and several note as a joint note. Pogue v. Clark, 35 Illinois, 838. 
 A declaration against one of several makers of a joint and several promissory 
 note, need not aver that the other makers executed the note. Morgan v. Law- 
 renceburgh Ins. Co., 8 Indiana, 385. The holder of an accommodation note, 
 payable to the order of a third person, but not indorsed by him, may, if he 
 has advanced money on it, declare on it as made to himself or as payable to 
 bearer. Hunt v. Aldrich, 7 Foster, 31. 
 
 As to form and requisites of declaration on a note or bill, see Black well v. 
 Reid, 41 Miss. 103 ; Hardin v. Pilan, Ibid. 113 ; Streeter v. Streeter, 43 Illinois, 
 155 ; Montague v. Church School District, 34 X Jers. (Law), 318 ; Archer v. 
 Claflin, 81 Illinois, 806. . 
 
PLEADIKG AND EVIDENCE. 617 
 
 a foreign language, it may be set out in Engli8h.(^) It is 
 neither necessary nor safe to aver that the instrument bore date 
 on a certain day ; for such an averment if incorrect, being mat- 
 ter of description, would be a variance.(A) The safe and usual 
 mode of declaring is, to allege that A. B. on such a day made 
 his bill ; for the day alleged not then being part of the descripr 
 tion of the instrument, a making on any day may be proved. 
 Since, however, the recent statutes of amendment, this precau- 
 tion has become less important. Whither the bill be stated 
 with or without a date, it should be alleged that the bill is 
 overdue. An allegation that it is now overdue, means that it 
 was overdue, not merely at the date of the declaration, but at 
 the issuing of the writ.(2) *If the bill were not due at 
 the time of action brought, the objection may be raised L -' 
 under the ordinary traverses of the acceptance, drawing or in- 
 dorsement. (^) 
 
 In a declaration on a joint and several promissory note, it is 
 not improper to state, that the makers, jointly or separately, 
 promised to pay.(^) When a bill is made payable at usance, the 
 length of the usance must be stated.(m) Where an instrument 
 has been made payable to husband and wife, and the husband 
 sues upon it alone, it may be stated in the declaration to have 
 been made payable to the hnsband.(n) 
 
 A billdrawn upon A., B. and 0. may be described as drawn 
 i on A. and B.(o) 
 
 When a bill drawn in favour of payee or order was declared 
 on as payable to payee, omitting the words or order, a replica- 
 tion supplying the defect was held no departure.(p) 
 
 {g) Attorney- General v. Valabreque, Wight w. 9. 
 
 (A) Anon., 3 Camp. 308, n. 
 
 (J) Owen V. Waters, 3 M. & W. 91. 
 
 (4) Hinton v. Duff, 31 L. J., C. P. 199 ; 11 C. B., N. S. 734 (103 E. C. L. 
 R.). S. C, 
 
 (/) Rees V. Abbott, Cowp. 838 ; Butler v. Malissy, 1 Stra. 76 ; and see 
 Neale v. Ovington, 3 Ld. Raym. 1544. 
 
 (m) Buckley v. Campbell, 1 Salk. 131 ; Meggadow v. Holt, 12 Mod. 15 ; 
 1 Slinw. 317, S. C. 
 
 (n) Ankersteln v. Clarke, 4 T. R. fil6. 
 
 (o) Evans v. Lewis, 1, Wms. Saund. 391, d ; Mountstephen v. Brooke, 
 1 B. & Aid. 324 ; see Wilson v. Reddall, Gow. 161 (5 E. C. L. R.). 
 
 iv) Hooper v. Marshall, L. R., 5 C. P. 5 ; 39 L. J. 14. 
 
618 PLEADING AND EVIDENCE. 
 
 For the proper mode of stating the acceptance of a bill of 
 exchange in pleading, and presentment for payment and notice 
 of dishonour, the reader is referred to the Chapters on those 
 subjects. 
 
 The omission to state notice of dishonour is not cured by 
 verdict.(g') 
 
 It was formerly considered doubtful(r) whether such facts 
 as dispense with presentment, protest or notice of dishonour, 
 could, or could not, be given in evidence in support of the com- 
 mon allegations of presentment, protest or notice in the declara- 
 tion. It is now, however, clear, that facts dispensing with 
 presentment or notice, such as absence of effects in the drawee's 
 hands, or a countermand of payment by the drawer, must be 
 specially alleged in the declaration ; and that proof of those 
 facts is inadequate to the support of a positive averment of 
 ^ presentment, protest, or notice.(s)(l) *A promise to 
 
 '- -' pay, however, is still admissible under the common 
 averments as prima facie evidence, that the preliminaries essen- 
 tial to the maintenance of the action, such as presentment and 
 notice, have been satisfied.(i) But if it should distinctly appear 
 
 (?) Rushton V. Aspinall, Doug. 654. 
 
 (r) Cory v. Scott, 3 B. & Aid. 619 (5E. C. L. R.) ; Bayley on Bills, 5th ed. 
 406. 
 
 (s) Bui'sh V. Legge, 5 M. & "W. 418 ; see Terry v. Parker, 6 Ad. & E. 502 i 
 (33 E. C. L. R.) ; 1 N. & P. 753, S. C. ; Carter v. Flower, 16 M. & W. 749. 
 But the power of amendment in such oases is liberally exercised. Cordery 
 V. Colville, 33 L. J., C. P. 210 ; 14 C. B., N. S. 724 (108 E. C. L. R.). 
 
 (t) See Hopley v. Dufresne, 15 East, 275 ; Lundie v. Robertson, 7 East, 
 231 ; 3 Smith, 225, S. C. ; Hicks v. Duke of Beaufort, 4 Bing. N. C. 229 (33 
 E. C. L. R.) ; 5 Scott, 593, S. C. ; Metcalfe v. Richardson, 11 C. B. 1011 (73 
 E. C. L. R.). See the Chapter on Pkesbntmeht for Pa-jmbnt. 
 
 (1) Facts which excuse demand and notice may be proved, in an action 
 against an indorser, under a declaration in the usual form. Keonon t. Mc- 
 Rea, 7 Porter, 175 ; Contra : Curtis v. State Bank, 6 Blackford, 3l2 ; Wind- 
 ham Bank v. Korton, 22 Connecticut, 213. In an action agaiust an indorser, 
 proof of a waiver of notice will support an allegation of actual notice. 
 Taunton Bank v. Richardson, 5 Pick. 436. Under an averment of notice, 
 plaintiff may show what excuses it. Purchase v. Mattison, 6 Duer, 587. 
 When the facts are such as dispense with an actual demand they must be 
 averred in the declaration. Baumgarduer v. Reeves, 11 Casey, 250. Aver- 
 ment of presentment and non-payment is indispensable iu an action against 
 an iudoriier. Anderson v. Yell, 15 Arkansas, 9. 
 
PLEADING AKD EVIDENCE. 619 
 
 in evidence that there has been a neglect to present, and that 
 tlie defendant, being aware of the omission, afterwards promised 
 to pay, so that the promise is used as a waiver, it is conceived 
 that the deelaraHon must still be special. It may be otherwise, 
 where there has been a neglect to give notice of dishonour in 
 due time, and a promise to pay, with notice of the omission, 
 has been afterwards made before action brought, for then the 
 defendant has, in the words of the declaration, had notice of 
 the dishonour, which notice, under the circumstances, may 
 be deemed as against him due notice. But the law on this 
 subject does not appear to be very clearly settled.(M) It seems, 
 however, that notice, too late in the usual course, but reason- 
 able and sufficient under the special circumstances, may be 
 proved under the ordinary allegations. (a;) 
 
 It is not necessary to allege a notice to the defendant of the 
 indorsement on a bill or note, and if the declaration contain 
 such a statement, it cannot be traversed.(y) 
 
 Now the writ is for all purposes the commencement of the 
 action. The declaration, therefore, instead of alleging that the 
 period for which the bill is drawn hath now elapsed, ought at 
 least to allege that it had elapsed at the commencement of the 
 suit.(e) 'Eq notice need be taken of the days *of p^.^Q-, 
 , grace.(a) In the form given by the Common Law Pro- ■- -■ 
 
 («) See Brownell v. Bonney, 1 Q. B. 39 (41 E. C. L. E.) ; 3 M. & Ry. 359 ; 
 Bans. & L. 151, S. C. ; Firth v. Thrush, 8 B. & C. 387 (15 B. C. L. R.) ; 
 Baldwin v. Richardson, 1 B. & C. 245 (8 E. C. L. R.) ; 2 D. & Ry. 285, S. C, 
 ante. See Killby v. Rochussen, where a subsequent promise to pay was held 
 \o be good either as a waiver of notice of dislionour or as evidence of due 
 notice having.been received. 18 C. B. 357 (86 E. C. L. R.). 
 
 (.X) Carter v. Flower, 16 M. & W. 749. 
 
 (.y) Bradbury v. Emans, 5 M. & W. 595 ; 7 Dowl. 849, S. C. ; Reynolds 
 V. Bavies, 1 B. & P. 635. 
 
 (s) Abbott V. Aslett, 1 M. & W. 209 ; 1 Tyr. & G. 448 ; 4 Dowl. 759, S. 
 C. ; but see Owen v. Waters, 2 M. & W. 91 ; 5 Dowl. 324, S. C. And striet- 
 issimo jure perhaps even the latter form is not accurate unless it apiiear from 
 the whole declaration that the bill is due, or unless the period referred to may 
 be considered as including the days of grace. But see Padwick v. Turner, 
 infra. Where the date when the bill will fall due is laid, but not under a 
 videlicet, the mei-e date has been held sufficient if, by comparison with the 
 date of the writ appearing on record, the action appears not to be premature. 
 Bliepherd v. Shepherd, 1 C. B. 849 (50 E. C. L. R.) 
 
 (a) Padwick v. Turner, U Q. B. 134 (39 E. C. L. R.). 
 
620 PLEADINa AND BVIDBNCB, 
 
 cedure Act, 1853, the words are " now overdue," and they are 
 by a strained coastruction held to mean at the issuing of the 
 writ. They are. part of the description of the bill, and are, 
 therefore, put in issue by a traverse of the acceptance. 
 
 The breach by non-payment may b.e assigned, either in the 
 count on the bill, or at the conclusion of the money counts. (6) 
 
 It is not necessary to add a count for interest, or to claim in- 
 terest as special damage. It is recoverable as part of the ordi' 
 nary and necessary damage resulting from nonpayment. 
 
 As to other and special damage, see the Chapter on the remedy 
 by Action on a Bill. 
 
 The General Rules of Hilary Term, 1853,(c) direct that in 
 all actions upon bills of exchange and promissory notes, the plea 
 of noD assumpsit, or never indebted, shall be inadmi8sible.(c^) 
 In such actions, therefore, a plea in denial must traverse some 
 matter of fact ; ez. gr., the drawing, or making, or indorsing, or 
 accepting, or presenting, or notice of dishonour of the bill or 
 note ; and all matters in confession and avoidance must be 
 specially pleaded, including not only those by way of discharge^ 
 but those which show the transaction to be either void or void- 
 able in point of law, on the ground of fraud or otherwise, ex. 
 gr., infancy, coverture, release, payment, performance, illegality 
 of consideration, either by statute or common law, drawing, 
 indorsing, accepting, &c., bills or notes by way of accommoda- 
 tion, set-off, mutual credit, and various otler defences.(e) 
 
 Therefore, since these rules, if the plea of non-assumpsit be 
 
 r*4201 ^pl®^*^®"^ ^^ action on a bill or note, the plaintiff may 
 
 sign judgnient.(/') But if the promise laid is not the 
 
 (S) See Benson v. White, 4 Dowl. 334 ; Turner v. Denman, 4 Tyrw. 313. 
 See Soiled. B., Procedure Act, 1853. 
 
 (c) H. T., 16 Vict. 1858, rule 7. 
 
 (d) It is nevertheless admissible, in cases where a promise is stated, which 
 would not be the necessary legal effect of the bill or note. As, for examplej 
 where a promise by or to an executor is allegied., See Rolleston v. Dixon, 
 14 L. J., Bxch. 304, post ; 2 D. & L. 893, S. C. 
 
 («) Equitable defences may now be pleaded, 17 & 18 Vict. c. 125, "ss. 83, 85. 
 
 {f} Kelly V. Yillebois, 8 Dowl. 136 ; Sewell v. Dale, 8 Dowl. 309. Perhaps 
 
 a nolle prosequi should be entered on the common counts. Fraser v. Newton, 
 
t 
 
 PLEADING AND EVIDENCE. 621 
 
 promise implied by law, the general issue may be pleaded. 
 Thus, if an executor declare on a bill or note payable to his 
 testator, laying a promise to himself (the executor), such promise 
 may still be denied by a plea of noa as8umpBit.(^) 
 
 The general issue by statute may be pleaded to an action on 
 a bill or note.(A) 
 
 In an action against partners, on their acceptance to a bill of 
 exchange, a plea stating facts from which it appears that both 
 partners are not bound, was formerly bad on special demurrer, as 
 amounting to an argumentative denial of the acceptance. The 
 proper plea has been held by the Court of Queen's Bench to be 
 a traverse of the acceptance.(i) 
 
 Theindorser of a note is not a new maker or drawer as the 
 indorser of a bill is. Therefore, where, in an action by indorsee 
 against indorser, the plaintift" declared against the defendant 
 as maker ; it was held that the indorsee of a note could not de- 
 clare against his indorser as maker, even where the latter has 
 indorsed a note not payable or indorsed to him, and where 
 consequently, his indorsee cannot sue the maker, and that 
 under a plea denying the making of the note, the. defendant 
 \i-as entitled to a verdict.(A:) But in the case of a bill of ex- 
 change it is otherwise. In an action by indorsee against in- 
 ' dorser of a bill, the defendant pleaded that " he did not make 
 or draw the bill of exchange, as in the declaration alleged ;" 
 although the plea was bad in form, it was held good in sub- 
 
 8 Dowl. 773. The plaintiff cannot, where the plea is also pleaded to the 
 common counts, treat it as a nullity. Eddison v. Pigram, 16 M. & W. 137 ; 
 and Grout v. Enthoveu, 1 Exch. 382. It has been held, that the plea of non 
 assumpsit admits the handwriting. Neale v. Proctor, 2 Car. & K. 456 (61 
 E. C. L. R.). 
 
 ig) Timmis v. Piatt, 3 M. & W. 730 ; 5 Dowl. 748, S,_C., nom. Gilbert v. 
 Piatt ; but see Donaldson v. Thompson, 6 M. & W. 316. 
 
 (A) Weeks v. Argent, 17 L. J., Exch. 809 ; 16 M. & W. 817, S. C. 
 
 (i) Jones v. Corbett, 11 L. J., Q. B. 181 ; 3 Q. B. 838 (43 E. C. L. R.), 
 S. C. ; and see Musgrave v. Drake, 5 Q. B. 185 (48 B. C. L. R.) ; see ante, 
 p. 47, and the observations of Mr. Justice WJlles on this case in Hogg y. Skeen, 
 34L. J., C. P. 153. 
 
 (*) Gwinnel v. Herbert, 5 Ad. & Ell. 436 (31 E. C. L. R.) ; 6 N. & M. 723, 
 S. C, ante. 
 
622 PLEADING AND EVIDENCE. 
 
 I 
 
 r*-i211 ^*^"*^®' ^^ every indorser of a bill is *iii law a new drawer, 
 and the plaintiff was not allowed to treat the plea as a 
 nullity, and sign judgmeut.(^) 
 
 A plea denying the indorsement of a bill of exchange puts 
 in issue, as we have seen, not only the signature, but also such 
 a delivery and transfer as will constitute the indorser a holder.(m) 
 And facts tending to show that no interest passed to the indor- 
 see may with propriety be specially pleaded, for they will not 
 amount to an argumentative traverse of the indorsement.('/i). It 
 seems that when a distant indorsee is plaintiff, an intermediate 
 indorsement may be such in legal effect, though it would not 
 be such if the immediate indorsee were plaiutitt".(oXl) 
 
 A plea simply averring absence of consideration is improper. 
 It should state affirmatively the circumstances relating to the 
 consideration •,{p) and distinctly deny that there was any con- 
 sideration other than that a]leged.(5') But it is good after 
 verdict.(r) If the informal plea of no consideration is traver- 
 sed, the affirmative still lies on the defendant as it would have 
 done had he pleaded properly.(s) Where the defendant pleaded 
 
 (0 Allen V. Walker, 3 M. & W. 317 ; 5 Dowl. P. C. 460 ; 1 M. & Huvl. 
 44, S. C. ' 
 
 (m) Marston v. Allen, 1 Dowl. N. S. 443 ; 8 M. & "W. 491, S. C. ; Bell v. 
 Ingestre, 13 Q. B. 317 (64 E. C. L. R.) ; Llojrd v. Howard, 15 Q. B. 995 (69 
 E. 0. L. R.). 
 
 (71) Harmer v. Steele, 4 Exch. 1, reversing Ibe decision of the Court of 
 Exchequer in Steele v. Harmer, 15 L. J., Exch. 317, and 14 M. & W. 831, 
 S. C. ' 
 
 (0) Hayes v. Caulfield, 5 Q. B. 81 (48 B. C. L. R.). 
 
 (,p) Baston v. Piatchett, 1 C, M. & R. 798 ; 3 Dowl. 473 ; 1 Gale, 33, 8. 
 C. ; Stoughton v. Earl of Kijmorey, 3 C, M. & R. 73 ; 3 Dowl. 705 ; 1 Gale, 
 91, S. C. ; Graham v. Pitman, 5 Nev. & Man. 37 ; 3 Ad. & Ell. 531 (SO E. 0. 
 L. R.), S. 0. ; Trinder v. Smedley, 3 Ad. & B. 033 (30 B. 0. L. R.) ; 5 N. 
 & M. 138, S. U. 
 
 (S) Boden v. Wright, 12 C. B. 445 (74 E. C. L. R.). 
 
 (r) Baston v. Pialchett, in error, 3 C, M. & R. 543 ; and see Kemhie v. 
 Mills, 1 M. & Gr. 757 (39 E. C. L. R.)'; 5 Scott, 131, S. C. ; Crolts v. Beale, 
 11 C. B. 173 (73 E. C. L. R.). 
 
 (8) Lacey v. Forrester, 3 C, M. & R. 59 ; 3 Dowl. 668 ; 1 Gale. 139, S. C. 
 
 (1) Upon proving a beneficiary interest in a third party defendant may 
 plead whatever he could if such beneficiary were the real plaintiff. Fowler 
 V. Willis, 4 Texas, 46. 
 
PLEADING AND EVIDENCE. 623 
 
 that there was no consideration, and issue was taken thereon, 
 it was held that the defendant was at liberty to show that the 
 contract which would otherwise have constituted the considera- 
 tion, was avoided by fraud. (i) If a plea state the circumstances 
 under which the bill or note was given, and add that there 
 Was no consideration, a traverse of the first averment is suiii- 
 eient, without a traverse of the last.(M) 
 
 *The defendant may plead, that before the action the r^jon-i 
 plaintiff transferred the bill, and therefore, that he is 
 not the holder.(a;) But a plea that the plaintiff is not the 
 lawful holder has in some cases at chambers been considered 
 too general, and in other cases particulars have been ordered. 
 
 As to the mode of pleading payment by bill or note, see the 
 Chapter on the question how far a bill or note is considered as 
 payment. 
 
 After pleading over, every ambiguous pleading must have 
 such an interpretation as will make it good rather than bad ;(y) 
 for, by pleading over, the adverse party admits that he has un- 
 derstood it in a sense which requires an answer. 
 
 A plaintifl'is not entitled to judgment non obstante veredicto, 
 nor a defendant toarrestthe judgment for iusuflicient pleading, 
 if that pleading merely leave a material allegation untraversed. 
 The proper course is to award a repleader, unless there be an 
 express confession of the material part of the former pleading, 
 or an implied confession by pleading in confession and avoid- 
 ance. (2) 
 
 Where the plaintifi's title is to be impeached by notice ot 
 
 (<) Mills V, Oddy, 2 C, M. & R. 103 ; 3 Dowl. 723 ; 6 C. & P. 728 (35 E. 
 C. L. R.), S. C. ; Soutball v. Rigg, 11 C. B. 481 (73 E. C. L. R.) ; Foiman 
 T. Wright, Ibid. 
 
 («) Atkinson v. Davies, 11 M. & W- 236. 
 
 (s) Basiin v. Arnold, G M. & W. 559 ; Fraser v. "Welch, 8 M. & "W. 630 ; 
 Arthur v. Beales, 1 Bxch. 608. As to the proper mode of replying to such a 
 plea, see Barber v. Lemon, 11 Q. B. 303 (63 E. 0. L. R.) ; 17 L. J., Q. B. 69, 
 S. C. ; Rogers v. Chilton, 17 L. J., Exch. 8, 345 ; 1 Exch. 863, S. C. 
 
 (.y) James v. Williams, 13 M. & W. 828. 
 
 (2) Gwynn v. Burnell, 6 Bing. N. C. 453 (37 E. C. L. R.) ; Dom. Proc. ; 
 Atkinson v. Davies, 11 M. & W. 343. 
 
624 PLEADING AND EVIDENCE. 
 
 fraud, notice must be expressly averred. Indorsee v. drawer of 
 a bill of exchange. — Plea, that the bill had been drawn and in- 
 dorsed to L,, for a specific purpose, who in fraud of that purpose 
 had handed it to H., and that H. handed it to plaintiff, not for 
 good and valuable consideration, and that the plaintiff" was not 
 a bo7ia fide holder /^Held, that the last allegation, connected 
 with the rest of the plea, meant only that the plaintiff had not 
 given good , consideration for the bill, and that fraud in the 
 plaintiff could not be given in evidence under it; and the Court 
 intimated, that it was their opinion, that the only proper mode 
 of implicating the plaintiff in the alleged fraud by pleading, is 
 to aver, " that he had notice of it," leaving the circumstances 
 by which that notice is to be proved, directly or indirectly, to 
 be established in evidence, and that they could not treat the 
 r*42Rl ^I'^g^'tio" ih&t *the plaintiff was not a bona fide holder 
 as equivalent to such an averment.(a) 
 A plea that defendant's agent fraudulently disposed" of the 
 bill, of which fact the plaintiff had notice, has been held bad, 
 iinless it go on to deny the receipt of any value by the defend- 
 ant. (6) 
 
 Until recently payment might, in the action of assumpsit, 
 have been given in evidence in reduction of damages. But not 
 in an action of debt.(c) It must now in all cases be pleaded,((i) 
 although the payment be of interest only.(e) If the plaintiff 
 in his declaration gives credit for part payment, the allegation 
 of part payment, is not traversable.(/) A plea of payment 
 must be supported by»proof of actual payment in money ^(g) 
 but where a bill has been given in satisfaction of another bill 
 
 (a) Uther v. Rich, 2 P. & D. 579. 
 
 (J) Noel V. Rich, 2 C, M. & R. 360 ; 4 Dowl. 228, S. C ; and see Noel v. 
 Boyd, 4 Dowl. 415. 
 
 (c) Cooper v. MorecrafL, 3 M. & W. 500 ; 6 Dowl. 562, S. 0. 
 
 id) R. Trin. T. 1853. 
 
 («) Adams v. Palk, 3 Q. B. 2 (43 E. 0. L. R.). 
 
 (/) Hodgins v. Haaoock, 14 M. & W. 120. See other points relating to a 
 plea of payment in the Chapter on Payment. As to the proper mode of 
 pleading payment into court in an action on a bill, see Tattersall v. Parkip- 
 son, 16 L. J., Exch. 196 ; 4 D. & L. 533 ; 16 M. & W. 753, S. C. 
 
 {g) Morley y. Culverwell, 7 M. & W. 174. 
 
PLEADING AND EVIDENCE. 625 
 
 and Tiltimatel}'^ paid, in an action on the first bill it will be suffi- 
 cient to plead payment. (/i) 
 
 Where a plea alleges the satisfaction of the instrument de- 
 clared on by the giving of another, it must state that the sub- 
 stituted instrument was given as well as taken in satisf actio n.(i) 
 Both of which allegations may be involved by the plaintiff in 
 one traverse.(A;)^ 
 
 Although the Court will not in general determine upon the 
 .validity of a plea in point of law, or the truth of it on motion, 
 except in particular cases, nevertheless where a plea pleaded is 
 bqyond doubt a frivolous or sham plea, they will exercise their 
 authority by so doing.(?) Where in an action on a bill of ex- 
 change by the indorsee, against the acceptor, the defendant set 
 forth in his plea a number of fact»J calculated to perplex the 
 plaintiff, the Court, on an affidavit of *its falsehood, no p„ ,-,,-, 
 cause being shown for pleading it, set it aside.(m) L - J 
 
 The Common Law Procedure Act(re) gives the Court a 
 statutable jurisdiction in these and other cases by enacting, 
 that if any pleading be so framed as to prejudice, embarrass or 
 delay the lair trial of the action, the Court, or a Judge, may 
 strike out or amend it ; and the replication de injuria and spe- 
 cial demurrers have been abolished by the same, act, which not 
 only enables a party to deny all the allegations contained in a 
 pleading, but, where necessary, to reply double, by leave of the 
 Court or a Judge. 
 
 (/() Thome v. Smith, 10 C. B. 659 (70 B. C. L. R.). 
 
 (0 Crisp V. Griffiths, 3 C, M. & R. 159 ; 3 Dowl. 752 ; 1 Gale, 106, S. C. 
 
 (*) Webb V Weatherby, 1 Bing. N. C. 502 (27 E. C. L. R.) ; 1 Scott, 477 ; 
 1 Hodges, 39, 8. C. ; and see Bennison v. Thelwell, 7 M. & W. 512 ; Ridley 
 T. Tindall, 7 Ad. & E. 134 (34 B. C. L. R.). 
 
 (0 "Horner T. Keppel, 10 Ad. & B. 17 (37 E. C. L. R.) ; 2 P. & D. 234, 
 S. C. 
 
 (m) Miley v. Walls, 1 Dowl. 648 ; and see Horner v. Keppel, 10 Ad. & 
 111. 17 (37 E. C. L. R.) ; 2 P. & D. 234, S. C. ; Knowles v. Burward, 10 Ad. 
 & Ell. I'J (37 E. C. L. R.) ; 2 P. & D. 235, S. C. ; Balmanno v. Thompson, 
 6 Bing. N. C. 153 (19 E. C. L. R.) ; 4 Jurist, ,43 ; 8 Scott, 306, S. C. ; Brad- 
 bury V. Emans, 5 M. & W. 595 ; 7 Dowl. P. C. 849, S. C. ; Emanuel t. Ran- 
 dall, 8 Dowl. 338 ; Midford v. Einden, 9 Dowl. 813. 
 
 (n) 15 & 16 Vict. c. 76, s. 53. 
 
 40 
 
626 PLEADING AND EVIDENCE. 
 
 To a plea denying consideration, a replication simply aver- 
 ring consideration is good.(o) And even if the plaintiff, in his 
 replication, set out the particular consideration, and concluded 
 to the country, under the old form of pleading, he was not bound 
 to prove it.(p) 
 
 When a party to a bill, as an acceptor or indorser, is con- 
 cluded from denying a fact, as, for example, the drawing or a 
 prior indorsement, the estoppel may be replied, or it seems that 
 the plaintiff may demur.(j) For an estoppel in pais need not 
 be pleaded.(r) 
 
 Where one plea is pleaded to several notes or bills, the plain- 
 tiff may often reply by one replication, which will be construed 
 di8tributively.(s) ^ 
 
 Except in actions for personal wrongs the party on whom 
 lies the burthen of proof is entitled to begin. But if an error 
 in this respect be committed at the trial, a new trial will not 
 therefore be granted, unless injustice has been done.(<) 
 
 *Wh6re, in an action on a bill of exchange, the only 
 L •' issues lying on the plaintiff arise on the common counts, 
 the plaintiff" is not entitled to begin, unless he propose to. give 
 evidence on those issues ;(«) and merely using the bill as evi- 
 dence under the common counts will not be sufficient, A de- 
 fendant will not entitle himself to begin, by admitting all the 
 issues that lie on the plaintiff.(a:) 
 
 (o) Prescott v. Levi, 3 Dowl. 403 ; 1 Scott, 736., S. C. ; Bramah t, Roberts, 
 1 Bing. N. C. 469 (27 E. C. L. R.) ; 1 Scott, 350, S. C. ; May v. Seyler, 
 3 Exch. 563. 
 
 (p) Low V. Burrows, 3 Ad. & E. 488 (39 E. C. L. R.) ; 4 N. & M. 366, 
 S. C. ; Batley v. Cattcrall, 1 M. & Rob. 379. 
 
 (g) Sanderson v. Collman, 4 M. & G. 209 (43 E. C. L. R.) ; Armani v. 
 Castrique, 13 M. & W. 443. 
 
 (r) Vaughan v. Matthews, 18 L. J., Q. B. 191. 
 
 («) Wood V. Peyton, 13 M. & W. 30. 
 
 (0 Cannam v. Farmer, 3 Exob. 698. 
 
 (m) Homan v. Thompson, 6 C. & P. 717 (35 E. C. L. R.) ; Smart v. Rsyner, 
 Ibid. 721 (35 E. C. L. R.) ; Mills v. Oddy, Ibid. 738 (35 E. C. L. R.) ; 3 Dowl. 
 733 ; 3 C, M. & R. 103, S. C. 
 
 (a!) Po'ntifex v. Jolly, 9 C. & P. 202 (38 E. C. L. R.). 
 
PLEADING AND EVIDENCE. 627 
 
 A plaintiff cannot split his case,(?/) except by first proving 
 the issues which lie on him, and no more. But having done 
 that, he may reserve his evidence applicable to the issues lying 
 on the defendant. 
 
 Many nice distinctions formerly existed as to the compe- 
 itency of witnesses in actions of |3ills of exchange.(l) 
 
 (jf) Jacobs V. Tarleton, 17 L. J., Q. B. 194. 
 
 (1) The, rule of Walton v. Shelley, 1 Term Rep. 296, in which it was de- 
 cided that a witaesg could not be heard to impuga a paper to which he had 
 set his hand, was repndiated ten years afterwards in Jourdaine v. Lashbrooke, 
 7 Term Rep. 600. In Now York it was adopted in Wialon v. Saddler, 3 
 Johns. Gas. 185, and abandoned afterwards in Stafford v. Rice, 5 Cowen, 25 ; 
 Bank v. Hilliard, 5 Cowen, 158 ; Williams v. Walbridge, 3 Wendell, 416. 
 But several of the other States have received the doctrine of Walton v. Shel- 
 ley, JQ a modified shape, and maintained it steadily ; for instance, Massachu- 
 setst, Maine, and New Hampshire. It has received the express indorsement 
 of the Supreme Court of the United States, in the Bank v. Dunn, 6 Peters, 
 51, and in the United States v. Leffler, 11 Peters, 95. In Pennsylvania it was 
 recognized in Peniberton v. Pleasants, 2 Dall. 196, and has been adhered to 
 since in a great number of cases. Gest v. Espy, 2 Watts, 268 ; Parke v. 
 Smith, 4 Watts & Serg. 289 ; Gilpin v. Howell, 5 Penna. State Rep. 51 ; Bank 
 V. Fordyce, 9 Ibid. 276; Wilt v. Snyder, 17 Ibid. 77. See also Parson v. 
 Phepps, 4 Texas, 341 ; Harding v. Mott, 8 Harris, 469 ; Pennypacker v. Um- 
 lierger, 10 Ibid. 492 ; Lincoln v. Fitch, 42 Maine, 456 ; Hawkins v. Cree, 1 
 Wright, 494; Walters v. Smith, 23 Illinois, 342; Baston v. Fetherolf, 8 
 Wright, 279 ; Klopp v. Lebanon Bank, Ibid. 489 ; Rives v. Marrs, ,25 Illinois, 
 3i5 ; Harvey v. Ellithorpe, 26 Ibid. 418. Contra : Farrar v. Metts, 12 Richard- 
 son (Law), 6C7 ; Hillebrant v. Ashworth, 18 Texas, 307. 
 
 This rule, however, is confined strictly to negotiable instruments, and does 
 not apply even to them unless they have been actually negotiated, and that in 
 the regular course of business previous to their maturity. A party to the in- 
 strument is not competent to prove that it was not actually so negotiated. 
 The transaction, as it stands, presents an apparently well-founded objection 
 to his competency, which he cannot remove by his own oath. Baring v. Ship- 
 pan, 2 Binn. 165; McFerrau v. Powers, 1 Serg. & Rawle, 102 ; Cromwell v. 
 Arrott, Ibid. 183 ; Baird v. Cochran, 4 Ibid. 399 ; Hepburn v. Cassell, 6 Ibid. 
 113 ; Bank of Montgomery v. Walker, 9 Ibid. 280 ; Harrisburg Bank v. Foster, 
 8 Watts, 309 ; Parke v. Smith, 4 Watts & Serg. 289 ; Alexander v. Alexander, 
 SPennn. State Rep. 89; Gilpin v. Howell, 5 Ibid. 52; Griffith v. Reford, 1 
 Eawle, 196 ; Harding v. Mott, 20 Penna. Slate Rep. 469. The rule in Walton 
 V. Shelley, does not apply where the note or bill is not the subject of the ac- 
 tion ; hence, in an action to recover from a prior indorser the amount ad- 
 vanced to take up the bill, the drawer and acceptor are not incompetent under 
 thepoliGy of the' law, to prove that the bill was indorsed for the benefit of the 
 party making the advance. Wright v. Trutfilt, 9 Penna.. State Rep. 507. A 
 
628 PLEADING AND EVIDENCE. 
 
 To review the decisions and the various statutable euact- 
 nients by which the legislature gradually felt its way -to a more 
 liberal system, would be more appropriate in a treatise on the 
 law of evidence. 
 
 It may suffice to observe here, that not only all the parties to 
 a bill, but the plaintiffs and defiendants themselves, in the ac- 
 tion or suit, as well as their husbands and wives, are now all 
 rendered competent witnesses,(2) 
 
 In an action by the indorsee against the maker of a note, the 
 declarations of the payee at the time of making it are evidence 
 as part of the res gest(B.{a) 
 
 It has been held, that declarations by the holder of a nego- 
 tiable instrument, made whilst he was holder, are evidence 
 against a plaintiff who claims under him and stands on his 
 title,(6) in the same manner as declarations made by a former 
 owner of an estate respecting his own title, whilst he was in 
 possession, are evidence against a subsequent owner.(c) 
 
 But there is an obvious distinction between the case of an 
 assignee of land or other property and the ordinary assignee of 
 a negotiable instrument. The former has, *in gen- 
 ■- -I eral, no title either at law or in equity, unless his 
 assignor had, but the latter may, as we have seen, have a very 
 good title, though his assignor had none at all. Accordingly, 
 
 (g) 14 & 15 Vict. c. 99, and 16 & 17 Vict. c. 83. 
 
 (a). Kent V. Lowcn, t Camp. 177, 180. 
 , (J) Pocock V. Billing, 2 Bing. 369 (9 E. C. L. E.) ; Ry. & M. 137 (31 E. 
 C. L. R), S. C. 
 
 (c) Woolway v. Bowe. 1 Ad. & E. 114 (38 E. C. L. R.) ; 3 N. & M. 849, 
 
 s. c. ■ 
 
 party to a bill or note may testify to facts which occurred subsequently to the 
 negotiation of the instrument atfecting it in. the hands of the holder, and tend- 
 ing to disprove his right to recover upon it. Parke v. Smith, 4 Watts & Serg. 
 389 ; Appleton v. Donaldson, 3 Penna. State Rep. 381 ; Gilpin v. Howell, 5 
 Ibid. 5a ; Maynard v. NekerVis, 9 Ibid. 81 ; Bank v. Fordyce, Ibid. 276 ; 
 Pennypacker v. Umberger, 33 Ibid. 492. Party to a note is competent to 
 show facts dehors the note as an agreement for satisfaction of it, tantamount 
 to payment. Work v. Ease, 10 Casey, 138. A former owner of a coupon 
 payable to bearer may be a witness to impeach it." Columbia Coal and Iron 
 Co. V. Fox, 9 Casey, 239. 
 
PLEADINfl AND EVIDENCE. 629 
 
 ithas'been decided that, unless the plaintiff on a bill or note 
 stands on the title of a former holder, the declarations of such 
 former holder are not evidence against \iim.{d) But if 'he do 
 stand on the title of a prior holder, as if he have taken the bill 
 overdue or without consideration, then the declarations of that 
 prior holder under whom he claims, and on whose title he 
 stands, are evidence against him.(l) 
 
 It has been held, that a jury can draw no inference from an 
 admission on record. " The pleading," says Alderson, B., " are 
 not before the jury, but only the issue."(e) But the Court of 
 Queen's Bench have held otherwise.(/) 
 
 'Where there was no attesting witness, the signature to a 
 bill might always have been proved by any person who has 
 seen the party write, or has received letters from him. 
 
 Where there was an attesting witness, he must always have 
 been called, unless dead, insane, oroutof the jurisdiction of the 
 Court.(^) But now by the 17 & 18 Vict. c. 125, s. 26, it is not 
 iecessary to call the attesting witness, except in those cases 
 where his attestation is essential to the validity^ of the instru- 
 ment.(A) 
 
 (d) Barough v. White, 4 B. & C. 335 (lO E. C. L. R ) ; 6 D. & Ry. 379 ; 
 ■2 C. & P. 8 (13 E. 0. L. R.), 8. C. ; Beauchamp v. Pany, 1 B. & Ad. 89 (20 
 E. C. L. R.) ; Shaw v. Broom, 4 D. & R. 731 (16 E. C. L. R.) ; Smith v. De 
 Wiuilz, 1 R. & M. 213 (31 E. C. L. R.) ; and see Phillips v. Cole, 10 Ad. 
 & E. lOS (37 E. C. L. R.) ; 8 P. & D. 388, 8. C. 
 
 («) Edmunds v. Gioves, 2 M. & W. 642 ; 5 Dowl. 775, S. C. 
 
 (/; Bingham v. Stanley, 2 Q. B. 117 (43 E. 0. L R.) ; see Malpas v. 
 Clements, 19 L. J., Q. B. 435. In Robins v. Maidstone, 4 Q. B. 815 (45 E. 
 C. L. R.) ; the Court of Q. B. corrected the language attributed to them in 
 Bingham v. Stanley ; and see Smith v. Martin, 9 M. & W. 304 ; Fearn v. 
 Mica, 7 M. & G. 513 (49 E. C. L. R.). 
 
 (ff) The attesting witness must have been' called, though the attestation 
 were on the back of the bill. Richards v. Prankum, 9 C. & P. 231 (38 E. C. 
 L. R.) ; and though he were blind, Crank v. Frith, 2 Moo. & Rob. 262. 
 
 (h) See apte, as to the cases in which attestation to a bill or note is or was 
 essential. 
 
 (1) The declaration of an assignor after maturity of a note, made before the 
 Sssignment, held competent evidence against the assignee. Robb v. Schmidt, 
 35 Mo. 290. 
 
630 PLEADING AND EVIDENCE. 
 
 All agrfeiement that certain shares are to be held as a dol- 
 lateral security for a bill is evidence to prove an allegation that 
 any sum received by the holder should be satisfaction pro 
 tanto.{i) 
 
 It was at one time held, that there must be some evidence 
 of the identity of the person whose handwriting is proved as 
 *the defendant's with the real defendant, and that mere 
 V ■' correspondence of christian and surname is no evidence 
 of identity.(A) But the inconvenience of such a doctrine soon 
 compelled the Courts to retrace their steps; " The transactions 
 of the world," says Lord Denman, " could not go on, if such an 
 objection were to prevail. It is unfortunate that the doubt 
 should ever have been raised, and it is best that we should 
 sweep it away as soon as we can."(^) 
 
 It is conceived that there must be some peculiar circumstan- 
 ces tending to raise a question, before the plaintifl" can be re- 
 quired to show, that the person who signed the bill or note, 
 and whose christian and surname agree with the defendant's, 
 is the person who was served with the writ, for that person is the 
 real defendant in every action. 
 
 Where it is necessary to prove the consideration, and on 
 whom the burthen of proof lies, see the Chapter on Considera- 
 tion. 
 
 It is not necessary to produce the bill on the trial, unless some 
 issue be joined, which renders the production of the bill neces-' 
 sary ;(m) nor on a writ of inquiry ;(7i) nor will statements in the 
 
 (i) Malpas v. Clements, 19 L. J., Q. B. 435. 
 
 (A) Whilelock v. Miisgrovc, 1 C. & M. 511 ; Jones v. Jones, 9 M. & W* 
 75 ; 11 L. J., Exch. 365 ; Bell v. Gunn^ 11 L. J., C. P. 57. As to identity 
 of first indorse!' with drawer, see Smilh v. Moneypenny, 2 Moo. & Rob. 317. 
 , (0 Sewell V. Evans, 4 Q, B. 636 (45 B. C. L. E.) ; Roden t. Rydey Ibid. ; 
 Hamber v. Roberts, 18 L. J., C. P. 250. 
 
 («i) Shearm v. Burnard, 10 Ad. & E; 593 (87 E. C, L. R.) -.S Per..& Dav. 
 565 ; Read v. Gamble, 5 N. & M. 433 ; 10 Ad. & E. 597, n. (37 E. 0. L. R.),, 
 S. C. ; but see Fryer v. Brown, R. & M. 145 (21 E. C. L. R.). 
 
 (w) Lane v. Mullins, 1 Gale & Dav. 713 ; 11 L. J., Q. B. 51 ; 3 Q. B. 354 
 (43 E. 0. L. R.), 8. ; Davis v. Barker, 3 C. B. 606 (54 E. C. L. R.) ; and 
 the production Of the bill may be rendered unnecessary by an admission of 
 the handwriting, Chaplin v. Levy, 33 L. J., Exch. 117 ; 9 Exch. 531, S. C. 
 
PLEADING AND EVIDENCE. 631 
 
 plea entitle the defendant to offer evidence of it without notice 
 to proda5ee.(o) But if interest be sought from a period before 
 the issuing of the writ it may be necessary to produce the 
 biH.{p) 
 
 If a bill or note be signed or indorsed with a mark, such 
 mark may be proved by a person who has seen the party so 
 execute instruments, and can recognize some peculiarity in 
 the mark.(g')(l) 
 
 ♦"Where an acceptance is by the christian and sur- rs^ooi 
 name of the drawer, a witness who has seen him write 
 his surname only is competent to prove* the acceptance.(r) 
 
 An averment that the defendant made a note, " his own 
 proper hand being thereunto subscribed," is satisfied by proof 
 that the note was made by an agent, lor those words may be 
 rejected as surplusage. (s) 
 
 An admission under a Judge's order that a bill was accepted 
 by A. for B., is an admission of A.'s authority. (<) 
 
 . <o) Gendered v. ^rmonr, 3 Q. B._ 956 (iS E. C. L. R.). As to what is a 
 sufficient notice, see Lawrence v. Clark, 3 D. & L. 87. 
 
 (p) Hutton T. Ward, 15 Q. B. 26 (69 E. C. L. R.). 
 
 (S) George v. Surrey, M. & M. 516 (23 E. C. L. R.). 
 
 (r) Lewis t. Sapio, M. & M. 39 (33 E. C. L. R.) ; overruling Powell v. 
 Ford, 2 Stark. 164 (3 E. 0. L. R.). 
 
 (s) Booth V. Grove, M. & M. 182 (23 E. C. L, R.) ; 3 C. & P. 335 (14 E. 
 C. L. R.), S. C. . 
 ' (0 Wilkes V. Hopkins, 1 C. B.' 737 (50 E. C. L. R.). 
 
 (1) Evidence that the name of the indorser is the signature by which his 
 business was transacted is admissible without proving it to be his handwriting. 
 Bingham v. Peters, 1 Gray, 139. 
 
 ■ A mark is a good signing of a promissory note, although there is no sub- 
 scribing witness. Willoughliy v. Moulton, 47 New Hamp. 305; Shank v. 
 Butsch, 28' Indiana, 19 ; Hilborn v. Alford, 32 Cal. 483. Where a defendant 
 sued as maker, does not deny by plea the execution, the note with the Christian 
 name of the dtefendant, isigned only by its initial letter, is admissible. Lee v. 
 Jfondal, 40 Illinois', 359. The making a note payable to a firm, or it seems a 
 corporation, is a written admission of the existence of such firm or. corpora- 
 tion, and proof aliundeia not required. Griener v. Ulerey, 20 Iowa, 266. 
 
632 PLEADING AND BVIDBNCB. 
 
 A promissory note, as between the original parties, is evi- 
 dence of money lent,(M) and of an account stated when the note 
 falls due,(a;) and is admissible as a paper or writing to prove 
 the defendant's receipt of so much money ; and even although 
 it has been invalidated, as a note, by alteration.(y)(l) But a bill 
 which never was properly stamped is not thus admissible in evi- 
 denceforcollateral parposes,thoi;ighformerlyheldtobeso.(^) An 
 instrument though not stamped is admissible to show that the 
 
 " transaction is void, as for usury.(a) An instrument prom- 
 ising payment on condition, which, as we have seen, is not a 
 promissory note, is not evidence to sustain the money counts.(6) 
 Upon principle it appears clearly that a bill or note can be 
 evidence under the money counts only as between immediate 
 parties, and the latter decisions are in favour of this doctrine,(c) 
 though it has been held evidence of money received to the use 
 
 •r*4291 of t^e holder.((^) 
 I- J *An indorsement is prima facie evidence of money 
 
 (m) Clarke v» Murtin, Ld. Raym. 758; per Lord Mansfield in Grant v. 
 Vauglinn, 3 Burr. 1525 ; Bayley, 357 ; Morgan, v. Jones, 1 C-& J. 167 ; Smith 
 y. Kendall, 6 T. R. 123 ; but see Pesenmayer v. Adcock, 16 M. & W. 449. 
 Money deposited witli a banker is money lent. Pott v. Clegg, 16 M. & W. 321. 
 
 (a;) Wlieatley v, Williams, 1 M. & W. 539 ; Irving v. Veitch, 3 M. & W. 90. 
 
 (y) Sutton V. Toomer, 7 B. & G. 416 (14 E. C. L. R.) ; 1 Man. & R. 135, 
 S. 0. ; Tomkins v. Ashby, 6 B. & C. 541 (13 K 0. L. R.) ; 9 Dowl. & R. 
 543 ; M. & M. 33 (33 E. C. L. R.), S. C. But see ante. 
 
 (z) Jardine v. Payne, 1 B. & Ad. 663 (30 E. C. L. R.) ; Jones v. Ryder, 
 4 M. & W. 32 ; Holmes v. Miickrill, 3 C. B., N. S. 789 (91 E. C. L. R.). 
 ■ (a) Nash v. Duncomb, I M. & Rob. 104. 
 
 (J) Morgan v. Jones, 1 C. & J. 162 ; 1 Tyrw. 31, S. 0. 
 
 (c) Waynam v. Bend, 1 Camp. 175 ; Bentley v. Northhouse, M. & M. 66 
 (23 E. C. L. R.) ; Bales v. Dicker, M. & M. 334 (32 E. C. L. R.) ; Bayley, 
 857, 6th ed. 
 
 (d) Vide Chitty, 9th ed. 581, and Bayley, 6th ed. p. 358 ; Grant v. Vaughan, 
 3 Burr. 1516. 
 
 (1) A promissory note is evidence under the common counts of assumpsit, 
 without proving any consideration. Nickerson v. Sheldon, 33 Illinois, 372. 
 And is prima facie evidence of a settlement of accounts to its date. Eirhner 
 V. Lewis, 37 Indiana, 22. 
 
 A note given without consideration is unavailable as evidence of indebted' 
 ness between tlie parties on the common counts. Hildeburn v. Curran, 15 P; 
 F. Smith, 59. 
 
PLEADING AND BVIDENCE. 633 
 
 ■lent by the iadoraee to the iadorser,(e) and of an account 
 stated.(/)(l) 
 
 A check that has been presented and duly paid by the banker 
 is no evidence of money lent by the drawer to the payee. 
 
 For the mere fact of money passing from A. to B. is of itself 
 no proof of a loan from, A. to B.(^) Nor is the fact that A.'s 
 check in favour of B. has been paid by the banker, and that 
 the check hears B.'s indorsement. For all that appears is that 
 A.'s money has been paid by A. to B. through a banker : but 
 whether as a loan from A. to B., or whether as a repayment of 
 money previously due from A. to B. on some other account, or 
 whether because B. had cashed the check, does not appear. 
 And a fact which is equally consistent with any one of three 
 different hypotheses is proof of no one of the three. The in- 
 (lorsement makes no difference, for that merely shows that the 
 check passed through B.'s hands, and may have been added at 
 the banker's request for the banker's better security, although 
 had the check got into the hands of a subsequent holder with 
 B.'s indorsement on it, that indorsement might then have beea 
 evidence of money lent by the holder to B. or of an account 
 stated between them. (A) 
 
 (e) Kessebower v. Tims, Bayley, 6th ed. 357 and 359. 
 
 (/) Burmester y. Hogarth, 11 M. & W. 101 ; Fryer v. Roe, 13 C. B. 437 
 (74 E. C. L. K.). , 
 
 , (ff) Welch V. Seaborn, 1 Stark. 474 (2 E. C. L. R.) ; Pearce v. Davis, 
 1 Mood. & Rob. 365. 
 
 (A) Rogers v. Flook, Biistol Summer Assizes, 1866. 
 
 (1) In an action indorsee against acceptor, a bill is sufficient prima /acja 
 evidence to sustain the common counts. Black v. Caffe, 3 Selden, 281 ; 
 Haviland v. Shiions, 4 Richardson, 338 ; Purdy v. Vermilye, 4 Selden, 346. 
 The third indorser of a promissoi-y note may maintain assumpsit for money 
 had and received against the first. Martin v. Farnum, 4 Foster, 191. An 
 accommodation note, in an action, indorsee against indorser, is evidence of 
 indebtedness under the money counts. Cayuga Bank v. Warden, 3 Selden, 
 19. The indorsee of a draft has no right to sue the drawer on the original 
 consideration. Battle v. Colt, 19 Barbour, S. C. Rep. 68. Recovery may be 
 had upon a promissory note under the common money counts. Lane v. 
 Adams, 19 Illinois, 167. Indorsee can recover against maker on the money 
 counts. Hopkins v. Kent, 17 Maryland, 113. Assumpsit on the common 
 money counts on a bill payable to B., " cashier," will lie though the considera- 
 tion moved from the bank. Johnson v. Catlin, 1 Williams, 87. A bill of ex- 
 
634 PI,BAT)IKO AND EVIDENCE. 
 
 As between banker and customer a check paid by the banker 
 is no proof of money lent or advanced by the banker to the cus- 
 tomer, but "prima facie it shows a return of money previously 
 lent dr deposited by the customer with the banker. 
 
 A check not ptesented has been held not to be evidence of 
 money lent by the drawer to the payee.(«) 
 
 In an action by the payee against the maker of a note or ac- 
 ceptor of a bill, the plaintiff must, if the making or acceptance 
 be in issue, prove the handwriting(A) of the person whose 
 r*4S01 *"'''™'® appears as the makef of the note or acceptor of 
 '- ■' the bill. 
 
 In an action by the indorsee against a maker or acceptor, the 
 plaintiff must first prove the making of the note or the accept- 
 ance of the bill. We have already seen that the acceptance 
 admits the drawing. Then the indorsement must be proved, 
 and if it be special, it must appear that the indorsee is the 
 person described in it. If the instrument be payable to bearer, 
 or indorsed in blank, it is of course unnecessary to allege of 
 prove(/J) a subsequent indorsement.(l) 
 
 (j) Peavce v. DiiviSj 1 M. & Rob. 365. 
 
 (A) By the Common Law Procedure Act, 1852, s. 117, either party may 
 call on the oiher party by notice to admit any docnment ■saving all just ex- 
 ceptions-, and in case of refusal or neglect to admit, the costs of proving the 
 document shall be paid by the party neglecting or refusing, unless at the trial 
 the Judge shall certify that the refusal to admit was reasonable ; and no costs 
 of proving any document shall be allowed unless such notice shall be given, 
 except in cases where the omission to pive tlie notice is in the opinion of the 
 Master a saving of expense. And see R. 30, H. T. 1853. 
 
 (l) Unless averred in the declaration. See Chapter on Transfer. 
 
 i " ~ 
 
 change is evidence against an acceptor in favor of an indorsee, under the 
 common count for money had and received. Farmers' and Citizens' Bank v. 
 Payne, 25 Conn. 444. 
 
 (1) In an action by the indorser against the indorsee, it is not necessary to 
 prove execution by the fhakcT. Bestor v. Phelps, 17 Illinois, 592. Proof of 
 defendant's signature to a joint and several note, is sufficient without showing 
 its execution by the rest. Chandler v. Lawrence, 3 Michigan, 201. The in- 
 dorsee of a note payable to the order of a corporation, must prove that the 
 officer indorsing it had authority to do so. Marine Bank v. Clements, 3 Bos- 
 worlli, 600. 
 
PLBADINd AND EVIDENCE, 635 
 
 A promise to pay, or an offer to renew a bill or note, made to 
 the indorsee after it is due, is an admission of the holder's title, 
 and will make the proof of indorsement unnecessary. (m) But 
 the admission of an indorser is evidence against him only, not 
 against other partie8.(?i)(l) 
 
 In an action by an indorsee against an indorser, it is neces- 
 sary, first to prove the indorser's signature, which admits the 
 ability and signature of every antecedent party ",(0) then a due 
 pre8entment(p) for payrfaent or acceptance, and dishonour ; and, 
 lastly, notice of dishonour, or, if the record admits of such 
 proof, a competent excuse for neglecting to give it. 
 
 An indorsement is evidencCj in this action under the common 
 couutB.(g') 
 
 A general receipt on the back of a bill is not of itself evi- 
 dence of the payment by the drawer, though he produces the 
 bill,(r) for " 'prima fade" says Lord Kenyon, " the receipt on the 
 back imports that it was paid by the acceptor." But this doc- 
 Cm) Hankey v. Wilson, Sayer, 223 ; Bosanquet v. Andeison, 6 Esp. 43 ; 
 Sidfoid V. Chambcis, 1 Staik. 328 (3 E. C. L. R.) ; Jones v. Morgan, 3 Oainp. 
 474. 
 
 (b) Heminga v. Robinson, Barnes, 436. 
 . (0) Critchlow v. Pai ry, 2 Camp. 182 ; Chaters v. Bell, 4 Esp. 210 ; Lambert 
 V. Pack, 1 Salk. 127 ; Macgregor v. RhodeB, 25 L. J,, Q. B. 818 ; 6 E. & B. 
 266 (88 E. C. L. R.), S. C. 
 ., if) I. e., if denied by the pleas. 
 
 (?) Kessebower v. Tims, Bayley, 6th ed. ; and see ante. 
 ; ()•) Scholey v. Walsby, Peake, 24. 
 
 (1) Declarations of a former holder of a bill transferred to the plaintiff after 
 dishiinor, are competent to show that before such transfer the defendants were 
 discharged from liability. Hollister v. Reznor, 9 Ohio, 1. An admission by one 
 Joint drawer, even though an accommodation drawer, of his liability on the 
 bill, thus impliedly admitting demand and notice, binds his co-contractors. 
 Dickerson v. Turner, 12 Indiana, 123. Under the averment in a declaration 
 of due demand and notice, the declarations of the indorser acknowledging lia- 
 bility are evidence. Myers v. Slandart, 11 Ohio (N. S.), 29. A refusal to 
 pay a bill because another person should pay part, is admissible as an admis- 
 sion of the authority of the agent who accepted it. May v. Hewitt, 33 Ala- 
 bama, 161. It is not incumbent on the holder to prove the signatures of the 
 drawer and first indorser, in order to recover against a subsequent indorser. 
 Eicard v. Harrison, 19 Louis. Ann. 181. 
 
636 PLEADING AND EVIDENCE. 
 
 trine must be taken- with the qualification that slight circum- 
 
 etanees will show the contrary.(s) 
 
 [*-i31] *ParoI evidence is admissible to explain the reeeipt.(i) 
 
 An entry or statement by a person since deceased against his, 
 own pecuniary interest, whenever made is evidence between 
 third persons of the fact which it records,(u) 
 
 And a minute in writing by a person since deceased, made in 
 the ordinary course of his business, and contemporaneous with 
 the fact it records, is also evidence.(a;)(l) 
 
 There are several statutes enabling a Judge to cure a vari- 
 ance by amending the record at the trial ; the 9 Geo. 4, c. 15 ; 
 the 3 & 4 Will. 4, c. 42, s. 23 ; the 15 & 16 Vict. c. 76, s. 222, 
 and the 17 & 18 Vict. c. 125, s. 96, which latter statutes now en- 
 able a Court or Judge to amend in almost any case, imposing 
 such terms as shalF best further justice.(y) They even go 
 further, and oblige not even the Court at Msi Prius bht in Banc, 
 and even a court of error, to make all amendments necessary 
 to determine .the real question in controversy. 
 
 (s) See Phillips v. "Wanen, 14 M. & W. 379. 
 
 (0 Graves v. Key, 3 B. & Ad. 313 (23 E. C. L. E.). 
 
 (a) Hlgham v. Ridgway, 1 East, 109. See the notes to this case in 3 Smith's 
 Lead. Ca. 198. But as to memoranda on the bill or note itself, see the Chapter 
 on the Statute op Limitations. 
 
 (is) Price V. Earl of Torrington, 1 Salk. 285. See the notes to 1 Smith's 
 Lead. Ca. 139, and Eastern Union Railway Company v. Symonds, 5 Exch, 
 237. 
 
 iy) See Wilkin v. Reed, 15 C. B. 192 (80 E. C. L. R.) ; Ritchie v. Van 
 Gelder, 9 Exch. 763. 
 
 (1) Memoranda made by clerk of notary, who has no memory of the fact, 
 verified by his oath, admissible to prove presentment and notice. Cole v. 
 Jessup, 10 New York, 90 ; Taylor v. Stringer, 1 Hilton, 377. 
 
OF THE BAKKKUPTCT OF PARTIES, ETC. 637 
 
 ^CHAPTER XXXY. 
 
 [*432] 
 
 OF THE BANKRUPTCY OF PARTIES TO A BILL OR NOTE. 
 
 TESTING OF BANKRUPT S PROP- 
 
 EKTY IN THE TRUSTEE, . . 433 
 
 KELATION OF ADJUDICATION IN 
 i BANKRUPTCY, .... 433 
 PROTECTED TRANSACTIONS, . 434 
 
 ■WHAT AMOUNTS TO NOTICE OF 
 
 ACT OF BANKRUPTCY, . . 435 
 
 BILL TO PETITIONING CREDITOR, 436 
 IN WHAT OASES THE HOLDER 
 
 MAY PROVE, .... 486 
 BILLS AND NOTES NOT YET DUB, 436 
 PROOF OF A BILL OR NOTE PAY- 
 ABLE ON DEMAND, . . .436 
 BILL PAYABLE AFTER NOTICE, . 437 
 IRREGULAR BILL OR NOTE, . 487 
 BILL CANNOT BB< PROVED 
 AGAINST A MAN HOT A PARTY 
 
 TO IT 437 
 
 PROOF OF LOST BILL, . . 437 
 
 PROOF BY A SURETY OR PERSON 
 LIABLE FOR THE DEBT OF A 
 BANKRUPT, .... 437 
 
 DEBTS AND LIABILITIES, NOVf 
 
 PROVEABLE, .... 439 
 HOLDER MAY AND MUST ELECT 
 
 BETWEEN PROOF AND ACTION, 439 
 MUTUAL ACCOMMODATION BILLS, 440 
 WHERE THERE HAS BEEN SPBCI- . 
 
 nC EXCHANGE OF SECURITIES, 440 
 WHAT AMOUNTS TO SPECIFIC EX- 
 CHANGE, 441 
 
 PARTY TO MUTUAL SPECIFIC EX- 
 CHANGE OF PAPER MUST PAY 
 HIS OWN PAPER BEFORE HE 
 CAN PROVE? .... 441 
 MUTUAL ACCOMMODATION WITH- 
 OUT SPECIFIC EXCHANGE, . 441 
 AFTER HOLDER HAS PROVED NO 
 
 FURTHER PROOF, . . . 442 
 
 CASES OF MUTUAL ACCOMMO- 
 DATION WITHOUT SPECIFIC 
 EXCHANGE, MUTUAL BANK- 
 RUPTCY, AND CASH BALANCE, 443 
 
 ACCOMMODATION BILLS IN THE 
 HA^DS OF AN INDORSEE FOB 
 VALUE, 447 
 
 PROOF OF INTEREST, . . . 447 
 
 OF EXPENSES, RE-EXCHANGE, 
 
 &C 447 
 
 WHERE THERE ARE SEVERAL 
 ADJUDICATIONS OF BANK- 
 RUPTCY, UNDER WHICH, AND 
 FOB HOW MUCH THE HOLDER 
 MAY PROVE, .... 447 
 
 WHERE BANKRUPTCY IN MORE 
 
 THAN ONE COUNTRY, . . 448 
 
 PROOF AGAINST JOINT AND SEPA- 
 RATE ESTATE, .... 448 
 
 WHERE A CREDITOR HOLDS A 
 BILL AS A SECURITY, . . 449 
 
 PROOF WHEBE A TBANSFBB AF- 
 TER acceptor's BANKRUPTCY, 449 
 
 ACTS OF BANKRUPTCY IN RESPECT 
 
 OF BILLS, 449 
 
 WHEN A BILL MAY BE A GOOD 
 PETITIONING creditor's 
 DEBT, 450 
 
 EVIDENCE OF THE DATE OF A 
 BILL, . . ' . . . 451 
 
 DISTINCTION BETWEEN TRADERS 
 AND NON-TRADERS, . . . 452 
 
 WHAT TRANSACTIONS, IN RE- 
 SPECT OF BILLS, WILL CONSTI- 
 TUTE A TRADING WITHIN THE 
 BANKRUPT LAWS, . . . 452 
 
 REPUTED OWNERSHIP, . . 453 
 
 DEBTS FORMERLY WITHIN IT, . 453 
 
 DORMANT PARTNER, . , . 453 
 
 NOW TRADE DEBTS ONLY, . . 453 
 
 BILLS ANO NOTES MAY BE 
 
 WITHIN IT, ... . 453 
 
 BILLS IN THE HANDS OF A 
 BANKER, &C., BECOMING BANK- 
 RUPT( DO NOT PASS UNDER IT, 454 
 
 DEPOSITED SECURITIES, . . 456 
 
or THE BANKKUPTCT OF PARTIES 
 
 holdee's bight to the bene- 
 fit OF SECDRITY IN THE 
 EVENT OE BANKBUPTCT, . . 456 
 
 TO SECURITIES DEPOSITED WITH 
 
 ACCEPTOR, .... 456 
 
 WITH THIRD PERSONS, . . 456 
 
 IN CASE OP GUARANTEE GIVEN 
 
 TO ACCEPTOR 457 
 
 TRANSFER IN- CASE OP BANE- 
 
 KUPTCY OP HOLDER, . . 457 
 
 WHERE THE BANKRUPT IS A 
 
 TRUSTEE, 457 
 
 WHEN THE TRANSFER OP A BILL 
 
 BY A BANKRUPT IS PAYMENT, 
 TRANSFER TO A BANKRUPT, 
 WHEN HIS CAPACITY ADMITTED, 
 BILL OR NOTE FOB DEBT BARRED 
 
 BY CERTIFICATE OR ORDER OF 
 
 DISCHARGE, 
 FRAUDULENT PREFERENCE, 
 VOLUNTARY TRANSFER, 
 
 457 
 
 458 
 458 
 
 458 
 458 
 459 
 
 [*433] 
 
 *To discuss at length the subject of bankruptcy 
 would far exceed our limits ; and even to attempt a 
 compendium in its present state of transition would be perilous, 
 it is proposed, therefore, merely to sketch ah outline of the law 
 so far as it relates to bills of exchange and promissory notes. 
 
 It is impossible at present to neglect the consideration of 
 the statute law as it existed before the late general act,(a) 
 because past tra;n8action8 under the repealed statutes may 
 for some years hereafter continue to be the subject of judicial 
 inquiry. 
 
 Immediately on adjudication, all the bankrupt's beneficial 
 property(6) {ineluding bills and notes), now passes to the 
 registrar provisionally ,(c) till the appointment of the trustee 
 in bankruptcy, and then it passes to that trustee and vests in 
 him. 
 
 The title of assignees (unless where restrained by particular 
 enactment) formerly related to any act of bankruptcy after the 
 date of the petitioning creditor's . debt, and not more than 
 
 (<i) 82 & 33 Yict. c. 71. This act read wilh the 83 & 33 Vict. c. 83, re- 
 pealing former acts, takes away the power of a debtor to mak^ himself bank- 
 rupt on his own petition. 
 
 (J) The word property is used in its mpst extensive sense, and includes 
 money, goods, things in action, land and eyery description of property 
 whether real or personal ; also obligations,, easements and every desfsi'ipliion 
 of estate,, interest and profit; present or future. Vested or contingent, arising 
 out of or incident to property, as above defined. 32 & S3 Vict. c. 71, s. 4. 
 
 (0) 31 & 32 Vict. c. 71, s. 16. 
 
TO A BILL OB NOTE. 639 
 
 twelve months before the petition,(d) but not to any act of 
 bankruptcy before that. date. 
 
 *It did not of course relate to any act of bankruptcy , >„ ,„ .-, 
 prior to the petitioning creditor's debt, if there were "- -' 
 not at the time of such pi-ior act of bankruptcy another suffi- 
 cient debt whereon to found an adjudication. (6) Nor even if 
 there were a sufficient debt ; for as that would, even before the 
 46 Geo. 3, c. 145, s. 5, have invalidated the commission,(c) the 
 assignees could not rely on it. The 46 Geo. 3, c. 145, s. 5, and 
 the corresponding enactments, 6 Geo. 4 c. 16, s. 19, and 12 & 
 13 Vict. c. 106, s. 88, though they relieved the assignees from 
 the disabling effect of such prior act of bankruptcy, did not go 
 further, and enable the assignees to take advantage of it. 
 
 Hence, it followed that the assignees could not treat transac- 
 tions with the bankrupt in respect of bills and notes, as acts 
 of bankruptcy, except after an act of bankruptcy within the 
 reach of the petitioning creditor's debt.(<;?) 
 
 Further particular limitations within this general limitation 
 were introduced by the old statutes, and by various sections of 
 the 12 & 13, Vict. c. 106. 
 
 The title of the trustee in bankruptcy now relates back to 
 the act of bankruptcy on which the adjudication proceeded. 
 And if there be several acts of bankruptcy, then to the earliest 
 within twelve mouths beiore the adjudication, but not to any 
 
 (,d) The act of bankruptcy must have been within twelve months before 
 the petition; 12 & 13 Vict. c. 106, s. 88. There could be no relation to a 
 prior act of bankruptcy where the bankrupt himself was petitioner. Steven- 
 son V. Newnham, 13 C. B. 385 (76 B C. L. R.) ; Nicholson v. Cooch, 5 E. 
 & B. 999 (85 E. C. L. R.) ; Monk v. Sharp, 27 L. J., Exch. 29 ; Shrpbsole 
 V. Sussams, C. P., E. T. 1864 ; Toppy v. Keysell, S. P. 
 
 (i) Doe V. Boulcot, 2 Bsp. 595. 
 
 (c) The bankrupt could not, under any circumstances, have availed himself 
 of a prior act of bankruptcy to defeat the commission. Donovan v. Duff, 9 
 East, 31 ; Rex v. Bullock, 1 Taunt. 71. 
 
 ((?) Ward V. Clarke, M. & M. 497 (22 E. C. L. R.) ; Ex parte Birkett, 3 
 Rose, 71 ; Norman v. Booth, 10 B. & C. 703 (31 E. C. L. R.)- The provi- 
 sions of the 6 Geo. 4, c. 16, s. 18, for the substitution of another debt for the 
 petitioning creditor's, provided that the substituted debt shall not be of prior 
 date. This proviso is omitted in the corresponding enactment, 12 & 13- Vict, 
 c. 106, s. 103. 
 
640 OF THE BANKKUPTCT OF PARTIES 
 
 prior act of bankruptcy, unless the bankrupt were then 
 indebted to a creditor or creditors in a sum sufficient to sup^ 
 port a petition for adjudication, and that debt or those debts 
 be still due.(d) 
 
 Conveyances, contracts and other transactions by the bank- 
 rupt, and executions against him, though after an act of bank- 
 ruptcy, if without notice of it and more than two months 
 before the issuing of the fiat, were valid even before the former 
 general Bankrupt Act.(/) 
 
 *Thus, where a bill of exchange was delivered by a 
 L -' bankrupt with intent to transfer the. property, more 
 than two months before the commission issued, though not 
 actually indorsed till within the two months, it was holden to 
 vest in .the indorsee, and not in the assignees.(^) 
 
 And all bona fide payments by or to any bankrupt, and all 
 contracts, dealings and transactions, with the bankrupt, before 
 the filing of a petition for adjudication of bankruptcy, without 
 notice of an act. of bankruptcy, were protected. (A) 
 
 Purchasers of any property from the bankrupt, bona fide 
 and for valuable consideration after an act of bankruptcy, and 
 with notice thereof, were protected, unless a petition for adjudi- 
 cation of bankruptcy should have been filed within twelve 
 months after such act of bankruptcy .(?') ^ 
 
 The title to property sold under an adjudication of. bank- 
 ruptcy could not be impeached by the bankrupt, or any person 
 claiming under him, unless the bankrupt had commenced pro- 
 ceedings to annul the petition within twenty-one days from its 
 advertisement in the Gazette.(/ ) 
 
 Now by the recent act 32 & 33 Vict. c. 71, s. 92, all honest 
 payments to a bankrupt for value received, all contracts or 
 
 («) 33 & 33 Vict. c. 71, s. 11. 
 
 (/) 6 Geo. 4, c. 16, b. 81. 
 
 (g) Anon., 1 Camp. 493, n. 
 
 (/i) 13 & 13 Vict. c. 106, s. 133, repealing and re-enacting the 2 Vict. c. 11, 
 and 3 & 3 Vict. c. 39. ,,i' 
 
 (i) 12 & 13 Vict. c. 106, s. 134 ; see s. 86 of 6 Geo. 4, c. 16. 
 
 (j) 13 & 13 Vict. c. 106, ss. 131 and 333 ; further periods are given him if 
 he were out of the United Kingdom, s. 233, 
 
TOABILLORNOTB. 641 
 
 dealings with the* bankrupt, made in good faith and for valu- 
 able Gonsideratiou, before adjudication, and without notice 
 of an act of bankruptcy available for adjudication, are pro- 
 tected. > ' 
 
 It seems that the expression, notice of an act of bankruptcy^ 
 is satisfied by a general notice that the party has committed 
 an act of bankruptcy. And that notice of the specific act iS' 
 not necessary.(A) It maybe given to the party's attorney ;(?) 
 but not to a mere clerk in the attorney's office, not having the 
 management of the aft'air.(?n) It may be given to the accred- 
 ited agent of a body corporate or public company.(?i) 
 
 *A bill given by the bankrupt to a petitioning creditor p.„ ,„„-,' 
 after bankruptcy is a void transaction, and may be an ^ J 
 additional act of bankruptcy. (o) 
 
 In almost all cases where a bankrupt would be liable to an 
 action at law or suit in equity by the holder of a bill or note, 
 the holder may prove on the bankrup)t's estate for the amount. 
 And whatever would be a defence to a suit in law or equity, 
 will be an answer to such proof (jo) All debts and liabilities, 
 present or future, certain or contingent, including even unliqui- 
 dated damages arising from a breach of contract, are now 
 provable.(5') 
 
 (4) Udal V. Wiillon, 14 M. & "W. 354; and see Conway v. Nail, 1 C. B. 
 643 (50 E. C. L. R.) ; Folletl v. Hoppe, 17 L. J., C. P. 76. 
 
 (0 Rotliwell V. Timlji-ell, 1 Dowl. N. S. 779. 
 
 (m) Pifee V. Stevens, 12 Q. B. 405 (64 E. C. L. R.) ; 18 L. J., C. P. 291 ; 
 see Pennell v. Stevens ; Fawcett v. Fearne, 6 Q. B. 20 (51 E. 0. L R.) ; 
 Green v. Steer, 1 Q. B. 710 (41 E. C. L. R.). Notice to the sheriff is not suf- 
 ficient to defeat au execution. Ramsey v. Eaton, 10 M. & W. 33. 
 
 (n) 13 & 13 Vict. c. 106, s. 89. 
 
 (o) Rosj v. Main, 1 Bing. N. C. 357 (27 E. C. L. R.) ; 1 Scott, 137, S. C; 
 See 12 & 18 Vict. c. 106, ss. 71 and 268. 
 
 (p) See Ex parte Dewdney, 15 Ves. 495 ; Ex parte Smith, 3 Bro. C. C. 1 ; 
 Ex parte Wilson, 11 Ves. 410 ; Ex parte Gilford, 6 Ves. 807 ; Ex parte Heath, 
 2 V. & B. 240 ; Ex parte Barclay, 7 Ves. 797 ; Ex purte Rofey, 19 Ves. 488 ; 
 2 Rose, 245, 8. C. 
 
 (q) 33 & 33 Vict. c. 71, s. 31 ; and see the repealed act, 34 & 2) Vict. c. 134, 
 8- 153. See also Wood v. Demattos, L. Rep., 1 Ex. 100, and Hogganh v. 
 Taylor, L. R., 3 Ex. 105; Robertson v. Goss, L. R., 3 Ex. 396. 
 
 41 
 
642 OF THE BANKBTJPTCT OF PARTIES 
 
 The good part of a bill may in some cases in the event of 
 bankruptcy be separated from the bad. "Where a stock-jobber 
 having a large sum of money in bis bauds to be employed in 
 stock-jobbing transactions, contrary to the 7 Geo. 2, c. 8, 
 diverted part to his own use, and gave promissory notes to his 
 employer, they were allowed to be proved only to the extent of 
 the money diverted from the illegal purpose to the stock- 
 jobber's own use.(r) " The equity is," says the Lord Chancel- 
 lor, " that where the consideration consists of two parts, one 
 bad, the other good, the bill shall stand as to what is good."(s) 
 
 Bills, notes and other securities, not due at the time of the 
 bankruptcy, may be proved, deducting a rebate of interest, at 
 such rate per cent, as the rules or practice of the court may 
 prescribe, to be computed from the declaration of a dividend.(<) 
 
 The holder of a note payable on demand may prove though 
 no demand has been made before the act of bankruptcy .(m) 
 
 *A note pa,yable at twelve months' notice, with in- 
 L J terest, is proveable against the estate of the maker, 
 though he become bankrupt before any notice is given [x) 
 
 A bill or note defective in its necessary form, or void for 
 want of a stamp,(y) or payable on a contingency ,(2:) or payable 
 in noteSj(a) is not, as a bill or note, proveable. 
 
 A bill, as such^ cannot be proved against a man who is not a 
 pai:ty to the instrument,(6) though he give a written engage- 
 
 (r) Ex parte Bulmer, 13 Yes. 313. 
 
 (s) Ex parte Mather, 3 Ves. 373 ; see ante. 
 
 (0 See th^ repealed acts, 12 & 13 Vict. c. 106, s. 173, and 6 Geo. 4, c. 16, s. 
 51 ; and now 32 & 33 Vict. c. 71, s. 31. 
 
 («) Ex parte Beaufoy, Co. B. Law, 180 ; and 33 & 33 Vict. c. 71, s. 31. 
 
 (a) Clayton v. Gosling, 5 B. & C. 360 (11 E. C. L. R.) ; 8 D. & R. 110, S. 
 C. ; Ex parte Elgar, 3 G. & J. 1 ; Ex parte Downman, 8 G. & J. 85, and 3 
 G. & J. 341 ; and see now 33 & 33 Vict. c. 71, s. 31. 
 
 {y) Ex parte Manners, 1 Rose, 68. 
 
 (z) Ex parte Tootel, 4 Ves. 373. 
 
 (a) Ex parte Immeson, 3 Rose, 325 ; Ex parte Davison, Buck. 31. 
 
 (J) Ex parte Roberts, 3 Cox, 171 ; Ex parte Bird, 4 De Gex & S. 273. 
 
TOABILLORNOXE, 643 
 
 ment, not on the bill, to guarantee the payment of it.(c) Bat 
 the holder may prove on such an engagement made before the 
 bankruptc3',(af) And in other cases the estate may be liable 
 to proof for the consideration, though not for the bill itself.(e) 
 And it has been held, that a person who passes a bill with- 
 out indorsement, and takes it up after the acceptor has become 
 bankrupt, will not be allowed to prove it against the acceptor's 
 e8tate.(/) 
 
 Where a bill has been lost, a party claiming to prove must, 
 as a general rule, give an indemnity to the satisfaction of the 
 court.(^) But in some cases this will be dispensed with.(A) 
 
 The former Bankrupt Act, 6 Geo. 4, c. 16, s. 52, and the cor- 
 responding provision in 12 & 13 Vict. c. 106, s. 173, enact, that 
 any person who, at the issuing of the commission, may have be- 
 come, without notice of an act of bankruptcy, surety, or liable for 
 the debt of the bankrupt, and *shall have paid the debt 
 or any part in discharge of the whole, though after the ^ ^ 
 commission, shall, if the creditor have proved, stand in his 
 place, and receive the dividends ; and if the creditor have not 
 proved shall be entitled to prove. 
 
 A man who was at law a principal, if he were in equity a 
 surety, was within the section, the jurisdiction in bankruptcy 
 being equitable as well as legal.(z) 
 
 Hence, not only a party who was on the face of a bill or note 
 surety for a bankrupt, but one who had accepted, drawn, made, 
 or indorsed a bill or note for the accommodation of the bank- 
 rupt, might, at any time after he had paid it, prove the amount 
 upon the estate, though he did not pay it till after thei commis- 
 sion issued, for he was deemed a surety or person liable for the 
 
 (c) Ex parte Harrison, 2 Cox, 173; 3 Bro. C. C. 614, S. C. ; In re Barring- 
 ton, 3 Scho. & Lef. 113 ; Ex parte Hustler, 1 6. & J. 9. 
 
 (rf) Ex parte Bell, 1 Mont. B. L. 194 ; and see Ex parte Blackburn, 10 Ves. 
 206 ; Ex pane Rathbone, Buck. 315 ; and see now 33 & 33 Vict. c. 71, s. 31. 
 
 (6) Ibid., and Ex parte Robinson, Buck. 113. 
 
 (/) Ex parte Isbester, 1 Rose, 20. See tUe Chapters on Tbanspbb and 
 Notice of Dishonoub. 
 
 (?) Ex parte Greenway, 6 Ves. 812 ; General Order, Nov. 12th, 1843, r. 25. 
 
 (h) Ex parte Webster, De Gex, 414 ; and see 17 & 18 Vict. c. 135, s. 87. 
 
 (0 "Wood V. Dodgson, 2 M. & S. 195 ; Ex parte Lloyd, 1 Rose, 4. 
 
644 OF THE BANKRUPTCY OF PARTIES- 
 
 debt of the bankrupt witbin the statute,(A) and was entitled, 
 if tbe party to whom he paid the bill had proved bis debt, to 
 stand in his place as to the dividends and all other rights under 
 the commission, and would be barred by the certiiicate.(i) But 
 au election by tbe holder to prove would not conclude the 
 drawer, but tbe drawer having paid tbe holder, might sue the 
 bankrupt before certificate.(m) "Where, upon a dissolution of 
 partnership, tbe partner continuing the business, expressly 
 agreed to assume the liabilities of tbe iirm and to guarantee 
 the retiring partners, and he becoming bankrupt, they were 
 obliged to pay a bill accepted by tbe firm, the retiring partner? 
 were considered as persons liable for tbe debts of the bankrupt, 
 .were entitled to prove under his commission, and were barred 
 by bis certificate.(n) It the suretyship commenced before no- 
 tice of an act of bankruptcy, it might be continued afterwards^ 
 as, for example, by the renewal of an acceptance.(o) But where 
 a bond or promissory note was given by a principal and several 
 sureties, and one of tbe sureties became a bankrupt, his obligation 
 was not considered to be a debt witbin the statute for which 
 the co-sureties were liable.(p) Where tbe accommodation, ac- 
 
 (k) 6 Geo. 4. c. 16, s. 52 ; Ex parte Lloyd, 1 Rose, 4 ; BasacU v. Dodgin, 9 
 Biug. 053 (33 E. C. L. R.) ; 2 M. & Scott, 777, S. C. ; Ex parte Yonge, 3 V. 
 
 6 B. 40; 2 Rose, 40, S. C. ; SteUman v. Martinnant, 13 East, 427; Halgli v. 
 Jackson, 3 M. & W. 598. 
 
 (0 Biissett V. Dodgin, 9 Bing. 653 (33 E. C. L. R.) ; 3 M. & Scott, 777, 
 S. C. 
 
 (m) Mead v. Braham, 3 M. & S. 91 ; "Westcott v. Hodges, 5 B. & Aid. 12 (7 
 E. C. L. R.) ; Walker v. Pilbeam, 4 0. Br. 329 (56 E. C. L. R.). 
 
 (n) Wood V. Dodgson, 2 M. & Sel. 195 ; Haigh v. Jackson, 3 M. & W. 598 ; 
 Aflalo V. Fourdrinier, 6 Bing. B06 (19 E. C. L. R.) ; M. & M. 334 (22 E. C. 
 L, K.), n., S. 0. 
 
 (o) Stedman v. Martinnant, 13 East, 437. 
 
 (p) Clements v. Langley, 5 B. & Ad. 372 (27 E. C. L. R.) ; 3 N. & M. 269, 
 S. (J. ; Wallis v. Swinburne, 17 L. J., Exch. 179 ; 1 Exrh. 203, S. C. ; but 
 see the larger provision of 12 & 13 Vict. c. 106. ss. 177, 178. The liahility of 
 a surety to his co-surety on a joint and several promissory note is a liability to 
 pay money on a contingency within the meaning of s. 178. Adkins v. Par- 
 rington, 39 L. J., Exch., 345 ; 5 H. & N. 586. S. C. As to proof of distinct 
 contracts by the same person jointly with others on the same bill of exchange 
 or promissory note, see 84 & 25 Vict. c. 134, s. 152, and Goldsmid v. Cazenove, 
 
 7 H. of L. Gas. 785; 29 Law J., Bank 17. Unliquidated damages from 
 breach of contract, when proveable, s. 153. See Green y. Bucknell, 8 Ad. & 
 E. 701 (35 E. C. L. R.) ; Rooman v. Nash, 7 B. & C. 145 (14 E. 0. L. R.) ; 
 post, 447. ^ 
 
TO A BILL OR NOTE. 645 
 
 ceptor had sustained *special damage, an action for 
 damage was barred by the certificate. (§') Payment of '- ^ 
 a portion of the debt merely in discharge of the surety's per- 
 sonal liability was not a payment within the statute.(r) 
 
 But now by the recent general bankrupt Act, 32 & 33 Vict, 
 c. 71, s. 31, all debts and liabilities, present or future, certain 
 or contingent, to which the bankrupt is subject at the date of 
 the order of adjudication, or to which he may become subject, 
 during the continuance of the bankruptcy, by reason of any 
 obligation incurred previously to the date of the order of ad- 
 judication, are deemed debts proveable in bankruptcy, except 
 demands in the nature of unliquidated damages arising other-^ 
 wise than from contract, and except where there has been 
 previous notice of an act of bankruptcy. 
 
 The value of the contingent debt or liability is to be esti- 
 mated according to the rules of the court. And if the court 
 deem it incapable of being fairly estimated, then it is not 
 proveable.(s) 
 
 , A holder has an election to proceed by proof under the bank- 
 ruptcy, or by acti'on, but cannot do both ; yet he may proceed 
 against some parties to the bill by action, and against others 
 by proof under the bankruptcy ; and against the same party he 
 may prove for one debt, and bring his action for another. " It 
 is clear," observes the Court of Common Pleas, " that a creditor 
 has a right to sue for, or to prove, each individual debt as may 
 best suit his purpose." (<) *But this defence to an ac- ^^ , „-, 
 tioa cannot be raised by plea.(M) The holder may, '- • -' 
 
 (?) Vansand^u v. Corsbie, 8 Taunt. 550 (4 B 0. L. R ) ; 2 Moo. 602 ; S. 
 C, in error, 3 B. & Aid. 13 (5 E. C. L. R). 
 
 (!■) Soutten V. Soutten, 5 B. & Aid. 853 (7 E. C. L. R.). 
 
 (») interest is allowed In cases where interest would haveftjeen allowed -by 
 a jury (s. 36). See post, 447. 
 
 (0 Bridget v. Mills, 4 Bing. 18 (18 E. C. L. R.) ; 12 Moo. 92, S. C. ; Ex 
 parte Grosvcnor, 14 Ves. 588 ; Ex parte Glover, 1 G. & J. 270 ; Watson v. 
 Mtdex, 1 B. & Aid. 121 ; Harley v. Greenwood, 5 B. & Aid. 95 (7 E. C. L. 
 B.) ; 2 D. & R. 337, 8. 0. ; Metid v. Braham, 3 M. & Sel. 91 ; Ex parte Lob- 
 bnn, 17 Ve?. 334 ; 1 Rose, 219, S. 0. ; Adames v. Bridger, 8 Bing. 314 (21 E, 
 C. L. R.) ; 1 Moore & S. 438, S. C. ; Ex parte Edward, 1 Mont. & Mac. 116 ; 
 6 Geo. 4, c. 16, s. 59 ; 13 & 13 Vict. c. 106, s. 138. TUis defence, however, 
 cannot be made by plea. Spencer v. Demmelt, L. R., 1 Ex. 123. 
 
 («) Spencer v. Demmett, Law Rep. 1 Ex. 123. 
 
646 01 THE BANKBUPTCT OF PARTIES 
 
 however, by. motion be put to bis election, either to stay the 
 action or relinquish his proof. 
 
 The principal difficulties as to proof in respect of bills of ex- 
 change arise, where there has been mutual accommodation 
 between the bankrupt and other parties. 
 
 Mutual accommodation may be either with a specific ex- 
 change of securities, or without a specific exchange of securities. 
 
 Mutual accommodation with specific exchange is, where the 
 acceptance of A. is exchanged for the acceptance of B. to the 
 same amount. In this case each party is bound to pay his own 
 acceptance, and, in paying it, is not considered as surety for 
 another. Plaintiff and defendant each drew a bill on the other 
 for the same amount, aifd each accepted the bill drawn on him 
 without further consideration. Before the bills became due, 
 defendant became bankrupt, having indorsed the bill accepted 
 by the plaintifl[" to a creditor. The creditor proved the bill 
 under the commission, and then the plaintiff paid the creditor 
 the residue. The plaititiff now sued the defendant on the bill 
 accepted by the defendant. But the Court of Common Pleas 
 were clearly of opinion, that the two bills were mutual engage^ 
 ments, constituting on each side a debt, the one being a con- 
 sideration for the other. That the bill accepted by the 
 defendant, and on which the plaintiff sued, created an absolute 
 debt from the beginning, which was capable of being proved 
 under the commission, and, being so proveable, was necessarily 
 barred by the certificate.(t)) Three years after, two of the 
 Judges of the Court of King's Bench held the same doctrine. 
 The Peters and the Dunlops had specially exchanged accept- 
 ances to the amount of 3,0001. Both parties became bankrupt. 
 The Peters at^fi their estate had paid money on their own ac- 
 ceptances, and also on the Dunlops' acceptances. Both parties 
 bad obtained their certificates. The action was brought by 
 the assignees of the Peters for money paid against the certifi- 
 cated bankrupts. It was held by Lawrence and Grose, Justices, 
 —First, that for payments on account of the Peters' own ac- 
 
 («) Bolfe v. Caslon, 2 H. Bl. 570, anno 1795. 
 
TO A BILL OB NOTE. 647 
 
 ceptances, the Peters' assignees had no remedy, for *that 
 the Peters were bound to pay those acceptances ; and, ■- -' 
 secondly, that they could not recover for money paid on the 
 Dunlops' acceptances, for two reasons ; because the action 
 ^should have been brought on the bills, and not on any implied 
 promise, there being an express one ; and also because the Dun- 
 lops' acceptances were proveable under the Dunlops' commission, 
 and therefore were barred by the certificate (lo) About four 
 years afterwards, the doctrine of Mr. J. Grose and Mr. J. 
 Lawrence was adopted by the whole Court of King's Bench. 
 PlaintiflT and defendants had made specific exchange of bills. 
 Of some of the bills given by defendants to plaintiff, defendants 
 were drawers, of others indorsers. The bills given by defend- 
 ants to plaintiff were all dishonoured. Defendants became 
 bankrupt. Before their bankruptcy, plaintiff paid money on 
 Ms own acceptances, for which he had ' proved u nder- the com- 
 mission. After the bankruptcy, he paid the residue of the 
 money due on his own. acceptances, amounting to 49^. 15s. 2d. 
 This action was brought to recover that sum as money paid. 
 It was held, that plaintiff did not pay his own acceptance aa 
 surety ; that he had, therefore, no remedy to recover such pay- 
 ments, but that his remedy would have been on the cross bills, 
 had they not been barred by the certificatc.(a;) 
 
 It is not essential, in order to constitute a specific exchange 
 of securities, that the acceptances given in exchange should be- 
 the acceptances of the party giving them, nor that the amounts 
 or dates should be exactly the same.(!/) 
 
 Formerly, a party to a specific exchange of paper was allowed 
 to prove the bankrupt's paper without having paid his own, 
 the dividends being retained until he had paid his own paper •,{z) 
 
 (w) Cowley v. Dunlop, 7 T. R. 585, anno, 1798, Lords Konyon and Ash- 
 burst, Juslices, dissentientibus. 
 
 (x) Buckler v. BuUivant, 3 East, 73, anno 1803. 
 
 (y) Ibid. 
 
 (s) Ex parte Beaufoy, Cook's Bank. L. 180 ; Ex parte Lord Claniicarde, 
 Ibid. 182 ; In re Bowness and Padmore, Und. 183 ; Ex parte Bloxham, 8 Ves. 
 531; Sarriitt v. Austin, 4 Taunt. 200; 3 Rose, 113, S, C. See Ex parte 
 Solarte, 3 D. & C. 361. 
 
648 OF THE BANKRUPTCY OF PARTIES 
 
 but now he must, before he can prove, take up his own bills, or 
 exonerate the bankrupt's estate from the original debt. 
 
 . Mutual accommodation without- specific exchange will not 
 create a debt from the acceptor to the drawer. But the 
 *acceptor is to be considered as a surety, and may rcr 
 '- ^ cover what he pays as money paid to the drawer's use. 
 
 If the holder of a bill has proved against the estate of the 
 person for whose accommodation the bill was accepted, there 
 can be no further proof by any one to' whom the bill is re- 
 turned, nor by the accommodation acceptor, when he pays 
 it.(a) 
 
 The mode of adjusting the accounts between two estates 
 where there had been mutual accommodation paper, a cash 
 balance, and a mutual bankruptcy, has much embarrassed the 
 Courts. Various accommodation transactions had for many 
 years taken place between Caldwell and Co. and the Brownes. 
 The former were the bankers of the latter. A commission of 
 bankruptcy issued against Caldwell and Co., in March, 1793, 
 and in the same month the Brownes became bankrupt. An 
 account was then taken of the mutual debts and credits. That 
 account consisted first of a cash account, which included good 
 bills as well as payments in cash; and, secondly, of a bill ac-' 
 count, which related exclusively to bills which had been passed 
 by one house to the other, and which were all ultimately dis- 
 honoured. The result was, that on the cash account the Brownes 
 were indebted to Caldwell and Co. in the sum of 40,716?., and 
 that on the bill account Caldwell and Co. had received from 
 the Brownes bad bills to the amount of 305,149?. 19s. IM., 
 and the Brownes had received from Caldwell and Co. bad bills 
 to the amount of 204,910?. 5s. Of the bad bills received from 
 Caldwell and Co., the Brownes had negotiated bills to the 
 a;mount of 196,589?. 6s. it?., and of those received from the 
 Brownes, Caldwell and Co. had negotiated bills to the amount 
 of 126,855?. lis. lOci., having retained the residue, viz., 
 178,294?. 8s., at the request of the Brownes. All the bilk 
 
 ' (a) Ex pavtp Read, 1 G. & J. 224; Ex parte Oriental Bank, L. R., 7 Oh. 
 Ap. 99 ; 41 L. J. 217. 
 
TO A BILL OR NOTE. 649 
 
 received by the Brownes were discountable, and upon most 
 of them they had received the full value, and Caldwell and 
 Co. had no consideration for them but the bad bills received 
 from the Brownes. All the bills (or nearly so) which the 
 Brownes had negotiated were proved against the estate of 
 Caldwell and Co., and by far the greater part against the 
 estate of the Brownes also ; but to a large amount, viz., 
 80,000^., the Brownes had deposited bills as a security for 
 payment of a much smaller sura, so that the proof against 
 them in respect of those bills^was only for the sum really 
 *due, whereas against Caldwell and Co. the proof was r*j.4.o-| 
 for the whole sum payable on the bills ; and the conse- 
 quence of this, and of the unequal negotiation of each other's 
 bills, was that a much larger sum was proved against Caldwell 
 and Co., in respect of bills negotiated by the Brownes than 
 against the latter in respect of bills negotiated by the former. 
 Caldwell and Co., on petition, claimed the right to prove the 
 bills which still remained in their hands, in order to be reim- 
 bursed the difterence. But Lord Loughborough, C, said, " Till 
 Caldwell and Co. pay all the creditors of Browne, who are 
 likewise creditors of theirs, 20s. in the pound, they would be, 
 by proving, sharing with the creditors of Browne, who are 
 likewise creditors of theirs. If I allow this petition, I must 
 do two things that are quite impossible. I must hold that the 
 bankruptcy creates a debt which did not exist antecedently, 
 and I must hold, that the same debt may be proved twice." 
 The proof was confined to the balance of the cash account 
 only.(6) Where a petition was presented by the assignees of a 
 bankrupt, the object of which was to prove, not only for the 
 cash balance between the two bankrupts' estates, but also in 
 respect of the dishonoured bills, upon an issue of cross paper 
 dishonoured on both sides, part of which having been nego- 
 tiated, was proved by the holders against both estates, Lord 
 Ellenborough, C, said, " Upon consideration of the cape. Ex 
 parte Walker, it struck me that there were but two ways of 
 taking it as between the two estates, either to consider all the 
 bills as struck out of the ease entirely, as issued for a bad pur- 
 pose, like gambling transactions, &c., upon which there could 
 be no proof, or to consider them all as good bills. I do not see 
 
 (J) Ex parte Walker, 4 Yes. 373. 
 
650 or THE BANKRUPTCY OF PARTIES 
 
 that there is; a middle course." The order was pronounced, 
 that the petitioners should be at liberty to prove the cash 
 balance only.((;) In the case of Ex parte Mawson,{d) Lord 
 Eldon said, " I think that I argued the case of Ux parted 
 Walker, and I must say, that the speculations about paper 
 certainly outran the grasp of the wits of the courts of justice. 
 This sort of circulating medium puzzled as able, a man as ever 
 sat here, Lord Thurlow. I remember the first ca=e of it. It 
 was then small in amount, one bill and another. He then' con- 
 sidered the acceptance of the one as^ a consideration for the 
 other, and allowed both to prove, but then there was this diffi- 
 culty, that it lessened the fund for paying the holder of the bill, 
 *and thus, by proving, they prejudiced their own credi- 
 '- -' tors. It was found this would not do : and then it was 
 said, ' if you will prove,, you must first take up your accept- 
 ance, which got rid of the objection of the party proving in 
 competition with his own creditor.' Then came those houses at 
 Liverpool and Manchester, drawing on one another to the 
 amount of 50,00:0Z. What was to be done then? The Court 
 was puzzled and distressed. At last, however, we came to a 
 sort of anchorage in that case, Ex parte Walker; I have no 
 difficulty in saying that I never understood it. I am satisfied, 
 that though no doubt the Court understood that judgment, yet 
 none of the counsel; did. The decision was this : that where 
 there are cross bills drawn for accommodation, they are all to 
 be thrown out of the account on both sides, and it is to be 
 taken as if it were a cash balance only. If this were upon the 
 principle that applies to one or two bills, that they are not to 
 be proved by one estate again/St the other till all the creditors 
 of both are paid, I could understand it. If there be 1,000^. of 
 acceptances on the one side, and 10,000^. on the other. Lord 
 Loughborough says, that they are not to be regarded at all ; 
 that it is all chance how the two estates may pay. I say not ; 
 and if there be a surplus of one estate to satisfy the other, why 
 should it not be implied ; Look at the case of partnership ; a 
 partner cannot prove against the estate of his co-partner, so as 
 to aft'eot the creditors of both, but he may be paid his demand 
 out of the surplus, if there is any. I do not see why the same 
 rule is not to be applied here.' I cannot bring myself to think 
 
 (c) Ex parte Earle, 5 Ves. 833. (d) 1 Jacob, 374, ' 
 
TO A BILL OK NOTE. 651 
 
 tfeat the case of Ex parte Walker is right, if there is a surplus." 
 In the following case there were no cross bills, but dishon- 
 oured bills on one side w^ere struck out of the account. Pal- 
 mer received from Williamson, in cash and bills, 6,424^. Q". 3d., 
 and Williamson received from Palmer, in cash ,.5,824?. 19s. Id. 
 Both became bankrupt. Palmer had negotiated the bills, 
 some of which, drawn by Williamson, to the amount of 
 1,098Z., were refused acceptance, and were proved under both 
 commissions. Palmer's assignees contended that 1,098?. should 
 be deducted from the 6,424?. 95. 3d!., which would reduce the 
 sum received hy him, and would leave a balance of 498?. 
 10s. M. in his favour, which they petitioned to be allowed 
 to prove against Williamson's estate. Lord Eldon, C, after 
 considering how the question would stand in case the parties had 
 not become bankrupt, said, " If between these parties consid- 
 ered as solvent, Williamson is entitled to say Palmer should not 
 have the 498?. until he had restored the bill, being put into 
 his hands as a medium of raising money, and the first obli- 
 gation *was upon Palnier, what difference does the bank- ^^ , . , , 
 ruptcy make ? 'So other difference than this, that the as- '- -' 
 signeesof Willianfson protect his estate against any liability upon 
 the bill. Palmer's estate is entitled to a dividend upon the sum 
 of 498?, that is, in order to keep the account finally right. 
 Williamson's estate is entitled to retain the dividends due to 
 Palmer's estate, to the extent of making them applicable to 
 protect the estate of Williamson against the bill." " To alter 
 this decision," added his Lordship, " it must be shown, not, only 
 that the bills were accepted by GoodenOugli (the drawee), but 
 that they were accepted on account of what the acceptor owed 
 to AVilliamson.(e) At the time of the bankruptcy of Lynn, the 
 account between him and the petitioner Read stood thus : — 
 there was a cash balance of 3,576?. 8s. 4(?., including therein a 
 sum of 1,603?. 17s. 5cl. for premiums of insurance, and commis- 
 sion due from Lynn to Read, and Lynn had given his promis- 
 sory note for the said sum of 1,603?. 17s. bd. to Read, who had 
 ;iegotiated it, and it was proved under the commission. Read 
 had accepted,, for the accommodation of Lynn, bills drawn by 
 Lynn to the amount of 6,444?. Is. Ad., none of which had been 
 paid at the -bankruptcy, and they were proved under the coni- 
 (e) Ex parte Metcalfe, 11 Ves. 404. 
 
652 OF THE BANKRUPTCY OF PARTIES 
 
 mission. Read, had likewise guaranteed debts of Lynn to the 
 amount of 773^. Is. 5^., but had not at the bankruptcy paid any 
 part of those debts, and they were proved under the commis- 
 sion. Lynn had given three bills for 1,0001. each, drawn by 
 him on Stalker, to Read, who had negotiated them, and those 
 bills were dishonoured, and two of them were proved. The 
 petitioner being insolvent, made a composition, and paid the 
 holders of the bills accepted for Lynn's accommodation, and 
 the parties whose debts were guaranteed a composition, 
 amounting to 4,894^. 85. 8d. The petition prayed that the 
 unpaid bills or liabilities might be excluded from both sides of 
 the account, or that the petitioner might debit Lynn's account 
 with the cash balance of 3,576?. 8s. id., and with the balance or 
 difference between the amount of dividends paid by Lynn's 
 estate upon Stalker's bills and Lynn's promissory note, and the 
 amount- of the conimission paid by the petitioner, and that he 
 might be admitted to prove the balance of the account, accord- 
 ing to the declaration of the Court." Sir John Leach, V. C, 
 " It is not necessary to refer to Ex parte Walker and Ex parte 
 Earle,{f) inasmuch as the act of 49 Geo. 3, has introduced a 
 new principle, by jvhich cases of this sort must now be 
 : *tried. By this act, a surety paying after the bank- 
 
 "- -■ ruptcy can only prove against the estate of the bank- 
 rupt where the cred itor has not proved, or stand in the place of the 
 creditor on the bankrupt's estate, where the creditor has proved, 
 and there cannot be double proof. Let thecaseof theaccommoda- 
 tion bills be first tried by this principle. Read accepts, for the 
 accommodation of the bankrupt, bills to the amount of 6,444Z., 
 which remains wholly unpaid at the time of the bankruptej'. 
 These bills are all proved by the holders, under the commission, 
 and if Read were now to pay these bills, it would form no ground 
 of further proof, and all that Read could claim would be, to 
 have the benefit of the proofs already made upon these bills 
 against the estate. With respect to the cash balance, that part 
 of it which is represented by the promissory note of 1,603?. is 
 already proved against the estate by the holder of the note, 
 with whom the petitioner had discounted it and the actual 
 payment by the petitioner could not give him a larger right than 
 
 (/) See Bopra. 
 
TO A BILL OK NOTE. 653 
 
 to have the benefit of that proof. The remainder of the cash 
 halanoe is more than covered by the two bills of Stalker, which 
 have been proved against the bankrupt's estate by the holders 
 with whpm the petitioner negotiated them. It is hardly 
 necessary to refer to the debts, amounting to 773^., wfiich were 
 guaranteed by the petitioner, but which have been proved by 
 the creditors against the bankrupt's estate." Petition dis- 
 missed. (^) The latest case upon this intricate subject is ^x 
 parte La Foreste,{h) in which there was a cash balance between 
 two bankrupt houses, and an account of mutual accommodation 
 bills dishonoured. And the casb balance alone was admitted 
 to be proved. And it was said, that Lord Eldon's dissatisfac- 
 tion to Ex parte Walker, applied only in ease there was a 
 surplus of the estates : in which case, as between two partners 
 after payment of the common creditors of both, the equities of 
 the houses should be adjusted out of the surplus estate. This 
 decision was appealed from, but on account of the small 
 amount of the estate the appeal was not prosecuted, and the 
 cases seem still very confused. 
 
 Perhaps the result is, that when the bills remain in the 
 hands of the bankrupts, the cash balance is the debt, but when 
 they have been negotiated the doctrine in Ex parte Bead 
 applies.(i) 
 
 ^When accommodation bills are in the hands of a rsj^ir-i 
 third party, for a valuable consideration, he may prove 
 the whole of each bill upon the estate of each of the parties to 
 it, and receive dividends as far as the amount due to him.(y) 
 
 Before the 6 Geo. 4,- c. 16, interest on a bill was not proveable 
 u.nless payable on the face of it,(A:) and no interest after the act 
 
 , (?) Ex parte Read, 1 G. & J. 324. 
 
 [h) 2 D. & C. 199 ; 1 M. & K 363, S. C. 
 
 (i) See, however, the new enactment, 33 & 33 Vict. c. 71, s. 81. 
 
 (j) Ex parte King, Cook's. B. L. 177; Ex parte Lee, 1 P. Wms. 782; Ex 
 parte Crossley, 3 Bro. 287 ; Ex parte BJoxham, 6 Ves. 449, 600 ; 8 Ves. 
 531 ; Fentnm v. Pocock, 5 Taunt. 192 (1 E. C. L. R.) ; 1 Marsh, 14 8. C. ; 
 Jones V. Hibberl, 2 Stark. 304 (3 E. C. L. R.) ; Bank of Ireland v. Beresford, 
 6 Dow. 333. 
 
 (*) Ex parte Madar, 1 Atk. 150. 
 
654 OF THE BANKRUPTCY OF PARTIES 
 
 of bankruptcy could be proved at a]].{l) But that act(m)'en- 
 abled the holder to prove, on overdue bills or notes, for interest 
 down to date of the fiat at the rate usually allowed by the 
 Court of Queen's Bench.(ji) The late general act, 12 & 13 Vict. 
 c. 106, 8.180, allowed interest at 41. per cent, down to the time 
 of filing the petition. By the last general act 32 & 33 Vict, c, 
 71, 8. 36, such interest is allowed as a jury might have ailowed,(o) 
 
 The assignees may recover interest when they are plaintiffs 
 in an action as if no bankruptcy had happened.(p) 
 
 Other expenses,, such as protesting, re-exchange, posting and 
 telegraphic messages, &c., if recoverable in an action are prove- 
 able.(2') 
 
 Under separate adjudications of bankruptcy against difterent 
 parties to a\bill or note, the holder may prove the whole amount 
 of the money due to him upon the bill or note, at the time he 
 makes his proof, and receive dividends under each upon the 
 sums proved, until he shall, together, have received the whole 
 amount. " In cases of bills or notes," says Lord Hardwicke, 
 " where there is a drawer, and perhaps several indorsers, sup- 
 pose two of these persons become bankrupts, the holder may 
 prove his whole debt *under each commission, and is en- 
 L -' titled to receive satisfaction out of both estates, acc(vrd- 
 ing to the dividends to be made, and keep the bill(r) until he 
 has received satisfaction for his whole debt ; for he has a double 
 security, and it is neither law nor equity to take it from him. 
 But if, before the bankruptcy of one, or before the proof is 
 tendered, he had received payment of part from the other, he 
 
 (0 Ex parte Moore, 3 Bro. C. C. 597. 
 
 (m) Sect. 57. 
 
 (n) Ab to subsequent interest while there was a surplus, see 13 Ves. 573 ; 
 Ex parte Higginbotham ; Ex parte Paton, 1 G. & J. 332. ' 
 
 (o) As to interest in winding up, see Hughes' case, L. R., 13 Eq. 633. 
 
 (p) Pott V. Beayan, 7 M. & G. 604 (49 E. C. L. R.). 
 
 (g) Anon., 1 Atk. 140 ; Ex parte Moore, 2 Bro. C. C. 597 ; Ex parte Hoff- 
 man, Co. B. L. 194 ; Francis v. Rucker, Ambler, 673. In the first and last 
 of these cases, the expenses had been incurred, after the act of bankruptcy 
 and before the commission. Prehn v. Liverpool Bank, L. R., 5 Ex. 92 ; 39 
 L. J. 41. 
 
 (r) In re Joint Stock Disc. Co., L. R., 10 Eq. 11. 
 
TO A BILL OR NOTE. 655 
 
 couldnot only have proved the residue under the latter hank- 
 ruptcy, as the form of proving his debt shows, because no more 
 Tjvould remain due to him."(s) And not only if any part of a 
 bill have been recei'Ved by the holder, before he have actually 
 proved it upon the estate of a party, but even if a dividend 
 under another commission have been merely declared, he can 
 only prove for the residue.(<) 
 
 Where an estate was bankrupt both in England and in a 
 foreign country, and the holder of a bill had received a dividend 
 in such foreign country, he was not allowed to prove again here 
 until all the creditors had received a dividend after the foreign 
 rate.(M) 
 
 Where the creditor knowingly holds the joint and separate 
 security of partners for the same debt,(2;) he could not in gene- 
 ral prove both on the joint and separate estate.(i/) The applica- 
 tion of this rule to bills on which there were the names of two 
 firms, in which firms were common partners, was involved in 
 great uncertainty. (2;) Upon principle it should seem that in 
 such cases there should be double proof. Accordingly by statute 
 32 & 33 Vict. c. 71, s. 37, repealing a somewhat similar enact- 
 ' ment in the 24 & 25 Vict. c. 134, s. 152, it is enacted, " If any' 
 bankrupt is at the time of adjudication, liable in respect of 
 distinct contracts as member of two or more distinct firms, or 
 as a sole contractor *and also as the member of a firm, r*4 iq-i 
 the circumstance that such firms are in whole or in part 
 
 * 
 
 (s) Ex parte Wildman, 1 Atk. 109; 3 Ves. 113, S. C. ; Ex parte Par, 11 
 Ves. 65 ; 1 Rose, 76, S. C. ; Ex parte Tayler, 1 De G. & J. 112 ; 26 L. J., 
 Bank. 58. 
 
 (0 Cooper V. Pepj'S, 1 Atk. 106 ; Ex parte Leers, 6 Ves. 644 ; Ex parte 
 The Royal Bank of Scotland, 19 Ves. 310 ; Ex parte Worrall, 1 Cox, 309 ; 
 see, hpwever. In re Gibson and Johnson, cited 19 Ves. 311, and Ex parte De 
 Tastet, 1 Rose, 16. 
 
 («) Ex parte Wilson, L. R., 7 Ch. Ap. 490. 
 
 («) Ex parte Henton, De Gex, 550. 
 
 (y) See the judgment of Lord Justice Turner in Ex parte Goldsmitli, 25 L. 
 J., Bank. 26. But see also Ex parte Thornton, 38 L. J., Bank. 4, where 
 double proof was allowed, and it was said that the rule against it is a techni- 
 cal rule not to be extended. 
 
 (s) See the authorities collected in Ex parte Goldsmid, 25 L. J., Bank. 35 ; 
 1 De 6. & J. a5'7, S. 0. 
 
656 OE THE BANKRUPTCY OF PAKTIES 
 
 composed of the same individuals, or that the sole contractor 
 is also one of the joint contractors, shall not prevent proof in 
 respect of such contracts against the properties respectively 
 liable upon such contract8."(a) 
 
 Where a creditor proves a debt, and holds certain bills of 
 exchange or promissory notes, as securities, if any of them be 
 afterwards paid to him, the amount of such payment must be 
 expunged from the proof, and the future dividends will be paid 
 on the residue only.(6) Where a creditor holds a bill as a se- 
 curity for a smaller sum than the amount of the bill, he may 
 prove against any parties to the bill (except against the party 
 who deposited the bill with him) for the whole amount of the 
 bill, provided he do not receive more than twenty shillings in 
 the pound on the debt due to him from the depositor ot the 
 bill.(c) 
 
 A holder who has bought up the notes or acceptances of the 
 bankrupt after the bankruptcy will be admitted to prove,(rf) 
 provided that, at the time of the bankruptcy, they were in the 
 hand of a person entitled to prove.(e) 
 
 If a trader deny himself to the holder of a bill on the morn- 
 
 (a) Ex parte Honey, L R., 7 Ch. Ap. 178; 41 L. J., Bank. 9. 
 
 (6) Ex parte Smith, Cook's B. L. 175, 191 ; Ex parte Burralt, 1 Glyn & J. 
 337 ; Ex parte Bloxhara, Cock's B. L. 176 ; Ex parte Burn, 3 Rose, 55 ; Ex 
 parle Rutford, 1 6. & J. 41 ; Ex parte Brett, 40 L. J., Bank. 55. See further, 
 as to the mode of dealing with bills which have been deposited as a security, 
 Ex parte Baldwin, 19 Ves. 330 ; Ex parte Towgood, 19 Ves. 339 ; Ex parte 
 Rushworth, 10 Ves. 419 ; Ex parte Rufford, 1 G. & J. 41 ; Ex parte Brown, 1 
 G. & J., 407. As to proof by one partner against the estate of his co-partuer 
 for any debt in respect of the partnership, see Ex parte Maude, 3 Chan. App. 
 L. Rep. 550. As to secured creditors in general, see s. 40. 
 
 (c) Ex parte King, Co. B. L. 177 ; Ex parte Crossley, 3 Bro. C. C. 337 ; 
 Co. B. L. 177, S. _C. ; Ex parte Bloxham, 5 Ves. 499 ; see Ex parte Reader, 
 Buck. 381 ; Ex parte Philips, 1 M., D. & D. 333. 
 
 (d) Ex parte Lee, 1 P. Wms. 783; Ex parte Atkins, Buck. 479; Ex parte 
 Deey, 3 Gov. 423; Ex parte Brymer, Co. B. L. 187; Ex parte Thomas, 1 
 Atk. 73 ; Joseph v. Orme, 3 N. R. 180; Mead v. Braham, 3 M. & Sel. 91-; 
 Cowley V. Dunlop, 7 T. R. 565 ; Houle v. Baxter, 4 East, 177. 
 
 (e) Ex parte Rogers, Buck. 490 ; see Ex parte Dickinson, 3 D. & C. 520; 
 Ex parte Bolton, 1 M. & Bli. 412. See the Chapter on Tkansfer. 
 
TO A BILL OR NOTE. 657 
 
 ^ng of the (Jay when it is payable, though the trader pay it the 
 same day, that is an act of bankruptcy.(/) 
 
 *A bill of exchange is a chattel, the fraudulent transfer r*4.c/\-i 
 j)f which was an act of bankruptcy within the 6 Geo. 
 ^, c. 16, 8. 3,(0 and within the 12 & 13 Vict. c. 106, s. 67 ; and 
 a fraudulent transfer of a bill of exchange is also clearly an 
 e,et of bankruptcy within the recent act 32 & 33 Vict. c. 71, 
 
 8.6. 
 
 A bill of exchange may be a good petitioning creditor's debt, 
 though it be not due, and that against the drawer, though 
 after the bapkruptcy, it be duly presented and paid by the ac- 
 ceptor.(A) A bill taken up by the drawer, after the acceptor 
 has committed an act of bankruptcy, but before adjudication, 
 ■will constitute a good petitioning creditor's debt.(^) Interest 
 .cannot be reckoned, for this purpose, as part of the debt, unless 
 Boade payable on the face of the bill.(m) 
 
 Though a bill be for the exact sum of dOL, and not due at the 
 time of the act of bankruptcy, the rebate of interest will not 
 ijiake it an insufficient petitioning creditor's debt.(9i) 
 
 Where there is a specific exchange of accommodation ac- 
 ceptances, and before the bills are at maturity one of the parties 
 commits an act of bankruptcy, it has been held that the bank- 
 rupt's acceptance is not a sufficient debt to support a commission, 
 until the petitioning creditor has paid his own acceptanoe.(o) 
 Where an acceptor, for the accommodation of the bankrupt 
 
 (/) Colkett V. Freeman, 3 T. R. 59 ; and see Bleasby v. Crossley, 2 C>& 
 P. 213 (12 E. C. L. H.). 
 
 (i) Gumming v. Baily, 6 Bing. 363 (19 E. C. L. E.) ; 4 Moo. & P. 36, 
 S. C. . ' 
 
 (ft) Ex parte Douthat, 4 B. & Aid. 67 (6 E. C. L. R.) ; and see 33 & 33 
 •Vict. c. 71, s. 31. But a bill at maturity must be presented, and due notice 
 given to the drawer, or it will not constitute a good petitioning creditor's debt 
 against him. Cooper v. Machin, 1 Bing. 436 (8 E. C. L. R.) ; 8 Moo. 536, 
 S. C. 
 
 <l) Ex parte Cyrus, L. R., 5 Ch. App. 177. The release of the bank- 
 rupt dates from the order of discharge, and not from the adjudication. Jones 
 T. Hill, L. R., 5 Q. B. 30. 
 
 (m) Cameron v. Smith, 3 B. & Aid. 305 ; In re Burgess, 8 Taunt. 660 (4 
 •E. C. L. R.) ; 3 Moo. 745 ; Buck. 412. 
 
 (») Brett V. Le-vett, 13 Bast, 213 ; 1 Rose, 112, S. C. 
 
 (0) Sarratt v. Austin, 4 Taunt. 200 ; 3 Rose, 113, S. C. 
 
 42 
 
658 OF THE BANKRUPTCY OF PAETIES 
 
 before an act of bankruptcy, paid the amount after an act of 
 bankruptcy, it was formerly held, that this payment, being 
 after an act of bankruptcy, did not support the commission. (;?) 
 A bill or note which could not be sued on at law,(g') or against 
 law proceedings on which equity will enjoin, is not a good 
 petitioning creditor's debt.(r) 
 
 It was at one time doubtful whether, if a bill existing bjefore 
 . c-i-i *the act of bankruptcy were indorsed to the petition- 
 ing creditor, after the act of bankruptcy, the indorsee 
 would be entitled to a commission.(s) But it is now clear, that 
 before the late statute 32 & 33 Vict. e. 71, s. 6, such a debt was 
 sufficient. The debt on which the fip,t was issued must have 
 existed before the act of bankruptcy, but need not have existed 
 in the petitioning creditor before it ; the indorsee represents his 
 indorser.(<) But it must appear that there was a good petition- 
 ing creditor's debt in the petitioner at the time of the petition', 
 and therefore it must be shown that the bill or note was in- 
 dorsed to the petitioner before he petitioned.(M) If, at the time 
 of the act of bankruptcy and at the time of the petition, a bill 
 given to a creditor were outstanding in the hands of an indorsee, 
 neither the original debt due to the creditor^ nor the bill, will 
 
 (p) Ex parte Holding, 1 G. & J. 97. But see now 33 & 33 Vict. c. 7i; 
 s. 31. 
 
 (?) Richmond v. Heapy, 1 Stark. 203 (3 E. C. L. R.) ; Buckland v. New- 
 same, 1 Taunt. 477 ; 1 Camp. 474, S. C. But see nbw 33 & 33 Yict. o. Tl, 
 s. 31. 
 
 ()•) Ex parte Page, 1 G. & J. 100. 
 /s) Ex parte Lee, 1 P. Wins. 783. 
 
 («) Ex parte Thomas, 1 Atk. 73 ; Anon., 2 Wils. 135 ; Blngley v. Maddison, 
 1 Co. B. L. 32; Glaisler v. Hewer, 7 T. R. 498. Before theyear 1806, the 
 petitioning creditor's debt must have existed before any act of bankruptcy, on 
 the principle that a man who has committefl an act of bankruptcy, has no 
 power to contract so as to bind his estate. But it was provided by the 46 Geo. 
 3, c. 135, s. 5, that the commission should not he defeated by an act of bank- 
 ruptcy prior to the petitioning creditor's debt, of which act of bankruptcy th9 
 petitioning creditor had no notice. That statute is repealed by the 6 Geo. 4, 
 c. 16 ; the 19th section of which latter act, and the 13 & 13 Vict. c. 106, s. 88, 
 provides that no commission shall he invalidated by any act of bankruptcy 
 prior to the petitioning creditor's debt, provided there be a sufficient act of 
 bankruptcy after it. 
 
 According, therefore, to the latter statute, notice to the petitioning creditor 
 of the prior act of bankruptcy is in many cases immaterial. 
 
 («) Rose v. Rowcroft, 4 Camp. 345. 
 
TOABILLOKNOTE. 659 
 
 enable the original creditor to support a petition.(a;) "When a 
 bill or note is given to the wife dam sola, the husband alone may 
 petition. (y) The petitioning creditor's debt must in all cases> 
 before the recent acts '24 & ::5 Vict. c. 134, and 32 & 38 Vict. c. 
 71, have been contracted, or must have existed, while the bank- 
 rupt was a trader. (2) But this necessity no longer remains. 
 
 The date appearing on the bill has been held prima fade evi- 
 dence that it existed before the act of bank;ruptcy.(a) But 
 *when in an action by assignees q£ a bankrupt, they r^/cm 
 produce a bill or note of the bankrupt as evidence of a 
 petitioning creditor's debt, they must show by extrinsic evi- 
 dence that the instrument existed before the act of bankruptcy .(6) 
 From the date of the drawing or making the date of an indorse- 
 nient cannot be inferr6d.(c) 
 
 • Though the distinction between trader and non-trader has 
 'been for many purposes abolished, yet for some purposes it still 
 exists.(rf) 
 
 A course of drawing and redrawing bills qf exchange for the 
 Bake of the profit, is a trading within the Bankrupt Laws. 
 Thus, where A. was agent for several regiments for the space . 
 of six years, and drew bills upon B., who was likewise an agent 
 in Dublin, to the amount of 281,000^. and upwards, and B. 
 redrew to the amount of 290,000^. and upwards on A., but 
 
 («) Ex parte Botten, 1 Mont. & Bl. 413; Ex parte Magnes, 11 L. J., 
 Bank. 32. 
 
 (y) Ex parte Barber, 1 G. & J. 1 ; M'Neilage v. Holloway, 1 B. & Akl. 
 218. ■ • 
 
 (2) Bailie v. Grant, 9 Bing. 121 (S3 E. C. L. R.). 
 
 (o> See ante, Chapter on Evidence ; GoocUitle v. Milburn, 2 M. & W. 853 ; 
 Sinelair v. Baggaley, 4 M. «& W. 312 ; Smith v. Battens, 1 Mood. & R. 341 ; 
 Taylor V. Kinloch, 1 Stark. 175 (2 E. C. L. R) ; Obbard v. Betham, M. & 
 M. 483 (22 E. 0. L; R.) ; Potez v. Glossop, 2 Exch. 195 ; Davis v. Lowndesi, 
 7 Scott, N. R. 195; Malpas v. Clements, 19 L. J., Q. B 435. 
 
 (6) Wright V. Lainson, 2 M. & W. 739 ; 6 Dowl. 146, 8. C. ; and see An- 
 derson V. Weston, 6 Bing. N. C. 296 (37 E. C. L. R.) ; 8 Scolt, 583, S. C. ; 
 Fletcher v. Manning, 12 M. & W. 571. 
 
 (f) Rose V. Rowcroft, 4 Camp. 245 ; Cowie v. Harris, M. & M. 141 (22 E. 
 C. L. R.). 
 
 (d) See 32 & 33 Vict. c. 71, ss. 6, 15, 95. 
 
660 OF THE BANKRUPTCY OF PARTIES 
 
 there was no commiseion money allowed on either side, it was 
 held that a drawing and redrawing such large sums, and a con- 
 tinuation of it, was a trading, though no commission money 
 was allowed on either side, and notwithstanding a loss ensued 
 by these transactions to the bankrupt.(e) But the mere circum- 
 stance of drawing, accepting, or endorsing bills, or even an oc- 
 casional drawing or redrawing, for the sake of profit, will not 
 make a man a trader(/) within the Bankrupt Laws. 
 
 . The Bankrupt Act, 12 & 13 Vict. c. 106, s. 125, now repealed, 
 following a series of statutes from the time of James I. enacted, 
 that if at the time of the bankruptcy the bankrupt have, by 
 the consent of the true owner, in his possession, order or dis- 
 position, any goods or chattels whereof he was reputed owner, 
 or whereof he had taken upon himself the sale, alteration, or 
 disposition as owner, the Court shall have power to order them(^) 
 to be sold for the benefit of the creditors. 
 
 *Thi8 section applied not only to things in possession 
 L -I but to things in action, as bonds, policies, and other 
 debts.(i) 
 
 The share of a dormant partner does not pass to the trustee 
 in bankruptcy under the reputed ownership clause.(&) But the 
 claim of a lender who is to have a share of the profits, and who 
 would formerly have been deemed a dormant partner, is post- 
 poned to the claims of other creditors, where the debtor becomes 
 bankrupt, or dies in insolvent circumstances.(^) 
 
 The recent statute 32 & 33 Vict. c. 71, repealing all former 
 
 (e) Kichardson v. Bradshaw, 1 Atk. 128 ; Hankey t. Jones, Cowp. 745 ; 1 
 Mont. 32 ; and see Inglis v. Grant, 5 T. R. 530, and Ex parte Bell, 15 Yes. 
 356. 
 
 (/) Hankey t. Jones, Cowp. 745 ; see Ilamson v. Harrison, 2 Esp. 555. 
 
 (g) The alteration in the -wording of this section first introduced the neces- 
 sity ot an order. But no reference to the necessity of any order appears in 
 the existing enactment, 32 and 33 Vict. c. 71, s. 15 ; and, therefore, it is con- 
 ceived, the old l&w i? restored in this respect, and that no order is now re- 
 quired. 
 
 (0 Ryall T. RoUe, 1 Yes. 348 ; 1 Atk. 165, S. C. 
 
 (ft) Reynolds v. Bow ley, 2 Law Rep., Q. B. 474 ; 36 L. J. 347. 
 
 (0 28 & 29 Yict. c. 86, s. 5 ; In re Ramsden, 40 L. J., Bank. 89. 
 
TO A BILL OR iSrOTE. 661 
 
 pjiovisions on the subject, confines the doctrine of reputed 
 ownership to bankrupts, being trade r8.(m) 
 
 It further takes out of the operation of the clause all things 
 in action, except debts due to the bankrupt in the course of his 
 trade. 
 
 Where a creditor assigns a trade debt not assignable at law,- 
 and then becomes a bankrupt, the general rule is that the debt 
 BO assigned passes nevertheless to the assignees in bankruptcy^ 
 as being in the order and disposition of the bankrupt with th© 
 consent of the true Owner, unless the debtor have had notice of 
 the assignment. It is, however, sufficient if the assignee of 
 the debt do all he can to give notice, or dispatch a notice, 
 before the bankruptcy, though it be not received by the debtor 
 till after the bankruptcy.(n) It has been held that a debt in 
 Oirder to pass to the assignees within this section must have 
 been unconsdentiously allowed to remain in the disposition of 
 the bankrupt.(o) 
 
 The debtor's knowledge of the assignment is not necessary 
 where a negotiable bill or note is indorsed or transferred, for the 
 legal title to the debt is conveyed by the indorsement or de- 
 livery. But if a trader, who afterwards becomes bankrupt, 
 indorses a bill or note not negotiable, unless the debtor have 
 had notice, the bill or note passes to the bankrupt's assignees 
 by reputed ownership.(p) 
 
 Bills or notes may pass to the assignees of a trader under 
 *tlie clause of reputed ownership.(r) A person having p^ , k --■ 
 three bills of exrchange, applied to a country banker, '- -' 
 with whom he had had no previous dealings, to give for them 
 a bill on London for the same amount ; and the bill given by 
 the banker was aftefv^ards dishonoured : held, that this v«^as 
 a complete exchange of securities, and that trover would not 
 lie for the three bills of exchange ; and that if the exchange had 
 
 irrt) Sect.' 15. 
 
 (n) Belolier v. Bellamy, 17 L. J., Exch, 219; 3 Exch. 303, S. G. 
 See Brewin v. Short, 5 E. & B. 337 (83 E. 0. L. R.) ; 34 L. J., Q. B. 397, 
 S. C. 
 
 (0) See .Toy v. Carflpbell, 1 Sch. & Lef. 336, aud Load v. Green, 15 M. & 
 "W. 316 ; Hamilton v. Bell, 10 Exch. 545. 
 
 (p) Belcher v. Campbell. 8 Q. B. 1 (55 E. C; L. R.). 
 
 kr) 13 & 13 Viet. c. 106, s. 13S. 
 
662 OF THE.BANKKUPTCT OF PARTIES 
 
 not been complete, still that, the banker having become a bank- 
 rupt, and the three bills having come to the possession of his 
 assignees, must be considered as goods and chattels in the order 
 and disposition of the bankrupt, at the time of the bankruptcy^ 
 within the meaning of the Banjcrupt Act. "These bills," says 
 Abbot, 0. J., " being negotiable securities, of which the bank- 
 rupts might dispose, and having remained in their possession 
 till the time of the bankruptcy, and so come to their assignees, 
 are, in my opinion, within the operation of the statute. It has 
 been held that debts are within the statute ; if so, a fortiori, h\Ws 
 of exchange must be."(s) , 
 
 But a bill or note in the hands of an agent for a specific 
 purpose does not pass to his assignees by reputed ownership.(<) 
 
 Bills remitted to an agent as a factor or banker, and entered 
 short while unpaid, or paid in generally, for the amount to be 
 received(M) by such banker, or for any other specific purpose,(a;) 
 and not discounted or treated as cash, are considered as still in 
 the possession of the principal; and, therefore, in case of the 
 bankruptcy of such agent, banker or factor, they do not pass 
 to his assignees, but must be returned to the principal, subject 
 to such lien as the agent may have upon them. " Every man," 
 says Lord Ellenborough, " who. pays bills not due into the 
 hands of his banker, places them there, as in the hands of his 
 agent, to obtain payment of them when due. If the banker 
 discount the bill, or advance money upon the credit of it, that 
 alters the case, he then acquires the entire property in it, or 
 has a lien, on it, -pro tanto, for his advance."(?/) 
 
 («) Hornblower V. Proud, 3 B. & Aid. 337. See Bryson t. Wylie, 1 B. & 
 P. 83, n. As to accommodiition bills in the liands of the party for whose ac- 
 commodation they were accepted, see Wallace v. Hardacre, 1 Camp. 46. 
 
 (0 Bruce v. Hurly, 1 Stark, 23 (3 E. C. L. R.) ; Belcher v. Campbell, 8 
 Q. B. 1 (55 E. C. L. R.) ; see Took v. Hollingworth, 5 T. R. 315. 
 
 («) See Jombart v. Woollett, 3 M. & C. 389 ; Ex parte Edwards, 11 L. J., 
 Bank. 36. 
 
 (iB) Belcher v. Campbell, 8 Q. B. 11 (55 E. C. L. R.). 
 
 (y) Giles V. Pefclns, 9 East, 13 ; see Ex parte Dumas, 1 Atk. 332 ; 3 Ves. 
 ;Ben. 5^3, S. C. ; Zinck v. Waller, 2 W. Bl. 1154; Bolton v. Puller, 1 B. & P. 
 539 ;' Ex parte Sargeant, 1 Rose, 153 ; Ex parte Sellers, 18 Ves. 339, S. P. ; 
 Ex parte Pease, 1 Rose, 333 ; Ex parte Wakefield Bank, 1 Rose, 242 ; Car- 
 stairs V. Bates, 3 Camp. 301 ; Ex parte M'Gae, 3 Rose, 376 ; Ex parte The 
 
TO A BILL OR NOTE. 693 
 
 *And the law is the same though the amount of the r^A---, 
 Mils he entered by the hanker in the cash column of 
 the ledger and pass-book, and though the banker pay them 
 away or discount them at his discretion. 
 
 A customer was in the habit of indorsing and paying into 
 •his banker's hands bills not due, which if approved, were im- 
 mediately entered as bills to his credit, to the full amount : and 
 he was then at liberty to draw for that amount by checks on the 
 bank. The customer was charged with interest upon all cash 
 payments to him, from the time when made, and upon all pay- 
 ments by bills from the time when they were due and paid, and 
 had credit for interest upon cash paid into the bank from the 
 time of the payment, and upon bills paid in from the time 
 when the amount of them was received. The bankers paid 
 away such bills to their customers as they thought fit. The 
 liankers having become bankrupts, it was held, that the cus- 
 tomer might maintain trover against their assignees for bills 
 paid in by him, and remaining in specie in their hands, the cash 
 balance, independently of the bills, being in favour of the cus- 
 tomer at the time of the bankruptcy ; Bayley, J., observing, " It 
 has been argued for the defendants, that we must infer an 
 agreement to have been made between the banker and his cus- 
 tomer, that, as soon as bills reached the hands of the banker, 
 the' property should be changed. Undoubtedly, if there were 
 any such bargain, the defendants would be entitled to our 
 judgment ; but if there be no such bargain, then the case of cus- 
 tomer and banker resembles that of principal and factor ; and 
 the bills remaining in the banker's hands in specie, will not- 
 withstanding the bankruptcy of thebanker, continue the prop- 
 erty of the customer. Though the anlount of the bills was 
 carried into the cash column, it does not follow that the cus- 
 tomer assented to their being considered as c'dsh."{z) The 
 assignees may be restrained by injunction from negotiating the 
 bills.(a)' 
 
 Leeds Bank, 1 Rose. 854; 19 Ves. 25 ; B. C. ; Ex parte Rowton, 17Ves. 436; 
 1 Rose 15, S. C. ; Ex parte Buchanan, 1 Rose, 380 ,; 3 Rose, 163 ; Ex parte 
 fcring, 3 Rose, 183. 
 
 (s) Thompson v. Giles, 3 B. & C. 433 (9 E. C. L. R.) ; 3 Dowl. & R. 733, 
 S. C. ; Ex parte Barkworth, 37 h. J., Bank. 5. 
 
 (a) The share of a dormant trading partner is not, as we have seen, in the 
 order and disposition of his copartner within the statute. Ex parte Jombart, 
 
664 OF THE BANKRUPTCY OF PARTIES 
 
 r*4^«1 *^tien and to what extent securities in the hands of 
 an acceptor who afterwards becomes bankrupt, are avail* 
 able in favour of the holder of the bill is a question involving 
 many difficulties, and it has accordingly given occasion to much 
 discussion. 
 
 'these questions can seldom arise, except when both drawer 
 and acceptor are insolvent, for it is a matter of indiffefence 
 to the bill holder from what parties or funds he receives pay- 
 ment.(t) 
 
 The general rule of law, as established by recent decisions, 
 seems to be, that when both the drawer and the acceptor of a 
 bill becomes bankrupt, and bills, securities or funds have been 
 remitted by the drawer to the acceptor, and specifically appro- 
 priated to cover the acceptor's liability on his acceptance, the 
 holder of the bill may avail himself of them ; they do not 
 belong to the acceptor's general creditors, and do not pass to 
 his assignees or trustee in bankruptcy. 
 
 Although this principle applies most frequently in the case 
 of actual bankrnptfey, yet it is not essential to its application 
 that the insolvency should have been judicially ascertained by 
 an adjudication in bankruptcy. It is enough if the parties are 
 practically insolventi(e) The securities need not be deposited 
 by a party to the bill^ it is enough if the depositor be liable 
 in respect of the transaction for which the bill was drawn.((?) 
 
 Where the customer of a banker had lodged a suni of money 
 with a bank to meet an acceptance, and the acceptor failed 
 before its maturity, it was held that at law the drawer could 
 not maintain an action against the banker, there having been 
 no privity of contract between him and the banker.(e) And in 
 
 cor. Vice-C, i)ec. 1836 ; Reynolds v. Bowley, in error, 2 L. R., Q. B. 474 ; 
 36 L. J. 247. 
 
 (J) The original and leading case on the subject is. Ex parte "Waring,- 19 Vesi 
 345, the complicated facts of that case, so far as they are material to the ques- 
 tion no* Under consideration, are clearly stated by the Master of {lie Rolls iA 
 ITew Zealand Bankiiig Company, 4 Law Rep., Eq. 26. 
 
 ((•) Powles V. Hargeaves, 3 De G., M. & G. 430 ; Bank of Ireland v. Perry, 
 L. R., 7 Ex. 14 ; 41 L. J. 9 ; City Bank T. Luckie, U K. 5 Cb. Ap. 773. 
 
 (d) Ex parte Smart, L. R., 8 Ch. Ap. 220. 
 
 Ce) Moore v. Bushell, 27 L. J., Exch. 3. SeeFarlSy Vi Tnrnerj 26 L. J., 
 Chati. 710. 
 
TO A BILL OR SOTE. 669 
 
 a similar case,(/") the Vice-Chancellor followed the lawj and 
 
 held there was no equity in favour of the drawer. *An rs^ci^T 
 
 acceptor who has deposited money with a bank to me'et 
 
 a bill, on the bank's failure has only the rights of an ordinary 
 
 creditor.(^) 
 
 The acceptor's right to the benefit of a guarantee given to 
 him is not transferred to a holder of the bill,(A) unless the 
 guarantee be given for the purpose of being exhibited to other 
 
 parties.(2) 
 
 If the holder of a bill of exchange, in which he has a benefi- 
 cial interest^ become bankrupt, the property in the bill vests, 
 from the time of the act of bankruptcy ^(i) in his assignees, and 
 they must indorse.(^) 
 
 But as, in general, property, in which a bankrupt has no 
 beneficial interest, does not pass to his assignees ; he may, after 
 an act of bankruptcy, indorse a bill accepted for his accommo- 
 dation, so as to convey to his indorsee a right of action against 
 the accointnodation acceptor.(m) 
 
 But, if the money were received by the creditor before the 
 commission issued, then an indorsement by the bankrupt would, 
 under the late General Bankrupt Act, have been protected as 
 a payment by the bankrupt.(?i) " There is no difterende," says 
 the Lord Chandelior, " between an actual payment of money 
 
 (/) Hill V. Royds, 8 L. J., Eq. 290. The funds must be specifically appro- 
 priated to ihat purpose, and no mere statement of tlie drawer can create any 
 lien on funds in tUe drawee's liands. Thompson v. Simpson, L. R, 5 Ch. 
 Ap. 659 ; 39 L. J., Oh. 857. 
 
 (g) Massey's ease, 39 L. J., Oh. 635. 
 
 (*) Ex parte Stephens, 3 Ch. App. 477. 
 
 {i) In I'e Agra and Mastermau's Bank, 3 Ch. App. 756^ 
 
 (k) Subject of course to the pl'ovisions as to notice of tlie act of bank'' 
 ruptcy, 
 
 (i) Pinkei-ton v. Marshall, 2 H. BI. 335 ; Thomasoii v. Frefe- 10 Bast, 4l8 ; 
 biit see now 2 & 3 Vict. g. 29, and 13 & 13 Vict. c. 106, s 133* 
 
 (m) Arden v. Watkins, 3 East, 317 ; Wallace v. Hftidaorej 1 Camp, 45 ; 
 Bamsbottom v. Gator, 1 Stark. 228 (2 E. C. L. R.). 
 
 (n) 6 Geo. 4, c. 16, s. 82 ; and also under 2 & 3 Vict. c. 29, and 12 and 13 
 Vict. c. 106, s. 133. 
 
666 OF THE BANKRUPTCY OF PARTIES 
 
 in satisfaction of a debt, and indorsing bills of exchange, pro- 
 vided the money was received on them before the commission 
 of bankruptcy issued ; for I should take that only as a medium 
 of payment, and no more ; otherwise it would be very hard."(o) 
 And it has been held, that if a bill of exchange be indorsed in 
 payment of goods sold, it will be a payment within the statute, 
 though the bill be not paid till after the issuing of the commis- 
 sion, provided it be paid when due.(p) 
 
 r*4.581 *The distinction between a payment in money and a 
 payment or satisfaction by bills, is however, at this day, 
 of less moment, since now not only payments, but all contracts, 
 dealings and transactions with a bankrupt, without notice of 
 an act of bankruptcy available for adjudication, are pro- 
 tected.(g') 
 
 . Where, a negotiable instrument is given to the bankrupt 
 .after his bankruptcy, the bankrupt has the property in it, unless 
 the assignees choose to interfere.(r) 
 
 If a man already bankrupt be payee of a negotiable bill or 
 note, the acceptor or maker cannot dispute the payee's capacity 
 to indorse.(s) 
 
 The former certificate or present order of discharge of the 
 bankrupt discharges him from all debts due when he became 
 bankrupt, and from all claims and demands proveable under 
 the bankruptcy.(<) And an agreement to pay a debt from 
 which the bankrupt has been so discharged, was formerly void, 
 unless in writing and signed.(M) But an absolute written and 
 
 (o) Hawkins v. Penfold, 3 Ves. sen. 550. 
 
 (^•) Wilkins v. Casey, 7 T. R. 711 ; Bayly v. Scbofleld, 1 M. & Sel. 338; 
 see Bishop v. Crawshay, 3 B. & C. 415 (10 E. C. L. R.) ; 5 Dowl. & R. 279. 
 
 (j) 12 & 13 Vict. e. 106, s. 133. This act' is now repealed, but the new 
 Btatute 33 & 33 Vict. c. 71, s. 94, contains the provision in the text. 
 
 (r) Drayton v. Dale, 2 B. & C. 293 (9 E. C. L. R.J ; 3 Dowl. & R. 534. 
 
 («) Drayton v. Dale, 2 B. & C. 293 (55 E. 0. L. R.) ; Pitt v. Chappelow, 8 
 M. & W. 616 ; Braithwaite v. Gardiner, 8 Q. B. 473 (55 B. C. L. R.). See 
 the Chapter on Acobptance. 
 
 (0 12 & 13 Vict. c. 106, s. 200, repealed and re-enacted by 33 & 33 Vict. o. 
 71, s. 49. 
 
 (tt) 6 Geo. 4, c. 16, s. 181. 
 
TO A BILL OR NOTE. 667 
 
 signed promise personally to pay, bound, whether given before 
 or after certificate.fa;) But a subsequent contract to pay was 
 afterwards by the 24 & 25 Vict. c. 134, s. 164, a.vo\d.ed.{y) That 
 act, however, is now repealed in toto by 32 &. 33 Vict. c. 83. 
 
 Until the 6 Geo. 4, c. 16, s. 3, fraudulent preference (except 
 by deed) was not prohibited by any statute, but was void as a 
 fraud on the Banli;rupt Laws.(2) If by deed, it was an act of 
 •))ankruptcy.(a) 
 
 Afterwards by the 6 Geo. 4, c. 16, s. 8, repealed and re-enacted 
 by the 12 & 1.3 Vict. c. 108, s. 67, every fraudulent conveyance 
 or transfer, whether of real property or chattels (though not by 
 deed), was erected into an act of bankruptcy. *And a p.^.,.Q^ 
 bill of exchange has been decided to be a chattel within ^ -' 
 this, as well as within other sections of th,e fornaer Bankrupt 
 Acts.(6) The recent act 82 & 38 Vict. c. 71, ss. 1 and 6, erects 
 any fraudulent conveyance of property of any kind into an act 
 of bankruptcy. 
 
 To have been invalid as a fraudulent preference, a transfer 
 or payment must have been spontaneous, and not at the in- 
 Btanoe or importunity of the creditor ;(c) it must have been 
 with the intention of giving the creditor an unfair advantage, 
 and not in the usual course of business ;(rf) it must have been 
 in contemplation of bankruptcy as a probable event.(e) 
 
 (x) Kirkpatrick v. Taitersall, 13 M. & W. 766 ; Lobb v. Stanley, 5 Q. B. 
 574 (48 E. C. h. R >. 
 
 (y) 24 & 25 Vict. c. 134, s. 164. 
 
 (2) Martin v. Pewtress, 4 Burr. 2477. 
 
 («) 1 Jac. 1, c. 15, s. 2 ; Bevan v. Nunn, 9 Bing. 107 (23 E. C. L. B.) ; 2 
 Moo. & Sc. 132. 
 
 (J) Cumming v. Baily, 6 feing. 863 (19 E. C. L. R.) ; 4 Moore & P. 36, S. 
 C. Qutere, as to a country bank note. Van v. Burdiss, 1 C, M. & B. 783 ; 5 
 Tyrw. 309, S. C. See pest. 
 
 (.li) Mogg V. Baker, 4 M. & W. 348; Brown v. Kempton, 19 L. J., C. P. 
 169; Straclian v. Barton, 35 L. J., Excli. 183. 
 
 (d) Rust V. Cooper, Cowp.' 639. 
 
 (e) Poland v. Glynn. 4 Bmg. 22, n. (13 B. C. L. R.) ; 13 Moo. 109, n., S. 
 C. In Morgan v. Brundrelt, 5 B. & Ad. 289 (27 E. C. L. R ) ; 2 Nev. & M. 
 280, S. C, Mr. Justice Parke said that the cases on this subject had gone too 
 far, and that actual bankruptcy and not mere insolvency must have been con- 
 templated to make the preference fraudulent. And see Atkinson v. Brindall, 
 2 Bing. N. C. 23>? (39 B. C. L. R.) ; 2 Scott, 369, S. C. But see Aldred v. 
 Constable, 4 Q. B. 674 (45 B. C. L. R.). 
 
6681 OF THE BANKRUPTCY OF PARTIES, ETC. 
 
 But money was not, perhaps, a chattel within the fortnep 
 statutes, and therefore the payment of money, by way of 
 fraudulent preference to a creditor, may have been only a void 
 payraent.(/) 
 
 A voluntary transfer, without consideration, by a bankrupt, 
 being at the time insolvent, of land, chattels, bills, bonds ot 
 notes or debts, was avoided by the^ 12 & 13 Viet. c. 106, s. 126, 
 now repiealed. A gift of money was not, it seettiB, within this 
 section -^g) but if the money were given with a fraudulent intent, 
 the payment was void and the money recoverable. 
 
 But now by the existing act, 32 & 33 Vict; c. 71, s. 92, 
 every transfeir of property, or charge thereon, every payment 
 *m.ade, every obligation incurred, and every judicial 
 '". -' proceeding taken or suffered by a pet-son unable to pay 
 his debts as they become due, out of his own monies, in favour 
 of any creditor with a view of giving preference, is, if the party 
 80 dealing become a bankrupt within three months afterwards, 
 void as against his trustee in bankruptcy. {k} 
 
 (/) Bevan V. NUntl, 9 Bing. 107 (23 E. C. L. R.) ; 2 Moore & S. 13S, S. 
 G. i Abell V. Daniell, M. & M. 370 (32 E. 0. L. R.) ; but see Ex parte Simp- 
 son, 1 De Gex, 9 ; also Caonan v. Wood, 2 M. & W. 467. If A. & B^ are 
 botii creditors for tbe same debt, a payment to A., with the intention of serv- 
 ing B., is not a fraudulent preference of A. Abbott v. Pomfret, 1 Bing' N. C. 
 463 (27 E. C. L. R.) ; 1 Scott, 470; 1 Hodges, 24, S. C. ; see Reg. v. Radley, 
 18 L. J., M. C. 184 ; Petty v. Cooke, L. R., 6 Q. B. 790 (51 E. 0. L. R.) ; 40 
 L. J. 281. 
 
 (g) Kensington v. Chantler, 2 M. & 8. 36 ; Ex parte Shrtrtiand, 7 VeS. 88 ; 
 Ex parte Sharratt, 2 Rose, 384 ; Abell v. Daniell. M. & M. 370 (22 E. C. L. 
 R.). 
 
 (S) See Marks v. Feldsman, L. R., 6 Q. B. 275, 
 
•APPENDIX I. 
 
 [*461] 
 
 STAMP LAWS PREVIOUS TO 1870. 
 
 ■WHEN STAMPS "WEBB FIRST IM- 
 POSED ON BILLS OB NOTES, . 461 
 ADHESIVE STAMPS, . . . 468 
 
 ON FOB£:iQN BILLS, . . . 469 
 
 WHAT EBGULATIONS OF FOBMEE 
 
 STAMP ACTS WEBE IN FOBCE, . 469 
 IN WHAT CASES A BILL OR NOTE 
 
 MIGHT BE BESTAMPED, . . 470 
 EFFECT OF ALTERATION OF THE 
 LAW 470 
 
 WHAT BILLS OR NOTES WEHE EX- 
 EMPT FROM STAMPS, . . 470 
 
 STAMPS ON FOREIGN BILLS AND 
 
 NOTES, 470 
 
 PENALTY ON UNSTAMPED INSTRU- 
 MENTS, 470 
 
 WHAT NOTES MIGHT BE BB-ISSUED, 471 
 
 ON INSTBUMENTS WHICH ABB IN 
 
 LAW BUT AGREEMENTS . . 471 
 
 The existing stamp laws have been already discussed in their 
 proper place, but as there must be many instruments still jn exist- 
 ence, regulated by the former laws, it has been considered advisable 
 to retain those enactments in the present edition. 
 
 Bills and notes were exempt from any stamp duty till the 22 Geo. 
 3, c. 33. This act was repealed, and followed by several other stamp 
 acts affecting them, which contain some regulations still in force, 
 though the amount of duty which they imposed was altered by the 
 last General Stamp Act, 55 Geo. 3, c. 184, and -several subsequent 
 acts. 
 
 The duties imposed by the General Stamp Act on bills of exchange 
 and promissory notes were, for the most part, repealed by the 16 & 
 IV Vict. c. 59, and the 17 & 18 Viet. c. 83, and new duties imposed, 
 which were as follows : — 
 
 £ s. d. 
 Draft or Order for the payment of any sum of money to 
 
 the bearer or to order, on demand(a) . . .001 
 
 (a) 16 & 17 Vict. c. 59 ; 21 Vict. c. 20, s. 1. 
 
670 
 
 APPENDIX. 
 
 
 
 
 £ 8. d. 
 
 . * . . . .-.001 
 
 ng lOL 
 
 
 ■■ 
 
 .002 
 
 2bl. 
 
 
 
 .003 
 
 bOl. 
 
 
 
 .006 
 
 151. 
 
 
 
 .009 
 
 lOOZ. 
 
 
 
 .010 
 
 200Z. 
 
 
 
 .020 
 
 3002. 
 
 
 
 .030 
 
 400Z. 
 
 
 
 .040 
 
 500Z. 
 
 
 
 .050 
 
 1501. 
 
 
 
 .016 
 
 l.OOOZ. 
 
 
 
 . 10 
 
 ],500Z. 
 
 
 
 . 15 
 
 2,000Z.. 
 
 
 
 .10 
 
 3,000Z. 
 
 
 
 . 1 10 
 
 4,000Z. 
 
 
 
 .200 
 
 Bed 4,000Z. 
 
 , then 
 
 for 
 
 every 
 
 *Inland Bill of Exchange, draft, or order for the 
 
 '- -' payment to the bearer, or to order, at any time 
 
 otherwise than on demaoid, of any sum of money — (b) 
 
 Not exceeding 51. 
 
 Exceeding bl. aiid not exceeding lOL 
 101. " 
 
 252. 
 50Z. 
 " ' 151. 
 1002. 
 2002. 
 S002. 
 ■ " 4002. 
 
 " 5002. " 
 
 7502. 
 1,0002. 
 " 1,5002. 
 
 2,0002. " 
 
 3,000/. 
 And where the same shall exceed 4,0002. 
 
 1,0002., or part of 1,0002., of the money thereby made 
 
 payable(c) 10 
 
 Inland bill, draft, or order for the payment of anj' sum of 
 money, though not made payable to the bearer, or to 
 order, if the same shall be delivered to the payee, or some 
 person on his or her behalf, the same duty as on a bill of 
 exchange, for the like sum, payable to bearer or order. 
 Inland bill, draft, or order for the payment of any sum of 
 money, weekly, monthly, or at any other stated periods, 
 if made payable to the bearer, or to order, or if delivered 
 to the payee, or some person on his or her behalf, whether 
 the total amount of the money thereby made payable 
 shall be specified therein, or can be ascertained therefrom, 
 or shall be indefinite — the same duty as on a bill payable 
 to bearer or order, on demand. (d) 
 And the following instruments are to be deemed and 
 
 taken to be(e) inland bills, drafts, or orders, for the / 
 
 (J) 17 & 18 Vict. c. 83. 
 
 (c) 33 Vict. c. 15. • " ■ 
 
 (d) 55 Geo. 8, c. 184. 
 
 (e) 55 Geo. 3, c. 184. These and the correspondiiig provisions relating to 
 promissory notes were intijoduced to include such instruments as, being paya- 
 
APPENDIX. 671 
 
 ♦payment of money, chargeable with stamp duty, 
 
 viz. : — ^ -^ 
 
 All drafts or orders for the payment of tiny sum of monej-, 
 by a bill or promissory note or for tiie delivery of any 
 siuih bill or note in payment or satisfaction of any sum 
 of money, where such drafts or orders shall require the 
 payment or delivery to be made to the bearer, or to order, 
 or shall be delivered to the paj'ee, or some person on his 
 or her behalf. , 
 
 All receipts given by any banker or bankers, or other pei'- 
 son or persons, for money received, which shall entitle, or 
 he intended to entitle, the person or. persons paying the 
 money, or the bearer of such receipts, to receive the like 
 sum froiii any third person or persons. 
 
 All bills, drafts, orders, for the payment of any sum of 
 money out of anj' particular fund,(y) which may or may 
 not be available, or upon any condition or contingency 
 which may or may not be performed or happen, if the 
 same shall be made paj-able to the bearer, or to order, 
 
 ble on a contingency or out of a particular fund, are not, strictly speaking, 
 either bills or notes. See Chapter VII. ; Firbank v. Bell, 1 B. & Aid. 39. 
 Where A. having directed B. by letter to pny C. 1,500Z. out of the proceeds 
 of certain unsold goods of A. in B.'s hands, and B. in a letter to C. having 
 agreed to do so (which letter was stamped with an agreement stamp), it was 
 held, that as there was no agreement between A. & B., the first letter was 
 inadmissible in evidence without a bill stamp. Ibid. So a letter desiring the 
 correspondent of the writer to pay third persons or their order 6001. out of the 
 first proceeds of a stock of gunpowder, and to charge the same to account, 
 was held liable to a bill stamp, though it form part of a subsequent corre- 
 spondence between the three houses. Butts v. Swann, 3 B. & B. 78 ; 4 Moore, 
 484, S. C. But unless the order specify a definite sum, these provisions do 
 not apply, and a bill stamp is not required. Therefore, where the consignor 
 of goods gave his consignee this order, " Pay to A. B. I;he proceeds of a ship- 
 ment of goods value about 2,0002. consigned by me to you," and C, by writ- 
 ing, agreed to pay over the full amount of the net proceeds of tlifi goods ; it 
 was held, that neither of these instruments required a bill or note stamp. 
 Jones V. Simpson, 2 B. & C. 318 (9 E. 0. L. R.) ; 8 D. & R. 545, S. C. ; and 
 see Barlow v. Broadhurst, 4 Moore, 471 ; Crawfoot v. Gurncy, 9 Bing. 372 
 (6 E. C. L. R.) ; Hutchinson v. Hcyworth, 1 Per. & D. 206 ; 9 A. & E. 375, 
 S. C. A note written by a creditor, at the foot of an account, requesting the 
 debtor to pay that account to A. B., and which the creditor delivered to A. 
 B. for the purpose of his getting in the money for the creditor, is not a bill 
 of exchange or order for payment of money within the Stamp Act. Norris 
 v. Solomon, 2 M. & R. 266. 
 (/) Diplock V. Hammond, 23 L. J., Ch. 550 ; 5 De G., M. & G. 820, S. C. 
 
 \ 
 
672 APPENDIX. 
 
 or if the same shall be delivered to the payee, or to some 
 
 person on his or her behalf. 
 
 All documents or writings usually termed letters of credit, 
 
 or whereby any person to whom any such document or 
 
 writing is or is intended to be delivered or sent shall be 
 
 entitled, or he intended to be entitled, to have credit 
 
 with or in account with or to draw upon any other person 
 
 for, or to receive from such other person, any sum of 
 
 money therein mentioned.(gi) 
 
 All bills, drafts, or orders, for the payment by any banker, 
 
 r*±RA-\ ^^ person acting as a banker, of any sum of 
 
 '■ -' *money, though not made payable to the bearer or 
 
 to order, and whether delivered to the payee or not, and 
 
 writings or documents entitling, or intended to entitle, 
 
 any person whatever to the payment from or by any 
 
 banker or person acting as a banker, of any sum of 
 
 money, whether the person to whom payment is to be 
 
 made shall be named or designated therein or not, or 
 
 whether the same shall be delivered to him or not, as 
 
 if the same had been made payable to bearer or to order. 
 
 Provided always, that any one document or writing, 
 
 although directing the payment of several sums of 
 
 moijey to different persons, shall be chargeable with stamp 
 
 dutj' as one order only. (A) 
 
 Exemptions from the Duties on Drafts or Orders. 
 
 All letters of creidit, whether in sets or not, sent by persons 
 in the United Kingdom to persons abroad authorizing 
 drafts on the United Kingdom.(t) 
 
 Any draft or order drawn by any banker upon any 
 other banker not payable to bearer or to order, and used 
 solely for the purpose of settling or clearing any account 
 between such bankers. 
 
 (jr) 16 & 17 Viet. c. 59. 
 
 (A) 23 Vict. c. 15. Any such document, being sent or delivered by the 
 person making or giving the same to the banlier or person acting as a banker, 
 by or through whom tlie payment is to be made, and not to the person to 
 whom such payment is to be made, or to any person on his behalf, is charge- 
 able with the duty of one penny only, notwithstanding the payment shall be 
 or have been thereby directed to be made at any time after the date thereof, 
 Trhich duty may be denoted by an adliesive stamp, to be cancelled as in the 
 case of a draft or order on demand. 23 & 24 Vict. c. Ill, s. 17. 
 
 (0 16 & 17 Viet. c. 59. 
 
 / 
 
APPENDIX. 673 
 
 Anj' letter written by a banker to any other banker, 
 directing the payment of any sum of money, the same 
 not being payable to bearer or to order, and such letter 
 not been sent or delivered to the person, to whom pay- 
 ment is to be made or to any person on his behalf. 
 
 All warrants or orders for the payment of any annuity 
 granted by the commissioners for the reduction of the 
 national debt, or for the payment of any dividend or in- 
 terest on any share in the government or parliamentary 
 stocks or funds, and all drafts or orders drawn by the 
 accountant-general of the Court of Chancery in England 
 or Ireland. (^) 
 
 FoEEiGN Bill op Exchange drawn in, but payable out of, 
 
 the United Kingdom. (Z) 
 
 If drawn singly or otherwise than in a set of three or 
 
 more, the same duty as on an inland bill of the same 
 
 amount and tenor. 
 
 *If drawn in sets of three or more,(m) for every r^joc-i 
 
 bill of each set — 
 Where a sum payable thereby shall not exceed 25/. 
 And where it shall exceed 25?. and not exceed 50?. 
 
 50?. " 
 
 75?. 
 
 100?. " 
 
 200?. 
 
 300?. 
 
 400?. 
 
 500?. 
 
 150?. 
 
 1,000?. 
 
 1,500?. 
 
 2,000?. 
 
 3,000?. " 
 
 And where it shall exceed 4,000Z. then for every 1,000?., 
 
 W 23 Vict. c. 15. (0 17 & 18 Vict. c. 83. 
 
 im) The 17 & 18 Vict. c. 83, s. 6, imposes a penalty of lOOJ. upon the 
 person drawing and issuing, or transferring or negotiating, any hill purport- 
 ing to be drawn in a set, without at the same time drawing and issuing, or 
 transferring or delivering, duly stamped, the whole number of bills ofithe set,, 
 and prevents the person taking the bill from recovering upon it. 
 
 4.3 
 
 L *■ 
 
 ^ £ 
 
 s. 
 
 d. 
 
 3ed 25/. 
 
 . 
 
 
 
 1 
 
 3ed 50?. 
 
 . 
 
 
 
 2 
 
 75?. 
 
 . 
 
 
 
 3 
 
 100?. 
 
 . 
 
 
 
 4 
 
 200?. 
 
 . 
 
 
 
 8 
 
 300?. 
 
 . 
 
 1 
 
 
 
 400?. 
 
 . 
 
 1 
 
 4 
 
 500?. 
 
 . 
 
 1 
 
 8 
 
 750?. 
 
 . 
 
 2 
 
 6 
 
 1,000?. 
 
 . 
 
 3 
 
 4 
 
 1,500?. 
 
 . 
 
 5 
 
 
 
 2,000?. 
 
 . 
 
 6 
 
 8 
 
 3,000?. 
 
 . 
 
 10 
 
 
 
 4,000?. 
 
 . 
 
 13 
 
 4 
 
674 APPENDIX. 
 
 and part of 1,0002., of the money thereby made pay- £ s. d. 
 able.(??) 034 
 
 Foreign bill of exchange, for the payment of money not 
 exceeding 500Z., drawn out of, but payable .within the 
 United Kingdom, the same duty as on an inland bill of 
 the same amount and tenor.(o) 
 
 For the payment of money exceeding 5001., drawn out of 
 the United Kingdom, and payable or indorsed or ne- 
 gotiated within the United Kingdom. 
 
 For every lOOZ., and part of lOOL, of the money thereby- 
 
 made payable.(p) . ' .010 
 
 Foreign bill of exchange, drjiwn out of the United Kingdom, 
 and payable out of, but indorsed or negotiated within the 
 United Kingdom, the same duty as on a foreign hill drawn 
 within, and payable out of, the United Kingdom. (5) 
 
 Foreign bill of exchange, draft or order, drawn or indorsed 
 out of the United Kingdom, for the paj'ment of money 
 on demand, the same duty as on an inland bill of ex- 
 
 r*4.fifiT change for the payment of money otherwise *than 
 on demand, according to the amount thereby made 
 payable. (r) 
 
 Exemptions from the preceding and all other Stamp 
 Duties.{s) 
 
 All bills of exchange, or bank post bills, issued by the 
 Governor and Company of the Bank of England. 
 
 All bills, orders, remittance bills and remittance certificates, 
 drawn by commissioned officers, masters and surgeons in 
 the Navy, pr by any commissioner or commissioners of 
 the Navy, under the authoritj' of the act passed in the 
 
 (71) 23 Vict. c. 15. 
 ' (0) By the 17 & 18 Vict. c. 83, s. 4, every bill which shall purport to lie 
 drawn at any place out of the United Kingdom shall be deemed to be a foreign 
 bill drawn out of the United Kingdom, and be charged accordingly, noi with- 
 standing it may have in fact been drawn within the United Kingdom. By 
 the 27 & 28 Vict. c. 56, s. 2, any bill of exchange payable on demand which 
 shall be indorsed out of the United Kingdom, or purport to be so indorsed, 
 wheresoever the same may have been drawn, shall be deemed to be a foreign 
 bill and charged accordingly. 
 
 (p) 24 & 25 Vict. c. SI. (g) 17 & 18 Vict. c. 83. 
 
 (r) 23 Vict. c. 15. (.,) 55 Geo. 8, c. 184. 
 
APPENDIX. 675 
 
 thirty-fifth year of his Majesty's reign, for the more ex- 
 peditions payment of the wages and pay of certain officers 
 belonging to the Navy. 
 All bills drawn pursuant to any former act or acts of Parlia- 
 ment, by the commissioners of the Navy, or by the com- 
 missioners for victnalling the Navy or by the commissioners 
 for managing the transport service, and for taking care of 
 sick and wounded seamen, upon, and payable by, the 
 Treasurer of the Navy. 
 All bills for the pay and allowance of his Majesty's land 
 ■ forces, or for other expenditures liable to be charged in 
 the public regimental or district accounts, which shall be 
 drawn according to the forms now prescribed, or hereafter 
 to be prescribed, by his Majesty's orders, by the paymasters 
 of regiments or corps, or b^' the chief paymaster, or deputy 
 paymaster, and accountant of the army depot, or by the 
 paymasters of recruiting districts, or by the paymasters 
 of detachments, or by the officer or officers authorized to 
 perform the duties of the paymastership during the 
 vacancy, or the absence, suspension or incapacity of any 
 such paymaster, as aforesaid ; save and except such bills 
 as shall be drawn in favour of contractors, or others, who 
 furnish bread or forage to bis majesty's troops, and who, 
 by their contracts or agreements, shall be liable to pay 
 tlie stamp duties on the bills given in pa^-ment for the 
 articles supplied by them. 
 
 Promissory N6te(<) for the payment to the bearer on de- 
 mand, of any sum of money(u) — £ s. d. 
 
 Not exceeding \l. \s 5 
 
 *Exceeding \l. Is. and not exceeding 2Z. 2s. . r*4.fii7i • ^ 10 
 2Z. 2s. " bl. bs. . J . 1 3 
 
 5Z. 5s. " lOZ. . . .019 
 
 (0 It was once held that a promissory note for \U. to A. B. on demand, 
 without the words "or bearer," was a note payable to bearer on demand 
 ■within this class and re-issuable. Kcates v. Whieldon, 8 B. & C. 7 (15 E. C. 
 L. R.) ; 3 M. & l?y. 8, S. C. This case, however, was always considered 
 doubtful, and is now overruled. Cheetham v. Butler, 5 B. &. Ad. 837 (7 E. 
 C. L. R ) ; 3 N. & M. 453, S. C. ; Dixon v. Chambers, 1 C, M. & R. 845 
 5 Tyr. 203 ; 1 Gale, 14, S. C. 
 
 (u), 55 Geo. 3, c. 184. 
 
676 
 
 APPENDIX. 
 
 Exceeding lOl. and not exceeding 201. 
 
 " 201. " 301. 
 
 " 301. " 50Z. 
 
 bOl. " lOOl. 
 
 Which said notes may be re-issued, after p^^yment thereof, 
 
 as often as shall be thought. flt.(a;) 
 
 £ 
 
 s. 
 
 d. 
 
 
 
 2 
 
 
 
 
 
 3 
 
 
 
 
 
 5 
 
 
 
 
 
 8 
 
 6 
 
 Promissory note for the payment in any other manner than 
 to thg bearer on demand of any sum of money — (?/) 
 
 Ifor exceeding 51 
 
 Exceeding 5Z. and not exceeding lOZ. 
 
 " 101. " 251. 
 
 ^" 2bl. " 501. 
 
 501. " 151. 
 
 151. " lOOZ. 
 
 
 . 
 
 
 
 1 
 
 
 . 
 
 
 
 2 
 
 
 . 
 
 
 
 3 
 
 
 . 
 
 
 
 6 
 
 
 . 
 
 
 
 9 
 
 
 . 
 
 1 
 
 
 
 Promissory note for the payment, either to the bearer on 
 demand, or in any other manner than to the bearer on 
 demand, of any sum of money — (z) 
 Exceding lOOZ. and not exceeding 2001. 
 " ' 2001. 
 3001. 
 \ " 400Z. 
 " 500Z. 
 150^. 
 " 1,000Z.' 
 " 1,500Z. 
 " 2,000Z. 
 " 3,0007. 
 
 And where the same shall exceed 4,000Z., then for every 
 l.OOOZ., or part of l.OOOZ., of the money thereby made 
 payableOas) . . . . . . . . . 10 
 
 Foreign promissory note, made or purporting to be made 
 out of the United Kingdom, for the payment within the 
 United Kingdom of any sum of money, the same duty as 
 
 g 200Z. . 
 
 .020 
 
 300Z. . 
 
 .030 
 
 400Z. . 
 
 .040 
 
 5001. . 
 
 .050 
 
 1501. . 
 
 .076 
 
 1,000Z. .. 
 
 . 10 
 
 1,500Z. . 
 
 . 15 
 
 2,000Z. . 
 
 .10 
 
 3,000Z. . 
 
 . 1 10 
 
 4,000Z, . 
 
 .200 
 
 {x) They can be lawfully issued by licensed bankers only, and the issuing 
 of any for sums less than 51. is probibited in England by 7 Geo. 4, c. 6, and 
 in Scotland by 8 «& 9 Vict. c. 38. 
 
 (y) 17 & 18 Vict. 0. 83. («) Ibid. (o) 23 & 24 Vict. c. 111. 
 
APPENDIX. 677 
 
 on an inland bill of exchange for the paj'ment, otherwise 
 than on demand, of money of the same amount. (6) 
 
 And the following instruments shall be deemed and taken 
 *to be promissory notes, within the intent of the r:^,,./,^-, 
 statutes granting duties, (c) Viz. : -' 
 
 All notes promising the payment of any sum or sums of 
 money out of any particular fund, which may or may not 
 be available ; or upon any condition or contingency, 
 which may or may not be performed or happen . if the 
 same shall be made payable to the bearer or to order, or 
 if the same sha\l be definite and certain, and not amount 
 in the whole to twenty pounds. 
 
 And all receipts for money deposited in any bank, or in the 
 hands of any banker or bankers, which shall contain any 
 agreement or memorandum, importing that interest shall 
 be paid for the money so deposited. 
 
 Exemptions from Duties on Promissory Notes, (d) 
 
 All notes promising the payment of any sum or sums of 
 money out of any particular filnd, which may or may not 
 be available ; or upon any condition or contingency, 
 which may or may not be performed or happen ; where the 
 same shall not be made payable to the bearer or to order, 
 and also where the same shall be made payable to the 
 bearer or to order if the same shall amount to twenty 
 pounds or be indefinite. 
 
 And all other instruments, bearing in any degree the form 
 or style of promissory notes, but which in law shall be 
 deemed special agreements, except those hereby expressly 
 directed to be deemed promissory notes. 
 
 But such of the notes and instruments here exempted from 
 the duty on promissory notes shall nevertheless be liable 
 to the duty which may attach thereon, as agreements or 
 otherwise. 
 
 Exemptions from, the preceding and all other Stamp Duties. 
 
 All promissory notes for the payment of money, issued by 
 the Governor and Company of the Bank of England. 
 
 (J) Ibid. (e) 55 Geo, 3, c. 184. id) Ibid. 
 
678, APPENDIX.' 
 
 Protest of any bill of exchange or promissory note(e) £ s. d. 
 
 where the stamp duty on the bill or note does not exceed 
 
 one shilling, the same duty as on bill or note. 
 Protest of any other bill of exchange or promissory note .010 
 
 The 16 & 'l7 Yict. c. 59, and 11 & 18 Yict. c. 83, first introduced 
 the use of adhesive stamps on drafts or orders for the payment of 
 money. For the provisions as to these the reader is referred to the 
 16 & 17 Vict. c. 59, ss. 3 and 5 ; 17 & 18 Yict. c. 83, ss. 3, 4, 5, 7 
 8 and 13; 28 Vict. c. )5, ss. 12 and 13, and 23, & 21 Vict. c. Ill, 
 ss. 5 and 18. They will be found in the Appendix. 
 
 *It is to be observed that the 17 & 18 Vict. c. 83, ss. 3, 4, 
 r*469 !• 
 *- -^ 5, and 6, first imposed a stamp duty on bills drawn out of 
 
 the United Kingdom, and paid or negotiated within it. This is 
 effected by an adhesive stamp aflSxed to the instrument and cancelled 
 by the name of the party or of his firm, the date(/) of the cancella- 
 tion being written upon it ;(gi) and the 'person to whom it is pre- 
 sented for payment is, upon pa3'ing it, to write or impress upon the 
 stamp the word " paid."(/i) It has been held that a stamp was not 
 necessary where a bill was indorsed abroad and transmitted to Eng- 
 land, in order to be presented for a*eceptance,(«) such a transaction 
 not amounting to negotiation. 
 
 A cancellation by writing the initials, or stamping or impressing 
 them in ink, provided'the stamp is effectually obliterated and can- 
 celled so as not to admit of its being used again, is sufficient ; and 
 the holder of a foreign bill, having affixed thereto a proper and 
 sufficient adhesive stamp, may cancel the same as if he were the 
 person first negotiating the bill, but this is not to relieve any person 
 w^ho ought to cancel the stamp from any penalty.(^") 
 
 If the transferor of a foreign bill neglect to cancel the stamp, and 
 the transferee takes the bill without such cancellation, the transferee 
 cannot recover the value from the transferor, for he was particeps 
 criminis.Q)) 
 
 (e) 24 & 25 Vict. c. 91, s. 25. 
 
 C/) Gilmore v. Whitmarsh, 3 F. & F. 395. 
 
 (.g) 33 Vict. c. 15, s. 12. 
 
 ih) See as to the consequences of not duly cancelling, Pooley v. Brown, 
 31 L. J., 0. P. 134. , 
 
 (i) Sharpies v. Ricard^ 2 H. & K 57 ; Griffin v. Weathersby, L. R., 3 Q. 
 B. 753 (43 E. C. L. R.). 
 
 0'; 34 & 35 Vict. c. 91,'s. 33. . 
 
APPENDIX. 679 
 
 It is necessary to observe, that the eighth section of the General 
 Stamp Act, 55 Geo. 3, c. 184, declares' that all the regulations in 
 former stamp acts(^) are still in force, so far as the same are applica- 
 ble to the duties granted by that act. The 16 & 17 Yict. c. 59, and 
 the IT & 18 Vict. c. 83, also contain provisions expressly preserving 
 the effect of former enactments, not inconsistent with the altera- 
 tions introduced by those statutes. Among these are the follow- 
 ing:— 
 
 The 31 Geo. 3, c. 25, s. 19, enacts that unstamped bills, notes or 
 drafts shall not be admissible in evidence, or available in law or 
 equity. 
 
 The same section prohibits the commissioners from stamping any 
 hill or note after it is made. 
 
 But the 37 Geo. 8, c. 136, ss. 5 and 6, authorizes the commis- 
 sioners to restamp any bill or note on which has been affixed a stamp 
 of a wrong denomination, but of value equal or superior to the 
 proper stamp, on payment of a penalty of 10s, if the bill or note be 
 not due, and lOZ. if it he.Q) 
 
 The 43 Geo. 3, c. 127, s. 6, enacts, that every instrument bearing 
 *a stamp of greater value than required by law shall be valid, 
 if of the proper denomination. L ^ 
 
 ■ And by the General Stamp Act, 55 Geo. 3, c. 184, s. 10, it will be 
 seen, that though the stamp be of a wrong denomination, if of suffi- 
 cient value, it will be valid, unless on the face of it specifically 
 appropriated to some other instrument. And in the last case, it is 
 apprehended that a bill or note may be re-stamped under the 37 Geo. 
 3, c. 186, ss. 5 & 6.(m) 
 
 A promissory note which amounts to a mortgage may be impressed 
 with the mortgage stamp after it is made.(K) 
 
 It is sufficient if an instrument be subsequently stamped accord- 
 ing to the law at the time the stamp is affixed, although a higher 
 stamp should have been necessary at the time the instrument was 
 executed, (o) 
 
 (A) Field V. Woods, 7 A. & E. 114 (34 E. C. L. R.) ; 3 N. & P. 117, S. 0. 
 
 (l) See Bradley v. Bardsley, 3 D. & L. 476 ; 14 M. & W. 873, S-. C. 
 ' (m) See giiamberlahl v. Porter, 1 N. R. 80 ; Heiser v. Grout, 5 H. & N. 85. 
 
 (n) Wise v. Charlton, 4 A. & B. 786 (81 E. C. L. R.) ; 6 IST. & M. 364 ; 
 2 H. & W. 49, S. C. 
 
 (.0) Doe v. Wliittingham, 4 Taunt. 30 ; Buokworth v. Simpson, 1 C, M. 
 & R. 834 ; Deakin v. Pennial, 3 Exch. 330. 
 
680 APPENDIX. 
 
 From the foregoing and other statutes it will appear that the fol- 
 lowing instruments are exempt from tluty : — 
 
 1. Bank of England bills and notes.(^) 
 
 2. Notes for one poand, one guinea, two pounds, and two guineas, 
 payable to the bearer on demand, issued by the Bank of Scotland, 
 Koyal Bank of Scotland, or the British Linen Company in Scot- 
 land. (5) 
 
 3. Bills or notes issued by bankers paying a composition in lieu 
 of stamps, pursuant to 9X}eo. 4, c. 23.(r) 
 
 4. Bills drawn for the expenses of the army and navy.(s) 
 5 . Notes of loan societies (<) and friendly societies, (w) 
 
 Foreign bills' and promissory notes, negotiated ■ or paid in the 
 United .Kingdom, must, as we have seen, have an adhesive stamp 
 affixed. (z) 
 
 The making, issuing, accepting, or paying any bill, note, or draft, 
 *not falling within the above exemptions, and not duly 
 L -J stamped, subjects to the penalty of 50Z.(i/) The 55 Geo. 3, c. 
 184, s. 29, exempts notes made and payable in Ii'eland. 
 
 Notes paj'able to the bearer on demand, for any sum not exceed- 
 ing lOOZ., and not less than 5Z., duly stamped a,ccording to the 55 
 Geo. 3, c. 184, may be re-issued after payment, as often as may be 
 thought necessary, without a new stamp,(z) provided an annual 
 licence for that purpose be taken out. (a) 
 
 Re-iSsuing notes, against the provisions of the act, subjects the 
 person re-issuing them to a penalty of 50Z, and the duty : and any 
 
 (p) 55 Geo. 3, c. 184, s. 31 ; 7 <& 8 Vict. c. 32, s. 7. 
 
 (j) Sect. 38. This section is still in force. And see also 16 & 17 Vict. 
 c. 63; s. 7. 
 
 (r) And see 7 Geo. 4, c. 46, s. 16 ; 7 & 8 Vict. c. 32, s. 23 ; 17 & 18 Vict, 
 c. 83, s. 11. 
 
 (s) 55 Geo. 3, c. 184, Sched. Part 1. 
 
 (0 See 5 & 6 Will. 4, c. 23 ; 8 & 4 Vict. c. 110 ; 31 Vict. c. 19. Although 
 the form of note given by the statute be joint only, yet a joint and several 
 note is within the exemption. Bradburue v. Whitbread, 5 M. & G. 439 ; see 
 ante, p. 7. 
 
 (m) 18 & 19 Vict. c. 63 ; but they must be strictly for the purposes of the 
 society and not negotiable ; Att.-Gen. v. Gilpin, 40 L. J., Ex. 134. 
 
 (0!) 17 & 18 Vict. c. 83 ; 33 & 34 Vict. c. Ill ; and see the Chapter on 
 Foreign Bills as to stamps on bills, foreign, Scotch, Irish, or Colonial. 
 
 ly) 55 Geo. 3, c. 184, s. 11. 
 
 (2). Sect. 14. 
 
 (a) Sects. 34, 35, 36, 37, 38 ; 7 Geo. 4, c. 6 ; and see 9 Geo. 4, c. 23, ss. 1, 13. 
 
APPENDIX. 681 
 
 person knowingly taking them to a penalty of 201. (b) But the pay- 
 ment mentioned in the act, after which bills and notes cannot be 
 re-issued, is a payment at maturity. (c) 
 
 Issuing re-issuable notes, without a licence, subjects to the penalty 
 of lOOZ.(d) It has been held,, under the former acts, that where a 
 bill is made payable to the drawer's own order, and returned to the 
 drawer and paid by him, he may, without a fresh stamp, indorse the 
 bill over to a new party, who may sue the ac,ceptor.(e) But it is 
 otherwise if the payee were a third person. (/) Or if the drawer 
 were the party ultimately liable to pay the bill.(^) 
 
 An instrument, which in point of law-is but an agreement, and 
 not one of that class of agreements, which as irregular instruments 
 approaching the form of bills and notes, are chargeable with a dif- 
 ferent duty, requires, where the matter thereof is of the value of 
 bl., a stamp of 6d. only.(h) 
 
 (J) Sect. 16 ; HoUoyd v. Whitehead, 1 Marsh. 128. 
 
 (c) Modey v. Culverwell, 7 M. & W. 174, by the party primarily liaWe ; 
 see Bartrum v. Caddy, 9 A. & E. 275 (36 E. C. L. R.) ; 1 P. & D. 207, S. C. 
 
 (d) 55 Geo. 3, c. 184, s. 27. 
 
 (e) Callow T. Lawrence, 3 M. & S. 95. 
 
 (/) Beck V. Robley, 1 H. Bla. 89 ; and see Graves v. Key, 2 B. & Ad. 318 
 (22 E. C. L. R.). 
 (j) Lazarus v. Cowie, 3 Q. B. 465 (43 E. C. L. R). 
 (70 55 Geo. 8, c. 184 ; 7 Vict. c. 21 ; 13 & 14 Vict. c. 97 ; 23 Vict. c. 15. 
 
682 APPENDIX. 
 
 C*472] *APPENDIX II, 
 
 NOTARY'S FEES OP OFFICE. 
 
 As settled July 1st, 112*1. 
 
 At a meeting of several notaries of the City of London, lield at tbe 
 George and Vulture Tavern, in London aforesaid, on the 1st of 
 July, A. D. 1197, the following resolutions were unanimously 
 agreed to, and since approved and confirmed by the Governor 
 and Company of the' Bank of England : — 
 
 First, — That, from and after the. fifth day of the present month 
 of July, the noting of all bills drawn upon or addressed at the 
 house of anj;- person or persons residing within the ancient walls of 
 the said city of London, shall be charged one shilling and sixpence ; 
 and without the said walls, and not exceeding the limits l:kereunder 
 specified, the sum of two shillings and sixpence. 
 
 Second. — For all bills drawn upon, or addressed at, the house of 
 any person or persons residing beyond Old or New Bond Street, Wim- 
 pole Street, New Cavendish Street, Upper Marylebone Street, How- 
 land Street, Lower _Gower Street, lower end of Graj''s lun Lane 
 (and not off the pavement), Clerkenwell Church, Old Street, Shore- 
 ditch Church, Brick Lane, St. George's in the East, Execution Dock, 
 Wapping, Dockhead, upper end of Bermondsey Street (as far as the 
 church), end of Blackman Street, end of Great Surrey Street, Black- 
 friars Koad (as far as the Circus), Cuper's Bridge, Bridge Street, 
 Westminster, Arlington Street, Piccadilly, and the like distances, 
 three shillings and sixpence ; and, off the pavement, one shilling and 
 sixpence per mile additional. 
 
 Third. — For protesting a bill drawfi upon, or addressed at, the 
 house of any person or persons residing within the ancient walls of 
 the said city (including the stamp duty of four shillings, and exclu- 
 sive of the charge of noting), the sum of six shillings and sixpence ; 
 and without the ancient walls of the said city, including the like 
 stamp duty, and exclusive of the said charge of noting, the sum of 
 eight shillings, agreeably to the second article. 
 
 Fourth. — That all acts of honour, within the ancient walls of the 
 city of Loudon, shall be charged the said sum of one shilling and 
 sixpence upon each bill ; and for all acts of honour without the an- 
 cient walls of the said city, to be regulated agreeably to the charge 
 
APPENDIX. 683 
 
 of noting, bills out of tlie city ; and the like charge for any addi- 
 tional demand that may be made upon the said bill, or when the 
 same is mentioned and inserted in the answer in the protest. 
 
 *Fifth. — For every post, demand, and act thereof, within ri):j>jo-\ 
 the ancient walls of the said city, the sura of two shillings 
 and sixpence ; and without the walls of the said city, the sum of 
 three shillings and sixpence (provided the same be only registered 
 in the notary's book) ; and so in proportion, according to the dis- 
 tance, to be regulated agreeably to the charge of noting bills. 
 
 Sixth.— For every copy of bill paid in part, and a receipt at foot 
 of such copy, shall be charged two shillings ; and so in proportion 
 for every additional bill so copied (exclusive of tlie receipt stamp). 
 
 Seventh. — For every duplicate protest of one bill (including four 
 shillings for the duty) shall be charged the sum of seven shillings 
 and sixpence, and so in like proportion of three shillings and six- 
 pence (exclusive of the duty) for every additional bill. 
 
 Eighth For every folio of ninety words, translated from the 
 
 Prench, Dutch, or Flemish, into English, or from the English into 
 French, Dutch, or Flemish, two shillings for each such folio ; and 
 from Italian, Spanish, Portuguese, German, Danish, and Swedish, 
 one shilling and nineoence per folio of ninety words ; and from Latin, 
 two shillings and sixpence per folio ; and for attesting the same to 
 be a true translation, if necessary, seven shillings and sixpence, ex- 
 clusive of fees and stamps. 
 
 Ninth. — That all a.ttestatioDs to letters of attorney, afHdavits, &c., 
 at the request of any gentlemen in the law, shall be charged seven 
 shillings and sixpence, exclusive of fees, stamps, and attendance. 
 
 Tenth. — For every city seal shall be charged one. guinea, for pne 
 deponent, exclusive of attendance, and exemplification ; and if more 
 than one deponent, ten shillings and sixpence for each additional 
 affidavit. 
 
 Eleventh For all notarial copies shall be charged sixpence per 
 
 folio of seventy-two words^.exclusive of attestation, stamps, &c. 
 
684 APPENDIX. 
 
 [*m] *APPE^'DIX III. 
 
 STATUTES. 
 
 [9 & 10 Will. 3, c. 17.] 
 An Act, for the better Paymenfof Inland Bills of Exchange. 
 
 " Whereas great damages and oth'er inconveniences do frequentlj' 
 happen in the course of trade and commerce, by reason of delays of 
 payment, and other neglects on inland bills of exchange in this 
 kingdom :" Be it therefoue enacted by the king's most excellent 
 Majesty, by and with the advice and consent of the lords spiritual 
 and temporal, and the commons, in this present parliament assem- 
 bled, and by the authority of the same, That from and after the 
 four and twentieth day of June next, which shall be in the year one 
 thousand six hundred and ninety-eight, all and every bill or bills of 
 exchange drawn in, or dated at and from, any trading city or town, 
 or any other place in the kingdom of England, dominion of Wales, 
 or town of Berwick-upon-Tweed, of the sura of five pounds sterling 
 or upwards, upon any person or persons of or in London, or any 
 other trading city, town, oi" any other place (in which said bill or 
 bills of exchange shall be acknowledged and expressed the said value 
 to be received), and is and shall be drawn payable at a certain num- 
 ber of days, weeks, or months after date thereof, that 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 
 partj''s hand so accepting), and after the expiration of three days 
 after the said bill or bills sliall become due, the party to whom the 
 said bill or bills are made payable, liis servant, agent, or assigns, 
 may and shall cause 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 
 wi'itten 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 do hereby 
 
 protest the said bill. Dated this day of 
 
APPENDIX. 685 
 
 *II. Which protest SO made as aforesaid shall, witliin four- 
 teen days after making thereof, be sent, or otherwise due '- -' 
 notice shall be given thereof, to the party from whom the said bill 
 or bills were received, who is, upon producing such protest, to repay 
 the said bill or bills, together with all interest and charges from the 
 day such bill or bills were protested ; for which protest shall be paid 
 a sum not exceeding the sum of sixpen'ce ; and in default or neglect 
 of such protest made and sent, or due notice given within the days 
 before limited, the person so failing or neglecting thereof is and shall 
 be liable to all costs, damages, and interest, which do and shall ac- 
 crue thereby. 
 
 III. Provided nevertheless, that in case any such inland bill or 
 bills of exchange shall happen to be lost or miscarried within the 
 time before limited for payment of the same, then the drawer of the 
 said bill or bills is and shall be obliged to give another bill or bills 
 of the same tenor with those first given, the person orpersons to whom 
 they are and shall be so delivered, giving security, if demanded, to 
 the said drawer, to indemnify him against all persons whatsoever, in 
 case the said bill or bills of exchange, so alleged to be lost or mis- 
 carried, shall be found again. 
 
 [3 & 4 Anne, c. 9, s. l.j 
 
 An Act for giving like Remedy upon Promissory Notes as is now 
 used upon Bills of Exchange, and for the better payment of Inland. 
 Bills of Exchange. 
 
 " Whereas it hath been held, that notes in writing, signed by the 
 party who makes the same, whereby such party promises to pay 
 Bnto any other person, or his order, any sum of money therein men- 
 tioned, are not assignable or indorsable over, within the custom of 
 piercljants, to any other person, and that such person to whom the 
 sum of money mentioned iii such note is payable cannot maintain 
 an aption, by the custom of merchants, against the person who first 
 made and signed the same ; and that any person to whom such note 
 should be assigned, signed, indorsed or made payable, could not, 
 within the said custom of merchants, maintain any action upon such 
 note, against the person who first drew and signed the same : " 
 therefore, to the intent to encourage trade and commerce, which will 
 be much advanced if such notes shall have the sa,me effect as inland 
 billa of exchange, and shall be negotiated in like manner, be it 
 enacted by the queen's most excellent Majesty, by and with the ad- 
 
686 APPENDIX. 
 
 vice and consent of the lords spiritual and temporal, and commons, 
 in this present' parliament assembled, and by the authority of the 
 same, that all notes in writing that, after the first day of May, in the 
 year of our Lord one thousand seven hundred and five, shall be 
 made and signed by ahj' person or persons, body politic or cor- 
 porate, or by the servant or agent of any corporation, banker, gold- 
 smith, merchant or trader, who is usually intrusted by him, her or 
 r^ATRi ^^^^' ^° ^'g" su''^ promissory notes for *him, her or them, 
 '- -■ whereby such person or persons, body politic and corporate, 
 his, her or their servant or agent, as aforesaid, doth or shall promise 
 to pay to any other person or persons, body politic and corporate,' 
 his, her or their order, or unto bearer, any sum of money mentioned 
 in such note, shall be taken and construed to be, by virtue thereof, 
 due and payable to any such person or persons, body politic and 
 corporate, to whom the same is made .payable, 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 person or persons, body 
 politic and corporate, 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 he, she or they might do upon an inland 
 bill of exchange made or drawn according to the custom of mer- 
 chants against the person or persons, body politic and corporate, 
 who, or whose servant or agent, as aforesaid, signed the same ; and 
 that any person or persons, body politic and corporate, to whom 
 such note that is payable to any person or persons, body politic and 
 corporate, his, her or their order, is indorsed or assigned, or the 
 money therein mentioned ordered to be paid, by indorsement thereon, 
 shall and may maintain his, her or their action for such sum of 
 money, either against the person or persons, body politic and 
 corporate, who, or whose servant or agent, as aforesaid, signed such 
 note, or against any of the persons that indorse the same, in like 
 manner as in cases of inland bills of exchange. And, in every such 
 action, the plaintiff or plaintifl^s shall recover his, her or their 
 damages and costs of suit ; and, if such plaintiff or plaintiffs shall be 
 nonsuited, or a verdict be given against him, her or them,. the de- 
 fendant or the defendants shall recover his,/her or their costs against 
 the plaintiff or plaintiffs ; and every such plaintiff or plaintiffs, de- 
 fendant or defendants, respectively recovering may sue out execu- 
 tion for such damages and costs, by capias, fieri facias, or elegit. 
 
-APPENDIX. 687 
 
 [IT Geo. 3, e. 30, ss. 1, 2, 4, made perpetual by 27 Geo. 3, c. 16 ; re-' 
 pealed temporarily by 26 & 27 Vict. c. 105; repeal continued by 
 34 & 35 "Viet. c. 95, till 28th July, 1872, and end of then next ses- 
 sion, and by 36 & 37 Vict. c. 75, to 28tb July, 1874, and end of 
 then next session.] 
 An Act for further restraining the Negotiation of Promissory Notes 
 and Inland Bills of Exchange, under a limited Sum, within that 
 Part of Great Britain called England. 
 
 "Whereas, by a certain act of parliament, passed in the fifteenth 
 year of the reign of his present Majesty (intituled 'An Act to re- 
 strain the Negotiation of Promissorj' Kotes and Inland Bills of Ex- 
 change, under a limited Sum, -within that part of Great Britain 
 
 *called England," ) all negotiable promissory or other notes, 
 
 D > / □ 1 J I r*4771 
 
 bills of exchange or drafts, or undertakings in writing,.for '- -■ 
 
 any sum of money less than the sum of twenty shillings in the 
 whole, and issued after the twenty-fourth day of Jane, one thousand 
 seven hundred and seventji^-flve, were made void, and the publishing 
 or uttering and negotiating of anj' such notes, bills, drafts or under- 
 takings, for a less sum than twenty shillings, or on which less than 
 that sum should be due, was by the said act restrained, under cer- 
 tain penalties or forfeitures therein mentioned ; and all such notes, 
 bills of exchange, drafts or undertakings in writing, as had issued 
 before the, said twenty- fourth day of June, were made payable upon 
 demand, and were directed to be recovered in such manner as is 
 therein also mentioned; and whereas the said act hath been at- 
 tended with very salutary eflfects, and, in case the provisions therein 
 contained were extended to a further sum (but yet without prejudice 
 to the convenience arising to the public from the negotiation of 
 promissory notes and inland bills of exchange, for the remittance of 
 money in discharge of any balance of account or other debt), the 
 good purposes of the said act would be further advanced : " Be it 
 therefore enacted by the king's most excellent Majesty, by and 
 with the advice and consent of the lords spiritual and temporal 
 and comrnons, in this present' parliament assembled, and by the 
 ■authority of the same. That all promissory or other notes, bills of 
 exchange or drafts, or undertakings in writing, being negotiable or 
 transferable, for the payment of twenty shillings, or any sum of 
 money above that sum, and less than five pounds, or on which 
 twenty shillings or above that sum, and less than ' five pounds, shall 
 remain undischarged, and w'hich shall be issued within that part 
 of Great Britain called England, nt any time after the first day of 
 January, one thousand seven hundred and seventy-eight, shall 
 
APPENDIX. 
 
 specify the names and places of abode of the persons respectively to 
 Tvhom, or to whose order, the same shall be made payable ; and 
 shall bear date before or at the time of drawing or issijing thereof, 
 and not on any daj' subsequent thereto ; and shall be made pa3-able 
 within the space of twenty-one days next after the day of the date 
 thereof: and shall not be transferable or negotiable after the time 
 thereby limited for payment thereof; and that every indorsement 
 to be made thereon shall be made before the expiration of that time, 
 and to bear date at or not before the time of making thereof; and 
 shall specify the name and place of abode of the person or persons 
 to whom, or to whose order, the money contained in every such 
 note, bill, draft or undertaking is to be paid ; and that the signing 
 of every such note, bill, draft or undertaking, and also of every 
 such indorsement, shall be attested by one subscribing witness 
 at the least ; and which said notes, bills of exchange or drafts, or un- 
 dertakings in writing, may be made or drawn in words to the pur- 
 port or effect as set out in the schedule hereunto annexed, Nos. I. 
 and II. ; and that all promissory or other notes, bills of exchange or 
 drafts, or undertakings in writing, being negotiable or transfera,ble, 
 for the payment of twenty shillings, or any sum of money above 
 that sum, and less than five pounds, or in which twenty shillings, or 
 above that sum, and less than five pounds, *shall remaiu 
 ^ -■ undischarged, and which shall be issued within that part 
 of Great Bx'itain called England, at any time after the said first day 
 of January, one thousand seven hundred and seventy-eight, in any 
 other manner than as aforesaid, and also every indorsement on any 
 such note, bill, draft, or undertaking to be negotiated under this act, 
 other than as aforesaid, shall and the same are hereby declared to be 
 absolutely void ; any law, statute, usage or custom to the contrary 
 thereof in anywise notwithstanding. 
 
 II. And be it further enacted, by the authority aforesaid, that the 
 publishing, uttering or negotiating within that part of Great Britain 
 called England.of any promissory or other note, bill of exchange, draft 
 or undertaking in writing, being negotiable or transferable, for twenty 
 shillings or above that sum, and less than five pounds, or on which . 
 twenty shillings or above that sum, and less than five pounds, shall 
 remain undischarged, and issued or made in any other manner than 
 notes, bills, drafts or undertakings, hereby permitted to be published 
 or negotiated as aforesaid ; and also the negotiating of any such last- 
 mentioned notes, bills, drafts or undertakings after the time ap- 
 pointed for payment thereof, or before that time in any other man- 
 ner than as aforesaid, by any act, contrivance or means whatsoever, 
 
APPENDIX. 689 
 
 ft-om and after the said first da3' of January, one thousand seven 
 Lunch-ed and seventy^eight, shall be, and the same is hereby declared 
 to be, prohibited or restrained, under the like penalties or forfeitures, 
 and to be recovered and applied in like manner, as by the said act 
 is directed with respect to the uttering or publishing or negotiating 
 of notes, bills of exchange, drafts or undertakings in writing, for any 
 sum of money not less than the sum of twenty shillings, or on which 
 less than that sum should be due. 
 
 IV. And be it further enacted, by the authority aforesaid, that 
 the said former, and also this present act, shall continue in force, 
 not only for the residue of the term of five j'ears in the said former 
 act mentioned, and fi"am thence to the end of the then next session 
 of parliament, but also for the further term of five years, and from 
 thence to the end of the then next session of parliament. 
 
 Schedule No. I. 
 
 Iplacel [lipsj/] Imonth'] [;year}. 
 Twenty-one daj-s after date I promise 'to pay to A. B., of 
 [place] , or his order, the sum of for 
 
 value received by 
 Witness, E. F. C. D. 
 
 And the Indorsement, toties quoties. 
 
 [day] [montK] [year]. 
 Pay the contents to G. H., of [place], or his order. 
 
 Witness, J. K. ' A. B. 
 
 *No. II. . [*4'r9] 
 
 • [place] [day] [month] [year]. 
 
 Twenty-one days after date pay to A. B., of [place] 
 
 , or his order, the sum gf , value received, as 
 
 advised by 
 
 ToE. R, of [place] 
 
 Witness, G. H. C. D. 
 
 And the Indorsement, toties quoties. 
 
 [day] [month] [year]. 
 Pay the contents to J. K., of [place], or his order. 
 
 Witness, L. M. " A. B. 
 
 44 
 
eSP APPENDIX. 
 
 [48 Geo. 3, c. 88, ss. 1, 2, 3, 4.] 
 
 'An Act to restrain the Negotiation of Promissory Notes and Inland 
 Bills of Exchange under a Limited Sum in England. 
 
 "Whereas various notes, bills of exchange and drafts for money 
 for very small sums have for some time past been circulated or ne- 
 gotiated in lieu of cash, within that part of Great Britain called 
 England, to the great prejudice of trade and public credit, and many 
 of such bills and drafts being pa3'able under certain terms and restric- 
 tions, which the poorer sort of mnnufacturers, artificers, labourers, and 
 others, cannot comply with otherwise than by being subject to great 
 extortion and abuse : and whereas an act passed in the fifteenth year 
 of the reign of his present Majesty, intituled 'An Act to restrain the 
 Kegotiation of Proiiiissorj' Notes and Inland Bills of Exchange under 
 a Limited Sum, within that, part of Great Britain called England,' 
 for preventing the circulating such notes and drafts ; and whereas 
 doubts have arisen as to the power of justices of the peace to hear 
 and determine offences nnder the said act, and it is therefore expe- 
 dient that more effectual provisions shonld be made for enforcing 
 the provisions of the said act ;" be it therefore enacted, by the king's 
 most excellent Majesty, by and with the. advice and consent of the 
 lords, spiritual and temporal, and commons, in this present parlia- 
 ment assembl9d, and by the authority of the same, That from and 
 after the passing of this act the said recited act shall be, and the 
 same is, hereby repealed. 
 
 II. And be it further enacted, that all promis'sory or other notes, 
 bills of exchange or drafts, or undertakings in writing, being nego- 
 tiable or transferable, for the payment of any sum or sums of money, 
 or any orders, notes or undertakings in writing, being negotiable or 
 transferable, for the delivery of any goods, specifying tlieir value in 
 money, less than the sum of twenty shillings in the whole, heretofore 
 made or issued, or which shall hereafter be made or issued, shall, 
 from and after the first da3'^ of October, one thousand eight hundred 
 
 ^ and eight, be, and the same are hereby *declared to be, ab- 
 r*480l ° ' . •' ' 
 
 ^ -^ solutely void and of no effect ; any law, statute, usage or 
 
 custom to the contrary thereof in anywise notwithstanding. 
 
 III. And be it further enacted, that if any person or persons shall, 
 after the first day of July, one thousand eight hundred and eight, 
 by any art, device or means whatsoever, publish or utter any such 
 notes, bills, drafts or engagements as aforesaid, for a less sum than 
 
APPENDIX. 691 
 
 twenty shillings, or on which less than the sum of twenty shillings 
 shall be due, and which shall be in anywise negotiable or transfera- 
 hie, or shall negotiate or transfer the same, every such person shall 
 forfeit and pay, for every such offence, any sum not exceeding twenty 
 pounds, nor less than five pounds, at the discretion of the justice of 
 the peace who shall hear and determine such offence. 
 
 IV. And be it further enacted, that it shall be lawful for any jus- 
 tice or justices of the peace, acting for the county, riding, city or 
 place within which any offence against this act shall be committed, 
 to hear and determine the same in a summary waj', at any time 
 within twenty days after such offence shall have been committed ; 
 and such justice or justices, upon any information exhibited, or com- 
 plaint made upon oath in that behalf, shall summon the party accused, 
 and also the witnesses on either side, and shall examine into the 
 matter of fact, and upon due proof made thereof, either by the vol- 
 untary confession of the pai-ty, or by the oath of one or more credi- 
 ble witness or witnessess, or otherwise (which oath such justice or 
 justices is or are hereby authorized to administer), shall convict the 
 offender and adjudge the penalty for such offence. 
 
 [55 Geo. 3, c. 184, ss. 21 to 28.] 
 
 An Act for repealing the Stamp Duties on Deeds, Law Proceedings, 
 and other written or printed Instruments, and the Diiiies on Fire 
 Insurances, and on Legacies and Successions to Personal Estate 
 upon Intestacies, now payable in Great Britain, and for granting 
 other Duties in. Lieu thereof. 
 
 [general stamp act. J 
 XXI. And be it further enacted, that the composition payable by 
 the said governor and company of the Bank of England for the stamp 
 duties on their promissory notes and bank post bills, under the 
 aforesaid act of the forty-eighth year of his Majesty's reign, shall 
 cease from the fifth day of April last ; and that the said governor 
 and company shall deliver to the said commissioners of Stain ps, 
 within one calendar month after the passing of this act, and after- 
 wards on the first day of May in every year whilst the present stamp 
 duties shall remain in force, a just and true account, *veri- 
 fied by the oath of their chief accountant, of the amount or ■- ^ 
 value of all their promissory notes and bank post bills in circulation, 
 on some given daj'^ in every week, for the space of three years pre- 
 ceding the sixth day of April in the year in which the account shall 
 
692 APPENDIX. 
 
 he delivered, together •with the average amount or value thereof, ac- 
 cording to such account ; and that the said governor and company 
 shall pay into the hands of the receiver-general of the stamp duties 
 in Great Britain, as a composition for the duties which would other- 
 wise have been payable for their promissory notes and bank post 
 bills issued within the j-ear, reckoning from the fifth day of April 
 preceding the delivery of the said account, the sum of three thousand 
 five hundred pounds for every million, and after that rate fiSr half a 
 million, but not for a less sum than half a million, of the said aver- 
 age amount or valueof their said notes and bank post bills in circu- 
 lation ; and that one-half part of the sum so to be ascertained as 
 aforesaid for each j-ear's composition shall be paid on the first day 
 of October, and the other half on the first day of April next after 
 the delivery of such account as aforesaid. 
 
 XXII. Provided always, and be it further enacted, that, upon the 
 said governor and company resuming their paj'ments in cash, a new 
 arrangement for the composition for the stamp duties, payable on 
 their promissory notes and bank post bills, shall be submitted to 
 parliament. 
 
 XXIII. And be it further enacted, that from and after the thirty- 
 first day of August, one thousand eight hundred and fifteen, it shall 
 be lawful for the governor and company of the Bank of Scotland, 
 and the Roj'al Bank of Scotland, and the British Linen Company in 
 Scotland, respectively, to issue their promissory notes for the sums 
 of one pound, one guinea, two pounds, and two guineas, payable to 
 tlie bearer on dem^nil, on unstamped paper, in the same manner ait 
 they were authorized to do by the aforesaid act of the forty-eighth 
 year of his Majesty's reign ; they the said governor and company of 
 the Bank of Scotland, and the Royal Bank of Scotland, and British 
 Linen Company, respectively, giving such security, and keeping and 
 jjroducing true accounts of all the notes so to be issued by them 
 respectively, and accounting for and paying the several duties pay- 
 able in respect of such notes, in such and the same manner, in all 
 respects, as is and are prescribed and required by the said last- 
 mentioned act with regard to the notes thereby allowed to be issued 
 by them on unstamped paper, and also to re-issue such promissory 
 notes respectively, from time to time, after the paj'ment thereof, as 
 often as they shall think fit, 
 
 XXIV. And be it further enacted, that from and after the tenth 
 day of October, one thousand eight hundred and fifteen, it shall not 
 
APPENDIX. 693 
 
 be lawful for any banker or bankers, or other person or persons (ex- 
 cept the governor and company of the Bank of England), to issue 
 any promissory notes for money payable to the bearer on demand, 
 hereby charged with a duty and allowed to be re-issued *as r* ,09-1 
 aforesaid, without taking out a licence yearly for that 
 purpose ; which licence shall be granted by two or more of the 
 said commissioners of stamps for the time being, or by some person 
 authorized in that behalf by the , said commissioners, or the major 
 part of them, on payment of the duty charged thereon in the 
 schedule hereunto annexed ; and a separate and distinct licence 
 shall be taken out for or in respect of every town or place where 
 any such promissory notes shall be issued, by, or by any agent 
 or agents for or on account of, any banker or bankers, or other 
 person or persons; and every such licence shall specify the proper 
 name or names, and place or places of abode, of the person or per- 
 sons, or the proper name and description of any body corporate, to 
 whom the same shall be granted, and also the name of the town or 
 place where, and the name of the bank, as well as the partnership or 
 other name, style or firm under which such notes are to be issued ; 
 and where any such licence shall be granted to persons in partner- 
 ship, the same shall specify and set forth the names and places of 
 abode of all the persons concerned in the partnership,, whether all 
 their names shall appear on the promissory notes to be issued by 
 them or not ; a\id in default thereof, sneh licence shall be absolutely 
 void; and every such licence which shall be granted between the 
 tenth day of October and the eleventh day of November, in any j'ear, 
 shall be dated on the eleventh day of October ; and every such 
 licence which shall be granted at any other time shall be dated on 
 the day on which the same shall be granted ; and every such licence 
 respectively shall have effect and continue in force from the day of 
 the date thereof until the tenth day of October following, both in- 
 clusive. 
 
 XXXV. Provided always, and be it further enacted, that no 
 banker or bankers, person or persons, shall be obliged to take out 
 more than four licences in all for any number of towns or places in 
 Scotland ; and in case any banker or bankers, person or persons shall 
 issue such promissory notes as aforesaid, by themselves or their 
 agents, at more than four different towns or places in Scotland, then, 
 after taking out three distinct licences for three of such towns or 
 places, such banker or bankers, person or persons, shall be entitled 
 to have all the rest of such towns or places included in a fourth 
 licence. 
 
694 APPENDIX. 
 
 XXVI. Provided also, and be it further enacted, that, where any 
 banker or bankers, person or persons applying for a licence under 
 this act, would under the said act of the forty-eighth(a) year of his 
 Majesty's reign have been entitled to have two or more towns or 
 places in England included in one licence, if this act had not been 
 made, such banker or bankers, person or persons, shall have and be 
 entitled to the like privilege under this act. 
 
 XXVII. And be it further enacted, that the banker or bankers, or 
 other person or persons, applying for any such licence as aforesaid, 
 shall produce and leave with the proper officer a specimen of the 
 P^ .„„-, *promissory notes proposed to be issued by him or them, to 
 
 the intent that the licence may be framed accordingly ; and 
 if any banker or bankers, or other person or persons (except the 
 said governor and Company of the Bank of England) shall issue or 
 cause to l?e issued by any agent any promissory note for monej' pay- 
 able to the bearer on demand, hereby charged with a duty, and 
 allowed to be re-issued, as aforesaid without being licenced so to do in 
 the manner aforesaid, or at any other town or place, or under any other 
 name, style or firm than shall be specified in his or their licence, the 
 banker or bankers, or other p'erson or persons so offending, shall for 
 ev.ery such offence forfeit the sum of one hundred pounds. 
 
 XXVIII. And be it further enacted, that where any such licence 
 as aforesaid shall be granted to any persons in partnership, the same 
 shall continue in force for the issuing of promissory notes duly 
 stamped, under the name, style or firm therein specified, until the 
 tenth day of October inclusive, following the date thereof, notwith- 
 standing any alteration in the partnership. 
 
 [58 Geo. 3, c. 93.] 
 
 An Act to afford Belief to the bona fide Holders of Negotiable Securi- 
 ties, without Notice that they were given for Usurious Considera- 
 tion. 
 
 " Whereas by the laws now in force all contracts and assurances 
 "whatsoever, for payment of monej', made for a usurious considera- 
 tion are utterly void ; and whereas, in the course of mercantile trans- 
 actions, negotiable securities often pass into the hands of persons 
 who have discounted the same without any knowledge of the origi- 
 nal considerations for which the same were given ; and the avoidance 
 of such securities in the hands of such bona fide indorsees, without 
 
APPENDIX, 695 
 
 notice, is attended with great hardship and injustice;" for remedy- 
 thereof, be it enacted, by the king's most excellent Majesty, by and 
 with the advice and consent of the lords spiritual and temporal, and 
 comnions, in this present parliament assembled, and by the authority 
 of the same. That no bill of exchange or promissory note that shall 
 be drawn or made after the passing of this act, shall, though it may 
 have been given for a usurious consideration or upon a usurious con- 
 tract, be void in the hands of an indorsee for valuable consideration, 
 unless such indorsee had, at the time of discounting or paying such 
 consideration for the same, actual notice that such bill of exchange 
 or promissory note had been originally given for a usurious con- 
 sideration or upon a usurious contract. 
 
 *[1 & 2 Geo. 4, c. 78.] [*484] 
 
 An Act to regulate Acceptances of Bills of Exchange. 
 
 Whereas, according to law as hath been adjudged, where a bill is 
 accepted payable at a banker's, the acceptance thereof is not a gener 
 ral but a qualified acceptance ; and whereas a practice hath very 
 generally prevailed amon^ merchants and traders so to accept bills, 
 and the same have, among such persons, been very generally con- 
 sidered as bills generally accepted, and accepted without qualifica- 
 tion ; and whereas many persons have been and may be much pre- 
 judiced and misled by such practice and understanding, and persons 
 accepting bills may relieve themselves from all inconvenience, by 
 giving such notice as hereinafter mentioned of their intention to 
 make only a qualified acceptance thereof; be it therefoi-e enacted by 
 the king's most excellent Majesty, by, and with the advice and consent 
 of the lords spiritual and temporal, and commons, in this present 
 parliament assembled, and by the authority of the same, That from 
 and after the first day of August now next ensuing, if any person 
 shall accept a bill of exchange payable at the house of a banker or 
 other place, without further expression in his acceptance, sucli accept- 
 ance shall be deemed and taken to be, to all intents and puposes, a 
 genera] acceptance of such bill ; but if the acceptor shall, in his ac- 
 ceptance, express that he accepts the bill payable at the banker's 
 house or other place only, and not otherwise or elsewhere, such ac- 
 ceptance shall be deemed and taken to be, to all intents and purposes, 
 a qualified acceptance of such bill, and the acceptor shall not be 
 liable to pay the said bill, except in default of payment when such 
 payment shall have been first duly demanded at such banker's house 
 or other place. 
 
APPENDIX- • 
 
 II. And be it further enacted, that, from and after the said first 
 day of 'August, Uo acceptance of any inland bill of exchange shall be 
 sufficient to charge any person, unless such acceptance be in writing 
 on such bill, or if there be more than one part of such bill, on one 
 of the said parts. 
 
 [7 & .8 Geo. 4, c. 15.] 
 
 An Act for declaring the Law in relation to Bills of Exchange and 
 Promissory Notes becoming payable on Good Friday or Christmas 
 Day. 
 
 " Whereas an act was passed in the thirty-ninth and fortieth years 
 of the reign of his late Majesty King George the Third, intended ' Aft 
 Act for the better Observance of Good Friday in certain cases therein 
 mentioned ;' and it was thereby enacted, that where bills of exchange 
 and promissory notes became due and payable on Good Friday, the 
 sameshould, from and after the first day of June then next ensuing, be 
 P^ ,„p.-| payable on the day beforei *Good Friday ; and that the holder 
 orholdersof such billsof Exchange or promissory notes might 
 note and protest the same for non-pay men^,on tiie day preceding Good 
 Friday, in like manner as if the same had fallen due and become 
 payable on the da^' preceding Good Friday ; and that such noting and 
 protest should have the same effect and operation at law as if such 
 bills and promissory notes had fallen du'e and become payable on the 
 day preceding Good Friday, in the same manner as was usual in 
 cases of bills of exchange and promissory notes coming due on the 
 day before any Lord's Day, commonly called Sunday, and before the 
 feast of the Nativity or birthday of our Lord, commonly called 
 Christmas Day ; and whereas, notwithstanding the said recited act, 
 and notwithstanding the general custom of merchants, doubts have 
 arisen whether notice of the dishonour of bills of exchange and 
 promissory notes falling due on any Good Friday, or on any Christ- 
 mas Day, should not be given on such Good Friday or Christmas 
 Day respectively, and whether in cases where bills of exchange and 
 promissory notes fall due on the day preceding any Good Friday or 
 Christmas Day, notice of the dishonour thereof should not be given 
 on the Good Friday or the Christmas Day next after the same bills 
 of exchange and promissory notes so fall due ; and it is expedient 
 that such doubts should be removed :" be it therefore declared and 
 enacted by the king's most excellent Majesty, by and with the advice 
 and consent of the lords spiritual and temporal, and commons, in this 
 present parliament assembled, and by the authority of the same 
 
• APPENDIX. 697 
 
 That from and immediately after the tentli day of April, one thou- 
 sand eight hundred and twenty-seven, in all cases where bills of ex- 
 change or promissory notes shall be payable either under or by virtue 
 of the said recited aot or otherwise on the day preceding any Good 
 Friday, or on the day preceding any Christmas Day, it shall not be 
 necessary for the holder or holders of such bills of exchange or 
 promissory notes to give notice of the dishonour thereof until the 
 day next afier such Good Friday or Christmas Day ; and that wlien- 
 eirer Christmas Day shall fall on a Monday, it shall not be necessary 
 for the holder or holders of such bills of exchange or promissory 
 notes as shall be payable on the preceding Saturday, to give notice of 
 the dishonour thereof until the Tuesday next after such Christmas 
 Day ; and that every such notice given as aforesaid shall he valid 
 atd effectual to all intents and purposes. 
 
 II. And whereas similar doubts have existed with respect to bills 
 of exchange and promissory notes falling due upon days appointed 
 by his Majesty's proclamation for solemn fasts or days of thanks- 
 giving, or upon the day next preceding such days respectively, and 
 it is expedient that such doubts should be removed ; be it therefore 
 further declared and enacted, that from and after the said tenth day 
 of April, one thousand eight hundred and twenty -seven, in all cases 
 where bills of exchange or promissory notes shall become due and 
 payable on any day appointed by his Majesty's proclamation for a 
 day of solemn fast or a day of thanksgiving, the same shall be 
 payable on the day next preceding such day of fast *or day 
 
 of thanksgiving, and in case, of nonpayment may be noted ^ -^ 
 and protested on such preceding day ; and that as well in such cases 
 as iathe case of bills of exchange and promissory notes becoming 
 due and payable on the day preceding any such day of fast or day 
 of thanksgiving, it shall not be necessary for the holder or holders 
 of such bills of exchange and promissory notes to give notice of the 
 dishonour thereof until the day next after such day of fast or day 
 of thanksgiving ; and that whensoever such, day of fast or day of 
 thanksgiving shall be appointed on a Monday, it shall not be neces- 
 sary for the holder or holders of such bills of exchange or promis- 
 sory notes as shall be pa^'able on the -preceding Saturday, to give 
 notice of the dishonour thereof until the Tuesday next after such 
 day of fast or daj' of thanksgiving respectively, and that every such 
 notice, so given as aforesaid, shall be valid and effectual to all in- 
 tents and purposes. 
 
 III. And be it further enacted, that from and after the said tenth 
 
698 APPENDIX. ' 
 
 of April, one thousand eiglit hundred and twenty-seven, Good Fri- 
 day and Christmas Day, and every such day of fast or thanksgiving 
 so appointed by his Majesty, is and shall for all other purposes 
 whatever, as regards bills of exchange and promissory notes, 
 be treated and considered as the Lord's Day, commonly called 
 Sunday. 
 
 ly. Provided always and be it further enacted, that nothing in 
 this act contained shall extend or be construed to extend to that 
 part of the United Kingdom called Scotland. 
 
 [9 Geo. 4, c. 14, ss. 1, 3, 4, 5, 8.] 
 
 An Act for rendering a written Memorandum necessary to the 
 Validity of certain Promises and Engagements. 
 " Whereas, by an act passed in England, in the twenty-first j'ear 
 of the reign of King James the First, it was, among other things, 
 enacted, that all actions of account and upon the case, other than 
 such accounts as concern the trade of merchandize between mer- 
 chant and merchant, their factors or servants, all actions of debt 
 grounded upon any lending or contract without specialty, and all 
 actions of debt for arrearages of rent, should be commenced within 
 three years afterthe end of the then present session of parliament, or 
 within six years next after the cause of such actions or suit, and not 
 after : and whereas a similar enactment is contained in an act passed 
 in Ireland, in the tenth year of the reign of King Charles the First ; 
 and whereas various questions have arisen in actions founded on 
 simple contract, as to the proof and effect of acknowledgments' and 
 promises offered in evidence for the purpose of taking cases out of 
 the operation of the said enactments ; and it is expedient to prevent 
 such questions, and to make provision for giving effect to the said 
 enactments ; and to the intention thereof: " be it therefore enacted, 
 by the king's most *excellent Majesty, by and with the ad- 
 L -■ vice and consent of the lords spiritual and temporal, and 
 commons, in this present parliament assembled, and by the authority 
 of the same, That, in actioAs of debt or upon the case, grounded 
 upon any simple contract, no acknowledgment or promise by words 
 only shall be deemed suflBcient evidence of a new or continuing con- 
 tract, whereby to take any case out of the operation of the said 
 enactments or either of them, or to deprive any party of the benefit 
 thereof, unless such acknowledgment or promise shall be made or 
 contained by or in some writing, to be signed by the party chargea- 
 
APPENDIX. 
 
 ble thereby ; and that where there shall be two or more joint con- 
 tractors, or executors or administrators of any contractor, no such 
 joint contractor, executor or administrator, shall lose the benefit of 
 the said enactments or either of thfem, so as to be chargeable in re- 
 spect or by reason only of any written acknowledgment or promise 
 made and signed by any other or others of them ; provided always, 
 that nothing herein contained shall alter, or take away or lessen the 
 effect of any payment of any principal or interest made by any 
 person whatsoever ; provided also, that in actions to be commenced 
 against two or more such joint contractors, or executors or admin- 
 istrators, if it shall appear at the trial or otherwise, that the plain- 
 tiff, though barred by either of the said recited acts or this act, as to 
 one or more of such joint contractors, or executors or administra- 
 tors, shall nevertheless by entitled to recover against anj* other or 
 others of the defendants, by virtue of a new acknowledgment or 
 promise, or otherwise, judgment may be given and costs allowed for 
 the plaintiff as to such defendant or defendants against whom he 
 shall recover, or for the other defendant or defendants against the 
 plaintiff. 
 
 III. And be it further enacted, that no indorsement or memo- 
 randum of any payment, written or made after the time appointed 
 for this act to take effect, upon any promissory note, bill of ex- 
 change, or other writing, by or on the behalf of the party to whom 
 such payment shall be made, shall be deemed sufficient proof of such 
 payment, so as to take the case out of the operation of either of the 
 said statutes. 
 
 IV. And be jt further enacted, that the said recited acts, and this 
 act, shall be deemed and taken to apply to the case of any debt on 
 simple contract alleged" by way of set-off on the part of any defend- 
 ant, either by jjlea, notice or otherwise. 
 
 Y. And be it further enacted, that no action shall be maintained 
 whereby to charge any person upon any promise made after full age 
 to pay any debt contracted during infancy, or upon any ratification 
 after full age of any promise or simple contract made during infancy, 
 unless such promise or ratification shall be made by some writing 
 signed by the party to be charged therewith. 
 
 *VIII. And be it further enacted, that no memorandum (-„; - Qg-i 
 or other writing, made necessary by this act, shall be deemed '- 
 to be an agreement within the meaning of any statute relating to 
 the duties of stamps. 
 
709 APPENDIX. 
 
 [2 & 3 Will. 4, c. 98.] 
 
 An Act for regulating the Protesting for nonpayment of Bills of Ex- 
 change draion payable at a Place not being the Place of the Sesi- 
 ' dence of the Drawee or Drawees of the same. 
 " Whereas doubts having arisen as to the place in which it is 
 requisite to protest for nonpayment bills of exchange, which on the 
 presentment for acceptanpe to the drawee or drawees shall not have 
 been accepted, such bills of exchange being made pa3'ahle at a place 
 other than the place mentioned therein to be the residence of the 
 drawee or drawees thereof, and it is expedient to remove such 
 doubts;" be it therefore enacted by the king's most excellent 
 Majesty, by and with the advice and consent of the lords spiritual 
 and temporal, and commons', in this present parliament assembled, 
 and by the authority of the same. That from and after the passing 
 of this act all bills of exchange wherein the drawer or drawers thei'eof 
 shall have expressed that such bills of exchange are to be payable 
 in any place other than the place by him or them therein mentioned 
 to be the residence of the drawee or drawees thereof, and which shall 
 not on the presentment for acceptance thereof be accepted, shall or 
 may be, without further presentment to the drawee or drawees, pro- 
 tested for nonpayment in the place in which such bills of exchange 
 shall bave been by the drawer or drawers expressed to be payable, 
 unless the amount owing upon such bills of exchange shall have been 
 paid to the holder or holders thereof on the day on which such bills 
 of exchange would have become payable, had the same been duly 
 accepted. 
 
 [3 & 4 Will. 4, c. 42, ss. 12, 28, 29.] 
 
 An Act for the further Amendment of the Law and the belter Ad- 
 vancement of Justice. 
 XII. And be it further enacted, that, in all actions upon bills of 
 exchange or promissory notes or other written instruments, any of 
 the parties to which are designated by the initial letter or letters, 
 or some contraction of the christian or first name or names, it shall 
 be sufficient in every affidavit to hold to bail, and in the process or 
 declaration .to designate, such persons by the same initial letter or 
 letters, or contraction of the christian or first name or names, instead 
 of stating the christian or first name or names in full. 
 r*4S<)1 *XXVnr. And be it further enacted, that upon all debts 
 or sums certain, payable at a certain time or otherwise, the 
 
APPENDIX. 701 
 
 JQr3', on the trial of any issue or on any inquisition of damages, 
 may, if they shall think fit, allow interest to the creditor at a rate 
 not exceeding the current rate of interest from the time when such 
 debts or sums certain were payable, if such debts or sums be paya- 
 ble by virtue of some written instrument at a certain time, or, if 
 payable otherwise, then from the time when demand of payment 
 shall have been made in writing, so as such demand shall give notice 
 to the debtor that interest will be claimed from the date of such de- 
 mand until the term of payment ; provided that interest shall be 
 payable in all cases in which it is now payable by law. 
 
 XXIX. And be it further enacted, that the jury, on the trial of 
 an}' issue or on any inquisition of damages, may, if they shall think 
 fit, give damages in the nature of interest over and above the value 
 of the goods at the time of the conversion or seizure, in all actions 
 of trover or trespass de bonis asportaiis, and over and above the 
 money recoverable in all actions on policies of assurance made after 
 the passing of this act. 
 
 [5 & 6 Will. 4, c. 41 J 
 An Act to amend the Law relating to Securities given for Considera- 
 tions arising out of Oaming, usurious and certain other illegal 
 Transactions. 
 
 "Whereas by an act passed in the sixteenth year of the reign of 
 his late Majesty King Charles the Second, and by an act passed in 
 the parliament of Ireland in the tenth j'ear of the reign of his late 
 Majesty King William the Third, each of siich acts being intituled 
 ' An Act against deceitful, disorderly and excessive Gaming,' it was 
 enacted, that all and singular judgments, statutes, recognizances, 
 mortgages, conveyances, assurances, bonds, bills, specialties, promi- 
 ses, covenants, agreements and other acts, deeds and securities 
 whatsoever, which should be obtained, made, given, acknowledged or 
 entered into for security or satisfaction of or for any money or 
 other thing lost at play or otherwise as in the said acts respectivelj' 
 is mentioned, or for any part thereof, should be utterly void and of 
 none effect : and whereas by an act passed in the ninth year of the 
 reign of her late Majesty Queen Anne, and also by an act passed in 
 the parliament of Ireland in the eleventh year of the reign of her late 
 majesty', each of such acts being intituled ' An Act for the better 
 preventing of excessive and deceitful Gaming,' it was enacted, that 
 from and after the several days therein respectively mentioned all 
 notes, bills, bonds, judgments, mortgages or other securities or con- 
 
702 APPENDIX. 
 
 veyances whatsoever, given, granted, drawn or entered Into or exe- 
 cuted by any person or persons whatsoever, where the whole or any 
 1-^ .„„-] part of the consideration *of such conveyances or securitieis 
 should be for any money or other valuable thing whatsoever 
 won by gaming or playing at cards, dice, tables, tennis, bowls or 
 other game or games whatsoever, or by betting on the sides or hands of 
 such as did game at any of the games aforesaid, or for the reimburs- 
 ing or repaying any money knowingly lent or advanced for such 
 gaming or betting as aforesaid, or lent or advanced at the time and 
 place of such play to any person or persons so gaming or betting as 
 aforesaid, or that should, during such play, so play or bet, should be 
 utterly void, frustrate and of none effect to all intents and purposes 
 whatsoever : and that where such mortgages, securities or other 
 conveyances should be of lands, tenements or hereditaments, or 
 should be such as should incumber or aflfect the same, such mort- 
 gages, securities or other conveyances should enure and be to and for 
 the sole use and benefit of and should devolve upon such person or 
 persons as should or might have or be entitled to such lands or 
 hereditaments in case the said grantor or grantors thereof or the 
 person or persons so incumbering the same had been naturally dead, 
 and as if such mortgages, securities or other conveyances had been 
 made to such person or persons so to be entitled after the decease of 
 the person or persons so incumbering the same ; and that all grants or 
 conveyances to be made for the preventing of such lands, tenements 
 or hereditaments from coming to or devolving upon such person or 
 persons thereby intended to enjoy the same as aforesaid should be 
 deemed fraudulent and void and of none effect to all intents and 
 purposes whatsoever : and whereas by an act passed in the twelfth 
 year of the reign of her said late Majesty Queen Anne, intituled 
 ' An Act to reduce the Rate of Interest without any Prejudice to 
 ' Parliamentary Securities,' it was enacted, that all bonds, contracts 
 and assurances whatsoever made after the twenty-ninth day of 
 September, one thousand seven hundred and fourteen, for paj-ment 
 of any principal or money to be lent or covenanted to be performed 
 upon or for any usury, whereupon or whereby there should be re- 
 served or taken above the rate of five pounds in the hundred, as 
 therein mentioned, should be utterly void : and whereas by an act 
 passed in the parliament of Ireland in the fifth year of the reign of his 
 late Majesty King George the Second, intituled ' An Act for reducing 
 the Interest of Money to Six per Cent.,' it was enacted, that all 
 bonds, contracts and assurances whatsoever made after the first day 
 of May, one thousand seven hundred and thirty-two, for payment 
 of any principal or money to be lent or covenant to be performed 
 
APPENDIX. 703 
 
 Upon or for any loan, whereupon or whereby tliere should be 
 taken or reserved above the rate of six pounds -in the hundred, 
 should be utterly void : and whereas by an act passed in the 
 iftfty-eighth year of the reign of his late Majesty King George 
 the Third, intituled ' An Act to aflFord Relief to the bona fide 
 Holders of Negotiable Securities without Notice that they were 
 given for a usurious Consideration,' it was enacted, that no bill 
 of exchange or promissory note tliat should be drawn or made 
 after the passing of that act should, though it might have been given 
 for a usurious consideration or upon a usurious contract, be void 
 *in the hands of an indorsee for valuable consideration, 
 
 r*49n 
 
 unless such indorsee had at the time of discounting or paying ^ ■• 
 snch consideration for the same actual notice that such bill of ex- 
 change or promissory note had been originally given for a usurious 
 consideration or upon a usurious contract ; and whereas by an act 
 passed in the parliament of Ireland in the eleventh and twelfth years 
 of the reign of his said late Majesty King George the Third, intir 
 tuled ' An Act to prevent Frauds committed by Bankrupts,' it was 
 enacted that every bond, bill, note, contract, agreement or /other 
 security whatsoever to be made 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 bank- 
 rupt, or any part thereof, ,between the time of his becoming bank- 
 rupt 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, should be wholly void and of no effect, and 
 the monies there secured or agreed to be paid should not be recovered 
 or recoverable ; and whereas by an act passed in the forty-fifth year 
 of the reign of his said late Majesty King George the Third, inti- 
 tuled ' An Act for the Encouragement of Seamen, and for the better 
 and more eflfectually manning his Majesty's Navy during the present 
 War,' it was enacted, that all contracts and agreements which should 
 be entered into, and all bills, notes and other securities which should 
 he given by any person or persons for ransom of any ship or vessel, 
 or of any merchandize or goods on board the same, contrary to that 
 act, should be absolutely null and void in law, and of no effect what- 
 soever : and whereas by an act passed in the sixth year of the reign 
 of his late Majesty King George the Fourth, intituled ' An Act to 
 amend the Laws relating to Bankrupts,' it was enacted, that any 
 contract or security made or given by any bankrupt or other person 
 unto or in trust for any creditor, or for securing the payment of any 
 money due by such bankrupt at his bankruptcy, as a consideration 
 
704 APPENDIX. 
 
 or with intent to persuade such creditor to (Jonseut to or sign the 
 certificate of anj' such bankrupt, should be void, and the money 
 thereby secured or agreed to be paid should not be recoverable, and 
 the party sued on suc^ contract or security might plead the general 
 issue, and give that act and the special matter in evidence : and 
 whereas securities and instruments made void by virtue of the 
 several hereinbefore recited acts of the sixteenth j'ear of the reign of 
 his said late Majesty King Charles the Second, the tenth year of the 
 reign of his said late Majesty King William the Third, the ninth and 
 eleventh j-ears of the reign of her said late Majesty Queen Anne, 
 the eleventh and twelfth years of the reign of his said late Majesty 
 King George the Third, the forty-fifth year of the reign of his said 
 late Majesty King George the Third, and the sixth year of the reign 
 of his said late Majesty King George the Fourth, and securities and 
 instraments made void by virtue of the said act of the twelfth year 
 of the reign of her said late Majesty Queen Anne, and the fifth year 
 of the reign of his said late Majesty King George thp Second, other 
 than bills of exchange or *promissory note^ made valid by 
 ■- -^ the said act of the fifty-eighth year of the reign of his late 
 Majesty King George the Third, are sometimes indorsed, transferred, 
 assigned or conveyed to purchasers or other persons for a valuable 
 consideration, without notice of the original consideration for which 
 such securities or instruments were given ; and the avoidance of 
 such securities or instruments in the hands of such purchasers, or 
 other persons is often attended with great hardship and injustice ;" 
 for remedy thereof be it enacted by the king's most excellent Ma- 
 jesty, by and with the advice and consent of the lords spiritual and 
 temporal, aiid common, in this present parliament assembled, and by 
 the authority of the same. That so much of the hereinbefore recited 
 acts of the sixteenth year of the reign of his said late Majesty King 
 Charles the Second, the tenth year of the reign of his said late Majestj"^ 
 King William the Third, the ninth, eleventh and twelfth j'ears of the 
 reign of her said late Majesty Queen Anne, the fifth year of the reign 
 of his said late Majesty King George the Second, the eleventh and 
 twelfth and the forty-fifth years of the reign of his said late Majesty 
 King George the Third, and the sixth year of the reign of his said 
 late Majesty King George the Fourth, as enacts that any note, bill or 
 mortgage shall be absolutely void, shall be and the same is 
 hereby repealed ; but nevertheless every note, bill or mortgage 
 which if this act had not been passed would, by virtue of the 
 said several lastly hereinbefore mentioned acts or any of them, 
 have been absolutely void, shall be deemed and taken to have been 
 made, drawn, accepted, given or executed for an illegal considera- 
 
APPENDIX. 705 
 
 tion, and the said several acts shall have the same force and effect 
 which they would respectively have had if, instead of enacting that 
 any such note, bill or mortgage should be absolutely void, such acts 
 had respectively provided that every such note, bill or mortgage 
 should be deemed and taken to have beea made, drawn, accepted, 
 given or executed for an illegal consideration : provided always, that 
 nothing herein contained shall prejudice or affect any note, bill or 
 mortgage which would have been good and valid if this act had not 
 been passed. 
 
 II. And be it further enacted, that in case any person shall, after 
 the passing of this act, make, draw, give or execute any note, bill or 
 mortgage for any consideration on account of which the same is by 
 the hereinbefore recited acts of the sixteenth year of the reign of 
 his said late Majesty King Charles the Second, the tenth year of the 
 reign of his said late Majesty King William the Third, and the ninth 
 and eleventh years of the reign of her said late Majesty Queen Anne, 
 or by an^ one or more of such acts, declared to be void, and such 
 person shall actually pay to any indorsee, holder or assignee of such 
 note, bill or mortgage, the amount of the money thereby secured, or 
 any part thereof, such money so paid shall be deemed and taken to 
 have been paid for and on account of the person to whom such note, 
 bill or mortgage was originally given upon such illegal consideration 
 as aforesaid, and shall be deemed and taken to be a debt due and 
 owing from such *last-named person to the person who shall 
 
 have so paid such money, and shall accordingly be recovera- L -' 
 bleby action at law in any of his Majesty's courts of record. 
 
 III. And be it further enacted, that so much of the said acts of 
 the ninth and eleventh years of the reign of her said late Majesty 
 Queen Anne as enacts that where such mortgages, securities or 
 other conveyances as therein mentioned should be of lands, tene- 
 ments or hereditaments, or should be sucti as should incumber or 
 affect the same,- such mortgages, securities or other conveyances 
 should enure and be to and for the sole use and benefit of and 
 should devolve upon such person or persons as should or might 
 have or be entitled to such lands or hereditaments in case the 
 grantor or grantors thereof, or the person or persons incumbering 
 the same, had been naturally dead, and as if such mortgages, securi- 
 ties or other conveyances had been made to such person or persons 
 so to be entitled after the decease of the person or persons so in- 
 cumbering the same, and that all grants or conveyances to be made 
 for the preventing of such lands, tenements or hereditaments from 
 
 45 
 
706 APPENDIX. 
 
 coming to or devolving upon such, person or persons tliereby in- 
 tended to enjoy the same as aforesaid, should be deemed fraudulent 
 and void, and of none effect to all intents and purposes whatsoever, 
 shall be and the .same is hereby repealed ; saving to all persons all 
 rights acquired hy virtue thereof previousl'y to the passing of this act. 
 
 IV. And be it further enacted, that this act may be altered or re- 
 pealed by any other act during this present session of parliament. 
 
 [6 & 7 Will. 4, c. 58.] 
 
 An Act for declaring the Law as to the Day on which it is requisite 
 to present for Payment to the Acceptors or Acceptors supra Protest 
 for Honour, or to the Beferees or Referee in case of Need, Bills of 
 Exchange, which had been dishonoured. 
 
 " Whereas bills of exchange are occasionalli'^ accepted supra pro- 
 test for honour or have a reference 'thereon iu case of nfeed : and 
 ■whereas doubts have arisen when bills have been protested for want 
 of payment as to the day on which it is requisite that they should 
 be presented for payment to the acceptors or acceptor for honour; 
 or to the referees or referee, and it is expedient that such doubts 
 should be removed ;'' be it therefore declared and enacted by the 
 king's most excellent Majesty, by and with the advice and consent 
 of the lords spiritual and temporal, and commons, in this present 
 parliament assembled, and by the authority of the same. That it 
 shall not be necessary to present such bills of exchange to such ac- 
 ceptors or acceptor for honour, or to such referees or referee, until the 
 r*4Q-n ^^^ following the day on which such *bills of exchange shall 
 become due ; and that if the place of address on such bill of 
 exchange of such acceptors or acceptor for honour, or of such refer- 
 ees or referee, shall be in any city, town, or place, other than in the 
 city, town, or place where such bill shall be therein made payable, 
 then it shall not be necessary to forward such bill of exchange for 
 presentment for payment to such acceptors or acceptor for honour, 
 or referees or referee, until the day following the day on which such 
 bill of exchange shall become due. 
 
 II. And be it further enacted and declared, that if the day fol- 
 lowing the day on which such bill of exchange shall become due 
 shall happen to be a Sunday, Good Friday, or Christmas Day, or a 
 day appointed by his Msijesty's proclamation for solemn fast or of 
 thanksgiving, then it shall not be ngcessary that such bill of exchange 
 
APPEXDIX. 707 
 
 shall be presented for payment, or be forwarded for such presentment 
 for payment, to such acceptors or acceptor for honour, or referees <ir 
 referee, until the day following such Sunday, Good Friday, Christ- 
 mas Day, or solemn fast or day of thanksgiving. 
 
 [1 & 2 Vict. c. 110.] 
 
 An Act for abolishing Arrest on Mesne Process in Civil Actions, ex- 
 cept in certain Cases ; for extending the Remedies of Creditors, 
 against the Property of Debtors ; and for amending the Laws for 
 the Belief of Insolvent Debtors in England. [16th August, 1838.] 
 
 XII. And be it enacted that by virtue of any writ of fieri fa.cias 
 to be sued out of any superior or Inferior court after the time 
 appointed for the commencement of this act or any precept in 
 pursuance thereof, the sheriff or other officer having the execution 
 thereof may and shall seize and take any. money or bank notes, 
 (whether of the governor and company of the Bank of England, or 
 of any other bank or banlsers,) and any cheques, bills of exchange, 
 promissory notes, bonds, specialties, or other securities for money, 
 belonging to the person against whose effects such writ of fieri 
 facias shall be sued out ; and may and shall pay or deliver to tlie 
 party suing out such execution any money or bank notes which 
 shall be so seized or a sufficient part thereof; and may and shall 
 bold any such cheques, bills of exchange, promissory notes, bonds, 
 specialties, or other securities for money as a security or securities 
 ifor the amount of such writ of fieri facias directed to be levied, or 
 so much thereof as shall not have been otherwise levied and raised : 
 and may sue in the name of such sheriff or other oflScer for the 
 recovery of the sum or sums secured thereby, if and when the 
 time of payment thereof shall have arrived ; and that the payment 
 to such sheriff or other officer by the party liable on any such 
 cheque, bill of exchange, pTomissor3' note,, bond; specialty, or 
 other securitj', with or without suit, or the recovery and levying 
 execution against the party so liable, shall discharge him to the 
 *extent of such payment, or of such recovery and levy in r* jqc-i 
 execution, as the case may be, from his liability on any such 
 cheque, bill of exchange, promissory note, bond, specialty, or other 
 security ; and such sheriff or other officer may and shall pay over to 
 the party suing out such writ the money so to be recovered, or such 
 part thereof as shall be sufficient to discharge the. amount by such 
 writ directed to be levied ; and if after satisfaction of the amount so 
 to be levied, together with sheriff's poundage and expenses, any 
 
708 APPENDIX. 
 
 surplus shall remain in the hands of such sheriff or other officer, 
 the same shall be paid to the party against whom such writ shall be 
 so issued : provided that no such sheriff or other officer shall be 
 bound to sue any party liable upon any such cheque, bill of ex- 
 change, promissory note, bond, specialty, or other security, unless 
 the party suing out such execution shall enter into a bond, with 
 two sufficient sureties, for indemnifying him from all costs and 
 expenses to be incurred in the prosecution of such action, or to 
 which he may become liable in consequence thereof, the expense 
 of such bond to be deducted out of any money to be' recovered in 
 such action. 
 
 XVI. And be it enacted, that if any judgment creditor, who, 
 under the powers of this act, shall have obtained any charge qr be 
 entitled to the benefit of any security whatsoever, shall afterwards 
 and before the property so charged or secured shall have been con- 
 verted into money or realized, and the produce thereof ai}plied 
 towards payment of the judgment debt, cause the person of the 
 judgment debtor to be taken or charged in execution upon such 
 judgment, then and in such case such judgment creditor shall be 
 deemed and taken to have relinquished all right and title to the 
 benefit of such chg,rge or security, and shall- forfeit the same accord- 
 ingly. 
 
 XVII. And be it enacted, that every judgment debt shall carry 
 interest at the rate of four pounds per centum per annum from the 
 time of entering up the judgment, or from the time of the commence- 
 ment of this act in cases of judgments then entered . up and not 
 carrying interest, until the same shall be satisfied ; and such interest 
 may be levied under a writ of execution on such judgment. 
 
 . [2 & 3 Vict. c. 29.] 
 
 An Act for the better Protection of Parties dealing with Persons 
 liable to the Bankrupt Laws. [1 9th July, 1839.] 
 "Whereas by an act passed in the sixth year of the reign of his late 
 Majesty King George the Fourth, entituled " An Act to amend the 
 Laws relating to Bankrupts," it was among other things enacted, that 
 all payments really and bona fide made by any ba^k^upt or by any 
 r*496T P®*"®"" °" **'® behalf, before the date and issuing *of the com- 
 mission against such bankrupt, to any creditor of such bank- 
 ;upt (such payment not being a fraudulent preference of such crecU- 
 
APPENDIX. 709 
 
 tor), should be deemed valid, notwithstanding any prior act of bank- 
 ruptcy by such bankrupt committed, and that all payments really and 
 bona fide made to any bankrupt before the date and issuing of the com- 
 mission against such bankrupt should be deemed valid, notwithstand- 
 ing any prior act of bankruptcy committed, and that such creditor 
 should not be liable to refund the same to the assignees of such 
 bankrupt, provided the person so dealing with the bankrupt had not 
 at the time of such payment to such bankrupt notice of any bank- 
 ruptcy committed : and whereas by an act passed in this present 
 session of parliament, intituled " An Act for the better Protection 
 of Purchasers against Judgments, Crown Debts, Lis pendens, and 
 Fiats in Bankruptcy," it is amongst other things enacted, that all 
 conveyances by any bankrupt bona fide made and executed before 
 the date and issuing of the flat against such bankrupt, shall be valid, 
 notwithstanding anj^ prior adt of bankruptcy by him committed, pro- 
 vided the person or persons to whom such bankrupt so conveyed 
 had not at the time of such conveyance notice of any prior act of 
 bankruptcy by him committed ; and whereas it is expedient that 
 further protection 'should be given to persons dealing with bankrupts 
 before the issuing of any flat against them : be it therefore enacted 
 by the Queen's most excellent Majesty, by and with the advice and 
 consent of the lords spiritual and temporal, and commons, in this 
 present parliament assembled, and by the authority of the same, 
 That all contracts, dealings and transactions, by and with any bank- 
 rupt really and bona fide made and entered into before the date and 
 issuing of the fiat against him, and all executions and attachments 
 against the lands and tenements or goods and chattels of such bank- 
 rupt, bona fide executed or levied before the date and issuing of 
 the fiat, shall be deemed to be valid, notwithstanding any prior act 
 of bankruptcy by such bankrupt committed; provided the person 
 or persons so dealing with such bankrupt, or at whose suit or on 
 whose account such execution or attachment shall have issued, had 
 not at the time of such contract, dealing or transaction, on at the 
 time of executing or levying such execution or attachment, notice 
 of any prior act of bankruptcy by him committed: provided also, 
 that nothing herein contained shall be deemed or taken to give 
 validity to any payment made by any bankrupt being a frOiUduleut 
 preference of any creditor or creditors of such bankrupt, or to any 
 execution founded on a judgment on a warrant of attorney or cog- 
 novit given by any bankrupt by waj' of such fraudulent preference. 
 
 II. And be it further enacted, that this act may be repealed or 
 altered by any other act in this present session of parliament. 
 
710 APPENDIX. 
 
 [*49T] *[2 & 3 Vict. c. 31.2 
 
 An Act to amend, and extend until the First day of January, One 
 thousand eight hundred and forty-two, the Provisions of an Act of 
 the First Year of her present Majesty, for exempting certain Bills 
 of Exchange and Promissory Notes from the Operation of the 
 Laws relating to Usury. [29th July, 1839] 
 
 Whereas by an act passed in the first year of the reign of her 
 present Majesty, intituled "An Act to exempt certain Bills of Ex- 
 change and Promissory Notes from the Operation of the Laws 
 relating to Usury," it was enacted, that bills of exchange payable 
 at or within twelve months should not be liable, for a limited time, 
 to the laws for the prevention of usury: and whereas the duration 
 of the said act was limited to the first day of .January, one thou- 
 sand eight hundred and forty ; and it is expedient that the provi- 
 sions of the said act should be extended : Be it therefore enacted 
 by the Queen's most excellent Majesty, by and with the advice 
 and consent of the lords spiritual and temporal, and commons, in 
 this present parliament assembled, and by the authority of the 
 same, That from and after the passing of this act no bill of 
 exchange or promissory note made payable at or within twelve 
 months after the date thereof, or not having more than twelve 
 months to run, nor any contract for the loan or forbearance of 
 money, above the sum of ten pounds sterling, shall, by reason of 
 any interest taken thereon or secured thereby, or any agreement 
 to pay or receive or allow interest in discounting, negotiating or 
 transferring any such bill of exchange or promissorj' note, be void, 
 nor shall the liability of any party to any such bill of exchange or 
 promissory note, nor the liability of any person borrowing any sum 
 of money as aforesaid, be effected, by reason of any statute or law 
 in force for the prevention of usury ; nor shall any person or per- 
 sons or body corporate drawing, accepting, indorsing, or signing 
 any such bill or note, or lending or advancing or forbearing any 
 money as aforesaid, or taking more than the present rate of legal 
 interest, in Great Britain and Ireland respectively, for the loan or 
 forbearance of money as aforesaid, be subject to any penalties under 
 any statute or law relating to usury, or any other penalty or for- 
 feiture; anything in any law or statute relating to usury, or any 
 other law whatsoever in force in any part of the United Kingdom, 
 to the contrary notwithstanding : provided always, that nothing 
 heiein contained shall extend to the loan or forbearance of any 
 
APPENDIX. 711 
 
 ffloney upoji security of an}' lands, tenements or herditaments, or 
 any estate or interest therein. 
 
 II. Provided always, and be it enacted, that nothing in this act 
 contained shall be construed to enable any person or persons to 
 elaira, in any court of law or equity, more than five per cent, interest 
 on any account or on any contract or engagement, notwithstanding 
 they may be relieved from the penalties against, usury, unless it 
 shall appear to the Court that any different rate of interest was 
 agreed to between the parties. 
 
 *III. Provided always, and be it enacted, that nothing _^ 
 
 r*4981 
 herein contained shall extend or be construed to extend to '- -■ 
 
 repeal or aflFect any statute relating to pawnbrokers, but that all 
 
 laws touching and concerning pawnbrokers shall remain in full 
 
 force and effect, to all intents and purposes whatsoever, as if this 
 
 act had not been passed. 
 
 IV. And be it enacted, that this act shall continue in force 
 ntil the : 
 forty-two. 
 
 until the first day of January, one thousand eight hundred and 
 
 Y. And be it enacted that this act may be amended or repealed 
 by any act to be passed in this session of parliament. 
 
 [Continued by the 3 S i Vict. c. 83 ; 4 (fe .5 Vict. c. 54 ; & SI Vict. 
 c. 45 ; 8 <£ 9 Vict. c. 102, and by 13 & 14 Vict. c. 56, to the ist Janu- 
 ary, 1856.] 
 
 [7 & 8 Vict. c. 32. J 
 
 An Act to regulate the Issue of Bank Notes, and for giving to the 
 Governor and Company of the Bank of England certain Privi- 
 ' leges for a limited Period. [19th July, 1844.] 
 
 IV. And be it enacted, that from and after the thirty-first day of 
 August, one thousand eight hundred and forty-four, all persons shall 
 be entitled to demand, from the Issue Department of the Bank of 
 England,' Bank of England notes in exchange for gold bullion at the 
 rate of three pounds seventeen shillings and ninepence per ounce of 
 standard gold : provided always, that the said governor and com- 
 pany shall in all cases be entitled to require such gold bullion to be 
 melted and assayed by persons approved by the said governor 
 
112 APPENDIX. 
 
 and company at the expense of the parties tendering* such gold 
 bullion. 
 
 X. And be it enacted, that, from and after the passing of this 
 act, no person other than a banker who, on the sixth day of May, 
 one thousand eight hundred and forty-four, was lawfully issuing his 
 own bank notes shall make or issue bank notes in any part of the 
 United Kingdom. 
 
 XI. And be it enacted, that from and after the passing of this 
 act it shall not be lawful for any banker to draw, accept, make or 
 issue, in England or Wales, any bill of exchange or promissory 
 note or engagement for the paj^ment of money payable to bearer on 
 demand) or to borrow, owe, or take up, in England or Wales, any 
 sums or sum of money on the bills or notes of such banker payable 
 to bearer on demand, save and except that it shall be lawful for any 
 banker who was on the sixth day of May, one thousand eight hun- 
 
 _ dred and forty-foux, carrying on the business of a banker *in 
 L -• England or Wales, and was then lawfully issuing, in Eng- 
 land or Wales, his own bank notes, under the authority of a licence 
 to that effect, to continue to issue such notes to the extent and 
 under the conditions hereinafter mentioned, but not further or other- 
 wise; and tlie right of any company or partnership to continue 
 to issue such notes sha;ll not be in any manner prejudiced or affected 
 by any change which may hereafter take place in the personal com- 
 position of such company or partnership, either by the transfer of 
 any shares or share therein, or by the admission of any new partner 
 or member thereto, or by the retirement of any present partner or 
 member therefrom : provided always, that it shall not be lawful for 
 any company or partnership now consisting of only six or less than 
 six persons to issue bank notes at any time after the number of 
 partners, therein shall exceed six in the whole. 
 
 XIT. And be it enacted, that if any banker, in any part of the 
 TJnited Kingdom, who after the passing of this act shall be entitled 
 to issue bank notes shall become bankrupt or shall cease to carry 
 on the business of a banker, or shall discontinue the issue of bank 
 notes, either by agreement with the governor and company of the 
 Bank of England or otherwise, it shall not be lawful for such 
 banker at any time thereafter to issue any such notes. 
 
 XXVI. And be it enacted, that, from and after ^he passing of 
 this act, it shall be lawful for any society or company or any 
 
APPENDIX. 7"13 
 
 persons in partnership, though exceeding six in number, carrying 
 on the business of banlfing in London, or within sixty-flve miles 
 thereof, to draw, accept or indorse bills of exchange, not being 
 payable to bearer on demand, anything in the hereinbefore recited 
 act passed in the fourth year of the reign of his said Majesty King 
 William the Fourth, or in any other act, to the contrary notwith- 
 standing. 
 
 [16 & ir Vict. c. 59] 
 
 An Act to repeal certain Stamp Duties, and to grant others in lieu 
 thereof, to amend the Laws relating to Stamp Duties, and to make 
 :tǤsrpetual certain Stamp Duties in Ireland. [4th Augnst, 1853.] 
 
 XIX. Provided always, that any draft or order drawn upon a 
 hanker for a sum of money payable to order on demand which shall, 
 when presented for payment, purport to be indorsed by the person 
 to whom the same shall be drawn pay-able, shall be a sufficient 
 authority to such banker to pay the amount of such draft or order 
 to the bearer thereof; and it shall not be incumbent on such banker 
 to prove that such endorsement, or any subsequent endorsement, was 
 made by or under the direction or authority of the person to whom 
 the said draft or order was or is made payable either by the drawer 
 or any endorser thereof. 
 
 *[n & 18 Vict. c. 83.] [*500] 
 
 An Act to amend the Laws relating to the Stamp Duties. 
 
 : ii [10th August, 1854.] 
 
 XI. And whereas an act was passed in the seventh and eighth 
 years of her Majesty's reign, chapter thirty-two, to regulate the 
 issue of bank notes; and an act was passed in the eighth and ninth 
 years of her Majesty's reign, chapter thirty-eight, to regulate the 
 issue of bank notes in Scotland ; and anotheract was passed in the 
 last mentioned years, chapter thirty-seven, to regulate the issue of 
 bank notes in Ireland ; and in order to prevent evasions of the 
 l^gatations and provisions of the said respective acts, it is expedient 
 to define nhat shall be deemed to be bank notes within the mean- 
 ing thereof respectively : Be it enacted, that all bills, drafts or notes 
 (other than notes of the Bank of England) which shall be issued by 
 any banker or the agent of any banker for the payment of money 
 to the bearer on demand, and all bills, drafts, or notes so issued, 
 
714 APPENDIX. 
 
 which shall entitle or be intended to entitle the bearer or holder 
 thereof, without indorsement, or without any further or other in- 
 dorsement than may be thereon at the time of the issuing thereof, 
 to the payment of any sum of money on demand, whether the same 
 shall be so expressed or not, in whatever form and by whomsoever 
 such bills, drafts or notes shall be drawn or made, shall be deemed 
 to be bank notes of the banker by whom or by whose agent the 
 same shall be issued witliin the meaning of the said three several 
 acts last mentioned, and within all the clauses, provisions and regu- 
 lations thereof respectively. 
 
 XII. All'bills, drafts and notes, which bj- or under this act, or 
 the said three several acts last mentioned, or any of them respec- 
 tively, are declared or deemed to be bank notes, shall be subject 
 and liable to the stamp duties, and composition for. stamp duties, 
 imposed by or payable under any act or acts in force upon or in 
 respect of promissory notes for the payment of money to the 
 bearer on demand ; and all clauses, provisions, regulations, penal- 
 ties and forfeitures contained in .any act or acts relating to the 
 issuing of such promissory notes, or for securing the said stamp 
 duties and composition respectively, or for preventing or punishing 
 frauds or evasions in relation thereto, shall respectively be deemed 
 to apply to all such bills, drafts and notes as aforesaid, and to the 
 stamp duties and composition payable upon or in respect thereof, 
 anything in this act, or any other act or acts, to the contrary not- 
 withstanding. 
 
 [It & 18 Yict. c. 90.] 
 
 An Act to repeal the Laws relating to Usury and to the Enrolment 
 of Annuities. [lOth August, 1854. j 
 Whereas it is expedient to repeal the laws at present in force 
 relating to usury: Be it enacted by the Queen's most excellent 
 Majesty, by and with the advice and consent of the lords spiritual 
 r*fsnn *'^"*^ temporal, and commons, in this present parliament 
 •- -I assembled, and by the authority of the same, as follows : 
 
 I. The several acts and parts of acts made in the parliaments of 
 England and Scotland, G-reat Britain and Ireland, mentioned in the 
 schedule hereto, and all existing laws against usury, shall be 
 repealed. 
 
 II. Provided always, that nothing herein contained shall preju- 
 
APPENDIX. 715 
 
 dice or affect the rights or remedies of any person, or diminish or 
 alter the liabilities of any person in respect of any act done previ- 
 ously to the passing of this act. 
 
 III. Where interest is now payable upon any contract, express or 
 implied, for payment of the legal or current rate of interest, or where 
 upon any debt or sum of money interest is now payable by any rule 
 of law, the same rate of interest shall be recoverable as if this act 
 had not been passed. , 
 
 lY. Provided always, that nothing herein contained shall extend 
 or be construed to extend to repeal or affect any statute relating to 
 pawnbrokers, but that all laws touching and concerning pawnbrokers 
 shall remain in full force and effect, to all intents and purposes 
 whatsoever, as if this act had not been passed. 
 
 [IT & 18 Yict. c. 125, s. 87.] 
 
 An Act for the further Amendment of the Process, Practice and 
 Mode of Pleading in and enldrging the Jurisdiction of the Super- 
 ior Courts of Common Law at Westminster, and of the Superior 
 Courts of Common Law of the Counties Palatine of Lancaster 
 and Durham. [12th August, 1854.J 
 
 LXXXVII. In caseof any action founded upon a bill of exchange 
 or other negotiable instrument, it shall be lawful for the court or a 
 judge to order that the loss of such instrument shall not be set up, 
 provided an indemnity is given, to the satisfaction of the court or 
 judge, or a master, against the claims of any other person upon such 
 negotiable instrument. 
 
 [18 & 19 Vict. c. 67.] 
 
 An Act to facilitate the Bemedies ori Bills of Exchange and Promis- 
 sory Notes by the Prevention uffrioolous or fictitious Defences to 
 Actions thereon. [23rd July, 1^55.] 
 
 Whereas bona fide holders of dishonoured bills of exchange and 
 promissory notes are often unjustly delayed and put to unnecessary 
 ♦expense in recovering the amount thereof by reason of r*5Q2"] 
 frivolous or fictitious defences to actions thereon, and it is 
 expedient that greater facilities than now exist should be given for 
 the recovery of money due on such bills and notes : Be it enacted 
 
716 APPENDIX. 
 
 by the Queen's most excellent Majesty, by and with the advice and 
 consent of the lords spiritual and temporal, and commons, in this 
 present parliament assembled, and by the authority of the same, as 
 follows : 
 
 I. From and after the twenty-fourth day of October, one thousand 
 eight hundred and fifty-five, all actions upon bills of exchange or 
 promissory notes commenced within six months after the same shall 
 have become due and payable, may be by writ of summons in the 
 special form contained in schedule A. to this act annexed, and in- 
 dorsed as therein mentioned ; and it shall be lawful for the plaintiflF, 
 on filing an affidavit of personal service of such writ within the juris- 
 diction of the court, or an order for leave to proceed, as provided by 
 the Common Law Procedure Act, 18&2, and a copy of the writ of 
 summons and the indorsements thereon, in case the defendant shall 
 not have obtained leave to appear and have appeared to such writ 
 according to the exigency thereof, at once to sign final judgment in 
 the form contained in schedule B. to this act annexed (on which 
 judgment no proceeding in error shall lie) for any sum not exceeding 
 the sum indorsed on the writ together with interest, at the rate 
 specified (if any), to the date of the judgment, and a sum for costs 
 to be fixed by the masters of the superior courts or any three of 
 them, subject to the approval of the judges thereof, or any eight of 
 them (of whom the Lord Chief Justices and the Lord Chief Barou 
 shall be three), unless the plaintifi' claim more than such fixed sum, 
 in which case the costs shall be taxed in the ordinary way, and the 
 plaintiff may upon such judgment issue execution forthwith. 
 
 II. A judge of any of the said courts shall, upon application within 
 the period of twelve days from such service, give leave to appear to 
 such writ, and to defend the action, on the defendant paying into 
 court the sum indorsed on the writ, or upon affidavits satisfactory to 
 the jutige, which disclose a legal or equitable defence, or such facts 
 as would make it incumbent on the holder tt) prove consideration, or 
 such other facts as the judge may deem suflScient to support the ap- 
 plication, and on such terms as to security or otherwise as to the 
 judge may seem fit. 
 
 III. After judgment, the court or a judge may^ under special cir- 
 cumstances, set aside the judgment, and if necessary, stay ot set 
 aside execution, and may give leave to appear to the writ and to 
 defend the action, if it shall appear to be reasonable to the court or 
 judge so to do, and on such terms as to the court or judge may 
 seem just. 
 
APPENDIX. 717 
 
 IV. In any proceedings under this act it shall be competent to the 
 court or a judge to order the bill or note sought, to be proceeded 
 upon to be forthwith deposited with an officer of the court, 
 *and further to order that all proceedings shall be stayed i-^cnQi 
 until the plaintiflf shall have given security for the costs _, 
 thereof. 
 
 y. The bolder of every dishonoured bill of exchange or promis- 
 sory note shall have the same remedies for the recovery of the ex- 
 penses incurred in noting the same for non-aceeptance or non-pay- 
 ment, or otherwise, by reason of such dishonour, as he has under this 
 act for the recovery of the amount of such bill or note. 
 
 VI. The holder of any bill of exchange or promissory note may, 
 if he thinis fit, issue one writ of summons, according to this act, 
 against all or any number of the parties to such bill or note, and 
 such writ of summons shall be the commencement of an action or 
 actions against tlie parties therein named respectively, and all sub- 
 sequent proceedings against such respective parties shall be in like 
 manner, so far as may be, as if separate writs of summons had been 
 issued. 
 
 VII. The provisions of the Common Law Procedure Act, 1852, 
 and the Common Law Procedure Act, 1854, and all rules made 
 under or by virtue of either of the said acts, shall, so far as the same 
 are or may be made applicable, extend and apply to all proceedings 
 to be had or taken under this act. 
 
 VIII. The provisions of this act shall apply, as near as may be, 
 to the Court of Common Pleas at Lancaster and the Court of Pleas 
 at Durham, and the judges of such courts, being judges of one of the 
 superior courts of common law at Westminster, shall have power 
 to frame all rules and process necessary thereto. 
 
 IX. It shall be lawful for her Majesty from time to time, by an 
 order in council, to direct that all or any part of the provisions of this 
 act shall apply to all or any court or courts of record in England 
 and Wales, and within one month after such order shall have been 
 made and published iu the London Gazette such provisions shall 
 extend and apply in manner directed by such order, and any such 
 order may be, in like manner, from time to time altered and annulled ; 
 and in and by any such order her Majesty may direct by whom any 
 powers or duties incident to the provisions applied under this act 
 
718 APPENDIX. 
 
 shall and may be exercised with respect to matters in such court or 
 courts, and may- make any orders or regula,tions which may be 
 deemed requisite for carrying into operation in such court or courts 
 the provisions so applied. 
 
 X. Nothing in this act shall extend to Ireland or Scotland. 
 
 XI. In citing this act in any instrument, document or proceeding, 
 it shall be suflBcientto use the expression " The Summary Procedure 
 on Bills of Exchange Act, 1855." 
 
 [*504] *ScHEDTJLES referred to in the foregoing Act. 
 
 Schedule (A.) 
 
 Victoria, by the grace of God, &c. 
 
 To G. JD., of , in the county of . We warn 
 
 you, that unless within twelve days after the service of this writ on 
 you, inclusive of the day of such service, you obtain leave from one 
 of the judges of the courts at Westminster to appear, and do within 
 that time appear in our court of in an action at the suit of 
 
 A. B., the said A. B. may proceed to judgment and execution. 
 
 Witness, &c. 
 
 Memorandum to he subscribed on the Writ. 
 
 N. B — This writ is to be served within six calendar months from 
 the date hereof, or, if renewed, from the date of such renewal, in- 
 cluding the day of such date, and not afterwards. 
 
 Indorsement to be made on the Writ before Service thereof. 
 
 This writ was issued by E. F., of , attorney for the 
 
 plaintiff. Or, This writ was issued in person by A. B., who resides 
 at [mention the city, town or parish, and also the name of the hamlet, 
 street, and number of the house of the plaintiff ^s residence.'] 
 
 Indorsement. 
 
 The plaintiff claims [ pounds principal and interest], 
 
 or pounds balance of principal and interest due to him as 
 
 the payee [or indorsee] of a bill of exchange or promissory note, of 
 which the following is a copy : — 
 
 [Here copy bill of exchange or promissory note, and all 
 Indorsements upon it.'] 
 
APPENDIX. 719 
 
 And if the amount thereof be paid to the plaintiff or his attorney 
 within days from the service hereof, furthei' proceedings will 
 
 be stayed. 
 
 Notice. 
 
 Take notice, That if the defendant do not obtain leave from one 
 of the judges of the courts within twelve days after having been 
 served with this writ, inclusive of the day of such service, to appear 
 thereto, and do within such time cause an appearance to be entered 
 for him in the court out of which this writ issues, the plaintiff will 
 be at liberty at any time after the expiration of such twelve days to 
 sign final judgment for any sura not exceeding the sum above 
 claimed, and the sum of pounds for costs, and issue execution 
 
 for the same. 
 
 Leave to appear may be obtained on an application at the Judge's 
 Chambers, Serjeants' Inn, London, supported by afDdavit showing 
 that there is a defence to the action on the merits, or that it is 
 reasonable that the defendant should be allowed to appear in the 
 action. 
 
 * Indorsement to be made on the Writ after Service thereof. [*o05] 
 This writ was served b3' X. Y. on L. M. (the defendant 
 
 the defendants), on Monday, the day of 18 . 
 
 By X. Y. 
 
 Schedule (B.) 
 Li the Queen's Bench. 
 
 On the day of in the year of our Lord 
 
 18 . [Day of signing Judgment.^ . 
 England (to wit). A. B. in his own person [or by his 
 
 attorney] sued out a writ against G. D., indorsed as follows: — 
 
 [Here copy Indorsement of Plaintiff's Claim.'] 
 and the said C. D. has not appeared : 
 
 Therefore it is considered that the said A. B. recover against 
 the said G. D. pounds, together with pounds for 
 
 cost of suit. 
 
 [19 & 20 Yict. c. 25.] 
 
 An Act to amend the Law relating to Drafts on Bankers. 
 
 [23rd June, 1856.] 
 " Whereas doubts have arisen as to the obligations of bankers 
 with respect to cross written drafts : and whereas it would con- 
 
720 APPENDIX. 
 
 duce to the ease of commerce, the security of property, and the 
 prevention of crime, if drawers or holders of drafts on bankers 
 payable to bearer or to order on demand were enabled effectually 
 to direct the payment of the same to be made only to or through 
 Bome banker : " Be it therefore enacted as follows : 
 
 I. In every case where a draft on any banker made payable to 
 bearer or to order on demand bears across its face an addition, in 
 written or stamped letters, of the name of any banker, or of the 
 words '' and company," in full or abbreviated, either of such addi- 
 tions shall have the force of a direction to the bankers upon whom 
 such draft is made that the same is to be paid only to or through 
 some banker, and the same shall be payable only to or through 
 some banker. 
 
 ' II. In the construction of this act the w^ord " banker " shall in- 
 clude any^ person or persons, or corporation, or joint stock or other 
 company, acting as a banker or bankers. 
 
 [*506] *[I9 & 20 Vict. c. 91.] 
 
 An Act to amend the Laws of England and Ireland affecting Trade 
 and Commerce. [39th July, 1856.] 
 
 III. No special promise to be made by any person after the 
 passing of this act to answer for the debt, default, or miscarriage 
 of another person, being in writing, and signed by the party to be 
 charged therewith or some other person by him thereunto lawfully 
 authorized, shall be deemed invalid to support an action, suit, or 
 other proceeding to charge the person by whom such promise shall 
 have been made, by reason only that the consideration for such 
 promise does not appear in writing, or by necessary inference from 
 a written document. 
 
 IV. No promise to answer for the debt, default, or miscarriage 
 of another made to a firm consisting of two or more persons, or to 
 a single person trading under the name of a firm, and no promise 
 to answer for the debt, default, or miscarriage of a firm consisting 
 of two or more persons, or of a single person trading under the 
 name of a firm, shall be binding on the person making such promise 
 in respect of anything done or omitted to be done after a change 
 shall have taken place in any one or more of the persons constituting 
 the firm, or in the person trading under the name of a firm, unless 
 the intention of the parties, that such promise shall continue to be 
 
APPENDIX. 721 
 
 binrling notwithstanding sucli change, shall appear either by express 
 stipulation or by necessary implication from the nature of the firm 
 or otherwise. 
 
 ; V. Every person who, being surety for the debt or duty of 
 another, or being liable with another for any debt or duty, shall 
 pay such debt or perform such duty, shall be entitled to have 
 assigned to him, or to a trustee for him, every judgment, specialty, 
 or other security which shall be held by tile creditor in respect of 
 such debt or duty, whether such judgment, specialty, or other 
 security shall or shall not be deemed at law to have been satisfied 
 hy the payment of the debt or performance of the duty, and such 
 person shall be entitled to stand in the place of the creditor, and 
 to use all the remedies, and, if need be, and upon a proper indem- 
 nity, to use the name of tlie creditor, in any action or other pro- 
 ceeding, at law or in equity, in order to obtain from the principal 
 debtor, or any co-surety, co-contractor, or co-debtor, as the case 
 may be, indemnification for the advances made and loss sustained 
 hy the person who shall have so paid such debt or performed such 
 duty, and such payment or performance so made by such surety 
 shall not be pleadable in bar of any such action or other proceed- 
 ing by him : Provided always, that no co-surety, co-contractor, or 
 co-debtor shall be entitled to recover ' from any other co-suretj', 
 co-contractor, or co-debtor, by the means aforesaid, more than tiie 
 just proportion to which, as between those parties themselves, such 
 last-mentioned person shall be justly liable. 
 
 VI. No acceptance of any bill of exchange, whether inland or 
 foreign, made after the thirty-first day of December, one thousand 
 *eight hundred and fifty six, shall be suflflcient to bind or 
 charge any person, unless the same be in writing on such '- 
 
 bill, or if there be more than one part of such bill, on one of the 
 said.parts, and signed by the acceptor or some person duly au- 
 thorized by him. 
 
 VII. Every bill of exchange or promissory note drawn or made in 
 any part of the United Kingdom of Great Britian and Ireland, the 
 islands of Man, Guernsey, Jersey, Alderney and Saric, and the islands 
 adjacent to any of them, being part of the dominions of her Majesty, 
 and made payable in or drawn upon any person resident in any part 
 of the said United Kingdom or islands, shall be deemed to be an 
 inland bill ; but nothing herein contained shall alter or affect the 
 
 46 
 
722 APPENDIX. 
 
 stamp diitj', if any, which but for this enactment, would be paj-able 
 in respect of any such bill or note. 
 
 "VIII. In relation to the rights and remedies of persons having 
 claims for repairs done to, or supplies furnished to or for, shipsj 
 every port within the United Kingdom of Great Britain and Ireland, 
 the islands of Man, Guernsey, Jersej', Alderney and Sark, and the 
 islands adjacent to anj' of them, being part of the dominions of her 
 Majesty, shall be deemed a home port. 
 
 IX. All actiotis of account or for not accounting, and suits for 
 such accounts, as concern the trade of merchandise between merchant 
 and merchant, their factors or servants, shall be commenced and sued 
 within six, years after the cause of such actions or suits, or when 
 such cause has already arisen, then within six years after the passing 
 of this act ; and no claim in respect of a matter which arose more 
 than six years before the commencement of such action or suit shall 
 be enforceablefby action or suit by reason only of some other matter 
 of claim comprised in the same account having arisen within six 
 years next before the commencement of such action or suit. 
 
 X. No person or persons who shall be entitled to any action or 
 suit with respect to which the period of limitation within which the 
 same shall be brought is tixed by the act of the twenty-first year of 
 the reign of King James the First, chapter sixteen, section three, or 
 by the act of the fourth year of the reign of Queen Anne, chapter 
 sixteen, section seventeen, or by the act of the fifty-third j'ear of the 
 reign of King George the Third, chapter one hundred and twenty- 
 seven, section five, or by the acts of the third and fourth years of 
 the reign of King William the Fourth, chapter twenty-seven, sections 
 forty, forty -one, and forty-two, and chapter fortj'-two, section three, 
 or by the act of the sixteenth and seventeenth years of the reign pf 
 her present Majesty, chapter one hundred and thirteen, section 
 twenty, shall be entitled to any time within which to commence and 
 sue such action or suit bej'ond the period so fixed for the same by 
 the enactments aforesaid, by reason only of such person, or some one 
 or more of such persons, being at the time of such cause of action or 
 suit accrued beyond the seas, or in the cases in which by virtue of 
 any of the aforesaid enactments, imprisonment is no>w a disability, 
 r*'i081 ^y reason of such person or some *one or more of such 
 
 persons being imprisoned at the time of such cause of ac- 
 tion or suit accrued. 
 
 XI. Where such cause of action or suit with respect to which the 
 
APPENDIX, 723 
 
 period of limitation is fixed by tlie enactments aforesaid or any of 
 them lies against two or more joint debtors, tlie person or persons 
 who shall be entitled to the same shall not be entitled to any time 
 within which to commence and sue any such action or suit against 
 any one or more of such joint debtors who shall not be beyond the 
 seas at the time of such cause of action or suit accrued, by reason 
 only that some other one or more of such joint debtors was or were 
 at the time of such cause of action accrued bej'ond the seas, and 
 such person or persons so entitled as aforesaid shall not be barred 
 from commencing and suing any action or suit against the joint debtor 
 or joint debtors who was or were beyond seas at the time the cause 
 of action or suit accrued after his or their return from beyond seas, 
 by reason only that judgment was already recovered against anyone 
 or more of such joint debtors who was not or were not beyond seas 
 at the time aforesaid. 
 
 XII. No part of the United Kingdom of Great Britain and Ireland, 
 nor the islands of Man, Guernsey, Jersey, Alderney, and Sark, nor 
 any islands adjacent to any of them being part of the dominions of 
 her Majesty, shall be deemed to be beyond seas within the meaning 
 of the act of the fourth and fifth years of the reign of Queen Anne, 
 chapter sixteen, or of this act. 
 
 XIII. In reference to the provisions of the acts of the ninth year 
 of the reign of King George the Fourth, chapter fourteen, sections 
 one and eight, and the sixteenth and seventeenth years of the reign 
 of her present Majesty, chapter one hundred and thirteen, sections 
 twenty-four and twenty-seven, an acknowledgment or promise made 
 or contained by or in a writing signed by an agent of the party 
 chargeable thereby, duly authorized to make such acknowledgment 
 or promise, shall have the same effect as if such writing had been 
 signed by such party himself. 
 
 XIV. In reference to the provisions of the acts of the twenty-first 
 year of the reign of King James the First, chapter sixteen, section 
 three, and of the act of the third and fourth years of the reign of 
 King William the Fourth, chapter forty-two, section three, and of 
 the act of tlie sixteenth and seventeenth years of the reign of her 
 present Majesty, chapter one hundred and thirteen, section twenty, 
 when there shall be two or more co-contractors or co-debtors, whether 
 bound or liable jointly only or jointly and severally, or executors or 
 administrators of any contractor, no such co-contractor or co-debtor, 
 executor, or administrator shall lose the benefit of the said enact- 
 
724 APPENDIX. 
 
 inents or any of them, so as to be chargeable in respect or by reason 
 only of payment of any principal, interest, or other money, by any 
 other or others of such co-contractors or co-debtors, executors, or 
 administrators. 
 
 [*509] *[21 & 22 Vict. c. '79. J 
 
 An Act to amend the Law relating to Checks or Drafts on Bankers. 
 [2nd August, 1858.] 
 
 Whereas it is expedient to amend the law relating to checks or 
 drafts on bankers : Be it therefore enacted by the Queen's most 
 excellent Majesty, by and with the advice and consent of the lords 
 spiritual and temporal, and commons, in this present parliament 
 assembled, and by the authority of the same, as follows : 
 
 I. Whenever a check or draft on any banker paj'able to bearer or 
 to order or demand shall be issued, crossed with the name of a 
 banker or with two transverse lines with the words "and company" 
 or any abbreviation thereof, such crossing shall be deemed a ma- 
 terial part of the check or draft, and, except as hereafter mentioned, 
 shall not be obliterated or added to or altered by any person whom- 
 soever after the issuing thereof; and the banker upon whom such 
 check or draft shall be drawn shall not pay such check or draft to 
 any other than the banker with whose name such check or draft 
 shall be so crossed, or if the same be crossed as aforesaid without 
 a banker's name to any other than a banker. 
 
 II. Whenever any such check or draft shall have been issued un- 
 crossed, or shall be crossed with the words " and company" or any 
 abbreviation thereof, and without the name of any banker, any law- 
 ful holder of such check or draft, while the same remains so un- 
 crossed, or crossed with the words " and company" or any abbrevia- 
 tion thereof without the name of any banker, may cross the same 
 •with the name of a banker ; and whenever any such check or draft 
 shall be uncrossed, any such lawful holder may cross the same with 
 the words '' and company" or any abbreviation thereof, with or with- 
 out the name of a banlser ; and any such crossing as in this section 
 mentioned shall be deemed a material part of the check or draft, and 
 shall not be obliterated or added to or altered by any person whom- 
 soever after the making thereof; and the banker upon whom such 
 check or draft shall be drawn shall not pay such check or draft to 
 any other than the banker with whose name such check or draft 
 shall be so crossed as last aforesaid. 
 
APPENDIX. 725 
 
 III. If any person shall obliterate, add to, or alter any such 
 crossing with intent to defraud, or offer, utter, dispose of or put off 
 •with intent to defraud any check or draft on a banker, whereon such 
 fraudulent obliteration,- addition or alteration has been made, know- 
 ing it to have been so made, such person shall be guilty of felonj', 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be transported beyond the seas for life, or to such other 
 punishment as is enacted and provided for those guilty of forgery 
 of bills of exchange in the statute in that case made and provided. 
 
 ly. Provided always, that any banker paying a check or draft 
 which does not at the time when it is presented for payment 
 ♦plainly appear to be or to have been crossed as aforesaid, 
 or to have been obliterated, added to or altered as aforesaid, ^ ' -' 
 sliall not be in any way responsible or incur any liability, nor shall 
 such payment be questioned by reason of such check having been so 
 crossed as aforesaid, or having been so obliterated, added to or 
 altered as aforesaid, and of his having paid the same to a person 
 other tba,n a banker, or other than the banker with those name such 
 check or draft shall have been so crossed, unless such banker shall 
 have acted mala fide, or been guilty of negligence in so paj'ing such 
 check. 
 
 V. In the construction of this act the word " banker" shall include 
 any person or persons, or corporation, or joint stock company acting 
 as a banker or bankers. 
 
 [23 & 24 Yict. c. 111.] 
 
 An Act /or granting to Her Majesty certain Duties of Stamps, and 
 to amend the Laws relating to the Stamp Duties. 
 
 [28th August, I860.] 
 
 XIX. Whereas by the eighteenth section of the act passed in the 
 fifty-fifth year of the reign of King George the Third, chapter one 
 hundred and eighty-four, the issuing of promissory notes payable to 
 bearer on demand With printed dates therein is prohibited, and such 
 prohibition is an unnecessary restriction: Be it enacted, that the 
 said section of the said last-mentioned act shall be and is hereby re- 
 pealed : Provided always, that, notwithstanding anything in any 
 act of paiiiament contained to the contrary, it shall be lawful for 
 any person to draw upon his banker, who shall bona fide hold 
 money to or for his use, any draft or order for the payment, to the 
 
T26 APPENDIX. 
 
 bearer or to order on demand, of any sum «f money less than twenty 
 shillings. 
 
 [26 & 2T Vict. c. 105 J 
 
 An Act to remove certain Restrictions on the Negotiation of Promis- 
 sory Notes and Bills of Exchange under a limited Sum. 
 
 [28th July, 1863.] 
 
 1. Prom and after the passing of this act, the act passed in the 
 seventeenth year of the reign of King George the Third, chapter 
 thirty, and so much and such part and parts of any other act or 
 acts as continue or revive the said act, or as prohibit or restrain or 
 impose any penalty for or on account of the publishing, uttering 
 or negotiating in England of any promissory or other note, not 
 being a note payable to bearer on demand, bill of exchange, draft 
 or undertaking in writing, being negotiable or transferable, for the 
 payment of twenty shillings or above that sum and less than five 
 pounds, or on which twenty shillings, or above that sum and less 
 than five pounds, shall remain undischarged, made, drawn or in- 
 dorsed in any other manner than as directed by the said act of 
 
 *the seventeenth year aforesaid, and also the seventeenth 
 -' section and schedules (C.) and (D.) of an act passed in the 
 eighth and ninth years of her Majesty's reign, chapter thirty-eight, 
 requiring or directing that all such notes, bills, drafts or undertak- 
 ings as aforesaid which shall be issued in Scotland shall be made, 
 drawn, or indorsed according to the forms contained in the said sche- 
 dules respectivelj', shall be and the same is and are hereby repealed. 
 
 2. This act shall continue in force for three years, and until the 
 end of the then next ensuing session of Parliament. 
 
 [iVbw continued by 32 d; 33 Vict. c. 85, till 28th July, 1810, and 
 then next Session of Parliament ; and by 34 & 35 Vict. c. 95, to 2Sth 
 July, 1872, and end of then next Session; and by 36 S 37 Vict. c. 
 15, to 28th July, 1874, and end of then next Session.] 
 
 [28 & 29 Vict. c. 86.] 
 
 An Act to amend the Law of Partnership. [5th July, 1865.] 
 
 Whereas it is expedient to amend the law relating: to partnership : 
 Be it therefore enacted by the Queen's most excellent Majesty, by 
 
APPENDIX. 727 
 
 * 
 
 and with the advice and consent of the lorcfs spiritual and temporal, 
 and commons, in this present parliament assembled, and by the 
 authority of the same, as follows : 
 
 1. The advance of money by way of loan to a person engaged or 
 about to engage in any trade or undertaking upon a contract in 
 writing with such person that the lender shall receive a rate of 
 interest varying with the profits, or shall receive a share of the 
 profits arising from carrying on such trade or undertaking, shall not, 
 of itself, constitute the lender a partner with the person or the 
 persons carrying on such trade or undertaking, or render him re- 
 sponsible as such. 
 
 2. No contract for the remuneration of a servant or agent of any 
 person engaged in any trade or undertaking by a share of the 
 profits of such trade or undertaking shall, of itself, render such 
 servant or agent responsible as a partner therein nor give him the 
 rights of a partner. 
 
 3. No person being the widow or child of the deceased partner of 
 a trader, and receiving by way of annuity a portion of the profits 
 made by such trader in his business, shall, by reason only of such 
 receipt, be deemed to be a partner of or to be subject to any liabili- 
 ties incurred by such trader. 
 
 4. No person receiving by way of annuity or otherwise a portion 
 of the profits of any business, in consideration of the sale by him of 
 the good will of such business, shall, by reason only of such receipt, 
 *i)e deemed to be a partner of or be subject to the liabilities r*ci o-i 
 of the person carrying on such business. 
 
 5. In the event of any such trader as aforesaid being adjudged a 
 bankrupt, or taking the benefit of any act for the relief of insol- 
 vent debtors, or entering into an arrangement to pay his creditors 
 less than twenty shillings in the pound, or dying in insolvent cir- 
 cumstances, the lender of any such loan as aforesaid shall not be 
 entitled to recover any portion of his principal, or of the profits or 
 interest payable in respect of such loan, nor shall any such vendor 
 of a good will as aforesaid be entitled to recover any such profits 
 as aforesaid, until the claims of the other creditors of the said 
 trader for valuable consideration in money or money's worth have 
 been satisfied. 
 
728 APPENDIX. 
 
 6. In the construction of this act the word " person " shall 
 include a partnership firm, a joint stock couipan}', and a corporation. 
 
 [32 & 33 Vict. c. 11.] 
 
 An Act to consolidate and amend the Law of Bankruptcy. 
 
 [9th August, 1869.] 
 
 1. This act may be cited as "The Bankruptcy Act, 1869." 
 
 2. This act shall not, except in so far as .is expressly provided, 
 apply to Scotland or Ireland. 
 
 3. This act shall not come into operation until the first day of 
 January, one thousand eight hundred and seventy, which date is 
 hereinafter referred to as the commencement of this act. 
 
 4. In this act, if not inconsistent with the context, the following 
 terms have the meanings hereinafter respectively assigned to them ; 
 that is to say, 
 
 " The Court "-shall mean the court having jurisdiction in bank-' 
 ruptcy as by this act provided : 
 
 " The registrar " shall mean the registrar of "the Court" as 
 above defined : 
 
 " Prescribed " shall mean prescribed by rules of court to be made 
 as in this act provided : 
 
 " Property " shall mesfii and include money, goods, things in' 
 action, land, and every description of property, whether real 
 or personal ; also, obligations, easements, and every descrip- 
 tion of estate, interest, and profit, present or future, vested 
 or contingent, arising out of or incident to property as above 
 defined : 
 
 " Debt provable in bankruptcy " shall include any debt or liability 
 by this act made provable in bankruptcy : 
 
 " Person " shall include a body corporate : 
 
 *" Trader" shall, for the purposes of this act, mean the 
 L ^ several persons in that behalf mentioned in the first 
 
 schedule to this act annexed. 
 
 5. A partnership, association, or company corporate, or registered 
 under " The Companies Act, 1862," shall not be adjudged bankrupt 
 under this act. 
 
APPENDIX. 729 
 
 ' 6. A single creditor, or two or more creditors if the debt due to 
 such single creditor, or tlie aggregate amount of debts due to such 
 several creditors, from any debtor, amount to a sum of not less than 
 fifty pounds, may present a petition to the court, praying that the 
 debtor be adjudged a bankrupt, and alleging as the ground for such 
 adjudication any one or more of the following acts or defaults, here- 
 inafter deemed to be and included under the expression " acts of 
 bankruptcy :" 
 (I.) That the debtor has, in England or elsewhere, made a con- 
 veyance or assignment of his property to a trustee or trus- 
 tees for the benefit of his creditors generally: 
 (2.) That the debtor has in England or elsewhere, made a fraud- 
 ulent conveyance, gift, delivery, or transfer of his property, 
 or of any part thereof: 
 (3,) That the debtor has, with intent to defeat or delay his credi- 
 tors, done any of the following things, namely, departed 
 out of England, or being out of England remained out of 
 England, or being a trader departed from his dwelling- 
 house, or otherwise absented himself or begun to keep 
 house, or suffered himself to be outlawed : 
 (4.) That the debtor has filed in tiie prescribed manner in the 
 court a declaration admitting his inability to pay his debts. 
 (5.) That execution issued against the debtor on any legal process 
 for the purpose of obtaining payment of not less than fifty 
 pounds, has in the case of a trader been levied by seizure 
 and sale of his goods : 
 (6.) That the creditor presenting the petition has served in the 
 prescribed manner on the debtor a debtor's summons re- 
 quiring the debtor to pay a sum due, of an amount of not 
 less than fifty pounds, and the debtor being a trader has 
 for the space of seven days, or not being a trader has for 
 the space of three weeks, succeeding the service of such 
 summons, neglected to pay such sum, or to secure or com- 
 pound for the same. 
 But no person shall be adjudged a bankrupt on any of the above 
 grounds unless the act of bankruptcy on which the adjudication is 
 grounded has occurred within six months before the presentation of 
 the petition for adjudication ; moreover, the debt of the petitioning 
 creditor must be a liquidated sum due at Uw or in equity, and must 
 not be a secured debt, unless the petitioner state in his petition that 
 he will be ready to give up such security for the benefit of the credi- 
 tors in the event of the debtor being adjudicated a bankrupt, or 
 
730 . APPENDIX. 
 
 r*hM'] "°^®®^ *^® petitioner is willing to give an estimate *0'f the 
 • value of his security, in which latter case he may be ad- 
 mitted as a petitioning creditor to the extent of the balance of the 
 debt due to him after deducting the value so estimated, but he shall, 
 on an application being made by the trustee within the prescribed 
 time after the date of adjudication, give up his security to such 
 trustee for the benefit of the creditors upon payment of such esti- 
 mated value. 
 
 ] 1. The bankruptcy of a debtor shall be deemed to have relation 
 back to and to commence at the time of the act of bankruptcy being 
 completed on which the order is made adjudging him to be bank- 
 rupt; or if the bankrupt is proved to have committed more acts of 
 bankruptcy than one, to have relation back to and to commence at 
 the time of the first of the acts of bankruptcy that may be proved 
 to have been committed by the bankrupt within twelve months next 
 preceding the order of adjudication ; but the bankruptcy shall not 
 relate to any prior act of bankruptcy, unless it be that at the time 
 of committing such prior' act the bankrupt was indebted to some 
 creditor or creditors in a sura or sums sufficient to support a petition 
 in bankruptcy, and unless such debt or debts are still remaining due 
 at the time of the adjudication. 
 
 15. The property of the bankrupt divisible amongst his creditors, 
 and in tliis act referred to as the property of the bankrupt, shall not 
 comprise the following particulars : 
 
 (1.) Property held by the bankrupt on trust for any other person : 
 
 (2.) The tools (if any)- of his trade, and the necessary wearing ap- 
 
 ^ parel and bedding of himself, his wife and children, to a 
 
 value, inclusive of topis and apparel and bedding, not. ex- 
 
 'ceeding twenty pounds in the whole. 
 
 But it shall comprise the following particulars : 
 
 (3.) All such property as may belong to or b6 vested in the bank- 
 rupt at the commencement of the bankruptcy, or may be 
 acquired by or devolve on him during its continuance: 
 (4.) The capacity to exercise and to take proceedings for exercis- 
 ing all such powers in or over or in respect of property as 
 might have been exercised by the bankrupt for his own 
 benefit at the commencement of his bankruptcy or during 
 its continuance, except the right of nomination to a vacant 
 ecclesiastical benefice : 
 (5.) All goods and chattels being, at the commencement of the 
 bankruptcy, in the possession, order or disposition of the 
 
APPENDIX. 731 
 
 bankrupt, being a trader, by the consent and permission of 
 the true owner, of which goods and chattels the bankrupt 
 is reputed owner, or of which he has taken upon himself the 
 sale or disposition as owner ; provided that things in action, 
 other than debts due to him in the course of his tirade or 
 business, shall not be deemed goods and chattels within the 
 meaning of this clause. 
 
 31. Demands in the nature of unliquidated damages arising other- 
 wise than by reason of a contract or promise shall not be provable 
 *in bankruptcy, and no person having notice of any act of r^ciK-i 
 bankruptcy available for adjudication against the bankrupt, 
 shall prove for any debt or liability contracted by the bankrupt sub- 
 sequently to the date of his so having notice. 
 
 Save as aforesaid, all debts and liabilities, present or future, cer- 
 tain or contingent, to which the bankrupt is subject, at the date of 
 the order of adjudication, or to which he may become subject during 
 the continuance of the bankruptcy by reason of any obligation in- 
 curred previously to the date of the order of adjudication, shall be 
 deemed to be debts provable in bankruptcy, and may be proved in 
 the prescribed manner before the trustee in the bankruptcy. 
 
 36. Interest on any debt provable in bankruptcy maybe allowed 
 by the trustee under the same circumstances in which interest would 
 have been allowable by a jury if an action had been brought for such, 
 debt. 
 
 St. If any bankrupt is at the date of the order of adjudication 
 liable in respect of distinct contracts as member of two or. more dis- 
 tinct firms, or as a sole contractor, and also as member of a firm, the 
 circumstance that such firms are in whole or in part composed of 
 the same individuals, or that the sole contractor is also one of the 
 joint contractors, shall not prevent proof in respect of such contracts, 
 against the properties respectively liable upon such contracts. 
 
 89. Where there have been mutual credits, mutual debts, or other 
 mutual dealings between the bankrupt and any other person proving 
 or claiming to prove a debt under his bankruptcy, an account shall 
 be taken of what is due from the one party to the other in respect 
 of such mutual dealings, and the sum due from the one party shall 
 be set off against any sura due from the other party, and the balance 
 of such account, and no more, shall be claimed or paid on either side 
 respective!}' ; but a i^rson shall not be entitled under this section 
 
732 APPENDIX. 
 
 to claim the benefit of any set-off against the property of a bankrupt 
 in any case where- he had at the time of giving credit to the bank- 
 rupt notice of an act of bankruptcy committed by such bankrupt 
 and available against him for adjudication. 
 
 49. An order of discharge shall not release the bankrupt from any 
 debt or liability incurred by means of any fraud or breach of trust, 
 nor from any debt or liability whereof he has obtained forbearance 
 by any fraud, but it shall release the bankrupt from all other debts 
 provable under the bankruptcy, with the exception of — 
 
 ('l.) Debts due to the Crown: 
 
 (2.) Debts with which the bankrupt stands charged at the suit of 
 the Crown or of any person for any offence agaitast a stat- 
 ute relating to any branch of the public revenue, or at the 
 suit of the sheriff or other public officer on a bail bond en- 
 tered into for the appearance of any person prosecuted for 
 any such offence : 
 
 *And he shall'not be discharged from such excepted debts 
 '- -' unless the commissioners of the treasury certify in writing 
 their consent to his being discharged therefrom. 
 
 An order of discharge shall be sufficient evidence of the bank- 
 vaptcy, and of the validity of the proceedings thereon, and in any 
 proceedings that may be instituted against a bankrupt who has ob- 
 tained an order of discharge in i-espect of any debt from which he 
 is released by such order, the bankrupt may plead that the cause of 
 ■ action occurred before his discharge, and may give this act and the 
 special matter in evidence. 
 
 50. The order of discharge shall not release any person who, at 
 the date of the order of adjudication, was a partner with the bank- 
 rupt, or was jointly bound or had made any joint contract with him. ^ 
 
 92. Every conveyance or transfer of property, or charge thereon 
 made, every payment made, every obligation incurred, and every 
 judicial proceeding taken or suffered by any person unable to pay 
 his debts as they become due (from his own monies, in favour of any 
 creditor, or any person in trust for any creditor, with a view of 
 giving such creditor a preference over the other creditors, shall, if 
 the person making, taking, paying, or suffering the same become 
 bankrupt within three months after the date of making, taking, pay- 
 ing, or suffering the same, be deemed fraudulent and void as against 
 the trustee of the bankrupt appointed under this act; bat this sec- 
 
APPENDIX. 733 
 
 tion shall not affect the rights of'a purchaser, payee, or incumbi-ancer 
 in good faith and for valuable consideration- 
 
 94. Nothing in this act contained shall render Invalid, — 
 
 .(].) Any payment made in good faith and for value feceived to 
 any bankrupt before the date of the order of adjudication 
 by a person not having at the time of such payment notice 
 of any act of bankruptcy committed by the bankrupt, and 
 available against him for adjudication : 
 
 (2.) Any payment or delivery of money or goods belonging to a 
 bankrupt, made to such bankrupt by a depository of such 
 money or goods 'before the date of the order of adjudica- 
 tion, who had not at the time of such payment or delivery 
 notice of any act of bankruptcy committed by the bankrupt, 
 and available against him for adjudication : 
 
 (3.) Anj' contract or dealing with any bankrupt, made in good 
 faith and for valuable consideration, before the date of the 
 order of adjudication, by a person not having, at the time 
 of making such contract or dealing, notice of any act of 
 bankruptcy committed by the bankrupt, and available 
 against him for adjudication. 
 
 100. Any creditor whose debt is sufficient to entitle him to pre- 
 sent a bankruptcy petition against all the partners of a firm may 
 present such petition against any one or more partners of such firm 
 without including the others. 
 
 *10f. Any petition or copy of a petition in bankruptcy, 
 any order or copy of an order made by any court having ju- ^ J 
 risdiction in bankruptcy, any certificate or copy of a certificate made 
 by any court having jurisdiction in bankruptcy, any deed or copy 
 of a deed of arrangement in bankruptcy, and other instrument or 
 copy of an instrument, affidavit, or document made or used in the 
 course of any bankruptcy proceedings, or other proceedings had 
 under this act, may, if any such instrument as aforesaid or copy of 
 an instrument appears to be sealed with the seal of any court hav- 
 ing jurisdiction, or purports to be signed by any judge having 
 jurisdiction in bankruptcy under this act, be receivable in evidence 
 in all legal proceedings whatever. 
 
 112. Where a bankrupt is a contractor in respect of any contract 
 jointly with any other person or persons, such person or persons 
 may sue or be sued in respect of such contract, without the joinder 
 of the bankrupt. 
 
734 APPENDIX. 
 
 118. No person, not being a trader, shall be adjudged a bankrupt 
 in respect of a debt contracted before the date of the passing of the 
 Bankruptcy Act, 1861. 
 
 [ 32 & 33 Vict. c. 4^. J 
 
 An Act to abolish the Distinction as to Priority of Payment which 
 now exists between the Specialty and Simple Contract Debts of 
 deceased Persons. [2nd August, 1869. J 
 
 1. In the administration of the estate of every person who shall 
 die on or after the first day of January, one thousand eight hundred 
 and seventy, no debt or liability of such person shall be entitled to 
 any priority or preference by reason merely that the same is secured- 
 by or arises under a bond, deed or other instrument under seal, or 
 is otherwise made or constituted a specialty debt ; but all the credi- 
 tors of such person, as well specialty as simple contract, shall be 
 treated as standing in equal degree, and be paid accordingly out of 
 the assets of such deceased person, whether such assets are legal or 
 " equitable, any statute or other law to the contrary notwithstand- 
 ing : Provided always, that this act shall not prejudice or affect any 
 lien, charge or other security which any creditor may hold or be 
 entitled to for the payment of his debt. 
 
 [32 & 33 Vict. c. 62.] 
 
 An Act for the Abolition of Imprisonment for Debt, for the Punish- 
 ment of Fraudulent Debtors, and for other Purposes. 
 
 [9th August, 1869.] 
 4. With the exceptions hereinafter mentioned, no person shall, 
 after the commencement of this act, be arrested or imprisoned for 
 making default in payment of a sum of money. 
 
 *There shall be excepted from the operation of the above 
 ^ -^ enactment: 
 
 1. Default in payment of a penalty, or sum in the nature of a 
 
 penalty, other than a penalty in respect of any contract: 
 
 2. Default in payment of any sum recoverable summarily before 
 
 a justice or justices of the peace. ^ 
 
 3. Default by a trustee or person acting in a fiduciary capacity 
 
 and ordered to pay by a court of equity any sum in his pos- 
 session or under his control : 
 
APPENDIX. ' 735 
 
 4. Default by an attorney or solicitor in payment of costs when 
 • ordered to pay costs for misconduct as such, or in payment 
 
 of a sum of money when ordered to pay the same in his 
 character of an officer of the court making the order : 
 
 5. Default in payment for the benefit of creditors of any portion 
 
 of a salary,, or other income, in respect of the payment of 
 which any court having jurisdiction in bankruptcy is au- 
 thorized to make an order : 
 
 6. Default in payment of sums in respect of the payment of which 
 
 orders are in this act authorized to be made : 
 Provided, first, that no person shall be imprisoned in any case ex- 
 cepted from the operation of this section for a longer period than 
 one year ; and, secondly, that nothing in this section shall alter the 
 effect of any judgment or order of any court for payment of money 
 except as regards the arrest and imprisonment of the person making 
 default in paying such money. 
 
 5. Subject to the provisions hereinafter mentioned, and to the pre- 
 scribed rules, any court may commit to prison for a term not ex- 
 ceeding- six weeks, or until payment of the sum due, any person 
 who makes default in payment of any debt or instalment of any 
 debt due from him in pursuance of any order or judgment of that 
 or any other competent court. 
 
 Provided — (1.) That the jurisdiction by this section given of 
 committing a person to prison shall, in the case of any court other 
 than the superior courts of law and equity, be exercised only sub- 
 ject to the following restrictions ; that is to say, — 
 
 (a.) Be exercised only by a judge or his deputy, and by an order 
 made in open court and showing on its face the ground on 
 which it is issued : 
 
 (6.) Be exercised only as respects a judgment of a superior court 
 of law or equity when such judgment does not exceed fifty 
 pounds, exclusive of costs : 
 
 (c.) Be exercised only as respects a judgment of a county court 
 by a county court judge or his deputy. 
 
 (2.) That such jurisdiction shall only be exercised where it is 
 proved to the satisfaction of the court that the person making de- 
 fault either has or has had since the date of the order or judgment 
 the means to pay the sum in respect of which he has made default, 
 and has refused or neglected, or refuses or neglects, to pay the same. 
 
 Proof of the means of the person making default may be given 
 in such manner as the court thinks just; and for the purposes of 
 
736 * APPENDIX. 
 
 r*fiiQi *^U'''^ proof the debtor and any witnesses may be summoned 
 L -■ and examined on oath according to the prescribed rules. 
 
 Any jurisdiction by this section given to the superior courts may 
 be exercised by a judge sitting in chambers, or otherwise, in the 
 prescribed manner. 
 
 For the purposes of this section any court may direct any debt 
 due from any person in pursuance of any order or judgment of that 
 or any other competent court to be paid by instalments, and may 
 '' from time to time rescind or vary such order. 
 
 Persons committed under this section by a superior court may be 
 committed to the prison in which they would have been confined if 
 arrested on a writ of capias ad satisfaciendum, and every order of 
 commital by any superior court shall, subject to the prescribed rules, 
 be issued, obeyed, and executed in the like manner as such writ. 
 
 This section, so far as it relates to any county court, shall be 
 deemed to be substituted for sections ninety-eight and ninety-nine 
 of the County Courts Act, 1846, and that act and the acts amending 
 the same shall be construed accordingly, and shall extend to orders 
 made by the county court with respect to sums due in pursnaince of 
 any order or judgment of any court other than a county court. 
 
 No imprisonment under this section shall operate as a satisfaction 
 or extinguishment of any debt or demand or cause of action, or de- 
 prive any person of any right to take out execution against the 
 lands, goodsj or chattels of the person imprisoned, in the same man- 
 ner as if such itnprisonment, iiad not taken place. 
 
 Any person imprisoned under this section shall be discharged out 
 of custody upon a certificate signed in the prescribed manner to the 
 effect that he has satisfied the debt or instalment of a debt in respect 
 of which he was imprisoned, together with the prescribed costs (if 
 any). 
 
 6. After the commencement of this act a person shall not be 
 arrested upon mesne process in any action. 
 
 Where the plaintiff in any action in any of her Majesty's superior 
 courts of law at Westminster, in which, if brought before the com- 
 mencement of this act, the defendant would have been liable to ar- 
 rest, pi'oves at any. time before final judgment by evidence on oath, to 
 the satisfaction of a judge of one of those courts, that the plaintiff has 
 good cause of action against the defendant to the amount of fifty 
 pounds or upwards, and that there is probable cause for believing 
 that the defendant is about to quit England unless he be appre- 
 hended, and that the absence of the defendant from England will 
 
APPHNDIX. 737 
 
 < 
 
 materially prejudice the plaintiff in the prosecution of his action, 
 such judge may in the prescribed manner order such defendant to 
 be arrested and imprisoned for a period not exceeding six months, 
 unless and until he has sooner given the prescribed security, not ex- 
 ceeding the amount claimed in the action, that he will not go out of 
 England without the leave of the court. 
 
 Where the action is for a penalty or sum in the nature of a 
 penalty, other than a penalty, in respect of any contract, it shall 
 *not be necessary to prove that the absence of the defendant 
 from England will materially prejudice the plaintiff in the ^ ^ -* 
 prosecution of his action, and the security given (instead of being 
 that the defendant will not go out of England) shall be to the effect 
 that any sum recovered against the defendant in the action shall be 
 paid, or that the defendant shall be rendered to prison. 
 
 [33 & 84 Vict. c. 93.] 
 
 An Act to amend the law relating to the Property of Married 
 Women. [9th August, 1870.] 
 
 1. The wages and earnings of any married woman acquired or 
 gained by her after the passing of this act in any employment, oc- 
 cupation or trade in which she is engaged or which she carries on 
 separately from her husband, and also any money or property so ac- 
 quired by her through the exercise of any literary, artistic or scien- 
 tific skill, and all investments of such .wages, earning, money or. 
 property, shall be deemed and taken to be property held and settled 
 to her separate use, independent of any husband to whom she may 
 be married, and her receipts alone shall be a good discharge for 
 such wages, earnings, money and propertj'. 
 
 7. Where any woman married after the passing of this act shall 
 during her marriage become entitled to any personal property as 
 next of kin or one of the next of kin of an intestate, or to any sum 
 of money not exceeding two hundred pounds under any deed or 
 will, such property shall, subject and without prejudice to the trusts 
 of any settlement affecting the same, belong to the woman for her 
 separate use, and her receipts alone shall be a good discharge for 
 the same. 
 
 ' 11. A married woman may maintain an action in her own name 
 for the recovery of any wages, earnings, money and property by 
 this act declared to be her separate property, or of any property 
 
 47 
 
738 APPENDIX. 
 
 belonging to her before marriage, and which her husband shall, by 
 writing under his hand, have agreed with her shall belong to her 
 after marriage as her separate property, and she shall have in her 
 own name the same remedies, both civil and criminal, against all 
 persons whomsoever for the protection and security of such wages, 
 earnings, money and property and of any chattels or other property 
 purchased or obtained by means thereof for her own use, as if such 
 wages, earnings, money, chattels and property belonged to her as 
 an unmarried woman ; and in any indictment or other proceeding 
 it shall be sufficient to allege such wages, earnings, money, chattels, 
 and property to be her property. 
 
 12. A husband shall not, by reason of any marriage which shall 
 take place after this act has come into operation, be liable for the 
 debts of his wife contracted before marriage, but the wife shall be 
 *liable to be sued for, and any property belonging to her for 
 '- J her separate use shall be liable to satisfy, such debts as if she 
 had continued unmarried. 
 
 [34 Vict. 0. n.] 
 
 An Act to make Provision for Bank Holidays, and respecting Obli- 
 gations to make Payments and do other acts on such Bank Holi- 
 days. [25th May, 1871.J 
 
 1. After the passing of this act, the several days in the schedule 
 to this act mentioned (and' which days are in this act hereinafter 
 referred to as bank holidays) shall be kept as close holidays in all 
 banks in England and 'Ireland and Scotland respectively, and all 
 bills of exchange and promissory notes which are- due arid payable 
 on any such bank holiday shall be payable, and in case of non- 
 payment may be noted and protested, on the next following day, 
 and not on such bank holiday ; and any such noting or protest 
 shall be as valid as if made on the day on which the bill or note 
 was made due and payable ; and for all the purposes of this act 
 the day next following a bank holiday shall mean the next follow- 
 ing day on which a bill of exchange may be lawfully noted or pro- 
 tested. 
 
 2. When the day, on which any notice of dishonour of an unpaid 
 bill of exchange or promissory note should be given, or when the 
 day on which a bill of exchange or promissory note should be pre- 
 
APPENDIX. 739 
 
 sented or received for acceptance, or accepted or forwarded to anj' 
 referee or referees, is a banlt holiday, such notice of dishonour shall 
 be given and such bill of exchange or promissory note shall be 
 presented or forvrarded on the day next following such bank holiday. 
 
 3. jf^o person shall be compellable to make any payment or to 
 do any act upon such bank holidays which he would not be com- 
 pellable to do or make on Christmas Day or Good Friday ; and the 
 obligation to make such payment and do such act shall apply to the 
 day following such bank holidaj- ; and the making of such payment 
 and doing such act on such following day shall be equivalent to pay- 
 ment of the money or performance of the act on the holiday. 
 
 4. It shall be lawful for her Majesty, from time to time, as to her 
 Majesty may seem fit, by proclamation, in the manner in which 
 solemn fasts or days of public thanksgiving may be appointed, to 
 appoint a special day to be observed as a bank holiday, either 
 throughout the United Kingdom or in any part thereof, or in any 
 county, city, borough, or district therein, and any day so appointed 
 shall be kept as a close holiday in all banks within the locality 
 mentioned in such proclamation, and sliall, as regards bills of ex- 
 change* and promissory notes payable in such locality, be r*Kno-| 
 deemed to be .a bank holiday for all the purposes of this act. 
 
 5. It shall be lawful for her Majesty in like manner, from time to 
 time, when it is made to appear to her Majesty in council In any 
 special case that in any year it is inexpedient that a day by this act 
 appointed for a bank holiday should be a bank holiday, to declare 
 that such day shall not in such year be a bank holiday, and to ap- 
 point such' other day as to her Majesty in council may seem fit to be 
 a bank holiday instead of such day, and thereupon the day so ap- 
 pointed shall in such year be substituted for the day so appointed 
 by this act. 
 
 SCHEDULE. 
 
 Bank Holidays in England and Ireland. 
 
 Easter Monday. 
 
 The Monday in Whitsun week. 
 
 The first Monday in August. 
 
 The twenty-sixth day of December, if a week day. 
 
740 APPENDIX. 
 
 Bank Holidays in Scotland. 
 New Year's Day. 
 Christmas Day. 
 If either of the above days fall on a Sunday, the next following 
 Monday shall be a bank holiday. 
 Good Friday. ' 
 
 The first Monday of May. 
 The first Monday of August. 
 
 [34 & 35 Vict. 0.74.] 
 
 An Act to abolish Days of Grace in the case of Bills of Exchange 
 and Promissory Notes payable at sight or on Presentation^ 
 
 [14th August; 1871.] 
 
 2. Every bill of exchange or promissory 'note, drawn after this act 
 comes into operation and purporting to be payable at sight or on 
 presentation, shall bear the same stamp and shall, for all purposes: 
 whatsoever, be deemed to be a bill of exchange or promissory note 
 payable on demand, any lafw or custom to the contrary notwith- 
 standing. 
 
 4. A bill of exchange purporting to be payable at sight and 
 drawn at any time between the first day of January, one thousand 
 eight hundred and seventy-one, and the day of the passing of this, 
 act, both inclusive,- and stamped as a bill of exchange payable 
 on demand, shall he admissible in evidence on payment of the 
 difference between the amount of stamp duty paid on such bill 
 and the amount which would have been payable if this act had 
 not passed. 
 
INDEX. 
 
 [SHOULD THE INDEX BE POTJND DEFECTIVE IN ANT PART, THE READEB IS 
 EBPBKBED TO THE P0LL ANALTTICAI, TABLE OF CONTENTS PREFIXED.] 
 
 THE PAGES REFERRED TO ARE THOSE BETWEEN £ ] 
 
 A. 
 ABODE, 
 
 of payee of bills under 51., 8i'. 
 
 formerly must in some cases have been stated, 84. 
 
 ACCEPTANCE, 
 what it is, 1, 184. 
 what.it admits, 33, 199, 457, 
 efifects of, 3. 
 
 by partners, 41, 45, 46, 47. 
 cross acceptances, 124, 440, 443. 
 by one of several, not partners, 186. 
 liability of drawee before acceptance, 184. 
 cannot be two several acceptances of the same bill, 186, 195. 
 before bill filled up, 187. 
 oral, not before bjll in existence, 188. 
 after bill is due, 189. 
 after previous refusal to accept, 189. 
 of inland bills, must be in writing on the bill, 189. 
 what will be such acceptance, 189. 
 is irrevocable, 191. 
 of foreign bills, 190, 191, 397. 
 promise to pay, 190. 
 to whom it may be made, 190. 
 promise to accept,. 190. 
 detention of the bill, 191. 
 destruction of it, 191. 
 
 what engagement the holder may require of acceptor, 192. 
 proper conduct for holder to pursue in case of qualified acceptance, 192. 
 condition may be contained in a collateral contemporaneous writing, 99, 
 
 193. 
 but a verbal contemporaneous condition not admissible, 100, 193. 
 nor a written one against innocent indorsee, 193. 
 condition must be set out in pleading, though performed, 194. 
 partial or varying acceptance, what, 194. 
 payable at a particular place, 194. 
 
 acceptance inchoate and revocable till delivery, 150, 195. 
 liability of acceptor, 196. 
 how discharged, 196. 
 
 by waiver, 196. 
 
 by express renunciation, 197. 
 
 by cancellation, 195, 196. 
 
 by taUing other security, 198. 
 
 in case of joint acceptors, by taking security from one, 198, 199. 
 
 pleading, 199. 
 
INDEX. 
 
 ACCEPTANCE— (!07i«inM«£f. 
 
 presentment for acceptance, 179 — 183. 
 
 release of acceptor, 237, 347. 
 
 release by or to one of several, 239. 
 
 how far covenant not to sue will operate as release, 889, 247. 
 
 agreement not to sue, 248. 
 
 eJGE'ect of release may be restrained by the terms of the instrument, 239, 
 
 247. 
 admits drawer's handwriting, 199. 
 
 and authority of agent to draw, 33, 200. 
 
 but not to indorse, 33, 200. 
 
 nor indorsement, 200. 
 where drawee cannot dispute his acceptance, 200. 
 forged acceptance, 200. 
 ratification of, 200. 
 payment of, no estoppel, 200. 
 obligation to accept, 200. 
 by agent. See Agent. 
 by executor. See Executor, 
 by partner. See Partner. 
 by infant. See Infant. 
 by married women. See Married Woman. 
 by corporation. See Corporation. 
 
 ACCEPTANCE SUPRA PROTEST, 
 mode of accepting supra protest, 262. 
 who may so accept, 263. 
 
 whether there may be several acceptors supra protest, 263. 
 conduct for holder to pursue who takes an acceptance supra protest, 263. 
 presentment for payment to the drawee still necessary, 263. 
 liability of acceptor supra protest, 264. • 
 
 against what parties acceptor supra protest acquires a right of action, 266. 
 
 ACCOMMODATION BILL, 
 what it is, 128. 
 
 what it is in common language, 405. 
 what it is in strictness, 405. 
 when an accommodation acceptor can recover costs of an action brought 
 
 against him, 405. 
 when a defence that a bill was drawn for accommodation, 119, 128. 
 who is principal on, 244. 
 
 diawer of, not entitled to notice of dishonor, 293, 296. 
 drawer discharged by indulgence to the acceptor, 244. 
 payment supra protest, 268. 
 
 proof of, in bankruptcy, 440 — 446. 
 
 in the hands of an Indorsee for value, 447. 
 
 may be indorsed by bankrupt after bankruptcyj 457. 
 operation of Statute of Limitations as to, 848. 
 
 ACCOUNT, 
 
 direction to place to, 89. 
 
 mutual, when not barred by the Statute of Limitations, 349. 
 
 ACCOUNT STATED, 
 
 when a bill or note evidence under, 428. 
 within Statute of Limitations, 849. 
 
 ACKNOWLEDGMENT. See Limitation, Statute of. 
 by banker, 229, note (a). ' 
 
 letter without prejudice, 348. 
 
 ACTION ON A BILL OR NOTE, 
 who may bring, 2, 403. 
 
 suing in the name of another, 3, note (e), 404. 
 judgment against two parties, 404. 
 
INDEX. 743 
 
 ACTION ON A BILL OR NOTE—continued. 
 joining counts, 57, 404. 
 of debt and assumpsit, 415. 
 
 wlien a corporation Can sue or be sued in assumpsit, 69. 
 proceedings for costs, 404. 
 
 against what parties actions may be brought, 404. 
 party liable in two capacities, 404. 
 how far extinguishment of the right of action as to one party will be a 
 
 defence to others, 321, 404. 
 affidavit to hold to bail, 408. 
 imprisonment for debt abolished, 406. 
 trover or detinue for a bill, 405. 
 who may sue in trover, 405. 
 amount of verdict. 405. 
 effect of judgment in an action of trover in chansins; the property in a 
 
 bill, 406. f i- J , 
 
 relief in equity, 406, 413. 
 statement of indorsements, 420. 
 venue, 408. 
 
 when the Court will change it, 409. 
 inspection of bill, 336, 409. 
 particulars of demand, 409. 
 
 staying proceedings, in what cases; and on what terms, 410. 
 setting aside plea, 410, 424. 
 interest, 303, 410. 
 re-exchange, 411. 
 damages, 410. 
 
 ACTS OF BANKRUPTCY, See Bankruptcy. 
 
 ADDRESS, 
 
 too general or indistinct, 398, note (h). 
 
 ADMINISTRATOR. See Executor. 
 
 ADMISSIONS, 
 
 by acceptance, 33, 300. 
 
 ADVICE, 
 
 payment of bill as per advice, 89. 
 
 AFFIDAVIT, 
 
 to hold to bail, 406. 
 
 of illegality of consideration, in order to set aside judgment, 143. 
 
 of absence of consideration, 410. 
 
 under Bill of Exchange Act, 407. 
 
 AFTERDUE BILL, 166—168, 364. 
 
 AGENT , 
 
 title of, 163. 
 
 who may be, 31. 
 
 may make a valid contract for his principal, though incompetent to bind 
 
 himself, 31. 
 distinction between a special and general agent, 31. 
 actual and ostensible, 31. 
 
 how appointed, so as to bind his principal on a negotiable instrument, 31. 
 whether a general authority to transact business confers such power, 33. 
 how a special authority to accept or indorse is to be construed, 33. 
 when authority will be implied, 33. 
 when to be required, 85. 
 procuration, 33. 
 
 authority to draw admitted by acceptance, 33. 
 authority to indorse, not, 33. 
 
 exceeding his authority, can in no case convey a title to bill overdue, 34. 
 when an agent will be personally liable on his signature, 36, 38. 
 
744 INDEX. 
 
 AQ^'NT— continued. 
 
 by drawing or accepting witliont authority, 37, 88, 
 
 how lie may avoid personal responsibility, 86, 38. 
 
 cannot delegate his authority, 36. ■ . /■ 
 
 cannot, when he exceeds his authority, convey a title by indorsement — 
 may by delivery, 34, 163. 
 
 guilty of a misdemeanor if he fraudulently negotiate or deposit bills, 40, 
 177. 
 
 transfer by agent in case of restrictive iudorsement, 157. 
 
 party taking acceptance from agent may require production of his author- 
 ity, 35. I 
 
 trover against transferee of agent, 34, 405. 
 
 whether in any case a holder is bound to acquiesce in acceptance by an 
 agent, 85. 
 
 how agent's authority determined, 36. 
 
 what notice should be given of revocation of agent's authority, 36. 
 
 liability of agent to his principal, 40. 
 
 an agent cannot be discharged by parol evidence, 37. 
 
 rights of agent against third parties, and liabilities to, 36, 38. 
 
 rights of principal against third persona, 40. 
 
 agent purchasinc: a bill for a foreign principal, 161. 
 
 when agent's fraud binds his principal, 123. 
 
 notice of illegality to an agent, 123. 
 
 AGREEMENT, 
 
 various sorts of. 98. 
 
 stamp on, 29, 110. 
 
 controlling operation of a' bill, 98. 
 
 contemporaneous, 98. 
 
 contemporaneous but collateral, 99. 
 
 subsequent, 99. 
 
 on a distinct piece of paper, 99; 
 
 must be read when on the note, 101. 
 
 oral, 100. 
 
 when a pnmisgory note or bill is evidence of an as;reement, 96. 
 
 agreement relating to bill or uote, when and between what parties it may 
 
 operate, 99, 370. 
 agreement delivered as an escrow, 100. 
 to renew, 101. 
 
 not necessary to aver it is in writing, 101. 
 to give time to principal discharges sureties, 340, 245, 246, 3481 
 not to sue, eflfect of, 348. 
 usurious, 307. 
 
 to accept, 188. , 
 
 effect of agreement between parties to a bill, 99, 370. 
 
 ALIEN, 
 
 contracts by his wife, 64. 
 
 ALIEN ENEMY, 
 
 a bill drawn by or in favour of, 67. 
 
 indorsed by, 67. 
 
 contract in favour of, void, 67. 
 
 ALLONGE, 
 what, 149. 
 
 ALTERATION OF A BILL OR NOTE, 
 effect of, at common law, 318. 
 under the stamp act, 820. 
 where an alteration will not vitiate, 320. 
 where the alteration is before bill issued, 331. 
 where to correct a mistake, 147, 323. 
 where it extinguishes the debt, 323. 
 
INDEX. 745 
 
 ALTERATION OF A BILL OR NOTE— continued. 
 renewal of altered bill, 323. 
 ■when it need not be pleaded, 323. 
 when it must be pleaded, 324. 
 requisites of plea, 834. 
 burthen of proof, 324. 
 intent of alteration a question of fact, 322. 
 
 effect of alteraltion and erasures appearing on the face of the bill, 324. 
 in red ink, 320, note (A). 
 
 ALTERNATIVE, g 
 
 where maker of note liable in the, v5, 
 where payee entitled in the, 95. 
 
 AMBIGUOUS INSTRUMENT, 90. 
 
 AMENDMENT, 
 at the trial, 431. 
 
 ANNUITY, 
 
 description of drafts and notes in the raemoria.1, 79, note («). 
 
 APPENDIX, 
 
 I. Former stamp laws, 461. 
 II. Notaries' fees of office, 472. 
 III. Statutes, 474. 
 
 APPROPRIATION OF PAYMENTS, 225, 350. See Payment. 
 rateable, 22.7. 
 
 ARREST, 
 
 on a bill or note, 406. 
 on a foreign bill, 401. 
 
 ASSIGNEE. See Bankruptcy. 
 
 ASSIGNMENT. See Indorsement and Delivery. 
 
 ASSUMPSIT. See Action. 
 
 ATTESTING WITNESS, 
 
 generally unnecessary now, 84, 426. 
 when he must have been called, 426. 
 what would excuse absence, 426. 
 
 ATTORNEY, 
 
 has a day to communicate notice of dishonour to his client, 283. 
 
 notice of dishonour to, not sufficient, 389. 
 
 wheii personally liable on a bill. See Agent. 
 
 infant or married woman, when they may be, 31. 
 
 the partner of an attorney has no implied authority to bind his co-partner 
 
 by bill or note, 45. 
 note in payment of an attorney's bill, 143, 382. 
 
 ATTORNEY, POWER OF, 
 
 in respect of bills, how construed, 33. 
 
 whether a holder is bound to take acceptance under, 35. 
 
 holder may require its production, 35. 
 
 ATTORNEY, WARRANT OF, 
 
 taking warrant of attorney not a satisfaction, 235. 
 when it discharges other parties, 250. 
 when a collateral security, 235, 351. 
 
 AU BESOIN. See Need. 
 
746 INDEX, 
 
 B. 
 BAIL, 
 
 affidavit to hold to bail on a bill or note, 406. 
 in error, when requisite, 418. 
 
 BALANCE OF ACCOUNT, 
 
 consideration for a note, 135, 234. 
 
 balance — fluctuating. See Fluctuating balance, 
 
 BANK HOLIDAYS, 181. And see Appendix. 
 presentment for acceptance, 181. \ 
 
 for payment, 206. 
 payment, 206, 332. 
 protest, 257. 
 notice of dishonour, 284. 
 
 BANKERS. See Chech. 
 
 branches of banks, 25. 
 
 what commission they may take on discounts, 311. 
 
 fraudulently negotiating or depositing bills, 40, 177. 
 
 on their bankruptcy, bills deposited with them do not pass to their assig- 
 nees, 454. 
 
 when they pass by reputed ownership, 453. 
 
 discounting bills, &c., under suspicious circumstances, 163. 
 
 obligation of, to pay customer's check, 18. 
 
 what may justify refusal, 19. 
 
 bound to know the handwriting of a customer, 334. 
 
 paying check or bill before due, 223. 
 . paying a forged, altered, or cancelled check, 230, 834. 
 
 when money paid on a forged bill may be recoverd back, 230, 334. 
 
 liable to loser, if they discount lost bill after notice of loss, 163, 373. 
 and acquire no right against other parties, 873. 
 
 presentment of notes at bank which has stopped payment, 203. 
 
 presentment of a bill payable at a banker's, must be within banking 
 hours, 208. 
 
 duty of bankers to make a memorandum on bills paid by them, 171, 339. 
 
 not responsible for genuineness of indorsement on check payable to 
 order, 37. 
 
 have a day to give notice to. customer of dishonour of his bill, 283. 
 
 how they should charge interest on checks, 306. 
 
 checks crossed with their name, 21. 
 
 joint stock banking company, 71. 
 
 lien on deposits, 173. 
 
 liability for same, 174. 
 
 no new banks of issue, 71. 
 
 money deposited with a banker is money lent, 428, note (m), 454. 
 
 banks of not more than ten partners, 71. 
 
 of more, 71. 
 
 BANKER'S CASH NOTES, 
 what, 10, 209. 
 when a legal tender, 10. 
 
 when money had and received will lie for them, 10. 
 under 5?. no longer issuable, 71. 
 
 when they will be payment, though they turn out bad, 159, 160, 224. 
 may now be taken in execution, 176. 
 stamp on, 106, 111, And see Appendix. 
 when they ought to be presented for payment, 303, 310. 
 effect of Statute of Limitations on, 343, note (d). 
 
 BANK NOTES, 
 
 what they are, 9, 310. 
 
 are considered as money, 9. 
 
 pass by a will bequeathing money, 9. • 
 
INDEX. til 
 
 BANK I'iOT'ES— continued. 
 
 may be the subject of a donatio mortis causa, 176. \ 
 
 may be taken in execution, 3, 9. 
 
 ■when a good tender, 10. 
 
 ■when money had and received will lie for them, 10. 
 
 cannot now be issued under 51., 71. See Appendix, 17 Geo. 3, c. 80, 
 
 and 7 Geo. 4, c. 6. 
 property accompanies possession of them, 163. 
 unless taken fraudulently, 163. 
 exempt from stamp duty, 111. 
 country bank notes. See Banker's Cash Notes. 
 presentment of, for payment, 210. 
 
 BANKING COMPANY. See Corporations and Companies. 
 
 BANKRUPTCY, 
 
 vesting of bankrupt's property in the trustee, 443. 
 
 former relation of the adjudication, 433. 
 
 present relation, 434. 
 
 protected transactions, 434. 
 
 notice of act of bankruptcy, 435. 
 
 what amounts to, 435. 
 
 bill to petitioning creditor, 436. 
 
 in what cases the holder may prove, 436. 
 
 proof of bill or note payable on demand, 436. 
 
 bills not due, 436. 
 
 bills payable after notice, 437. 
 
 lost bill, 438. 
 
 irregular bill, 438. 
 
 whether bill can be proved against a man not party to it, 437. 
 
 proof on accommodation transactions, 440 — 447. 
 
 proof by surety, 437. 
 
 when there has been specific exchange of securities, .440. 
 
 what amounts to a specific exchange, 441. 
 
 party to mutual specific exchange of paper must pay his own paper before 
 he can prove, 441. 
 
 mutual accommodation without specific exchange, 441. 
 
 after holder has proved, no further proof, 443. 
 
 cases' of mutual accommodation, 443. 
 
 where there has been a general exchange, 443. 
 
 proof by indorsee of accommodation bill, 447. 
 
 proof of interest, 447. 
 
 of expenses, re-exchange, &c., 447. 
 
 holder cannot prove and sue for same demand, 439. 
 
 but may prove against one party and sue another, 439; 
 and may prove for one demand and sue for another, 439. 
 
 in case of several adjudications, under which and for how much holder 
 may prove, 447. 
 
 bankruptcy in more than one country, 448. 
 
 where a creditor proves and holds bills or notes that are afterwards 
 paid, 449. 
 
 proof against joint or separate estate, 448. 
 
 where creditor holds a bill as security, 449. 
 
 proof of notes or acceptances bought up, 449. 
 
 acts of bankruptcy in respect of bills, 449. 
 
 when a bill is a good petitioning creditor's debt, 450. 
 
 substitution of other petitioning creditor's debt, 434, note (d). 
 
 date of bill, 451. 
 
 what transactions, in respect of bills, will constitute a trading within the 
 bankrupt laws, 4'52. 
 
 when a bill may be set off . See Set-off and Mutual Credit. 
 
 whether bills in the hands of a banker, &c., who fails, pass to his assig- 
 nees, 454. 
 
748 
 
 INDEX. 
 
 BA.'NKRVFTCY— continued. 
 
 whether bills may be the subject of reputed ownership, 453. 
 
 bill ov note for debt barred by certificate, 458. 
 
 after bankruptcy who should transfer, 173, 457. 
 
 where bankrupt is a trustee, 457. 
 
 la what cases transfer by a bankrupt will be payment, 457. 
 
 transfer to a bankrupt, 458. 
 
 fraudulent preference, 458. ^ 
 
 voluntary transfer, 459. 
 
 dormant partner, 453. 
 
 deposited securities, 456. 
 
 BANKRUPT ACT. See Appendix. 
 
 BARON AND FEME. See Married Woman. 
 
 BASTARD, 
 
 note given to indemnify a parish from, illegal, 136. 
 
 BEARER, 
 
 bill or note payable to, transferable, 1, 83, 162. 
 
 BEGINNING, 
 
 right of, at the trial, 434. 
 
 BELLMAN, 
 
 delivery of letter to, insufficient, 377. 
 
 BETTER SECURITY, 
 •protest for, 358. 
 
 BILL BROKER, 
 
 how he may raise money on bills, 35. 
 
 BILLS Op exchange, 
 
 history of. See Preface. 
 
 what, 1. 
 
 peculiar qualities of, 3. 
 
 not subjects of larceny at common law, 3. 
 
 are so by stat., 177. 
 
 are assignable, 3. 
 
 inland and foreign, 391. 
 
 sets and copies of, 387. 
 
 consideration presuuied until contrary appears, 3. 
 
 etfect of drawing or indorsing of, 3. 
 
 accepting, effect of, 3. 
 
 how far considered goods and chattels, 3, 
 
 may be taken in execution, 3, 176. 
 
 or under an extent, 4, 177. 
 might formerly operate as wills or testamentary instruments, 4. 
 may in some cases be a declaration of trust, 4. 
 on what to be written, 76. 
 in what language, 76. 
 may be written in pencil, 76. 
 signature, 77. 
 
 superscription of place where written, 77. 
 date, 77. 
 
 superscription of sum payable, 79. 
 time of payment, 79. 
 request to pay, 80. 
 description of payee, 80. 
 bills under '30s., 84. 
 
 under 51., 84. 
 when it can be the subject of a donatio mortis causa, 175. 
 capacity of contracting parties to, 30 — 75. ' 
 
 when considered as sold, 158, 385. 
 no one liable on, unless his name appears, 37. 
 
INDEX. 749 
 
 BILLS OF EXCHANGE— coniinuet?. 
 " value received," of the words, 85. 
 diieotion lo drawee, 87. 
 request to pay, 80. 
 
 the words " order" or " bearer," 83. 
 direction to place to account, 89. 
 words " as per advice," &c., 89. 
 place where made payable, 88. 
 by co-partnerships or corporations, 70 — 75. 
 by persons in official situations, 74. 
 
 given to them, 74. 
 must be for payment of a certain sum, 93. 
 
 and for money in specie, 92. 
 not out of a particular fund, 96. 
 must not be drawn on a contingency, 93. 
 stamp in such cases, 96, 106. 
 operation of agreements respecting, 98 — 101. 
 formal parts of, 76—89. 
 ambiguous, conditional, or irregular, 90 — 97. 
 irregular bill may be treated as agreement, 96. 
 stamps on, 103 — 116. 
 consideration of, 118 — 144. 
 transfer of, 146—178. 
 presentment for acceptance, 179 — 183. 
 acceptance, 185 — 200. 
 presentment for payment, 303 — 317. 
 payment of, 218—230. 
 
 satisfaction, extinguishment and suspension of right of action, 233 — 337. 
 release of, 238—340. 
 release by parol, 137. 
 
 principal and surety in relation to, 341 — 355. 
 protest of, and noting, 356 — 261. 
 acceptance, supra protest, 262 — 266. ' 
 payment, supra protest, 367 — 369. 
 notice of dishonour, 371—303. 
 interest on, 303—317. 
 alteration of, 318—325. 
 forgery of, 326—336. 
 Statute of Limitations as to, 337 — 359. 
 set-off and mutual credit, 360—371. 
 lost bill or note, 373—379. 
 bill when a payment, 380—386. 
 sets and copies of bill, 387—390. 
 foreign bills and law, 391—393. 
 remedy by action on, 403 — 414. 
 conveys no lien, 413. 
 pleading and evidence, 415 — 431. 
 bankruptcy of parties to bill or note, 433. 
 
 BILLS OF EXCHANGE ACT, 406. 
 
 BILLS OF LADING, 
 
 assignability of, 2, note (e). 
 
 BLANK, 
 
 indorsement in, 148, 162. 
 indorsement on blank paper, 164. 
 acceptance in, 188. 
 
 BLANK INDORSEMENT. See Indorsement. 
 
 BLIND MAN, 
 
 note by, 63, note (ra). "^ 
 
750 INDEX. 
 
 BONA FIDE HOLDER FOR VALUE, 
 meaning of, 130. 
 
 BONA NOTABILIA, 
 bills are, 64. 
 
 BOVILL'S ACT, 45, note (h). 
 
 And see Appendw, 28 & 39 Vict. e. 86. 
 
 BRANCH BANKS, 
 
 how far considered distinct, 35. 
 notice of dishonour through, 284. 
 
 BURTHEN OF PROOF, 
 
 in case of alleged holder without value, 133. 
 
 in caseof holder with alleged notice of illegality or fraud, 123. 
 
 as to time of indorsement, 170. 
 
 as to notice of dishonour, 383, 395, notes (c) and (d), 
 
 as to alteration of bill, 323. 
 
 as to law of foreign country, 400. 
 
 in cases of undue influence, 61. 
 
 C. 
 
 CANCELLING, 
 
 when an acceptance may be cancelled, 195. 
 
 an indorsement, 153. 
 
 payment of cancelled check, 330. 
 
 CAPIAS AD SATISFACIENDUM, 
 "former effect of, 235. 
 of discharge under, 335. 
 imprisonment for debt now abolished, 406. 
 
 CERTIFICATE IN BANKRUPTCT, 
 effect of, 458. 
 
 CHATTELS, 
 
 to what purpose bills and notes are, 3. 
 
 CHECKS, 
 
 what, 13, 309. 
 
 within Bills of Exchange Act, 36. 
 
 formerly not liable to stamp duties, 14, 17. 
 
 except when circulated more than fifteen miles from place of pay 
 ment, 14. 
 requisites to bring them within the exemption, 15. 
 now all liable to penny stamp, 16, 17. 
 consequences of drawing check on unstamped paper, 17. 
 
 penalty on drawer, 17. 
 post-dating, 17. 
 
 alteration of law by recent statutes, 16, 17. 
 amount for which check may be drawn, 17. 
 obligation of banker to pay, 18. 
 action against banker for not paying, 18, 19. 
 
 what will justify him in not paying, 19. 
 should be presented the day after it is issued, 19. 
 general rule as to presentment of, 19. 
 between holder and drawer, 20, and note ((?). 
 between holder and his own banker, 20. 
 where parties do not live in same place, 20. 
 between holder and transferor who is not the drawer, 31. 
 what amounts to an engagement by drawee to pay check, 31. 
 transfer of, 18, 168. 
 check may be indorsed, 18. 
 crossed checks, 31. 
 statute as to, 32. 
 
INDEX. 751 
 
 CHECKS— continued. 
 
 what a check is evidence of, 23, 439. 
 
 when check evidence of payment, 24. 
 
 when it amounts to payment, 24. 
 
 crossed cheque, when payment, 24, note (s), 383, note (u). 
 
 when it may be taken in payment, 24. 
 
 holdei' of, whether assignee of a chose in action, 24. 
 
 drawer's death, eflfect of, 25, 175. 
 
 fraud in filling up checks, 25. 
 
 when several must join in drawing, 26. 
 
 period at which banks should debit customers with, 26. 
 
 are not protestable, 26. 
 
 might formerly be referred to master to compute, 26. 
 
 cannot be the subject of a donatio mortis causa, 176. 
 
 right to cash a check, 26. 
 
 overdue check, 26; 168. 
 
 if banker pays check before due, or long after it is drawn, to wrongful 
 
 owner, it is his own loss, 168, 220. 
 if lost, action will not lie upon it at common law, 375. 
 
 unless not negotiable, 376. 
 venue in action on, 408. 
 may be taken in execution, 26. 
 check drawn payable to order, 27. 
 payment by banker on forged, 27. 
 
 CHRISTMAS-DAY, 
 
 considered for all purposes as Sunday, 7 <& 8 Geo. 4, c. 15, 206, 284. 
 See Appendix. 
 
 CHURCHWARDEN, 
 
 note given by or to, 74. 
 
 CIRCULAR NOTES, 96, 97. 
 
 COHABITATION, 
 
 past illicit, a consideration not illegal, but insufficient to support a note, 
 
 134. 
 future, an illegal consideration, 134. 
 
 COLLATERAL SECURITY, 100, 250, 381. 
 effect of agreement as to, 426. 
 
 COMMISSION, 
 
 for discounting or remitting bill, what amount might have been taken, 
 
 309. 
 wbat would have been usurious, 309, 310. 
 
 COMMISSION OP BANKRUPTCY. See SanJcruptcy. 
 
 COMMON COUNTS. See Money Counts. 
 
 COMPANIES. See Corporations and Companies. 
 
 COMPOSITION WITH CREDITORS, 
 
 note secretly given to one creditor in preference to others, void, 133. 
 
 though given by a third person, 133. 
 any secret additional security void, though for the same sum, 133, 141. 
 compoimding creditor cannot split his demand, 133. 
 when he must refund money paid on bills which he retains, 133. 
 composition entered into by holder with acceptor discharges other parties, 
 250. 
 
 COMPROMISE OP A CLAIM, 126. 
 
752 INDEX. 
 
 CONDITION, 
 
 bill or note cannot be made payable on, 03, 96. 
 parol evidence of a conditional delivei7, 101. 
 conditional indorsement, 153. 
 conditional acceptance, 193. 
 
 CONFLICT OF LAWS, 394. 
 
 CONSIDERATION, 
 presumed, 3, 118. 
 whether a transferee, in consideration of pre-existing debt, is considered 
 
 a holder for value without fresh considerations, 39, 134. 
 executory, in an action by a corporation, 69. 
 when it must be proved, 118. 
 effect of new rules of pleading, 130. 
 gift of a bill or note, 133. 
 nature of the consideration, 134. 
 pre-existing debt, 39, 134. 
 fluctuating balance, 135. 
 debt of third person, 125. 
 judgment debt, 126. 
 
 where more than one consideration comes in question, 137. 
 failure of consideration, 128. 
 notice of its absence, 128. 
 notice to prove not necessary, 118, note (d). 
 as between what parties its absence is a defence, 120, 244. 
 its'partial failure, 139. 
 fraudulent considerations, 131. 
 illegal, 134—143. 
 notice of illegality, 123, 143. 
 notice to an agent, 133. 
 immoral, 134. 
 
 in contravention of public policy, 135. 
 usurious, 137. Bee Usury. 
 gaming, 137. 
 horse-racing, 138. 
 
 good in hands of innocent indorsee, 138, 139. 
 new security, 139. 
 stock-jobbing, 139. 
 sale of an office, 141. 
 
 stipulation with sheriff for ease and favor, 141. 
 signing bankrupt's certificate, 141. 
 sale of'spirituous liquors, 142. 
 attorney's bill not delivered, 143. 
 part Illegal, 143. 
 
 when can be taken advantage of after judgment by default, 143. • 
 when the Court will stay proceedings on affidavit of absence of considera 
 
 tion, 413. 
 renewed bill given on illegal consideration, when void, 148. 
 transferor by delivery only not In general liable on the, 158. 
 
 CONSOLIDATING ACTIONS, 
 on bills or notes, 409. 
 
 CONSTRUCTION, 
 
 ,of written instruments, 375, note, 
 
 CONTINGENCY. See Condition. 
 
 CONTRACT, 
 
 distinction between contracts under seal and not under seal, 2. 
 bill or note does not suspend a contract under seal, 383. 
 contrary to public morals, 134, 396. 
 
INDEX. 753 
 
 CONTRIBUTION, 
 
 between sureties, 254. 
 between parties jointly liable, 8. 
 
 CONVICTED FELONS, 
 
 when cannot acquire title to bill, 67. 
 
 CO-PAETNBR OR CO-PLAINTIFF, 
 bound by acts of his companion, 46. 
 
 COPIES OF BILLS, 387. 
 
 CO-PLAINTIFFS, 
 
 bound by misconduct of each other, 46. 
 
 COPY, 
 
 of notice of dishonour; admissible evidence, without notice to produce, 
 
 378. 
 of protest need not accompany notice of dishonour, 359, 377. 
 
 CORPORATIONS AND COMPANIES, 
 
 corporations can, in general, contract only by writing under their common 
 
 seal, 68. 
 exceptions to the rule, 69. 
 
 must have special authority to draw, endorse or accept bills, 68. 
 corporation carrying on public works, 69. 
 form of action, 69. 
 effect of bank acts, 69. 
 do not apply to commercial firms, 70. 
 relaxed by the 7 Geo. 4, c. 46 . . 70. 
 privileges of the Bank of England, 70, 71. 
 members of joint-stock banking companies may sue the company and be 
 
 sued by it, 73. 
 liability of directors on bills and notes, 73. 
 companies completely registered, 73. 
 deed is notice, 73. 
 
 COSTS, 
 
 of actions brought against party suing, 405. 
 
 when, on payment of debt and costs, court will stay proceedings, 410. 
 
 what costs must be paid, 410. 
 
 proceedings for costs, 404. 
 
 COUNTRY BANK NOTES, 10. See Bankers' Cash NoUa. 
 
 COUPONS, 96. 
 
 COVENANT, 
 
 not to sue, 239, 247. 
 
 not to sue within a limited tinie, 340, 347. 
 
 CREDITOR, 
 
 taking bills of third person, consequence of, 383. 
 
 agent of, taking debtor's bill, 883. 
 
 if bill dishonoured, what he must prove, 384. 
 
 CROSS BILLS AND ACCEPTANCES, 
 
 when mutually considerations for each other, 134. 
 proof in bankruptcy on, 440—446. 
 
 CROSSED CHECK, 31. 
 
 payment by a, when good, 34, note (s), 383, note («). 
 
 CROWN, 
 
 cannot be guilty of laches, 315, 301. 
 
 48 
 
754 INDEX. 
 
 D. 
 
 DAMAGES, 
 
 •what recoverable, 410, 412. 
 in trover, 406. 
 
 DATE, 
 
 not,- in general, essential, 77. 
 
 printed dates formerly illegal, 78. 
 
 post-dating a bill, so as to evade a higher duty, 78. 
 
 post-dating check, 17. 
 
 ^ates of. bills under 51., 84. 
 
 alteration of, 319. 
 
 statement of, in declaration, '77. 
 
 ■when interest runs from, 304. 
 
 evidence of, 77, 451. 
 
 DATS, 
 
 how computed, 304. 
 
 DATS OP GRACE, 
 
 how many allowed in foreign countries, 205. 
 
 in this country, 306. ' 
 
 Sundays and holidays, how reckoned, 306. 
 presentment befoie expiration of, 207. 
 on what instruments allowed, 207. 
 on notes payable by instalments, 7. 
 
 DEATH, 
 
 indorsement to a dead man, 54. 
 
 who is to indorse after, 54, 173. 
 
 of drawer of check, 35, 175. 
 
 donatio mortis causa, 174. 
 
 presentment for acceptance on death of drawee, 188. 
 
 notice of dishonour not dispensed with by death of drawee, 898. 
 
 pi-esentment for payment on drawee's death, 203. 
 
 DEBT, 
 
 a pre-existing, is a consideration, 39, 124. 
 imprisonment for, abolished, 406. 
 
 DEED, 
 
 of company completely registered, evidence, 73. 
 
 taken as security, how far it is an extinguishment of liability on a bill, 
 336. 
 
 DE INJURIA, 
 
 replication superseded, 434. 
 
 DELIVERT, 
 
 by executor after indorser's death, 57, 173. 
 
 necessary to perfect indorsement, 150. 
 
 to perfect acceptance, 150, 195. 
 
 transfer by, 158. 
 
 liability of party transferring by delivery without indorsement, 158—163. 
 
 rights of transferee by delivery, 163, 340. 
 
 warrants, genuineness of signature, 161. 
 
 unauthorized, 34. 
 
 as an escrow, 100. 
 
 DEMAND, 
 
 particulars of, 409. 
 
 DEMAND, BILL OR NOTE PATABLE ON, 
 what, 208. 
 
 where no time of payment is specified, bill or note is payable on demand, 
 79, 210. 
 
INDEX. 755 
 
 DEMAND, BILL OR NOTE PAYABLE O'S— continued. 
 
 actual demand not necessary to charge acceptor or maker, 204, 315, 436. 
 
 from what time the Statute of Limitations runs on, 843. 
 
 presentment of, 207. 
 
 proof in bankruptcy of bill on demand, 436. 
 
 when considered overdue, 168, 307. 
 
 DEMAND OF ACCEPTANCE. See Presentment for Acceptance. 
 
 DEMAND OP PAYMENT. See Presentment for Payment. 
 
 DEPOSIT, 
 
 by bill broker, 85. 
 
 fraudulent, by agent, 40. 
 
 by restricted indorsee, 156, 157. 
 
 DEPOSITED SECURITIES, 
 
 with acceptor, holder's right to, 456. 
 
 with third persons, 456. 
 
 to a guarantee, 457. 
 
 with a bunker, hig lien on, 174. 
 
 his responsibility for safe custody, 174. 
 
 DESTRUCTION. See Zoss. 
 
 DETINUE, ACTION OF, 
 for a bill, 405. 
 
 DIRECTION, 
 to drawee, 87. 
 
 where the word at precedes, 87. 
 of a letter containing notice of dishonour, 377. 
 
 DIRECTORS, 
 
 drawing or accepting bills, 71. 
 
 DISCHARGE, 
 
 by giving time. See Principal and Surety. 
 
 before breach of contract, 232. 
 
 what conduct of the holder towards the surety dischai'ges the priucipal, 353. 
 
 by bankruptcy, 433—460, 458. 
 
 DISCOUNT, 
 
 usury on, 809. 
 
 of a man's own acceptances, whether usury, 809, 
 
 commission for, 311. 
 
 by advancing goods, 313. 
 
 by banker, who becomes bankrupt, 455. 
 
 by giving other bills in exchange, 314. 
 
 under suspicious circumstances, 163, 373. 
 
 of bills at very long, dates, 310. 
 
 usurious. See Usury. 
 
 DISCOVERY, BILL OF, 
 
 In aid of action or defence on bill, 413. 
 on an I O U, 29. 
 
 DISHONOUR, 
 
 by lion-acceptance. See Presentment for Acceptance. 
 by non-payment. See Presentment for Payment, 
 notice of. See Notice of Dishonour. 
 
 DISTRESS, 
 
 right of, not suspended by bill or note, 382. 
 
 DIVIDEND WARRANTS, 163, note (/). 
 
756 INDEX. 
 
 DONATIO MORTIS CAUSA, 174. 
 bond may be, 175. 
 
 or bank note, 175. 
 as to check, 25, 175. 
 bill or note of hand, 175. 
 inclination of the Courts with respect to, 176. 
 
 . -DORMANT PARTNER, 45, 49, 453. And see Partner. 
 
 DRAWEE, 
 
 who he is, 1. 
 direction to, 87. 
 
 DRAWER, 
 
 who he is, 1. ' 
 
 his signatnre, 87. 
 
 how he should make a bill payable at a partieu-lar place, 88, 213. 
 
 DRAWING BILL, 
 
 effect of, 3, 147, 150. 
 
 DRUNKENNESS, 
 partial or total, 63. 
 note made in state of, 63. 
 must be specially pleaded, 63. 
 ratification, 68. 
 
 DURESS, 
 
 makes proof of censideration necessary^ 118, 
 
 E. 
 EARNEST, 
 
 bill or note is, 386. 
 
 EAST INDIA BONDS, 164, 
 
 EFFECTS, 
 
 whether want of, in the drawee's hands, prevents the drawer from being 
 
 discharged by indulgence shown to the drawee, 216, 244. 
 want of, excuses protest, 260. 
 
 and notice of dishonour, 293. 
 will not avail as an excuse in an action against indorser, 294. 
 
 nor as an exctise in an action against the drawer, where there is 
 reasonable ground to expect payment, 295. 
 whether against' an acceptor without effects a party paying supra protest 
 
 has any remedy, 268. 
 acceptor is a competent witness to prove absence of effects in his hands, 
 425, 
 
 ELECTION, 
 
 to prove or s»e. See Bankruptey. 
 to treat fraud as fraud, 181. 
 
 EMBEZZLEMENT OF BILLS, 
 is felony, 177. 
 
 ENTRIES, 
 
 by deceased persons on the bill, 431. 
 
 EQUITIES ON INSTRUMENTS, 
 
 overdue bills and notes, 166, and note (s). 
 
 accommodation bills, 167. 
 
 on securities of incorporated companies, 68, and note (i). 
 
INDEX. 757 
 
 EQUITY, COURT OF, 
 
 when it will restniia the negotiation of a bill, or order it .to be delivered 
 
 up to be cancelled, 169, 178. 
 jurisdiction in case of lost or destroyed bills, 377. 
 when, will restrain action on bill, 413. 
 bill of discovery in, in aid of defence, &c., 29, 413. 
 
 ESCROW, 
 
 delivery as, 100. 
 
 ESTOPPEL, 
 
 pleading, 424. 
 on a married woman, 64. 
 on an infant, 61. 
 by acceptance, 200, 434. 
 
 doctrine of, its applicability to negotiable instruments signed in blank, 
 187, note (,y). 
 
 EVIDENCE, 
 
 right to begin, 424, 
 
 splitting plaintiff's case, 425. 
 
 where bill or note payable at a particular place, 212, 213. 
 
 competency of parties to the instrument as witnesses in actions between 
 
 otlier parties, 42S. 
 . declarations at the time of making the instrument, 435. 
 declarations of former holders, 423. 
 effect of admissions on record, 426'. 
 proof of signature or mark, 437. 
 collateral security, 426. 
 identity of defendant, 426. 
 evidence of consideration, 119. 
 production of bill, when necessary, 437. 
 proof of name, 438. 
 
 efi'ect of admission under judge's order, 438. 
 proof of signature by agent, 438. 
 bill or note evidence under the common counts, 428. 
 proof in various actions, 439. ' 
 
 payee v. maker or acceptor, 429. 
 indorsee e. maker or acceptor, 430. 
 indorsee b. indorser, 430. 
 receipt, 480. 
 
 statements by deceased persons, 431. 
 amendment at trial, 431. ' 
 
 of date of bill, 77, 451. 
 to save the Statute of Limitations, 356. 
 ,of notice of dishonour, 378, 399, 300. 
 unstamped bill, 114, 438. 
 
 See other points under the different heads to which they relate. 
 
 EXCHANGE, 
 
 where foreign bill must be paid according to the course of exchange when 
 
 drawn, 80. 
 of bill for other bill, 159, 236, 385. 
 of acceptances, proof of, in case of bankruptcy, 440. 
 expenses of re-exchange, 411. 
 See Be-exehange. 
 
 EXCHEQUER BILLS, 
 
 when wrongful transfer of, will pass property, 164, 178. 
 bankers' lien on, 173, 174. 
 
 EXECUTION, 
 
 bank notes, bills of exchange, promissory notes and checks can be taken 
 
 in, 3, 4, 26, 176. 
 effect of waiving execution against the person, 235, 349. 
 
.758 INDEX. 
 
 EXECUTION— corefemwec?. 
 against the goods, 236. 
 
 where the Court will restrain execution, 404. 
 when execution is a satisfaction, 235, 249, 404. 
 discharge from, 335. 
 
 EXECUTORS AND ADMINISTRATOR&, 
 rights and liabilities of, 53. 
 implied and bound without being named, 53. 
 effect of indorsement to a dead man, 54. 
 indorsement by executor, 54, 57, 173. 
 indorsement by one of several co-executors, 57. 
 presentment by and notice to, 54. 
 effect of probate, 54. 
 bills and notes, bona noiabilia, 54. 
 appointment of debtor to be executor a release, 54. 
 debt in his bands is assets, 56. 
 debtor becoming administrator, 56, 237. 
 where executors may sue as such, 56. 
 delivery by executor after in dorser's death, 57, 173. 
 joinder of common counts, 57. 
 when executor personally liable, 57. 
 acknowledgment by. See Statute of Limitations. 
 receiving share of profits, 45, note (Ji). 
 
 EXPENSES, 
 
 of special messenger, to give notice of dishonour when recoverable, 379. 
 
 of noting, 259. 
 
 of postages, telegraphing, &c., 412, 447. 
 
 proof of, in bankruptcy, 447. 
 
 EXTENT, 
 
 bills and notes may be seized under, 4, 177. 
 
 presentment excused by, 215. 
 
 where bill is taken under, notice of dishonour is not necessary, 301. 
 
 EXTINGUISHMENT, 
 
 of right of action on a bill, 235. 
 warrant of attorney is not, 235. 
 
 P. 
 TACT, 
 
 mistake of. See Mistake,, 
 
 FACTOR, 
 
 how far he can convey a title by pledging bills, 35. 
 misdemeanor, if he pledge beyond the extent of bis lien, 40, 178. 
 
 EAST-DAY. See 'Holiday. 
 
 FATHER OR SON, 
 
 of the same name, bill payable to, 81. 
 
 FELON CONVICT, 
 
 acquires no title to bill by indorsement, 67 
 
 FELONY, 
 
 embezzlement of bills or notes is, 177. 
 
 FEME COVERT. &e6 Married Woman. 
 
 FIAT. See. 
 
 FICTITIOUS NAME, 
 forging, 338. 
 fictitious payee, 83, 200. 
 
INBBX. 759 
 
 FLUCTUATING BALANCE, 
 a consideration, 1S5. 
 burden of proof, 135, note (m). 
 
 ]f OREISN BILLS, 
 wliat, 391. 
 
 sets of bills, 387—390. 
 presumption of bills being inland, 393. 
 stamp on inland bill purporting to be foreign one, 107, 392. 
 acceptance of, 397. 
 protest. See Protest. 
 conflict of laws relating to, 394. 
 elements in the question, 395. 
 discrepancy of foreign writers, 895. 
 general English principles, 395. 
 where lex loci contractus goyerns, 396, 397. 
 foreign acceptance, 397. 
 foreign indorsement, 397. 
 foreign discharge, 397. 
 ■where lex loci solutionis governs, 396, 398. 
 foreign indorsement of English note, 398. 
 time of pa3'ment, 398. 
 protest and notice of dishonour, 398, 403. 
 acceptance at a particular place, 399. 
 general acceptance, 399. ' 
 rale of interest, 399. 
 
 revenue laws of other countries disregarded, 400. 
 immoral, illegal, and injurious contracts willi respect to, 390, 399. 
 stamps on, 400. 
 
 on colonial bills, 400. ' 
 
 application of lex fori, 401. 
 Statutes of Limitations as to, 401. 
 burthen of proof, 403. 
 arrest on, 401. 
 pleading foreign law, 402. 
 transfer of, 163, 173, 397, 398. 
 forgery of, 332. 
 
 FOREIGN LAWS, 
 conflict of laws, 394. 
 general rules on this subject, 396. 
 foreign revenue laws, 39, 400. 
 pleading, 403. 
 burthen of proof, 403. 
 
 FOREIGN PRINCIPAL, 161. 
 
 FORGERY, 
 
 what it is, 836. 
 
 incapable of ratification, 300. 
 
 estoppel, 200. 
 
 when acceptor precluded from setting it up, 200. See Acceptance. 
 
 forgery of indorsement, where indorsement is essential, conveys no 
 
 title, 332. 
 statutes, 336, 337, 332. 
 of void or informal bills, 327. 
 by misapplication of a genuine signature, 837. 
 by party signing, 338. 
 
 by filling up. a blank acceptance for more than an authority justifies, 338. 
 by signature of fictitious name, 388. 
 by fraudulent signature of a man's own name, 339. 
 personating the party signing, 339. 
 misrepresentation of authority, 330. 
 by alteration, 330. 
 
760 INDEX. 
 
 FOUQE^Y—eoniinued. 
 uttering, 330. 
 procuring to utter, 331. 
 of foreign bills, 332. 
 form of indictment, 331. 
 
 ■wliere several malie distinct parts of tbe instrument, 331. 
 evidence, 332. 
 civil consequences of, 332. 
 payment of a forged bill, 333. 
 
 ■when money paid on forged bill may be recovered back, 333. ' 
 inspection of forged bill, 336. 
 
 of indorsement of check payable to order, payment by banker pro- 
 tected, 27. 
 
 FORM OP BILLS OR NOTES, 76—89. 
 
 FRAUD, 
 
 defined, 130. 
 
 in filling up check, 25. 
 
 fraudulent transfer, 163. 
 
 fraudulent considerations, 130 — 134. 
 
 election to repudiate the contract for fraud, 131. 
 
 ■when a party -who has been defrauded is bound, 61, 62, 131, 133. 
 
 on defendant, entitles him to dispute consideration, 118, 120. 
 
 by one partner on another, 45 — 48. 
 
 of agent binds principal, 133. 
 
 equity -will relieve in case of, 169. 
 
 FRAUDULENT PREFERENCE, 247, 459. 
 
 FRIENDLY SOCIETY, 
 note to, 75. 
 note by. See Appendix I., 470. 
 
 FRIVOLOUS PLEAS, 
 ■will be set aside, 410. 
 
 FUND. 
 
 bill or note must not be payable out of a particular fund, 96. 
 
 G. 
 
 GAMING CONSIDERATION, 137. 
 GAMING CONTRACTS VOID, 137. 
 
 GIFT, 
 
 of bill, &c., inter DiDos, ■whether valid, 123. 
 as a donatio mortis causa, 175. 
 
 GIVING TIME. See Principal and Surety. 
 
 GOLDSMITHS' NOTES, 10. 
 
 GOOD FRIDAY. See Christmas Bay and Holiday. 
 
 GOVERNMENT CHECKS, 
 at what hour payable, 19. 
 
 GRACE. See Days of Grace. 
 
 GUARANTEE, 
 
 ■when presentment is requisite to charge gnarantor, 203. 
 
 notice of dishonour, 291. 
 
 second acceptance may be a guarantee, 19.5. 
 
 second maker of a note may be liable as guarantor, 95. 
 
 distinction between it and a promissory note, 8, 11. 
 
 given to acceptor, 457. 
 
INDEX. 761 
 
 H. 
 
 HALF-NOTES, 
 loss of, 377. 
 
 HOLDER, 
 ■who is, 3. 
 
 HOLIDAYS, 
 
 Sundays, Christmas Day, Good Friday, a public fast or thanksgiving day, 
 
 treated for all purposes alike, 206, 284. 
 festival of other religions, 284. 
 hill payable on, falls due the day preceding, 206. 
 bank holidays, 182, 206, 222, 256, 284. 
 
 HONOUR, 
 
 acceptance for, 262. 
 
 payment for, 267. 
 
 safest mode of taking up a bill to protect the credit of another, 268. 
 
 HORSE-RACING, 
 
 where a bet is valid, 138. 
 where bill for bet void, 138. 
 
 HOUR, 
 
 at virhat hour presentment should be made, 19, 181. 
 
 HUSBAND AND WIFE. See Marrud Woman. 
 
 I. 
 IDENTITY, 
 
 of defendant, evidence of, 42<3. 
 of name, 80, 81. 
 
 IDIOT, 
 
 bill or note by, 62. 
 
 ILLEGAL CONSIDERATIONS AND CONTRACTS, 134—143. 
 partly illegal, 143. 
 
 ILLNESS, 
 
 whether it excuses presentment for acceptance, 182. 
 notice of dishonour, 298. 
 
 IMBECILITY OF MIND. See Lunatic. 
 
 IMMORAL CONSIDERATIONS AND CONTRACTS, 134, 396, 899. 
 
 IMPRISONMENT FOR DEBT, 
 act for abolition of, 406. 
 
 INDEMNITY, 
 
 against a lost bill, 379. 
 
 in bankruptcy, 437. 
 
 where it is a defence to an action, 371. 
 
 surety's right to, 253. 
 
 promise to indemnify need not be in writing, 254. 
 
 effect of not giving, 379, note (re). 
 
 INDICTMENT. See Larceny and Forgery. 
 
 INDORSEMENT, 
 what, 1. 
 
 general effect of, 3. 
 
 ingredients of the contract, 100, note (m), 151, 152. 
 warrants genuineness of prior endorsements, 152, 220, note (i). 
 unauthorized, 34. 
 
 after dissolution of partnership, 52. 
 what bills transferable by, 146. 
 
762 • INDEX. 
 
 INDORSEMENT— florefenMed. 
 
 bills payable to order transferable only by indorsement, 1, 147. 
 
 effect of indorsement of bill not negotiable, 146. 
 
 of note, 147. 
 
 subsequent insertion of words creating negotiability, 147, 310, note (n). 
 
 blank, 148. 
 
 special, 148. 
 
 by plurality of holders, 149. 
 
 ■where an indorsee is trustee, 155. 
 
 restrictive indorsements, 156. 
 
 delivery essential to complete indorsement, 150. 
 
 after blank indorsement, bill payable to beai'er, 148, 163. 
 
 and as many may then sue jointly on the bill as can agree to do so, 148, 
 
 indorsee may convert blank into special indorsement, 149, 153. 
 
 liability of indorser, 150. 
 
 how avoided, 151. 
 
 party trangferring by delivery only, how liable, 158. 
 
 ■when the bill is to be considpred as sold, 158, 385. 
 
 conditional indorsement, 153. 
 
 ■what indorsement admits, 153, 320, note (e). 
 
 rights of indorsee, 154. 
 
 eff ct of re-indorsing a bill to a previous indorser, 154. 
 
 distinction as to the right acquired by transferee ■where the bill is or is 
 
 not transferable by delivery, 163. 
 right of transferee to compel indorsement, 154. 
 
 cannot sign his transferor's name, 154. 
 ■where indorser is a trustee, 155. 
 rights of transferee by delivery, 163. 
 negligence in transferee, 162, 163. 
 
 transfer for part of the sum due on the instrument, 171. 
 consequence of indorsing before bill or note is made, 164. 
 may be either before or after acceptance, 165. 
 may be either on the face or back of the bill, 148, 149. 
 on separate paper, 149. 
 misspelt indorsement, 149. 
 
 after refusal to accept, where indorsee knew of the dishonour, 165. 
 where indorsee did not know, 155. 
 effect of indorsing an overdue bill or check, 166, 168. 
 bill or note cannot be negotiated after payment at maturity by acceptor or 
 maker, 169, 170, note (aj). 
 
 except notes re- issuable by the Stamp Act, 169. 
 presumption as to time of indorsement, 169. 
 when may be negotiated after payment by drawer, 170, note (a), 
 jurisdiction of a Court of Equity in restraining negotiation, 178. 
 striking out indorsements, 153. 
 
 omission of intermediateindorsements in declaration, 153. 
 when it is doubtful whether bill were paid or transferred, 171. 
 after release, 172, 238. 
 after action brought, 173. 
 
 genuineness of, not admitted by acceptance, 33, 200. 
 foreign indorsement on English note, 398. 
 by agent. See Agent. 
 by or to executor. See Executor. 
 by partneis. See Partners. 
 by infant. See Infant. 
 by married women. See Married Woman. 
 by corporation. See Corporation. 
 by assignees. See Bankruptcy. 
 by lunatic. See Lunatic. 
 by blind man. See Blind Man. 
 
 INDULGENCE. See Principal and Surety. 
 
INDEX, ' 763 
 
 INFANT, 
 
 cannot be attorney to conduct a suit, 31, note (J). 
 
 when he can make a valid contract, 58. 
 
 distinction between his contracts void and voidable, 58. 
 
 acceptance for necessaries, 58. 
 
 contracts made in the course of trade, 59. 
 
 ratification of contracts made by an infant must be in writing, 59. 
 
 promissory note for necessaries, 60. 
 
 party to a note with an adult, 60. 
 
 blank acceptance, 59. 
 
 infant partner, 60. 
 
 ■what title infants, parlies to a biU, can convey to other parties, 60. 
 
 as against themselves, 60. 
 
 liability ex delicto, 60. 
 
 may sue on a bill, 61. 
 
 payment to au infant, 61. 
 
 estoppel, 61. 
 
 INFORMAL BILLS, 90-97. 
 
 may be evidence of an agreement, 96. 
 stump on, 106. And see Appendix I. 
 proof of, 437. 
 forgery of, 827. 
 
 INITIALS, 
 
 party to bill may be described by, in afiSdavit to hold to bail, 406. 
 in the pleadings, 416. 
 
 INLAND BILL, 
 what it is, 391. 
 
 INQUIRY, 
 
 not necessary to produce bill on ivrit of, 427. 
 
 INSANITY. See Lunatic. 
 
 INSERTION, 
 
 of words creating negotiability, 147, 210, note (»). 
 
 INSPECTION OF A BILL, 
 by defendant, 336, 409. 
 
 INSTALMENTS, 
 
 bill or note payable by, 7, 307, 341, 
 
 stamp on, 111. 
 
 days of grace on, 307. 
 
 INTEREST, 
 
 its nature, 303. 
 
 ■when recoverable, 304. 
 
 how much, 307, 399, 410. 
 
 where made piiyable by the instrument, and where not, 304. 
 
 on bill or note payable on demand, 305. 
 
 from what period it runs, 304. 
 
 as against au indoiser, 305. 
 how bankers should charge it on cheques, 306, 311. 
 to what period computed, 305. 
 when money paid into Court, 305. 
 
 when engagement to give a bill will create a liability to, 306. 
 in trover, 306. 
 after tender, 806. 
 
 proceeding for, after payment of principal, 306, 353. 
 when not recoverable, 308. 
 rate of, 307, 399, 410. 
 on foreign bill or note, 399, 410. 
 on judgments after error brought, 305. 
 
X 
 
 764 • INDEX. 
 
 INTEREST— (!0»feM«(f. 
 
 proof for, in bankruptcy, 447. 
 indebitatus count, 307. 
 usurious. See, Usury. 
 
 INTOXICATION. See Drunkenneia. 
 
 I O U, 
 
 wliat it is, 11, 28. 
 
 need not be stamped, 28. 
 
 otherwise if it amount to an agreement, 38. 
 
 need not be addressed to creditor, 29. 
 
 bill in equity lies to discover consideration of, 29. 
 
 when action on it will be restrained, 29. 
 
 IRISH BILLS, 
 interest on, 314. 
 
 IRREGULAR BILL OR NOTE. See Informal Bills. 
 
 J. 
 JOINDER IN ACTIONS, 
 of partners, 49. 
 
 JOINT AND SEVERAL NOTE, 
 what it is, 7. 
 evidence that one malser is surety, 8, 244. 
 
 JOINT STOCK COMPANIES, 
 
 whether directors or members can bind company by bills, 71. 
 notice of dishonour to a member, 290, note (g). 
 effect of registered deed, 73. 
 
 JUDGMENT RECOVERED, 
 its effect, 235. 
 by default after illegal consideration, 143. 
 
 K. 
 
 KTiTOWLEDGE, 
 
 means of, not equivalent to, 271, 293, 328. 
 
 LACHES. See Presentment; Notice of Dishonour ; Principal and Surety; 
 and Grown. 
 
 LADING, BILL OP, 
 
 in what sense assignable at common law, 2 note («). 
 not assignable by statute, 3. 
 
 LANGUAGE, 
 
 in which a bill may be written, 76. 
 
 LAPSE OP TIME, 
 
 where a bar, independently of the Statute of Limitations, 358. See 
 Statute of Limitations. 
 
 LARCENY OF BILL OR NOTE, 
 statutable felony, 177. 
 bill, how described in indictment, 331. • 
 
 LAW, 
 
 payment under mistake of, 230. 
 
INDEX. 765 
 
 LAW MERCHANT, 
 
 need not be pleaded, 2, note («). 
 parol release by, 197. 
 
 LEGACY, 
 
 ■when it will amount to payment, 335. 
 
 ■when a bill or note might have operated to bequeath, 4. 
 
 LETTER, 
 
 direction of, containing notice of dishonour, 377. 
 
 LETTERS OF CREDIT, 96. 
 
 LIEN, 
 
 of bankers, 3, note (e), 163, 173. 
 po'wer of sale in cases of lien, 174. 
 ■when determined by a bill, 885. 
 ■when it revives, 385. ' 
 not destroyed by mutual credit, 369. 
 bill of exchange conveys none, 413. 
 
 LIMITATIONS, STATUTE OF, 
 policy of the law, 337. 
 
 ■when introduced, 338. « 
 
 the present statutes, 338. 
 division of the subject, 338. 
 its general effect, 339. 
 does not destroy the debt, 339. 
 foreign Statute of Limitations, 340, 401. 
 •what proceedings it limits, 340. 
 
 as to the former exception of merchants' accounts, 340. 
 effect of statute on subsequent indorsee, 340. 
 ■when it begins to run, 341. 
 on a bill payable after date, 341. 
 payable on a contingency, 341. 
 payable by instalments, 341. 
 against an administrator, 341, 
 on a bill after sight, 841. 
 on a bank note, 343, note (_d). 
 on a bill at sight or on demand, 843. 
 after demand, 343. 
 in case of fraud, 343. 
 in case of accommodation bill, 343. 
 
 ■where there has b^en both non-acceptance and non-payment, 343. 
 up to what period of the suit, time of limitation computed, 343. 
 death of parties after action, 344. 
 how avoided by issuing a writ, 344. 
 the saving clause, 345. 
 
 infants, married women, lunatics, prisoners, and parties abroad, 345, 346. 
 supervening disabilities, 346. 
 acknowledgments and paj'ments, 347 — 857. 
 of what sort, 347. 
 when to be made, 353. 
 by whom, 352. 
 before action brought, 352. 
 Lord Tenterden's Act, 347. 
 evidence of date of acknowledgment, 349. 
 construction of acknowledgment, 349. 
 mutual running account, 349. 
 devise, 349. 
 
 acknowledgment by executors, 850. 
 notice in newspapers, 350. 
 part payment, 350. 
 appropriation of payments, 350. 
 
766 INDEX. 
 
 LIMITATIONS, STATUTE OV— continued. 
 payment by bill, 351. 
 payment by goods, 351. 
 no stamp on acknowledgment, 351, 
 statement of account, 351. 
 payment of interest, 353. 
 payment of money into Court, 353. 
 payment by whom, 353. 
 by joint contractors, 353. 
 in bankruptcy and insolvency, 355. 
 to whom, 355. 
 evidence of, 356. 
 
 signature of party chargeable, 356. 
 effect of verbal admission, 350. 
 statute retrospective, 356. 
 entries on the bill, 356. 
 plea and replication of the statute, 357, 358. 
 presumption of payment, 358. 
 lapse of time, independent of statute, when a bar, 359. 
 
 LIQUIDATORS, 73. 
 
 LLOYD'S BONDS. See p. 68, note (/). 
 
 LOAN SOCIETIES, 
 
 action on note given to, 75. 
 
 stamp on instruments issued by, 470. See Appendiie I. 
 
 LORD TENTERDEN'S ACT, 347. 
 
 LOSS OF BILLS AND NOTES, 
 
 see Appendix, 17 & 18 Vict. c. 135, s. 87, 379. 
 
 title of the finder, 373.- 
 
 title of the finder's assignee, 373. 
 
 proper course for the loser, 373. 
 
 cannot bring an action against the post-master general, 373. 
 public notice of loss, 373. 
 piesentment and notice of dishonour, 374. 
 whether an action lies at law on a destroyed bill, 373, 379. 
 
 will not lie at common law on a lost bill, 375, 379. 
 
 at least not unless not negotiable, or transferable by indorsement 
 only, 375. 
 bill in hands of adverse party, 374. 
 loss after action brought, 376. 
 loss of half-notes, 377. 
 trover for lost bills, 377. 
 action for money had and received, 377. 
 remedy in equity, 377. 
 lost bill when a payment, 384. 
 when payment of a lost bill protected, 319. 
 
 a court of law has no jurisdiction under the 9 & 10 Will. 3, c. 17, s. 3, 378. 
 indemnity to be given by the loser, 379. 
 proceedings under 17 & 18 yict. c. 135, s. 87, 379. 
 proof in bankruptcy of a lost bill, 437. 
 on whom the loss of a bill or note sent by post will fall, 379. 
 whether an action will lie on the consideration of a lost or destroyed 
 
 bill, 375, 377. 
 pleading, 376. 
 presumption as to stamp on, 116, 379. 
 
 LUNATIC, 
 
 bill or note by, 63. 
 pleading, 63. 
 
' INDEX. 767 
 
 M. 
 MAKER, 
 
 of a promissory note, who he is, 5. 
 
 presentment to, for payment, not in general necessary, 215. 
 
 ■where bill payable at a particular place, 211, 213. 
 
 MARKSMAN, 
 
 signature or indorsement by, 148, note (I). 
 evidence of mark, 437. 
 
 MARRIAGE, 
 
 contract in restraint of, void, 135. 
 contract of marriage brocage void, 135. 
 transfer of bill on, 173. 
 
 MARRIED WOMAN, 
 
 her contracts void at common law, 63. ^ 
 
 except after a divorce a, mneulo, 63. 
 sole trader by custom of London, 63. 
 estoppel on, 64. 
 
 not liable for fraud being parcel of a contract, 63. 
 
 if she have a separate estate and malie a bill or note, liable in equity, 64. 
 after her husband's death, a promise to pay valid at law, 64. 
 where her husband is transported, 64. 
 
 or alien abroad, 64. 
 
 or presumed to be dead, 64. 
 where a bill is given to a single woman and she marries, 65, 451. 
 bill or note given after marriage, 65. 
 reductiim into possession of her chose in action, 66. 
 where a single woman, liable on a bill, marries, 66, 67. 
 indorsement by a married woman, 68, 65. 
 note by husband to his wife, 66. 
 payment to, 67. 
 
 acknowledgment by, to save the statute, 358, note (ft), 
 husband, when liable for wife's debts, 66, 07. 
 Property Act, 66, 67. 
 
 MEMORANDUM, 
 
 effect of, on bill or note, 98, 99. 
 
 duty of bankers to make, on bills, &c., when paid, 171, 229. 
 
 MERGER, 
 
 in an instrument of a higher nature, 234, 23^. 
 
 MESSAGE, 
 
 sent, not presumed to be delivered, 128, note (^). 
 expenses of, 279. 
 
 MISCARRIAGE, 
 
 of the post-office, 215, 277, 372; 379. 
 
 MISDEMEANOR, 
 
 compounding, when an illegal consideration, 136. 
 embezzlement of bills, &c., 40, 177. 
 
 MISSPELLING, 
 
 will not avoid indorsement, 149. 
 
 MISTAKE, 
 
 in charging too high interest, not usury, 313. 
 alteration of bill to correct, when allowed, 321, 323. 
 amendment of, on tHal, 431. 
 of part payment under, 230, 254, 333. 
 
 MONEY, 
 
 property accompanies possession, 163, 164. 
 
768 INDEX. 
 
 MONET COUNTS, ^ 
 
 where applicable, 428. 
 
 MONEY HAD AND RECEIVED, 
 bill or note evidence of, 428. 
 
 MONEY LENT, 
 
 bill or note evidence of, 428. 
 
 money deposited with a banker is, 488, note (m), 439, 456. 
 
 MONTH, 
 
 how calculated, 204. 
 
 MORAL OBLIGATION, 
 
 in some cases a good consideration for a bill or note, 126. 
 
 MORALS, 
 
 contracts contrary to, 134, 396, 399. 
 
 MORTGAGE, 
 
 note amounting to equitable, 100, 115. 
 note collateral to, 100. 
 
 MUTUAL CREDIT. See Set-off. 
 what it is, 367. 
 need not be money, 367. 
 the debts need not be due, 367. 
 need not be intended, 368. 
 does not destroy a lien, 369. 
 
 MUTUAL PROMISES, 
 
 when satisfaction, 338, note («). 
 
 N. 
 NAME, 
 
 proof of, 438. 
 
 suing in another's name, 404. 
 
 no one liable on a bill unless his name be there, 37. 
 
 NEED, 
 
 presentment to referee in case of, 268. 
 
 NEGLIGENCE, 
 
 of transferee formerly affected his title, 163, 373, note (c). 
 now does not, 163, 378, note (c). 
 unless it amounts to fraud, 163. 
 
 NEGOTIATION, 
 
 what amounts to, 107. 
 
 NEW AND OLD STYLE, 305. 
 
 NEW SECURITY, 189, 236," 814. And see Renewal. 
 
 NON-ACCEPTANCE, 
 notice of, 270, note (a). 
 
 NON COMPOTES, 62. 
 
 NON-PAYMENT, 
 
 notice of, 270, note (a). See Notice of Dishonour. 
 
 NOTARY PUBLIC, 
 how appointed, 257. 
 his office, 257. 
 what he may charge, 259. 
 table of fees. See Appendix. 
 
 NOTE, PROMISSORY. See Promissory Note. 
 
INDEX. 769 
 
 NOTICE, 
 
 proof in bankruptcy of note payable after, 437. 
 of dissolution of partnership, 50, 52. 
 
 NOTICE OF DISHONOUR, 
 
 mode of giving it, 277. 
 
 wliat form of, requisite, 271. 
 
 instances when held insufficient, 273, 274, in notes. 
 
 the like wei'e sufficient, 374, 275, in notes. 
 
 statement of party on whose belialf it is given, 276. 
 
 notice of protest need not accompany it, 277. 
 
 verbal message, 271, 275, note. 
 
 notice by post, 277. 
 
 how it should be directed, 377. 
 
 where it should be posted, 377, 278. 
 
 evidence of posting, 278. 
 
 consequence of miscarriage, 377. 
 
 special messenger, 278. 
 
 when expense of special messenger may be charged, 279. 
 
 by what conveyance notice of dishonour should be sent abroad, 279. 
 
 at what place to be given, 379. 
 
 when to be given, 280. 
 
 next day, what, 281, note (y). 
 
 where the parties live in different places, 381. 
 
 in the same place, 383. 
 
 where a party, receiving notice, must transmit it, 283. 
 
 whether it may be given on the day oT dishonour, 283. 
 
 notice through branch banks, 284. 
 
 in case bill is deposited with banker or agent, 283. 
 
 where Sundays or holidays intervene, 284. 
 
 bank holidays, 284. 
 
 on whom proof lies, 284. 
 
 what is evidence, 284, 301. 
 
 by whom notice may be given, 285. 
 
 cannot be given by a stranger to the bill, 285. 
 
 where the notice circulates back through several parties, 285. 
 
 notice of dishonour of a bill, payable at a particular place, need not be 
 given to acceptor, 289. 
 
 by an agent, 386. 
 
 to whom, 287. 
 
 to an agent or attorney, 389. 
 
 to parties jointly liable, 390. 
 
 to a party not indorsing, 390. 
 
 to a guarantor, 291. 
 
 to an indorser giving a bond, 292. 
 
 consequences of neglect to give notice, 292. 
 
 what excuses notice, 293. 
 
 agreement of the parties, 393. 
 
 where drawer had no effects in drawee's hands, 393. 
 
 countermand of payment, 393. 
 
 where reasonable expectation that the bill would be paid, 295. 
 
 ignorance of residence, 397. 
 
 in case of death, 398. 
 of illness, 298. 
 of accident, 298. 
 .^ of bills drawn by several, on one of themselves, 298. 
 
 bill or note not negotiable, 299. 
 
 death, bankruptcy or insolvency of drawee, 298. 
 
 where bill is on an insufficient stamp, 299. 
 
 notice to produce, not necessary, 302. 
 
 consequence of neglect waived by promise, payment or acknowledg- 
 ment, 299, 300. 
 
 49 
 
770 INDEX. 
 
 NOTICE OF niSBOTiiOVTl-conUnued. 
 
 laches not imputable to the Crown, 301. • 
 
 where the bill is taken under an extent, 301. 
 pleading where notice is excused or waived, 301. 
 evidence of notice, 301. 
 of a lost bill, 374. 
 
 NOTICE OF ILLEGALITY OF CONSIDERATION OR FRAUD, 133, 
 123, 143. 
 burthen of proof, 131, 133. 
 
 NOTICEOF NON-ACCEPTANCE, 370, note (a), ^ae Notice of Dishonour. 
 
 NOTICE OF NON-PAYMENT, 370, 371. See, Noiiee of Dishonour. 
 
 NOTICE OP PROTEST, 
 
 when it must be given, 359. 
 
 NOTICE TO AN AGENT, 133. 
 
 NOTICE TO PRODDCE, 
 
 when defendant must give notice to produce bill, 437. 
 notice of dishonour not necessary, 302. 
 
 Notice to prove consideration, 
 
 not necessary, 118, note ((?). 
 
 NOTING, 
 what, 358. 
 
 is an incipient protest, 358. 
 use of noting, 359. 
 expenses of, a59. 
 
 O. 
 
 OFFICIAL SITUATIONS, 
 
 liability of persons filling, 74. 
 bill or note given to them, 74. 
 officer of friendly society, 75. 
 
 OLD AND NEW STYLE; 305. 
 
 "OR ORDER," 
 
 of the words, 1, 83, 147. 
 
 subsequent insertion of these words, 147, 310, 333, 
 
 OVERDUE BILL OR NOTE, 
 transfer of, 166, 168. 
 burthen of proof, 169. 
 
 when a bill on'demand is overdue, 168, 307. 
 when a check is, 168. 
 equitable relief, 169. 
 
 And see Equities on InsirumenU. 
 
 OVERSEER, 
 
 note given by, 74. 
 note given to, 136. 
 
 F. 
 
 PAR DELICTUM, what is, 132. 
 
 PARISH OFFICER. See Overseer. 
 
 PAROL EVIDENCE, 
 
 to show no contract, 100, 151. 
 
 that bill delivered as an escrow, 100. 
 
 PART OF CONSIDERATION ILLEGAL, 143. 
 
 PARTIAL ACCEPTANCE, 194. 
 
INDEX. 
 
 771 
 
 PARTICULARS OF DEMAND, 
 what lliey should include, 409. 
 
 PARTS OP BILLS. See 8els of Bills. 
 
 PARTNER, 
 
 what constitutes a partnership, 40. 
 
 actual and ostensible partners, 41. 
 
 agreement not to draw bills, 41. 
 
 partners both entitled and liable on a bill, 41. 
 
 where one piirtner can bind the other by bill, 43. 
 
 not bound by promissory note of his copartner, 44. 
 
 nor if style of firm varied, 44, and note (c). 
 fiirming, mining and joint-stock paitnerships, 45. 
 partnerships not in trade, 45. 
 partner exceeding his authority, 46. 
 
 creditor carrying on partnership under deed of arrangement, 45. 
 executors receiving share of profits, 45, note (h). 
 effect of partnership articles against drawing bills, 47. 
 
 where there is notice, 4'i. 
 pleading and evidence, 47. 
 partner iu two firms, 48, 448. 
 incoming partner, 4S. 
 
 wlien the holder of a bill discharges the firm by taking fi'esh security, 4 
 ratificati<m, 49. 
 
 dormant partner, 49, 452, 455. 
 his rights, 49, 453. 
 
 where the partnership is to commence by relation from a time past, 49. 
 when a dormant partner may join as plaintiff, 49. 
 
 or be joined as defendant, 49. 
 nominal partner, 50. 
 dissolution, 50. 
 notice of it, 50. 
 
 notice of retirement of secret partner, 52. 
 effect of dissoluiion, 53. 
 dissolution by death, 58. 
 transfer, how to be made after dissolution, 52. 
 when authority to indorse after dissolution may be inferred, 52. 
 dissolntion by bankruptcy, 53. 
 occasional partnership, 58. 
 survivorship, 53, note (c). 
 
 acknowledgment taking a bill out of the statute, 852, 353. 
 receiving profits without risk, usury, 313, 458. 
 Bovili's Act, 45, 453. And see Appendis>. 
 
 PAWNING BILLS. See Pledging. 
 
 PAYEE, 
 
 who he is, 1. 
 
 description of, 80. 
 
 indorsement by another man of same name, 81. 
 
 where there is no payee, 81. 
 
 a fictitious payee, 82. 
 
 his title when he is a third person like that of first indorsee, 127, note (j 
 
 243. 
 when principal and when surety, 243. 
 
 PAYMENT, 
 
 presentment for. See Presentment for Payment. 
 
 transfer after, 171. 
 
 to whom payment should be made, 218. 
 
 to wrongful holder of bill payable to bearer, 319. 
 
 when not payable to bearer, 220. 
 
 of a lost or stolen bill, 219, S84. See Loss of pills and Notes. 
 
772 INDEX'. 
 
 'PAYHlLENT—conim ued. 
 
 of a forged bill, 330, 333. See Forgery. 
 of crossed checks, 31. 
 when payment should be made, 333. 
 at what time of day, 232. 
 before bill is due, 238. 
 when a legacy will be a satisfaction,, 335. 
 efl'ect of, under Statute of Liraitsitioiis, 347 — 357. , 
 payment after action brought, 224. 
 by banker's notes and checks, 324. 
 appropriation of pasymenls, 335. 
 rateable appropriation, 327. 
 part payment, 228, 397. 
 by acceptor, 320. 
 by drawer or indorser, 170, 320. 
 by a stranger, 323. 
 
 by drawer where there is a third person payee, 170. 
 , when a bill taken of a third person is payment, 383. 
 when a bill is payment in bankruptcy, 457. 
 presumptive evidence of payment, 228, 358. 
 delivering up the bill, 334, 229, 448. 
 giving a receipt, 229. 
 effect of a receipt, 339. 
 tender, 233, 330. 
 
 retractation of payment, 230, 247. 
 how far a bill or note is considered payment, 380. 
 
 how far extinction of the delit as to one party on a bill will be satisfac- 
 tion as to another, 234, 343—353. 
 to an infant, 61. 
 to a married woman, 67. 
 by negotiable instruments, 383. 
 evidence of payment, 328. 
 when to be deemed complete, 2.S0. 
 bank holidays, 206. And see Appendix. 
 
 PAYMENT OF MONEY INTO COURT, 
 
 effect under the Statute of Limitations, 353. 
 
 PAYMENT SUPRA PROTEST, 
 what and how made, 267. 
 right of party paying supra protest,' 367. 
 notice of dishonour by, 368. 
 cannot revive liability, 268. 
 paying for honour without protest, 368. 
 of accommodation bill, 368. 
 
 PENCIL, 
 
 bills and notes may be written in, 76. 
 
 PETITIONING CREDITOR'^ DEBT. See Bankruptcy. 
 
 PLACE WHERE BILL OR NOTE IS MADE, 
 superscription of, 77. 
 
 PLACE WHERE BILL OR NOTE IS PAYABLE, 
 appointed by the drawer, 88, 311. 
 by the acceptor, 87, 311, 319. 
 by maker of note, 87, 313. 
 Bank of England notes, 89. 
 other bank notes, 89i 
 
 PLEADING, 
 
 of law merchant unnecessary, 3, note (e). 
 imbecility, 62. 
 drunkenness, 63. 
 
INDEX. 773 
 
 PLEADING— conimae^. 
 written agreement, 101. 
 
 in action on bill payable at a particular place, 313. 
 wliere note so payable, 214. 
 old forms of actions, 415. 
 declaration, 415. 
 statement of parties, 415. 
 may be by initials, 416. 
 description of instrument, 416. 
 statement of acceptance, 417. 
 of presentment and notice of dishonour, 301, 417. 
 statement of excuse for not presenting, 417. 
 statement of maturity of instrument, 418. 
 of notice of indorsement, 418. 
 of protest, 361 . 
 breach and damages, 419. 
 pleas, 419. 
 
 effect of rules of court, 419. «- 
 non assumpsit, 419. 
 general issue ijy statute, 430. 
 traverse of acceptance and indorsement, 430. 
 effect of traverse of indorsement, 431. 
 absence of consideration, 431. 
 denial that plaintiff is holder, 483. 
 defect of stamp need not in general be pleaded, where the bill must be 
 
 produced, 116, 330, 333. 
 fraud, 438. 
 
 payment and satisfaction, 483, 433. 
 effect of pleading over, 483. 
 
 statutable jurisdiction over pleas framed to embarrass, 434. 
 sham pleas, 483. 
 esloppel, 484. 
 foreign law, 403.. 
 alteration, 333, 334. 
 
 replication to plea denying consideration, 434. 
 distributive replication, 434. 
 
 PLEDGING BILLS, 
 
 in the case of a bill confers no power of sale, 174. 
 
 rights of party to whom bill pledged, 3, 163, 387. 
 
 by agent, 35. 
 
 by agent, a misdemeanor, 40, 177. 
 
 in a mass by bill broker, 35. 
 
 POLICY, PUBLIC. See Public Policy. 
 
 POST OFFICE, 
 
 delivery to postman, 150, 377. 
 
 letters should be sent to authorized office, 377. 
 
 post mark how far evidence, 388. 
 
 miscarriage of, 815, 877, 373. 
 
 on whom loss falls, 379. 
 
 POSTAGE, 413, 447. 
 
 POST-DATING. See Dafe. 
 
 POST OFFICE. See Miscarriage of. 
 
 POWER OF ATTORNEY. See Attorney, Power of. 
 
 PRE-EXISTING DEBT, 
 
 when a consideration, 39, 184. 
 
774 INDEX. 
 
 PRESENTMENT FOR ACCEPTANCE, 
 
 ■what time may be given for deliberation, 182. 
 
 -wlielher the bill may be left, 182. 
 
 advisable in all cases, 179. 
 
 ■when necessiiry, 179. 
 
 ■when it should be made, 180. 
 
 at ■wliat hour. 181. 
 
 ■when excused, 181. 
 
 to ■whom, 183. 
 
 consequence of negligence in party presenting, 183. 
 
 course vphen dra^wee cannot be found, or is dead, 183. 
 
 ■whether the owner is bound to acquiesce in acceptance by agent, 35. 
 
 general question as to, 183, note (,i). 
 
 pleading, 183. 
 
 bank holidays, 181. 
 
 PRESENTMENT FOE PAYMENT, 
 
 ho^w made, 301. * 
 
 in case of bankruptcy or insolvency, 303. , 
 
 ■whether necessary whena bank stops payment, 303. 
 
 not necessary in order to charge a guarantor, ■whose name is not on the 
 bill, 203. 
 
 ■where dra'wee is dead, or not to be found, 303. 
 
 when holder is dead, 203. 
 
 when to be made, 303. 
 
 at what hour, 211. 
 
 computation of time, 303—305. 
 
 where the instrument is payable at sight or on demand, 207 — 310. 
 
 after sight, 207. 
 
 of a check, 209. 
 
 usance, 204. 
 
 general rule, 308. 
 
 of bank note.s, 209, 210. 
 
 where no time is specified, 3!0. 
 
 where bill lost or destroyed, 374. 
 
 where, when a bill is made payable at a particular place, 311. 
 
 pleading, where bill is made so payable, 213, 416. 
 
 presentment, when note is so payable, 314. 
 
 of bill or note wlien place of payment is mentioned in a memorandum, 
 214. 
 
 not necessary in order to charge acceptor or maker, 315. 
 
 effect of not presenting on the liability of other parties, 315. 
 
 when neglect to present is excused or waived, 315, 316. 
 
 presentment for payment to the drawee, necessary after protest for non- 
 acceptance, 363. 
 
 when bill or note due on Sunday, &c., 306, 384. 
 
 on hank holidays, 181, 306. And see Appendix. 
 
 pleadinar,.217. 
 
 evidence, 217. 
 
 PRESUMPTION, 
 
 of consideration, 3, 117. 
 
 that bill indorsed before due, 169. 
 
 no presumption of illegality or fraud, 121 — 133. 
 
 nor of notice thereof, 133, 124. 
 of payment, 228. See Burthen of Proof. 
 as to stamp, 116, 379. 
 
 PRINCIPAL AND AGENT. See Agent. 
 unnamed principal nut liable on a bill, 37. 
 
INDEX. 775 
 
 PRINCIPAL AND SURETY. See Indulgence. 
 when evidence of this relation admissible, 8, 244. 
 what piivties principals, anil what sureties, 343. 
 valid agreement to give time to the maker or acceptor, discharges other 
 
 parties, 240, 245, 348. 
 agreement to give time to prior indorser, discharges subsequent indor- 
 
 sers, 243. 
 the agreement to give time must, in order to discharge other parties, be 
 
 a valid one, 346, 348, 249. 
 taking fresh security, 248, 350. 
 obtaining a judgment, 250. 
 inability to recover against principal, 349. 
 a warrant of attorney,. S50, 351. 
 accepting part payment, 249. 
 
 proving under adjudication, 250. And see Bankruptcy. 
 how discharge of surety may be prevented, 252. 
 how waived, 253. 
 compounding, 350. 
 waiving execution against the person, 349. 
 
 against the goods, 349, note (r). 
 agreement that the surety sli/iU not be discharged, 252. 
 consequence of indulgence, how waived by consent, 353. 
 contribution between cosureties, 254. 
 action between co-sureties, 255. 
 proof under a fiat by a surety, 437. , 
 
 rights of sureties, 248, 253, 254. 
 
 PROCURATION. See Agent. 
 
 the words per procuiation, notice of limited authority, 33. 
 
 PRODUCTION OF BILL, 
 
 unnecessary at trial unless issue requii'e it, 427. 
 and on writ of inquiry, 437. 
 
 PROMISE TO PAY. 
 
 effect of, 190, 261, 299. . 
 
 PROMISES MUTUAL, 
 
 when satisfaction, 338, note («). 
 
 PROMISSORY NOTE, 209. 
 what it is, 5. 
 
 if under seal not at law negotiable, 68. 
 what at common law, and what by statute, 5. 
 foreign promissory notes, 6. 
 form of, 6. 
 
 note by a man to himself, fi, 90. 
 • how declared on afier indorsement, 6. , 
 
 note by a man to himself and anollier, 7. 
 English notes assignable abroad, 6. 
 joint and several, 7. 
 contribution between joint makers, 8. 
 payable by instalments, 7. 
 
 by principal and surety, 8, 244. See Principal and Surety. ' 
 
 contracting words in, 10. 
 
 invalidated by agreement to give further security, 12. 
 not invalidated by reciting collateral security, 13. 
 ambiguous instruments, 90. 
 must be for a certain sum of money only, -92. 
 
 and in specie, 92. 
 must not be conditional, 93. 
 
 nor be payable out of a particular fund, 96, 
 times of payment may be uncertain if inevitable, 95. 
 when an irregular note may be evidence of an agreement, 96. 
 
776 INDEX. 
 
 eflfect of memorandum on the note, 98. 
 
 of distinct agreement relating to the note, 99. 
 
 ■when evidence under the common counts, 438. 
 
 given by an infant for necessaries, 58, 60. 
 
 payable after sight, 79, 204, 315. 
 
 payable at a particular place, 214. 
 
 promise in, 10. 
 
 no payment of, supra protest, 269. 
 
 accompanying mortgage, 100. 
 
 PROOF. See Evidence. 
 
 under adjudication in bankruptcy. Sec Bankmptey, 
 of consideration, 118. 
 
 PROSECWTION, 
 
 bills or notes given on the abandonment of, 136. 
 
 PROTEST, 
 
 necessary on fo'reign bills, 356, 395, 398. 
 
 eheck cannot be protested, 36. 
 
 by whom to be made, 257. 
 
 office of a notary, 357. 
 
 when and where protest should be made, 357, 368, 369. 
 
 form of a protest, 358. 
 
 for better security, 358. 
 
 notice of protest when necessary, 259. 
 
 copy of, 859. 
 
 when protest is excused, 360. 
 
 of inland bills and notes unnecessary, 260. 
 
 of lost bills, 361. 
 
 pleading, 361. 
 
 evidence, 361. 
 
 acceptance svpra protest, 263. 
 
 payment supra protest., 26T. 
 
 stamp on, 109, 113, 358. 
 
 PUBLIC INTERESTS, 
 
 contracts agaiast, 396, 399. 
 
 PUBLIC POLICY, 
 
 bill given for consideration contrary to, 135, 13&. 
 
 R. 
 
 RAILWAY COMPANY, 
 
 cannot accept bills, 69, note (i). 
 
 RATEABLE APPROPRIATION, 337. 
 
 RATIFICATION, 
 
 of agent's acts, 33. 
 of partner's acts, 49. 
 by an infant, 59. 
 forgery incapable of, 300. 
 after drunkenness, 68, note (»•). 
 
 RATIHABITION, 
 
 its effect, 33, note (d). 
 
 RECEIPT, 
 
 may be demanded, 239. 
 
 effect of, 239. 
 
 when on a bill, no stamp necessary, 114, 329. 
 
 parol evidence admissible to explain, 239, 431. 
 
 unstamped, may be used to refresh the memory, 239. 
 
INDEX. 777 
 
 BED INK, 
 
 alteration in, 320, note (A). 
 
 RE-EXCHAGB, 
 
 what and wlien recoverable, 411, 412. 
 when proveable, 412, 447. 
 
 REGISTRATION, 
 of companies, 73. 
 
 RE-ISSUABLB NOTES, ■ 
 
 what, 105, 169, 170, note (s). See Appendix I., 471. 
 
 exempt Irom stamp, 105. 
 
 re-issuing bill after premature payment, 228. 
 
 RELEASE, 
 
 what it is, 238. 
 
 premature, 288. 
 
 at maturity, 238. 
 
 by a party not the holder, 2S9. 
 
 to the acceptor, 289, 247. 
 
 to one of several acceptors, 239. 
 
 how far a covenant not to sue will operate as a release, 239. 
 
 its effect on the liability of other parties, 239. 
 
 effect may be restrained by terms of instrument, 239. 
 
 its effect on the liability of a surety, 245 — 250. 
 
 by appointing debtor executor, 54, 240. 
 
 transfer after, 172. 
 
 by parol, good by the law merchant, 197. 
 
 RENEWAL OF A BILL, 
 effect of, 236, 385. 
 
 meaning of agreement to renew, 101. 
 reasoiiable time allowed for application for, 101. j 
 
 when it discharges other parties, 248. 
 when it is a satisfaction of the former bill, 236, 385. 
 of bill given on illegal consideration, 143. 
 of bill aiven without consideration, 144. 
 of altered bill, 323. 
 
 RENT, 
 
 bill or note does not suspend distress for, 382. 
 
 REPUTED OWNERSHIP, 
 
 applies to bills, 453. See Bankruptcy. 
 
 bills in the hands of agent or banker when they pass by, 453, 454. 
 
 REQUEST TO PAT, 
 
 what sufficient on the face of the bill, 80. 
 how made, 202. 
 
 RESIDUE, 
 
 transfer for, 1 72. 
 
 RESTRICTIVE INDORSEMENT. See Indorsement. 
 
 RETIRE, 
 
 meaning of the word, 222. 
 
 RETOUR SANS PROTET, 260. 
 
 RETRACTATION OF PAYMENT, 230. 
 
 REVENUE LAW^S, 400. 
 
 RIGHT TO BEGIN, 424. 
 
778 INDEX. 
 
 s. 
 
 SALE OF BILL, 
 
 what is considered as such, 158, 383. 
 power of, where there is a lien, 173 — 175. 
 
 SANS FRAIS, 
 
 effect of those words, 260. 
 
 SANS RECOURS, 
 
 effect of those words, 38, 151. 
 
 SATISFACTION, 
 
 not necessary to rescission of cojitract before breach, 232. 
 
 its requisites, 233. 
 
 from one party releases the others, 235. 
 
 payment of a smaller sum by a third party, 333. 
 
 enja;agement by a third party, 234. 
 
 ri'linquishing a .suit, 334. 
 
 when a bill operates as, 234. 
 
 SCOTLAND, 5 
 
 bills and notes of, 403. And see Appendix /., 470. 
 law of, 403, note (s). 
 discharge by Scotch bankruptcy, 398. 
 
 SEA, 
 
 bill made at, 400. 
 beyond seas, what is, 345. 
 
 SECURITY, 
 
 taking security from one partner, 48. 
 
 when a bill is a security for money, 85, 86. 
 
 collateral, 350, 381, 436. 
 
 new, 139, 314. 
 
 substituted, 139, 314. 
 
 deposited. See Deposited Securiiiea. 
 
 SET-OFF AND MUTUAL CREDIT, 
 nature of set-off, 360. 
 unknown to common law, 361. 
 recognized by equity, 3'il. 
 introduced by statute, 361. 
 general statutes, 368. 
 statutes permissive not imperative, 364. 
 what debts may be set off, 862. 
 pleading, .365, 369. 
 particulars of set-off, 365. 
 
 set-off and mutual credit in bankruptcy, 365, 367. 
 how to be taken advantage of, 369. 
 under Companies Act, 369. 
 when mutual credit must have existed, 365. 
 fraudulent set-off, 366. 
 breach of trust, 368. > 
 
 effect of notice, 368. 
 attempt to deprive of, 367. 
 mutual credit, what. 367. 
 set off in equity, 370. 
 
 where an indemnity will operate as a set-off, 371'> 
 against holder of overdue'bill. See Transfer. 
 
 SETS OF BILLS, 
 
 what they are, 387, 393. 
 
 statement of, in pleading, 888. 
 
 who entitled to bill, when parts are in different hands, 888. 
 
INDEX. 7*79 
 
 SETS OF BILLS— eontiniied. 
 number of parts, S88. 
 
 effect of omitting to refer to other parts, 388. 
 liability of drawee or indorser, 389. 
 copies of bills, 389. 
 substitutions, 390. 
 
 SHOP NOTES, 10. 
 
 SIGFIT, 
 
 what it is on a bill, 79: 
 
 on a note, 79. 
 
 presenlment of bills and notes at sight, 179, 304, 307, 215. 
 
 no days of grace, 207. 
 
 bills and notes after sight, 179, 204, 207, 215. 
 
 SIGNATURE, 
 of drawer, 87. 
 where to be written, 87. 
 by a mark, 77, 87. 
 how pleaded, 87, 415, 419. 
 when to be affixed, 87. 
 by an agent, 32—35, 37, 38. 
 not formerly essential to an acceptance, 187, 189. 
 
 but is so now, 189. 
 forgery of, 327, 829. 
 proof of, 436. 
 
 SIMPLE CONTRACT AND SPECIALTY DEBTS, 54. 
 
 SOMNAMBULISM, 63. 
 
 SPECIAL INDORSEMENT, 148. 
 
 SPECIALTY AND SIMPLE CONTRACT DEBTS, 54. 
 
 SPECIE, 
 
 bill or note must be for payment in, 92. 
 
 SPELLING, 
 
 wrong, will not prejudice indorsement, 149. 
 
 SPIRITUOUS LIQUORS, 
 bill or note for, 142. 
 appropriation of payment to, 142. 
 
 STAMP, 
 
 existing act, 102. 
 
 how instruments to be written and stamped, 103. 
 
 separate duties, 103. 
 
 appropriated stamps, 103. 
 
 impressed stamps, 104. 
 
 adhesive stamps, 105, 107. 
 
 stamping after execution, 104. 
 
 exemptions from stamp duty, 10.5, 111. And see Appendix I. 
 
 on foreian bills and notes, 111, 391, 400. 
 
 on colonial bills, 400. 
 
 on re-issuable notes, 105, 
 
 when notes may be re-issued, 105. 
 
 reservation of interest, 114. 
 
 on post-dated bill; '114. 
 
 effect of want of a stamp, 104, 114. 
 
 effect of post stamping contrary to law, 104. 
 
 on instruments which are in law but agreements, 96, 906. 
 
 when objection to the stamps should be taken, 116. 
 
 pleading, llfi, 333. 
 
 penalty on unstamped instruments, 104 — 110. 
 
78Q INDEX. 
 
 BT AMP— continued. 
 
 effect of alleration under the Stamp Act, 330 — 334. 
 Stamp Act, 103 — 114. Anil see Appendix I. 
 amount of stamp, 103 — 114. 
 on sets and parts of bills, 386, note (.h). 
 presumption as to stamp, 116, 879. 
 
 STATUTE, 
 
 general issue by, 420. 
 
 of limitations. See Limitaiiona. 
 
 STATUTES. See Appendix. 
 
 STAYING PROCEEDINGS, 
 
 in what cases, and on what terms, proceedings will be stayed, 410. 
 
 STEALING. See Larceny and Loss. 
 
 STERLING, 
 
 meaning of, 84. 
 
 STOCK-JOBBING, 
 
 statutes prohibiting, repealed, 139. 
 
 former statutes, 139. 
 
 what it is, 139. 
 
 putting upon stock, 139. 
 
 when a bill was void for, 140. 
 
 innocent indorsee, 139, 141. 
 
 STRANGER, 
 
 payment by, 331, note («), 333, 333. 
 
 STRIKING OUT INDORSEMENTri, 1.53. 
 
 STYLE. 
 
 old and new, how computed, 305. 
 
 SUBSCRIBING WITNESS. See Attesting Witness. 
 
 SUIT. See Action. 
 
 who may sue on a bill, 3, 403. 
 
 SUM PAYABLE, 
 
 subscription of, 79, P3. 
 may correct error in bodv of instrument, 79. 
 ~ affidavit to hold to bail must state tU& sum,- 406. 
 
 SUNDAY. See Holiday. 
 
 SUPERVENING DISABILITY, 346. 
 
 SUPRA PROTEST, 
 acceptance, 363. 
 payment, 367. 
 
 SURETY. See Principal and Surety. 
 proof I)y surety in bankruptcy, 437, 
 rights of,sureties, 348, 353. 
 may be barred by composition deed, 354. 
 
 SURVIVORSHIP, 
 
 among partners, 53. 
 
 SUSPENSION, 
 
 of right to sue on bill, 336, 337. 
 effect of renewal, 336. 
 by debtor becoming administrator, 56, 337. 
 
 none by covenant restraining right to sue for a limited time, .337, 340. 
 nor by collateral agreement upon good consideration, 237. 
 
INDEX. 781 
 
 T. 
 
 TEARING m PIECES, 220, 333. 
 
 TELEGRAPHIC EXPENSES, 412, 414, 447. 
 
 TENDER, 409. 
 of part, 280. 
 
 plea of, after day of payment, 223, 409. 
 interest ceases to run after, 306. 
 when bills or notes a good tender, 10. 
 
 TESTAMENTARY PAPER, 
 
 wlien a bill or note migbt have been, 4. See Wills, 
 
 TIME OF PAYMENT, 
 
 ■when a particular time necessary, 79. 
 may be uncertain if inevitable, 79, 95. 
 "When not expressed, 79, 210. 
 
 See Presentment for Payment and Days of Grace. 
 giving time. See Principal and Surety. 
 
 TIPPLING ACT. See Spirituous Liquors. 
 
 TOKENS, 164. 
 
 TRADING, 
 
 ■what transactions in bills constitute, 452. 
 
 TRANSFER. See Indorsement and Delivery. 
 modes of, 147. 
 
 after partnership dissolved, 52. 
 ■what bills transferable, 146. 
 liability of party transferring by delivery, 158. 
 by sale, 158. 
 
 under peculiar circumstances, 164. 
 before bill filled up, 164. 
 after due, 166. 
 
 after refusal to accept ■where the transferee has notice of the dishonour, 165. 
 ■where he has no notice, 165. 
 
 set-off to overdue bill, 166; 168. ' 
 
 transfer of overdue check, 168. 
 of check dra'wu on banker of the bearer, 169. 
 after abandonment of right by transferee, 169. 
 after payment by party ultimately liable, 169. 
 after payment by other parties, 170. 
 after premature payment, 171. 
 after partial payment, 171. 
 transfer to acceptor, 171. 
 transfer for part of the sura due, 171. 
 for residue, 172. 
 after release, 172. 
 after action brought, 173. 
 in a foreign country, 172, 397, 398. 
 after holder's death, 173. 
 after bankruptcy, 173, 457. 
 after marriage, 173. 
 by deposit ■with banker, 173. 
 by ■will, 174. 
 
 donatio mortis causa, 174 — 176. 
 ho-w it resembles a legacy, 176. 
 
 effect of transfer in removing technical difficulties, 178. 
 in bankruptcy, 457. 
 
78.2 INDEX. 
 
 TBA.UfBF'E'R— continued. 
 
 fraudulent, 458. See Bankruptcy. 
 
 voluntary, 459. 
 
 ■vrhen restrained, 178. 
 
 of a forged or altered bill. See Chapters on Alteration and Transfer. 
 
 TROVER, 
 
 against transferee of agent, 34. 
 
 lies for bills, 377, 405. 
 
 ■when it changes the property in a bill, 406. 
 
 to what period interest computed in action of, 306. 
 
 TRUSTEE, 
 
 bill in the hands of, does not pass to assignee, 457. 
 See Bestrioiws Indorsement and Agent. 
 
 U. 
 
 UNDUE INFLUENCE, 
 
 effect on securities given under, 61. 
 burden of proof, 61. 
 
 USAGE, ^ 
 
 general usage part of the law merchant, 3, n. (e). 
 
 USANCE, 
 
 ■what it is, 80, 204. 
 
 ■what between different countries, 204. 
 
 USURY, 
 
 at common law, 307. 
 
 statutes, 308. 
 
 now repealed, 317. 
 
 their effoct, and construction, 308. 
 
 on bills under three months, 315. 
 
 under twelve months, 316. 
 there must be a loan, 309. 
 usury on discounts, 310. 
 usurious security for good debt, 310. 
 
 where interest charged not for loan but labour, not usury, 311. 
 intention material, 313. 
 excessive interest charged by mistalse, 312. 
 hazard of the principal, 313 
 loan to partner, 313. 
 advance of goods, 313. 
 Irish, colonial and foreign interest, 314. 
 substituted security, 314. 
 separate instruments, 315. 
 innocent indorsees, 315. 
 improper amount of commission, 311. 
 when the contract is void, 309. 
 when the penalty is incurred, 309. 
 exemptions from the usury laws, 315, 316. 
 pleading, 317. 
 
 UTTERING FORGED BILLS. See Forgery. 
 
 V. 
 
 VALUE, 
 
 " bona flde holder for value " an ambiguous expression, 120. 
 burthen of proof, 121. 
 
 VALUE RECEIVED, 
 
 these Words unnecessary, 85. 
 
INDJ!X. 783 
 
 VARIANCE, 
 
 amendment of, on trial, 431. 
 
 VARYING ACCEPTANCE,- 194. 
 
 VENUE, 
 
 when it may be changed, 408. 
 
 VOID BILLS, 
 
 foigery of, 326. 
 
 gaming contracts, 137, 139. 
 
 VOLUNTARY TRANSFER, 
 when void, 459. 
 
 "WAGER, 
 
 void, 187—139. 
 
 "W. 
 
 WAIVER, 
 
 of indorsement, 169. 
 
 of acceptance, 190 — 199. 
 
 of presentment, 317. 
 
 of want of protest, 260. 
 
 of absence of notice of dialionour, 100, note (m), 293, 
 
 of fieri facias, 336. 
 
 when the talsing of a bill effects a waiver of a lien, 385. 
 
 by surety of effect of indulgence given to principal, 253. 
 
 WANT OF EFFECTS. See Effects, 
 
 WARRANT OF ATTORNEY. See Attorney, Warrant of. 
 
 WARRANTY, 
 
 transfer by delivery warrants, genuineness of signature, 161. 
 indorsement warrants, genuineness of former indorsements, 230, 
 note (J). 
 
 WARRANTY, FRAUD CJLENT, 
 defence to an action, 181. 
 
 WIFE. See Married Woman. 
 
 WILL, 
 
 when a bill, check, or note might be, before the late statute, 4. 
 when an indorsement mightpperate as a testamentary instrument, 4. 
 transfer of a bill by, 174. 
 
 WITNESS. See Evidence and Attesting Witness. 
 
 WRIT OF INQUIRY. See Action. 
 
 ISIiould the Index in any part of it be found defective, the reader is referred to 
 the Copious Analytical Table of Contexts prefixed.'] 
 
 THE END. 
 

 KF 957 B99 1871^ c.l 
 
 Author Vol. 
 
 Byles, Sir John Barnard 
 
 Title Copy 
 
 A Treatise on the law of hills , . . 
 
 
 
 Date 
 
 Borrower's Name