1 'A (flnriipU 2Iaui irJjnnl library 3 ^924 018 852 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924018852123 A TREATISE BILLS OF EXCHANGE PEOMISSOKY NOTES. TREATISE OP THE LAW < BILLS OF EXCHANGE, PEOMISSORY NOTES, BANK-NOTES, BANKERS' CASH-NOTES AND CHECKS. BY- JOHN BARNARD ^LES, SERJEANT-AT-IiAW, WITH A PATENT OE PBECEDENOE. imxi\ JiraOTtatt, FROM THE SIXTH LONDON EDITION. WITH ADDITIONAL NOTES, ILLUSTRATIlfG THE LAW AITD PKACTICE IN THIS OOUNTET, By HON. GBOKGB SHARSWOOD. TIGILANTIBtrS NON DORMIENTIBUS JnRA SUBVENIUNT. PHILADELPHIA: T. & J. W. JOHNSON & CO., LAW BOOKSELLERS, NO. 197 CHESTNUT STREET. 1856. SkxUX Entered, according to the Act of Congress, in tne year 1856, BY T. & J. W. JOHNSON & 00. In the OflB^e of the Clerk of the District Court for the Eastern District of Fennflylvaxila. C. SHERMAN & SON, PRINTERS. TO THE RIGHT HON. SIR JAMES PARKE, ONE o; TB2 BARONS OF HER MAJESTY'S COURT OP EXCHEQUER, 10 vaou THE LAW AND ITS PROFESSORS ARE UNIIER OBLIGATIONS AS GREAT AS TO ANT JTJDGE WITHIN LEGAL MEMORY, %\h maxl, IS, WITH HIS PERMISSION, RESPECTFULLY INSCRIBED, BY THE AUTHOR. NOTE TO THE FOURTH AMERICAN EDITION. This Treatise is now presented to the American Profession, in a separate, and it is hoped, much improved form. 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 re- spect, the character of the notes has been made, as far as the ability of the Editor permitted, 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 symmetry and usefulness. Byles on Bills has now established its reputation as a standard work, and it may safely be commended, as well for its accuracy as its compendiousness, to the American Student and Practitioner. G. S. Apeil, 1856. PREFACE TO THE FIEST EDITION. There is no vestige of the existence of bills of exchange among the ancients, and the precise period of their introduction is somewhat controverted.* It is, however, certain that they were in use in the * II n'y a aucun vestige de notre contrat de change, ni dea lettres de change, dans le droit Eomain. Ce n'est qu'il n'arriv&t quelquefois chez les Eomains, que I'on compt&t pour quelqu'un une somme d'argent dans un lieu t une personne, qui se chargeoit de lui en faire compter autant dans un autre lieu. Ainsi nous voyona, dans les lettres de Ciceron a Atticus, que Cic6ron, voulant envoyer son fils faire ses etudes a Athenes, s'informe si pour epargner a sou fils de porter lui-meme a Athenes I'argent dont il y auroit besoin, on ne trouveroit pas quelque occasion de le compter a Eome a quelqu'un qui se chargeroit de le lui faire compter a Athenes. — Bpist. ad Att. XII, 24, XV, 25. Mais cela n'etoit pas la negotiation de lettres de change telle qu'elle a lieu parmi nous ; cela se faisoit par de simples mandats. Ciceron chargeoit quelqu'un de ses amis de Rome, qui avoit de I'argent a recevoir ^ Athenes, de fair tenir de I'argent a son fils a Athenes ; et cet ami, pour executer le mandat de Ciceron, ecrivoit a quelqu'un des debiteurs qu'il avoit a Athenes, et le chargeoit de compter une somme d'argent au fils de Ciceron. Au reste, on 'ne voit point qu'il se pratiqudt chez,les Eomains, comme parmi nous, un commerce de lettres de change : et nous trouvons au contraire, en la loi 4, § 1, if. de naut. Poen., qui est de Papinian, que ceux qui pretoient de I'argent a la grosse aventure aux marchands, qui trafiquoient sur mer, envoyoient un de leurs esclaves pour recevoir de leur dfibiteur la somme pretee lorsqu'il seroit arrive au port oii il devoit vendre ses mar- chandises; ce qui certainement n'auroit pas ete necessaire, si le commerce des lettres de change eiit ete en usage chez les Eomains. Quelques auteurs ont prfitendu que I'usage, du contrat de change et des lettres de change est venu de la Lombardie, et que les Jnifs, qui y etoient etablis, en ont ete les inventeurs : d'autres en attribuent I'invention aux Plorentins, lorsqu'ayant X PREFACE. fourteenth century. Indeed, they are mentioned as ' letteres d'es- change ' in the English Statute Book (3 Ric. 2, c. 3), as early as the year 1379. Though we find in our English reports no decision relat- ing to them earlier than the reign of James the Pirst.* 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, requesting 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 experi- ence, that this mode of payment was extremely convenient to all par- ties ; — 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 a 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 first, perhaps, the letter contained many other things beside 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 shrunk 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 repre- sentatives of debts due in a foreign country, were sometimes more, sometimes less, in demand ; they became, by degrees, articles of traffic ; and the present complicated and abstruse practice and theory of ex- change was gradually formed. Upon their introduction into our own country, other conveniences, as great as in international transactions, were found to attend them. They offered an easy and most effectual method of eluding the stub- born rule of the common law, that a debt is not assignable ; furnisK- ete classes de leur pays par la faction de Gribelins, ils s'etablirent a Lyon et en d'autres viUea. II riy a rien sur cda de certain, si ce n'esi que les letires de change ■etoient en usage des le quatorzieme siecle. C'est ce qui paroit par une loi de Venise de ce temps sur cette matiere rapportee par Nicholas de Passeribus, en son livre De Script. Privat. lib. 3. — PotWer Traite du Contrat de Change, Partie Prem. ; Chap. 1, s. 1. * Martin v. Bourne, Cro. Jac. 6. P-EEFACE. XI ing 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 infinitum. Not only did these simple instruments transfer value from place to place, at home 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 reduced to a certain amount, which the debtor, having accepted, could not afterwards unsettle; evidence of the original demand 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 reconciliation of the apparent inconsistency was brought about by a further benefit to a third person, for it was effected by advantageously employing the surplus and idle funds of the capitalist. At the first introduction 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 commercial system. The advantages of a bill of exchange, in reducing a debt to a cer- tainty, curtailing the evidence necessary to enforce payment, 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 transac- tion pointed out the way to a shorter mode of effecting the same purpose by means of a promissory note. Promissory notes soon cir- culated like bills of exchange, and became as common as bills them- selves. Notes 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 por- tion 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 dangers and xii PREFACE. 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 preserving paper money on a level with gold, is to compel the utterers to change it for gold, at the option of the holder. And peradventure even then, unless the State control the issue of paper, on principles imperfectly understood 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 narrowing the basis of the currency, endanger the whole superstructure. 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 immense amount of property even now afloat in bills and notes, when it is considered that all payments for our immense exports and imports, almost every re- mittance to and from every quarter of the world, nearly every pay- ment of large amount between distant places in the kingdom, and a large proportion of payments in the same place, are made through the intervention of bills ; not to mention the amount of common promissory notes, at long and short dates, and the notes of the Bank of England and country banks. It will not, perhaps, be an un- reasonable 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,! and that this species of property * This consequence does not appear to have been foreseen by the late Mr. Ricardo. t This deduction is fully supported by the returns of the Stamp Office. The net produce of the stamps on bills of exchange and promissory notes in Great Britain alone, for the year ending on the 5th January, 1828, was 578,654?. 4s. 5d. Now, supposing that the gross amount received for stamps amounted to 600,000?., an estimate, in all probability, considerably below the truth, and that the stamp is, upon an average, is. per cent, on the value of the instrument (for, though it is more on small, it is less on large sums), the value of the bills and notes stamped iu a single year will be three hundred millions. The amount circulated must be con- siderably more, for in this calculation are not included any bills drawn abroad or in Ireland, and a further allowance is to be made for instruments of more than twelve months' date, and for all reissuable notes. I presume the above return includes the composition in lieu of stamp duties paid by the Governor and Com- pany of the Bank of England. The weekly average amount of Bank of England notes and bank post-bills in circulation for the year preceding April 6 1828 was 21,549,.318?. 10*. or, ; PRBSACE. Xm is now, in aggregate value, inferior only to the land or funded. debt of the kingdom. 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 infinity of legal questions, and multitudes 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 complexity 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 circum- stances, by a few general rules, however skilfully constructed, must be abortive. In France, this subject has been briefly but most luminously treated by M. Pothier, a learned civilian of the last century, whose work, as well as his other performances, and in particular the TraitS des Obli- gations, evinces a profound acquaintance with the principles of juris- prudence, and extraordinary acamen 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 merit of his works, than that, after the, lapse of more than half a century, and a stupen- dous revolution in all the institutions of his country, many parts of his writings have been incorporated, word for word, in the new Code of France. The TraitS du Qontrat 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 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 Lyttleton on the Laws of England."t In this country, the growth of the law on bills and notes has been almost proportionate to the increase of those instruments ; 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 * Lord Chief Justice Best. t Cox V. Troy, 5 B. & Aid. 481 ; B. C. L. E. Vol. 1. There is now also an able modern French work on the same subject by M. Noguier. In, America have re- cently appeared the Commentaries of Mr. Justice Story, on the Lawi of Bills of Exchange, and his Commentaries on the Law of Promissory Notes. XIV PRE IP ACE. common use in the Profession, the treatise of Mr. Chitty, and the summary of Mr. Justice Bayley.* The work of the learned Judge is considered authority, and 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 acquire- ments, and the readiness of their application, 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 arrangement. This little work does not aspire to compete with either of 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 words of the judgment, a plan which the Author has been induced to adopt, partly that those who may not have ready access to the authorities may be satisfied that the law is correctly 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 nume- rous qualifications and exceptions. No pains have been spared to render the subject intelligible. How far the book is likely to be useful in practice, it is for others to determine. JOHN BARNARD BYLES. Inner Temple, 16th April, 1829. * Mr. Roscoe's Digest, 'and Mr. Johnson's book had not appeared when these observations were written. CONTENTS. THE PAGES KErEKRED TO AEB THOSE BETWEEN [ J. CHAPTER I. GENERAL OBSERVATIONS ON A BILL OF EXCHANGE. Explanation of Terms, . . .1 Peculiar Qualities of Contracts on Bills or Notes, .... 2 Effect of drawing or indorsing a Bill, 2 How far Bills and Notes are 'consi- dered as Chattels, . . .3 May be taken in execution, . . 3 Where a Bill or Note may not operate as a "Will or Testamentary Instru- ment, ...... 3 CHAPTEE II. OP A PROMISSORY NOTE. What it is, 4 How considered at Common Law, and what by Statute, . . .4 Promissory Notes made out of Eng- land, 4 Form of a Note, .... 5 Note by a man to himself, . . 5 Note by a man to himself and another, 5 Notes payable by instalments, . . 5 Joint and several Notes, . . .6 Bank Notes, 1 Bank of England Notes, . Country Bank Notes, When Bank of England notes are a good tender, .... When country Bank Notes are a good tender, .... When money had and received will lie for them, Of the contracting words in a Promis- sory Note, Other matters contained in a Note, . XVI CONTENTS. CHAPTEE III. OP A CHECK ON A BANKER. What instnimentg are checks, . 10 Eequisites to bring Checks within the exemption of the Stamp Act, 11 Effect and Penalty of omitting a Stamp on check where necessary, 12 Amount for which it may he drawn, 12 Banker's obhgation to pay, . . 13 Time of presentment, . . .13 As between Holder and Drawer, . 13 As between the Holder and his own Banker, . . . . .14 Where the parties do not live in the same place, . . . ,14 As between the Holder and a trans- ferer who is not a drawer, . . 14 What amounts to an engagement to pay a check, . . . .15 Crossed checks, . . . .15 What a check is evidence of, . . 16 When it amounts to Payment, . 16 When it may be taken in Payment, 16 Whether Holder be Assignee of a chose in action, . . . .17 Effect of Drawer's death, . . 17 Of Fraud in filling up checks, . 17 When several must join in drawing check, 18 From what period Customers to be debited, 18 Checks not protestable, . . .18 May be referred to Master to com- pute, 18 Cannot be the Subject of donatio mortis causa, . . . .18 Right to cash a check, . . .18 Overdue check, . . . .18 May be taken in execution, . . 18 CHAPTEE IV. OF AN I. 0. U. What it is, 19 Requires no stamp, . . .19 Upless it amount to a note or agree- ment, 20 Need not be addressed, . . .20 Bill in equity to discover considera- tion, 20 To restrain an action, . . .20 CHAPTEE V. OP THE CAPACITY OF CONTRACTING PARTIES TO A BILL OR NOTE. Agents, 22 Who may be an Agent, . . .22 How an agent may be appointed, . 23 Procuration, 23 When authority may be inferred, . 23 When admitted, . . . .24 Consequences of an Agent exceed- ing his Authority, . . .24 Unauthorized indorsement, . . 24 Delivery, 24 Pledging 24 Bill brokers, 25 When the Production of Agent's Authority may be required, ■ . 25 How determined, . . . .25 When it may be delegated, . . 26 Personal liability of an Agent to third Person, . . . .26 Parol evidence inadmissible to dis- charge the Agent, . . .26 Signature without authority, . . 27 Liability how avoided, . . .27 Rights of an Agent against third iPersons, 27 Liability of an Agent to his Princi- pal, 28 Rights of Principal against third Persons, 28 Pabtnees, - .... 29 Partnership, both actual and ostensible, . . . .29 Agreement, inter se, not to draw Bills, . . •. . . .29 CONTENTS. X7J1 Cases in which Partners are both entitled and liable in respect of a Bill, Eights and Liabilities as between the Firm and the World, . One Partner binding the other by Bills, By Promissory Notes, . In Farming and Mining Partner- In Joint Stock concerns, In Partnerships not in Trade, Consequences of Partner exceeding his authority, .... When there is Notice, . Common Partner in two Firms of the same Name, New Partner, .... Fresh Security, .... Dormant or Secret Partner, His Liability, . . • . Nominal Partner, Dissolution, Eetirement of Secret Partner, Occasional Partnerships, . bxeoutors and administrators, . 33 33 33 33 34 35 35 35 36 36 36 37 38 40 40 Their Rights and Duties, . • 40 Effect of Probate, .... 41 Debtor made Executor, . . .41 Debtor becoming Administrator, . 42 When Executors may sue as such, 43 Delivery after indorser's death, . 43 Indorsement by one Executor of several, 43 Personal Liability on a Bill, . .44 Joinder of Common Counts in Ac- tions by, 44 In Actions against, . . .44 Infants, 44 Lunatics, 47 Persons Drunk, . . . .47 Married Women, . . . .48 Convicted Felons, . . .51 Aliens, . , 51 Corporations and Companies, . 51 Bank of England, . . _ . .52 Banks of not more than six Part- ners, 53 Banks of more than six Partners, . 53 Persons acting in an official capacity, 54 Friendly Societies, . . .55 CHAPTER VI. OF THE POBM OF BILLS AND NOTES. On what substance they may be Of the Sum payable, . . . 62 written, 56 Bills and Notes under 20s., . 63 In what language, .... 56 Bills and Notes under 51,, 63 In pencil or in ink. 56 Of the words "Value Received," 63 Signature by a mark, Of the Superscription of the Place 57 Other Statement of the considera- tion, 64 where made, .... 57 Of the Drawer's Signature, 65 Of the date, 57 Of the Direction to the Drawee, 66 Of the Superscription of the Sum Of the place where made Payable payable, 58 by the Drawer, .... 66 Of the Time when payable, . 58 Of the Direction to place to Ac- Of the Request to pay, . 59 count, 67 Of the name of the Payee, . 60 Of the words "As per advice," 67 Of the words "Order" or "Bearer," 62 CHAPTEE VII. OF AMBIGUOUS, CONDITIONAL, AND 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, . . .70 And for payment of it, . . . 71 Must not ' suspend payment on a condition, 71 Period of Payment may be uncer- tain if inevitable, . . .72 XVlll COKTENTS. Where several makers or several Payees are respectively liable or entitled in the alternative, . Y3 Must not be made payable out of a particular fund, . . .. .73 Irregular bill or note may be an agreement, U CHAPTEE VIII. OP AGREEMENTS INTENDED TO CONTROL THE OPERATIONS OF BILLS AND NOTES. Various sorts of agreements, . . 75 Effect of contemporaneous agree- ment written on the instrument, . 75 Effect of an agreement subsequently written on the instrument, . .76 Effect of agreement written on a distinct paper, . . . .76 Agreement contemporaneous, but collateral, 76 Effect of a verbal agreement, . 76 Agreement to renew, . . .77 Agreement on bill must be read, . 77 Pleading, . . „ . .77 CHAPTER IX. OF THE STAMP. When Stamps were first imposed on Bills and Notes, .... Present Stamps on Bills and Promis- sory Notes, . . . ^ . What regulations of former Stamp Act are still in force, . In what Cases a Bill or Note may be restamped, .... Effect of alteration of the law. What negotiable instruments are ex- empt from Stamps, Requisites for bringing Checks with- in the Exemption, Stamps on Foreign Notes, , . Penalty on Unstamped Instruments, Penalty for post dating, . What notes may be re-issued, 85 Stamps on Foreign Bills, . . 88 Stamps on Irish or Colonial Bills, . 88 What is such a Making within the Kingdom as to subject to a Stamp, 88 Effect of Want of a Stamp on the instrument, . . . .88 Fresh Dies, 89 Effect of post stamping against Law, 89 Reservation of Interest does not make a larger Stamp necessary, . 90 On Bills post dated, . . .90 Sufficiency of Stamp admitted by paying money into Court, . . 91 When the objection to the Stamp should be taken, . . .91 Pleading, 91 CHAPTER X. OP THE CONSIDERATION. Presumption as to the consideration on Bills and Notes, . . .92 When it must be proved, . . 93 In the case of an Accommodation Bill, 93 Effect of New Rules of Pleading, . 94 Gift of a Bill or Note, . . .94 Nature of the Consideration, . . 95 Pre-existing Debt, . . . .95 Fluctuating Balance, . ... 96 Debt of a third Person, . A judgment debt, . Moral Obligation, . Cases where more than one Conside ration comes in Question, . Failure of Consideration, Notice of Absence of Consideration, Partial Absence or Failure of Con- sideration, .... 96 97 97 97 98 98 98 CONTENTS. Accommodation Bill, . . .100 Fraudulent Contracts, or Conside- rations, 100 Where a party who has been de- frauded must pay a Bill or Note, signed by him without Conside- ration, 103 Illegal Considebations at Com- mon Law, .... 103 Immoral, 103 In Contravention of Public Policy, 104 By Statute, .... 106 Usury, 106. Gaming, 106 Horse-racing, Innocent Indorsee, New Security, Stockjobbing, Other Considerations illegaHby Sta- tute, .... Notice of Fraudulent Conaide ration, .... Illegality of Consideration where judgment recovered, Part Illegal, Renewal of Bill given on illegal Consideration, .... 106 lor 107 108 109 110 111 111 111 CHAPTEE XL OF THE TRANSFER OF BILLS AND NOTES. Division of the Subject, 112 Before bill filled up. 127 What Bills Teansperable, 113 After refusal to accept. 128 Transfer of Instruments not trans Where the transferee has no no ferable, .... 113 tice, .... 128 Modes of Transfer, . 114 After due, .... 129 Blaik Indorsement, 114 Transfer of an overdue Check, 130 Special Indorsement, . 115 Of Note payable on Demand, 131 An Allonge, 115 Pleading, .... 131 Misspelt Indorsement, . 115 Equitable Relief in case of out By a plurality of holders. 116 standing overdue Bill, 131 Conversion of blank into special In Burthen of Proof, 131 dorsement. 116 Check drawn on Bearer's Banker 131 Delivery necessary. 116 After Payment, . *. 132 Liability of Indorser, IIY After Premature Payment, . 133 How declined, . . . ' IIY After partial payment, 133 May be suspended on a Condition 117 Where there is a question whethei What Indorsement admits, . 118 the Bill was paid or transferred 133 Striking out Indorsements, . 118 Transfer for part of the Sum due 133 Rights of Indorsee, . 119 For residue unpaid, 134 Of Transferee to compel Indorse After Release, 134 ment, .... 119 After Action brought, . 1.34 Where a Bill is re-indorsed to a Of Bills and Notes under 5?., 134 prior Indorser, . 119 Transfer Abroad, 134 Where the Indorser is only a Trus After holder's death, . 135 tee, 119 After Bankruptcy, 135 Restrictive Indorsements, 121 After Marriage, . 135 Liability of Persons Transfer Bv Deposit with a Banker, . 135 RING BY Delivery, . 122 By Will, .... 135 Where the Bill is considered a 3 Donatio Mortis Causft, 136 sold, .... 123 Execution, .... 136 Warranty of Genuineness, . 125 Larceny, .... 1.37 Rights of Transferee by Deli- Embezzlement, . 137 very, .... 125 When a Court op Equity wili Metal Tokens, . 127 restrain Negotiation, . '. 137 Transfer under Peculiar Cir Technical Difficulties in Suing cumstanoes, . 127 how Removed, . 137 XX CONTENTS. CHAPTEE XIL OF THE PRESENTMENT FOR ACCEPTANCE. Advisable in all cases, . . 139 Necessary where Bill is Drawn at or after sight, . . . .139 When to be made, . . .139 At what hour, .... 141 Excused by putting Bill into Cir^ culation, 141 Or by other reasonable Cause, . 141 To whom it should be made, . 141 What time may be given to the Drawee, Consequence of Negligence in Party presenting, Proper Course for Holder when . Drawee cannot be found, or is dead, Pleading, 142 142 142 142 CHAPTEE XIII. OF ACCEPTANCE. In what cases the Drawee is liable, before acceptance, . . . 143 Liability of a Person appointed by the Acceptor to pay a bill, . 144 By whom it may be given, . . 144 Not by a series of Acceptors, . 144 When, 145 Before Bill filled up, . . . 145 Not before Bill in existence, . 145 After due, or after Prior Refusal to Accept, 146 Acceptance of Inland Bills must be in Writing on the Bill, . 146 What will amount to an Accept- ance in Writing on the Bill, . 147 What will amount to an Accept- ance of a Foreign Bill, . . 14? What Engagement the Holder may require, of the Acceptor, . . 149 What should be his Conduct in Case of Qualified Acceptance, . 149 Qualified Acceptance, . Conditional Acceptance, Partial or varying Acceptance, Payable at particular place. Presentment for payment there. Effect of two Acceptances on the same Bill, Delivery or Notice necessary to Complete Acceptance, Cancellation of Acceptance by Drawee, » . . . By Banker, .... By other Parties, . Liability of Acceptor, . How Discharged, By Waiver, .... Cancellation by the Holder, Pleading, .... What Acceptance admits, . Where Drawee precluded from dis- puting it, . 149 150 150 151 151 151 151 152 152 152 152 152 153 154 154 154 156 CHAPTEE XIV. OF PRESENTMENT FOR PAYMENT. How made, .... In case of Bankruptcy or Insol- vency, Unnecessary to charge a Guaran- tee, ..... Where Drawee Absconds, . In case of Drawee's Death, . Of Holder's Death, 157 158 158 159 159 159 When to be made. 159 Time, how computed, . 159 Months, .... 159 Days, 159 Bil s and Notes at Sight, 160 Usance, .... 160 Old and New Style, . 160 Days of Grace, . 160 CONTENTS. XXI What in Different Countries, . 160 How reckoned, . . . .161 Sundays and Holidays how reck- oned, 161 Premature presentment, . .162 OnwhatlnstrumentsDays of Grace allowed, 162 Presentment of Bills payable at Sight, 162 Of a common Bill of Exchange payable on Demand, . .164 Of a Check, . . . .164 Of a common Promissory Note payable on demand, . . . 164 Ofa Bank Note, . . . .165 Of other Bankers' Paper, . . 165 When no time of Payment is spe- cified, . . . . . 165 At what Hour, . . . .166 Where, when a Bill is made payable at a particular place, . . 166 Pleading, 167 When a Note is made so payable, 169 Bill or Note so payable by Sup- plementary Memorandum, . 169 Consequence of not duly Presenting, 169 Presentment not necessary to charge Acceptor, . . . 170 When Neglect to Present ex- cused, 170 Of Bill seized under extent, . . 170 By circulating, .... 170 By the Abscondingof the Drawee, 170 By Absence of Effects in the Drawee's hands, . . .171 Not by declaration of Acceptor that he will not pay, . . . 171 By Returning Bank Notes, . . 171 Advantage from Neglect, how waived, 171 Pleading, 171 Evidence of Presentment, . . 171 CHAPTER XV. OF PAYMENT. To WHOM IT SHOULD BE MADE, Of Crossed Checks, To a wrongful Holder, Effect of Payment by Acceptor, By Drawer, . By a Stranger, When to be made. At what Time of Day, Subsequent tender. Premature Payment, After Action brought, Payment by Notes or Checks, 172 173 17.3 174 174 175 175 176 176 176 177 177 What amounts to Payment, . 177 Legacy, .... . 177 Appropriation of Payments, 178 Part Payment, 179 Part Payment will be Presumed, 180 Evidence of Payment, . 180 Of delivering up the Bill, 180 Of giving a Receipt, 180 Effect of Receipt, 181 Tender of Part Payment, 181 Plea of Payment, 181 Retractation of Payment, 181 CHAPTEE XVI. OF THE SATISFACTION, EXTINGUISHMENT, AND SUSPENSION OP THE RIGHT OP ACTION ON A BILL. Satisfaction not necessary before Breach, 182 Its Requisites, . . . .182 Payment of a smaller Sum by third Party, 183 Engagement by third Party, . 183 Relinquishing a Suit, . . . 183 When a Bill operates as Satisfac- tion, Effect of Warrant of Attorney, Of Transfer to an Acceptor, Op Judgment, Of Execution, . Of Discharge from Execution, 184 184 184 184 184 185 zxu CONTENTS. Of waiving a Fieri Facias, . . 185 Of taking a Deed, . . .185 Suspension, . . . .185 Effect of Renewal, . . .185 Of Debtor becoming Administra- tor, 185 Of Covenant not to Sue within a limited Time, . . . .186 CHAPTER XVII. OF RELEASE. What it is, . Release at Maturity, Premature Release, By a party who is not Holder, To Drawee before Acceptance, To one of several Jointly Entitled or Liable, 187 187 187 187 187 187 Covenant not to Sue, . . . 188 Covenant not to Sue within a limited Time, . . . .188 Appointment of Debtor Executor, 188 Right to hold Securities for Re- leased Debt 188 CHAPTER XVIII. OF THE LAW OF PRINCIPAL AND SURETY IN ITS APPLICATION TO BILLS AND NOTES. General Principles of the Law, 189 Cognovit, or Warrant of Attorney, 195 What Parties to a Bill ari Judgment, 195 Principals, and what Parties Bankruptcy, .... 95 ARE Sureties, 190 Insolvency, 195 On Accommodation Bills, . 191 Compounding, .... 196 On Promissory Notes, . 191 Collateral Security, 196 On a Joint and Several Note, 192 Agreement with a Stranger, . 197 What Conduct of the Creditor Discharge of Prior Parties by giving TOWARDS THE PRINCIPAL DOES time to Drawee who has not ac- OR DOES NOT DISCHARGE THE cepted, . . . . , . 197 Surety, .... 192 Warrant of Attorney, . 197 Receipt of Payment, . 193 How the Discharge op the Release, 193 Surety may be Prevented, . 197 Covenant not to Sue, . 193 How IT IS Waived, 198 Release in Law, . 194 What Conduct of the Creditor to- Agreement not to Sue, 194 wards the Surety will Discharge Renewing a Bill, . 194 the Principal, .... 198 Discharge from Execution, 194 Surety's Right to Indemnity, 199 Part Payment, 195 Of Contribution between Co-sure- Offer to give Time, 195 ties, 199 CHAPTER XIX. OF PROTEST AND NOTING. Protest necessary on Foreign Bills, Form of Protest, . . 201 and why, 200 Stamp on Protest, . 202 By whom to be made, . 200 For better Security, . 202 Office of a Notary, 201 Noting, what, . 202 When to be made, 201 Notice of Protest, . 203 Where to be made. 201 Copy of Protest, . . 203 CONTENTS. XXIU When Protest excused, Protest of Inland Bills, Of lost Bills, 203 204 204 EBfect of Promise to Pay, . . 204 Pleading, 205 Evidence, . * . . . .205 CHAPTER XX. OF ACCEPTANCE SUPRA PROTEST, OR FOR HONOR. Mode of snob Acceptance, . Who may so Accept, . . . 206 Conduct which Holder should pur- sue, 20T 206 Liability of Acceptor supra Pro- test, ..... 208 Rights of Acceptor supra Pro- test, 209 CHAPTER XXI. OF PAYMENT SUPRA PROTEST, OR FOR HONOR. What and how made, . . . 210 Right of Party paying supra Pro- test, 210 Notice of Dishonor by, . . 211 Cannot revive Liability, . .211 Payment without Protest, . .211 Accommodation Bills, . . .211 When the Protest should be made, 211 No Payment supra Protest of Pro- missory Notes, . . . .211 CHAPTER XXII. OF NOTICE OF DISHONOR. Division OF THE Subject, . . 21,S Form op the Notice, . . . 21.B Description of the Instrument, . 216 Mode op Transmitting it, . . 218 By Post, 218 Direction of the Letter, . .218 Evidence of Notice by Post, . 219 Twopenny Post, . . . .219 Special Messenger, . . . 220 How to be sent in ease of Foreign Bill,' 220 At what Place, .... 220 When to be giv^n, . . . 221 If the Parties live in different Places, 221 In the same Place, . . . 222 When a Person receiving Notice should transmit it, . . .223 May be given on the Day of Dis- honor, 223 When, if the Bill is deposited with- Banker, Attorney, or Agent, . 223 Notice through Branch Banks, . 224 Sundays and Holidays, how reck- oned, 224 Burden of Proof, . . .224 By whom Notice should be GIVEN, 225 By an Agent, . . . .226 To whom, 226 To an Agent or Attorney, . . 228 To a Bankrupt, . . . .228 Where the party is dead, . . 228 Need not be given to Acceptor, . 228 To Parties jointly liable, . . 229 To a Transferer not Indorsing, . 229 When to a Guarantor, . . . 230 To an Indorser giving a Bond, . 230 Consequences of Neglect, . 230 What excuses Notice, . . 231 Agreement of the Parties, . . 231 Countermand of Payment, . . 231 No Effects, ._ ... . .231 Where there is reasonable Expec- tation that the Bill will be ho- nored, 234 Ignorance of Party's residence, . 234 Accident, 235 Where a. Bill is drawn, by several on one of themselves, . . 236 Death, Banlcruptcy, or. Insolvency, will not excuse, . . . 236 XXIV CONTENTS. Insufficient Stamp, . ' . 236 Bill Seized under Extent, 238 Note not Negotiable, . 236 Evidence of Notice, 238 Consequences op NEGfflpcT, how Pleading, 238 WAIVED, 236 CHAPTER XXIII. OP INTEREST. The Nature of Interest, 240 UsnET, . . . 244 At Common Law, 244 able by the Terms of the Instru- Statutes against it, . . . 244 ment, 241 Their Construction, 244 Prom what time it runs as against Substances of Enactments, . 245 an Indorser 242 There must be a Loan, 245 To what Period it is computed, . 242 Usury on Discounts, . 245 When Money is paid into Court, . 242 Usurious Security for Good Debt, . 246 In Trover, 242 Where the Charge is not for the After a Tender, .... 242 Loan, but for the Labor of the How Bankers should charge it on Lender, 246 Checks, 242 There must be a corrupt intention, 247 Recovery of Interest after receipt Hazard of the Principal Money, . 248 of the Principal, 243 Advance of Goods, 249 When Interest is not recoverable, . 243 Irish or Colonial Interest, 249 When an Engagement to give a Substituted Security, . ; 250 Bill, will create a Liability to Separate Instruments, . 250 Interest, 243 Innocent Indorsee, 250 Liability of a Guarantor for Inte- . Statutes exempting certain Bills rest, 243 and Notes from the Usury Laws, 251 How it is Recovered, . 243 Pleading, 252 The Rate of Interest, . 243 CHAPTEE XXIV. OP THE ALTERA riON OF A BILL OR NOTE. Effect of Alteration at Common In correction of a mistake, . 256 Law, 253 When the Alteration of the Instru- Of Deeds, 253 ment extinguishes the Debt, 25Y Of Bills and Notes, . 254 Renewal of altered Bill, 257 Under the Stamp Acts, 255 When Alteration need or need not Where an Alteration will not be Pleaded 257 vitiate, 255 Requisites of Plea, 258 Before Bill issued. 255 BUKTHEN OF PrOOP, . 258 CHAPTEE XXV. OF THE FORGERY OP BILLS AND NOTES. Definition of the Crime, . . 260 Staltutes, 260 General Result of the Enactments, 261 Forgery of Void Bills, . . .261 Of Invalid and Informal Bills, . 261 Forgery by Misapplication of a Genuine Signature, . . . 261 By Signature of a Fictitious Name, 262 CONTENTS. XXV By Fraudulent Signature of a Man's own Name, . . . 262 Uttering a Genuine Signature, and Personating the Party signing, . 263 Misrepresentation of Authority, . 263 Alteration, 263 Uttering 264 Procuring to Utter, . . . 264 Statement of the Instrument in the Indictment, .... "265 When several Make distinct Parts of the Instrument, . . . 265 The Party whose Name is Forged a Competent Witness, Forgery of Foreign Bills, Evidence in Criminal Cases, Civil Consequence of Forgery, When the Payment of a Forged Bill is good, .... When Money paid in Discharge of a Forged Bill may or may not be recovered back, . Inspection of a Bill supposed to be Forged, 265 265 265 266 266 266 268 CHAPTER XXVI. OF THE STATUTE OF LIMITATIONS IN ITS APPLICATION TO BILLS AND NOTES. Policy of the Law, When Introduced, The present Statute, . Division of the Subject, General Operation of the Sta- tute, Does not destroy the Debt, . Foreign Statute of Limitations, . What Legal Proceedings it Limits, When it begins to Run, On Bill payable after Date, . Payable on a Contingency, . Payable on Instalments, Against an Administrator, . On a Bill at or after Sight, . On Bill payable on Demand, ' . After Demand, .... In case of Fraud, .... In the case of an Accommodation Bill, When there has been both non-ac- ceptance and non-payment, Up to what Period the Time of Limitation is Computed, 269 How the Operation of the Sta- 270 tute IS obviated by Issuing a 270 Writ and continuing it down, 274 270 The Saving Clause, . What Acknowledgments will 275 270 TAKE A Debt out of the Sta- 271 tute, 276 271 Lord Tenterden's Act, . Of what sort the Acknowledgment 277 271 must be, 277 272 When acknowledgment must be 272 made, 281 272 By whom, 281 272 To whom, 283 273 What Evidence is required of the 273 Acknowledgment, 284 273 How THE Statute is to be taken 273 ADVANTAGE OF, ... 285 273 Form of the Plea, 285 Replication of the Statute, . 286 274 Replication to u, Plea of the Sta- tute, 286 274 Replication of Fraud, . When, independently of the 286 274 Statute, lapse of Time is a Bar, 286 CHAPTER XXVII. OF THE LAW OF SET-OFF AND MUTUAL CREDIT, IN RELATION TO BILLS AND NOTES. - Nature of Set-off, . 287 The Sums to be Set off must be Unknown to the Common Law, . 288 Debts, 289 Recognized in Equity, . 288 Legal, 289 Introduced by Statute, . 288 Subsisting, 289 The General Statutes op Set- Actually Due, .... 289 Off, 289 Mutual, 290 XXVI Statutes Permissive, not Impera- tive, Set-off nr Bankruptcy, When the mutual Credit must have existed, .... Fraudulent Set-off, Attempt to deprive of Set-off, What mutual Credit is, Need not be of Money, The Debts need not be Due, CONTENTS. - Mutual Credit need not be In- . 291 tended, 294 . 291 Breach of Trust, _. 294 8 Does not extinguish a lien, . 294 . 291 How mutual Credit is to be taken . 292 advantage of, . 295 . 293 Set-oi*f in Equity, 295 . 293 Of Cases where a Stipulation, . 293 not the subject of a Set-off . 294 fk A Bar to the Action, . 296 CHAPTER XXVIII. OP A LOST BILL OR NOTE. Title of the Finder, . . . 29T Proper Course for the Loser to take, 297 Notice of Loss, .... 298 Presentment and Notice of Dis- honor of a Lost Bill, . . .299 Bill in the Hand of adverse Party, 299 Whether an Action lies on a De- stroyed Bill, . . . .299 Will not lie on a lost Bill, . . 299 Nor on a lost Check, . . . 299 Unless not Negotiable, or only Transferable by Indorsement, . 300 Pleading, 300 Loss after Action brought, . . 301 Loss of Half-Note, . . .301 Trover for Lost Bill, . . .301 Remedy for Loser in Equity, . 301 On whom the Loss of a Bill trans- mitted by Post, &c., will fall, . 302 CHAPTEE XXIX. HOW_ FAR A BILL OR NOTE IS CONSIDERED AS PAYMENT. Suspends the Remedy on a Simple Contract, 303 Form of Pleading, . . .304 But not on a Contract under Seal, 304 Does not suspend Distress, . . 304 Payment of Attorney, . . . 305 Consequence of a Creditor taking Bills ofa Third Person, . . 305 Of the Creditor's Agent taking the Debtor's Bill, . . . .305 What a Creditor who has been paid by a, Dishonored Bill must prove, 306 Where the Transferer knew the Instrument to be of no value, . 306 A Lost or Destroyed Bill, when Payment, 306 Payment by Bank Notes, or Bills or Notes, payable to Bearer, . 307 Where a Bill is renewed, . . 307 Taking a Bill determines a Lien, . 307 But not on Land, . . . . 307 Is earnest, 308 CHAPTEE XXX. OP SETS AND COPIES OP BILLS. What a Bill Drawn in sets is, . 309 To whom the Bill belongs when the parts are in different hands, . 310 How many parts may be required, 310 Effect of omitting to refer to the other parts, .... 310 Liability of Drawee, . . . 310 Liability of Indorser, . . .311 Copies of Bills, . . . .311 CONTENTS. CHAPTER XXXI. OF FOREIGN BILLS AND NOTES, AND OF FOREIGN LAW RELATING TO BILLS AND NOTES. What are Foreign and what Inland Bills, 312 Sets of Bills, . . . .313 Presentment of Foreign Bills, . 313 Acceptance of Foreign Bills, . 313 Protest, ...... 313 Of the Conflict of the Laws of Dif- ferent Countries relating to Bills, 313 General Principles of the English Law, 314 Cases where the Lex Loci Con- tractus Governs, . . . 315 Lex Loci Solutionis, . . . 315 Lex Fori, 316 Foreign Aclbptance, . . .316 Foreign Indorsement of English Note, 316 Foreign Discharge, . . .316 Cases in which Lex Loci Solu- tionis GOVERNS, . . . 316 Foreign Indorsement of English Notes, 317 Time of Payment, Protest and Notice of Dishonor, General Acceptance, . Immoral, Illegal, and Injurious Contracts, Revenue Laws of other Coun- tries disregarded, . Stamps on Foreign Bills, On Irish or Colonial Bills, . Raising objection to Stamp, What is such a making within the Kingdom as to subject to a Stamp, Presumption that Bill was Drawn abroad, Application of the Lex Fori to Foreign Bills, Statutes of Limitation, . Protest and Notice of Dishonor, . Pleading, Burthen of Proof, 311 317 317 317 318 318 318 318 319 319 319 320 320 320 320 CHAPTER XXXII. OF THE REMEDY BY ACTION ON A BILL. Who may sue on a Bill, In another's Name, Joining Count on Consideration, 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 have been brought against the Party suing, Trover or Detinue for a Bill, Affidavit to hold to Bail, Arrest for Interest, Statement of the Sum, . That the Bill is due, . Statement of Indorsements, . Character of Defendant, Character of Plaintiff, . Description of Defendant by his Initials, Statement of Consideration, . 321 322 322 322 322 322 322 322 323 324 324 324 324 325 325 325 325 ■326 Venue, .... Inspection of the Bill, Particulars of Demand, . Tender, .... Consolidating Actions, Stating Proceedings, In an action against the Acceptor, When without the Costs in other Actions, Summary Interposition ofthe Court, Setting aside Pleas, Reference to Master to com- pute, Re-exchange, . . . . Other damages, . . . . Advantages of Suing on the Bill rather than on the Consideration, Interposition of Equity, When Equity will restrain an Ac- tion, . . . . . Bill of Discovery in aid of Action or Defence, . . . . 326 326 326 326 327 327 327 328 328 328 328 329 330 330 330 330 331 XXVlll CONTENTS. CHAPTEE XXXIIL OP THE PLEADINGS IN ACTIONS ON BILLS AND NOTES. Forms of Action, . . - 332 Debt, ...... 333 Assumpsit, 334 Declaration, .... 335 Statement of the Parties to the In- strument, .... Description of the Instrument, Statement of Acceptance, Of Presentment for Payment, Of Notice of Dishonor, Of Excuse for omitting to Present for Payment, .... Of Notice of Indorsement, . ■ Of Protest, Of Maturity of Instrument, . Allegation of a Promise to Pay, . Declaration of a Bill Drawn in Sets, Assignment of the Breach, . Damages, . . '. Pleas, 335 336 336 336 336 336 .337 337 337 338 339 .339 339 339 General Effect of New Rule, . 339 Non Assumpsit, . . . .339 Nil Debet, 340 General Issue by Statute, . . 340 Traverse of Acceptance, . . 340 Traverse of Indorsement, . . 340 Absence of Consideration, . . 341 That Plaintiff is not the Holder, . 341 Plea of Payment, . . . 342 Effect of Pleading over, . . 342 Fraud, 342 Payment, 342 Satisfaction, .... 343 Duplicity of Pleas, . . . 343 Sham Pleas, . . . .344 Replication de Injuria, . . 344 To Plea denying Consideration, . 345 Pleading an Estoppel, . . . 346 Distributive Replication, . . 346 Duplicity of Replication, . . 346 CHAPTER XXXIV. EVIDENCE. Right to Begin, .... 347 Production of the Bill, 353 Competency of Parties to the In- Proof of Mark, . . . . 353 strument as Witnesses, in Ac- Proof of Signature by Agent, 354 tions between other Parties, 348 Effect of Admission under Judge's When witness interested. 348 Order, 355 In respect of Costs, 349 Bill or Note, Evidence under the Competency of Drawer, Acceptor, Common Counts, 354 Payee, or Indorser, . 350 Proofs in various Actions, 354 Declarations at the Time of making Payee v. Maker or Acceptor, 355 the Instrument, 351 Indorsee v. Maker or Acceptor, . 355 Declaration by prior Parties, 351 Indorsee v. Indorser or Drawer, . 355 Effect of Admissions on Record, . 352 Payee v. Drawer, 355 Proof of Signature, 352 Receipt, . . . . t 355 Identity of Defendant, . 352 Amendment at the Trial, 356 Evidence of Consideration, . 353 CHAPTER XXXV. OP THE BANKRUPTCY OP PARTIES TO A BILL OR NOTE. Relation of the fiat or Adjudication of Bankruptcy, . . . 359 Notice of Act of Bankruptcy, . 360 Bill to Petitioning Creditor, . . 360 In what cases the holder may prove, 360 CONTENTS. XXIX Bills and Notes not yet due, . 361 Proof of a Bill or Note payable on- Demand 361 Bill Payable after Notice, . . 361 Irregular Bill or Note, . .361 Bill cannot be proved against a Man not a party to it, . .361 Proof of Lost Bill, . . .362 Proof of a Surety or Person liable for the Debt of a Bankrupt, . 362 Holder may elect- between proof and Action, .... 363 Mutual AccoMMODAiioif Bills, . 363 Where there has been Specific Ex- change of Securities, . . 363 What amounts to Specific Ex- change, 365 Party to Mutual Specific Exchange of Papermustpay hisown Paper before he can prove, . . 365 Mutual Accommodation without Specific Exchange, . . . 365 After Holder has proved, no further Proof, 365 Cases of Mutual Accommodation without Specific Exchange, Mu- tual Bankruptcy, and Cash Ba- lance, 365 Accommodation Bills in the hands of an Indorsee for Value, . . 370 Proof of Interest, . . . 3Y0 Of Expenses, Re-exchange, &c., . 370 Where there are several Fiats or Adjudications of Bankruptcy, un- der which, and for how much, the Holder may prove, . . 371 Where the Creditor holds a Bill as a Security, .... 371 Proof where a Transfer after Ac- ceptor's Bankruptcy, . . 372 Acts of Bankruptcy in respect of Bills, . . . . . 372 When a Bill may be a good Peti- tioning Creditor's Debt, . . 372 Evidence of the Date of a Bill, . 373 What Transactions in respect of Bills wiU constitute a Trading within the Bankrupt Laws, . 373 Bills in the hands of a Banker, &e., becoming Bankrupt, do not pass - to his Assignees, . . . 373 Reputed Ownership, . . . 375 BiUs the subject of reputed Owner- ship, 376 Effect of Bankruptcy on Choses in Action of the Bankrupt's Wife, 377 Transfer in Case of Bankruptcy, . 377 When the Transfer of a Bill by a Bankrupt is Payment, . . 377 Where a Bankrupt is a Trustee, . 378 BjU or Note for Debt barred by Certificate, .... 378 Fraudulent Pkefeeenoe, . . 378 voluntakt transfer, . . 379 CHAPTER XXXVL OF THE EFFECT OF A DISCHARGE UNDER THE ACTS FOR THE RELIEF OF INSOLVENT DEBTORS. Acts now in force. Their general object, . Their effect on the Liability of the Insolvent Holders of a Negotiable Instrument, .... Effect of Discharge of one of two Makers of a Note, . Description of the Bill in the Sche- dule, 380 380 381 381 381 Notice to the Creditor, . . 382 Effect of the Insolvent's Discharge on the Liability of other Persons to the Holder, .... 382 Effect of a Bill or Note given for the Debt for which the Insolvent has been Discharged, . . 382 Of a Bill or Note given to Prevent Opposition, .... 383 CONTENTS OF APPENDIX. SECTION I. Notary's Fees of Office, . . . • . • • 385 SECTION II. STATUTES. [9 & 10 "Wm. 3, c. 17.] An Act for the better Payment of Inland Bills of Exchange, . . . 387 [3 & 4 Anne, c. 9, made perpetual by 7 Anne, c. 25.] An Act for giving like Hemedy upon Promissory Notes as is now used upon Bills of Exchange, and for the better Payment of Inland Bills of Exchange, 388 [17 Geo. 3, c. 30, made perpetual by 27 Geo. 3, c. 16.] 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, . . . ,. . . . 389 [39 & 40 Geo. 3, c. 28.] An Act for establishing an Agreement with the Governor and Company of the Bank of England for advancing the sum of Three Millions towards the Supply for the Service of the Year One Thousand Eight Hundred, . 392 [48 Geo. 3, c. 88.] An Act to restrain the Negotiation of Promissory Notes and Inland Bills of Exchange under a Limited Sum, in England, .... 392 CONTENTS OF APPENDIX. XXXI [55 Geo. 3, c. 184.] An Act for repealing the Stamp Duties on Deeds, Law Proceedings, and other written or printed Instruments) and the Duties on Fire Insurance, and on Legacies and Successions to Personal Estate upon Intestacies, now payable in Great Britain, and for granting other duties in lieu thereof, . 394 [58 Geo. 3, c. 93.] An Act to afford Relief to the bona fide Holders of Negotiable Securities without Notice that they were given for a usurious Consideration, . . 405 [1 & 2 Geo. 4, c. '78.] An Act to regulate Acceptances of Bills of Exchange, . . , 406 [6 Geo. 4, c. 16.] An Act to amend the Laws relating to Bankrupts, .... 407 [7 Geo. 4, c. 6.] An Act to limit, and after a certain period to prohibit the Issuing of Promis- sory Notes, under a limited Sum, in England, .... 408 [7 Geo. 4, c. 46.] An Act for the better, regulating Copartnerships of certain Bankers in England ; and for amending so much of an Act of the Thirty-ninth and Fortieth Years of the Reign of his late Majesty King George the Third, intituled. An Act for establishing an Agreement with the Governor and Company of the Bank of England, for advancing the Sum of Three Millions towards the Supply for the Service of the Year One Thousand Eight Hun- dred, as relates to the same, . . . . . .411 [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, . .421 [7 & 8 Geo. 4, c. 29.] An Act for consolidating and amending the Laws in England relative to Larceny and other offences connected therewith, .... 424 [9 Geo. 4, c. 14.] An Act for rendering a written Memorandum necessary to the Validity of certain Promises and Engagements, ..... 426 Xxxii CONTENTS OF APPENDIX. [9 Geo. 4, c. 15.] An Act to prevent a Failure of Justice by Eeaaon of Variances between Records and Writings produced in evidence in support thereof, . . 427 [9 Geo. 4, c. 23.] An Act to enable Bankers in England to issue certain uristamped Promissory Notes and Bills of Exchange, upon Payment of a Composition in lieu of the Stamp Duties thereon, ...•••• 428 [9 Geo. 4, c. 49.] An Act to amend the Laws in Force relating to the Stamp Duties on Sea Insurances, on Articles of Clerkship, on Certificates of Writers to the Sig- net, and of Conveyancers and others, on Licenses to Dealers in Gold and Silver Plate and Pawnbrokers, on Drafts on Bankers, and on Licenses for Stage Coaches in Great Britain, and on Receipts in Ireland, . . 429 [9 Geo. 4, c. 65.] An Act to restrain the Negotiation in England of Promissory Notes and Bills under a limited Sum, issued in Scotland or Ireland, . . . 430 [11 Geo. 4, and 1 Wm. 4, c. 66.] An Act for reducing into One Act all such Forgeries as shall henceforth be punished with Death, and for otherwise amending the Laws relating to Forgery, .......-• 430 [2 & 3 Wm. 4, c. 98.] An Act for regulating the Protesting for Nonpayment of Bills of Exchange drawn payable at a place not being the Place of the residence of the Drawee or Drawees of the same, ....... 437 [3 & 4 Wm. 4, c. 42.] An Act for the further Amendment of the Law, and the better Advancement of Justice, . . . , . . . . . . 437 [3 & 4 Wm. 4, c. 83.] An Act to compel Banks issuing Promissory Notes payable to Bearer on De- mand to make Returns of their Notes in Circulation, and to authorize Banks to issue Notes payable in London for less than Fifty Pounds, . 443 [3 & 4 Wm. 4, c. 97.] An Act to prevent the selling and uttering of Forged Stamps, and to exempt from Stamp Duty artificial Mineral Waters in Great Britain, and to allow a Drawback on the Exportation of Gold and Silver Plate manufactured in Ireland, ••••..... 444 CONTENTS OF APPENDIX. XXXIU [3 & 4 Wm. 4, c. 98.] An Act for giving to the Corporation of the Governor and Company of the Bank of England certain Privileges, for a limited Period, under certain Conditions, . . / . . . . . . . 446 [5 & 6 "Wm. 4, c. 41.] An Act to amend the Law relating to securities given for Considerations arising out of Gaming, usurious, and certain other illegal Transactions, ' . 452 [6 & 7 Wm. 4, c. 58.] An Act for declaring the Law as to the Day on which it is requisite to pre- sent for Payment to the Acceptors or Acceptor supra Protest for Honor, ot to the Referees or Referee in case of Need, Bills of Exchange which had been dishonored, ........ 456 [7 Wm. 4 and 1 Vict. c. 80.] An Act to exempt certain Bills of Exchange and Promissory Notes from the Operation of the Laws relating to Usury, . . . . .457 [1 & 2 Vict. c. 10.] An Act to make good certain Contracts whieh have been or may be entered into by certain Banking and other Copartnerships, . . . 457 [1 & 2 Vict. c. 85.] An Act to authorize the using in any part of the United Kingdom, Stamps denoting Duties payable in Great Britain and Ireland respectively, . 459 [1 & 2 Vict. c. 96.] An Act to amend, until the end of the next session of Parliament, the Law relative to Legal Proceedings by certain Joint Stock Banking Companies against their own Members, and by such Members against the Companies, 460 [I & 2 Vict. c. 110.] An Act for Abolishing Arrest on Mesne Process in Civil Actions, except in certain Cases ; for extending the Remedies of Creditors against the Pro- perty of Debtors ; and for amending the Laws for the Relief of Insolvent Debtors in England, ....... 462 [2 & 3 Vict. 0. 29.] An Act for the better Protection of Parties dealing with Persons liable to the Bankrupt Laws, ........ 472 3 Xxxiv CONTENTS OF APPENDIX. [2 & 3 Vict. c. or.] 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 Pro- missory Notes from the Operation of the Laws relating to Usury, . . 473 [6 & t Vict. c. 85.] An Act for improving the Law of Evidence, ..... 474 [7 & 8 Vict. c. 32.] An Act to regulate the Issue of Bank Notes, and for giving to the Governor and Company of the Bank of England certain Privileges for a limited Period, ......... 476 [12 & 13 Vict. c. 106.] An Act to amend and consolidate the Laws relating to Bankrupts, . . 477 TABLE OF CASES CITED. The citations in tlie notes to which a star (*) is annexed, refer to the English Exchequer Repons, reprinted by T. & J. W. Johnson Sc Co., at $2 60 per volume. The pages referred to are those between brackets [ ]. Abbott V. A'slett, 338 V. Douglas, 58 V. Hendricks, 64, 77 V. Pomfret, 379 Abel V. Sutton, 38, 39 A bell V. Daniell, 379 Abrahatn v. Du Bois, 319 Abrahams v. Skinner, 89 Abram v. Cunningham, 42 Absolon V. Marks, 5 Achesonv. Fountain, 115, 122 Ackerman v. Ehrensperger, 243 Acland v. Pearse, 219 Adames v. Bridger, 363 Adams v. Gregg, 154 V, Jones, 116 V. Lingard, 350 V. Palk, 343 V. Wordley, 150 Aflalo V. Fourdrinier, 363 Aloock V. Alcock, 47 Alderson v. Landale, 257 Alexander v. Birchfield, 12, 14 V. Mackenzie, 23 V. Strong, 180, 181 Allan V. Mawson, 9, 66, 69 Allen V. Dundas, 41 V. Edmundson, 217, 221, 238 V. Keeves, 12 V. Miller, 301, 329 V. Walker, 112, 117, 341 Alsager v. Currie, 294 Alston V. Andrews, 42 Alves V. Hodgson, 318 Ambrose v. Hopwood, 168 Amlot V. Evans, 329 Amner v. Clarke, 313, 318 Amory v. Mery weal her, 109, 250 Ancher v. Bank of England, 121 Anderson v. Cleveland, 154 V. Heath, 148 V. Hick, 148 V. Sanderson, 281 v. Weston, 57, 374 Andrews v. Ellison, 31 V. Franklin, 72 Ankerstein v. Clarke, 336 Anson v. Bailey, 171,238 Antoine v. Morshead, 106 Appleby v. Biddulph, 73 Applegarthv. CoUey, 106 Appleton v. Sweetapple, 162 Archer v. Bamford, 101 v. Hale, 194 Arden v. Sharpe, 34 V. Watkins, 378 Armani v. Castrique, 204, 313, 346 Armistead v. Philpot, 7 Armstrong V. Christiani, 216, 217 Arnould v. Revoult, 50 Arthur v. Beales, 341 Arundel Bank v. Goble, 194 Ashbee vT Pidduck, 192 Ashby v. Ashby, 44 v. James, 260 Ashley v. Killick, 109, 382 Ashton V. Freestun, 187 Atkins, ex parte, 372 V. Owen, 177 V. Tredgold, 279, 282, 283 Atkinson v. Bayntun, 195 V. Brindall, 379 V. Davies, 342 V. Elliott, 294 V. Hawdon, 247 Attorney- Gener'al v. Valabreque, 336 Attwood V. Crowdie, 96, 129, 130 V. Griffin, 62, 257 V. Munnings, 23, 25 Aubert v. Walsh, 16, 180 Auriol V. Thomas, 247 Ayliffv. Archdale, 44 V. Scrimsheir, 296 Ayrey v. Fearnsides, 71 Ayton V. Bolt, 278 B. Backhouse v. Harrison, 126 Bacon v. Searles, 133, 134, 175 Badnall v. Samuel, 195 Bagnall v. Andrews, 323, 349 Baildon v. Walton, 284 Bailey v. Porter, 168, 217 Baillie v. Moore, 30 Baily v. Bidwell, 93, 94 XXXVl TABLE OP CASES CITED. Baily v. Grant, 373 V. Marriot, 107 Baker V. Birch, 226, 233, 237 V. Charlton, 35 V. Townsend, 105 V. Walker, 96, 97 V. White, 104 B,albi V. Batley, 325 Baldwin, ex parte, 371 V. Richardson, 235, 537 Ball V. Gordon, 335 Balmanno v. Thompson, 344 Banbury v. Lissett, 73, 149 Bancroft v. Halt, 220, 221 Baneks v. Camp, 339 Bank of England v. Anderson, 52, 53 V. Newman, 124 Bank of Ireland v. Archer, 146 V. Beresford, 96, 191, 370 Banting v. Jadis, 324, 325 Barber, ex parte, 373 V. Backhouse, 34, 99 V. Gingell, 23, 350 V. Lemon, 341 Barclay, ex parte, 185, 225, 307, 361 V. Bailey, 166 V. Walmsley, 245 Barfoot v. Goodall, 37 Barker v. Talcot, 143 Barksdale v. Mbrgan, 159 Barlow v. Bishop, 48, 49 V. Broadhurst, 70, 80 Barnes v. Butcher, 345 V. Hedley, 250 V. Worlich, 246 Barnet v. Brandao, 2, 127, 135 , Baroughv. White, 131,241, 352 Barrat, ex parte, 371 Barrington, in re, 125, 361 Bartlett v. Benson, 118, 119, 129, 213 V. Emery, 46 V. Smith, 318 Bartholomew v. Henley, 3 Bartrum v. Caddy, 87, 131, 132, 177, 298 Basan v. Arnold, 341, 345 Baskerville v. Brown, 289, 291 Bess V. Clive, 155, 335 Bassett V. Dodgin, 93, 362 Bastable v. Poole, 29 Bateman v. Joseph, 142, 235 V. Pindor, 281 Bathe v. Taylor, 255 Bateley v. Catterall, 345 Eattley v. Lewis, 36 Batty V. Marriott, 101 Baxter v. Lord Portsmouth, 47 Bayard v. Shunk, 122 Bayle, ex parte, 294 V. Hughes, 333 Bayley v. Ashton, 284 V. Homan, 183 ' V. Schofield, 378 Baylis v. Dyneley, 44 Baylye v. Hughes, 333 Baynes v. Fry, 247 Bealy v. Greenslade, 281 Beard v. Webb, 48 Beardsley v. Baldwin, 71 Beauchamp v. Cash, 217 Beauchamp v. Parry, 352 Beaufoy, ex parte, 361, 365 Beaumont v. Greathead, 176, 179, 330 V. Reeve, 104 Beck V. Beverley, 382 V. Jones, 307 V. Robley, 88, 133 Beckwith v. Corrall, 298 Bedford v. Brutton, 31 V. Deakin, 36, 154, 185, 196, 306 Beech v. Jones, 323 Beeching v. Gower, 14, 158, 168 V. Westbrooke, 19 Beeley v. Wingtield, 105 Beeman v. Duck, 155, 156 Belcher V. Bellamy, 376 v. Campbell, 374, 377 Bell, ex parte, 361,374 V. Coleman, 252 V. Frankis, 228 V. Gardiner, 257 V. Gunn, 353 Bell V. Ingestre (Lord), 116, 323 Bellasis v. Hester, 142 Benham v. Mornington, 320 Bennett v. Farnell, 61' Bennison v. Thelwall, 343 Benson v. White, 339 Bent V. Baker, 348 Bentham v. Chesterfield, 18 Bentinck v. Connop, 106 V. Dorrein, 149, 152, 202 Benlley v. Northhouse, 5, 354 Bentzing v. Scott, 356 Berrington v. Collis, 252 Best v. Barker, 382 Betts V. Kimpton, 500 Bevan v. Gething, 284 V. Hill, 299, 300 V. Nunn, 378, 379 Beveridge v. Burgis, 235 Bevin v. Chapman, 274 Bickerdike v. Bolman, 232 Bickerton v. Burrell, 27 Biggs V. Lawrence, 104 Bignold, ex parte, 11, 12, 171, 231 V. Waterhouse, 229, 236 Bilbie v. Lumley, 237 Billing V. De Vaux, 149 Bingham v. Stanley, 352 Bingley v. Maddison, 373 Binnington v. Wallis, 104 Birch V. Tebutt, 179 Bird V. Gammon, 278 Bire v. Moreau, 319 Birket, ex parte, 359 Birt V. Kershaw, 349 Bishop V. Chambre, 258 V. Church, 39 V. Crawshay, 378 V. Hay ward, 119 V. Rowe, 185, 306, 307, 330 V. Shillito, 306 V. Young, 64, 333 Bittleston v. Timmis, 294, 295 Black V. Pell, 153 Blackburne, ex parte, 124, 361 Blackie v. Bidding, 301 Blackhan v. Dorun, 233 TABLE OF CASES CITED. xxxvu Blades v. Free, 27 Blake v. Beaumont, 168 Blakesley v. Smallwood, 291 Blackenhagen v, Blundell, 60, 73 Bland v. Haselrig, 282 Blaney v. Hendricks, 241 Blaxton v. Pye, lOK Bleasby v. Crossley, 372 Blesard v. Hirst, 212, 237 Block V. Bell, 69 Blogg V. Kent, 136 Blount V. Burrow, 136 Bloxham, ex parte, 365, 370, 371, 372 Bodenham v. Purchas, 179 Boddingtonv. Shlenker, 14, 16, 173 Bolitho, ex parte, 32, 35 BoUand v. Bygrave, 96 V. Nash, 293, 294 Bolton, ex parte, 274, 286, 372 V. Dugdale, 70, 71 V. Puller, 120, 375 Bonar v. Mitchell, 200 Bonbonus, ex parte, 34 Bond V. Piftaid, 29 V, Stockdale, 64 V. Warden, 308 Bontien's case, 262, 265 Booth V. Bank of England, 53 V. drove, 354 i\. Jacobs, 237, 238 V. Payne, 327 V. Quin, 37, 38 Bopart V. Hicks, 11 Borradaile v. Lowe, 227 Bosanquet v. Anderson , 118, 355 V. Corser, 77 V. Dudman, 96 V. Foster, 77 V. Wray, 179 BoBwel! V. Smith, 16 Boiten, ex parte, 373 Boucher v. Lawson, 318 Boulager v. Talleyrand, 205 Boultbee v. Stubbs, 197, 236 Boulton V. Welch, 215 Bowerbank v. Monteiro, 76, 150 Bowes V. Howe, 148 Bowmaker v. Moore, 194 Bowman v. Horsey, 278 V. Nichol, 253 Bowness, ex parte, 365 Bower v. Bampton, 107 Boyd V. Emerson, 15, 131, 268 Boydell v. Champneys, 381, 382 V. Drummond, 38 V. Harkness, 167, 168 Badburn v. Whitbread, 87 Bradbury v. Emans, 337, 344 Bradly v. Bardsley, 86, 91, 258 Bradshaw v. Saddington, 325 Braithwaite v. Colman, 290 V. Gardiner, 146, 155, 378 Bramah v. Roberts, 32, 345 Brandos v. Barnett, 2, 135 Brandon v. Nesbitt, 51 Brandram v. Wharton, 283 Brard v. Ackerman, 350 Bray v. Hadwen, 222, 224 V. Manson, 194, 195 Bree v. Holbech, 974 Brett V. Levett, 231, 236, 372 Brickwood v. Annis, 194 Bridges v. Berry, 230, 3l6 Bridget! v. Mills, 363 Bridman v, Sheehan, 258 Bridgstock v. Smith, 278 Brill V. Crick, 76 Brind v. Hampshire, 116 Briscoe v. Hill, 290 Bristol (Earl of) v. Wilsmore, 306 British Linen Company v. Drummond, 320 Britton v. Hughes, 102 V. Webb, 119 Brix V. Brahim, 97 Bromage v. Lloyd, 43, 135 V. Vaughan, 217 Bromley v. Holland, 137, 302 Brook V. Coleman, 324 Brooke v. Middleton, 247 Brooks V. Elkins, 8, 20 V. Matchell, 131, 164 V. Stuart, 188 Brough V. Perkins, 200, 218 Broughion v. Manchester Water Company, 51, 109 Brown, ex parte, 371 V. Davis, 129 V. De Winton, 68 V. Gracey, 320 V. Hancock, 285 V. Harraden, 4, 162 v. Joddrell, 47 V. Kewley, 306, 307 V. Mabay, 232, 233 ■V. McDermot, 157 V. Messiter, 301, 329 V. Philpot, 94 V.Saul, 7 ' V. Selwyn, 42 V. Turner, 109 V. Wilkinson, 192 Browne v. De Winton, 5, 64 V. Lee, 199 V. Murray, 93 V. Rivers, 175 Brownell v. Bonney, 238, 239, 337 Browning v. Kinnear, 235 V. Reane, 46 Bruce v. Bruce, 125, 266 V. Hurly, 376 Brutt V. Picard, 257 Bryant v. Christie, 101 Brymer, ex parte, 372 Bryson v. Wylie, 376 Buchanan, ex parte, 375 V. Findlay, 294 v. Rucker, 318 Buokland v. Newsome, 373 V. Tankard, 351 Buckler v. Angel, 338 V. Buttivant, 95, 365 Buckley, ex parte, 6, 32, 35 V. Cambell, 336 V. Guilbank, 248 Buckworth v. Levy, 324, 325 V. Simpson, 86, 90 Buller V. Crips, 4, 312 Bullock V. Dodds, 3, 51 XXXVlll TABLE OF CASES CITED. Bullock V. Richardson, 331 Bulmer, ex parte, 361 Bulpin V. Clarke, 49 Bull V. Morrell, 27, 32 Bulteel V. Jarrold, 194 Bunn V. Markham, 136 Bunney v. Poyntz, 307 Burbridge v. Manners, 2, 133, 176, 181, 223 Burdon v. Benton, 100 Burgess, in re, 372 V. Cuthill, 349 V. Merrell, 46 Burgh V. Legge, 213, 231, 238, 337 Burke's case, 197 V. Jones, 279 , Burkett v. Banshard, 327 Burleigh v. Stott, 282, 283 Burmester v. Hogarth, 112 Burn, ex parte, 371 V. Boulton, 279 Burrough v. Moss, 50, 130, 290, 291 Burrows v. Jemino, 316 Burt V. Palmer, 281 V. Walker, 65 Bury V. Blogg, 35 Bush V. Kinnear, 168 Butler V. Malissy, 336 Butts V. Swan, 80 Buxton V. Jones, 168, 169 Byrom v. Thompson, 256 Cayley's case, 3 Callew V. Laurence, 87, 132, 175 Calvert v. Baker, 258 Cameron v. Smith, !?43, 372 Cambridge v. Allenby, 123, 124, 125, 158, 165, 170, 307 Campbell v. French, 59, 162 V. Webster, 171, 205, 239 Cannon v. Bryce, 106, 108 V. Farmer, 45-48, 346, 347 V. Wood, 379 Capp V. Lancaster, 273 Carlon v. Kenealy, 6, 162 Carlos V. Fanceurt, 71, 73 Carr v. Burdis, 378 V. Eastabrook, 187 V. Shaw, 5 V. Stephens, 76, 296 Carrol v. Blencowe, 49 Carrulhers y. West, 129 Carstairs, ex parte, 197 V. Bates, 377 V. RoUeston, 191, 192 V. Stein, 247 Carter v. Flower, 232, 337 V. Ring, 273 V. Southall, 329 Cartwrightv. Cook, 183, 303 V. Williams, 132, 154 Carvick v. Viokery, 39, 116, 155 Gary V. Gerrish, 16 Casbourne v. Dutton, 8, 19 Cash V. Taylor, 23 Casileman v. Ray, 11 Castrique v. Bernabo, 225 Caswell V. Coare, 326 Catherwood v. Chabaud, 43 Catling V. Skoulding, 279 Cation V. Simpson, 255 Caunce v. Rigby, 325 Caunt V. Thompson, 213, 214, 217, 234, 357 Cecil V. Plaistow, 102, 192 Chadwick v. Allen, 5, 60 Chalie v. Belshaw, 147 Chalmers V. Lanion, 129 Champion v. Terry, 300 Chamberlain v. Porter, 86 Chandler v. Parkes, 46 V. Vilett, 275 Channell v. Ditchburn, 282 Chapcot V. Curlewis, 235 Chapman v. Black, 111, 250 ' V. Keane, 225, 226 Chappell, ex parte, 228 V. Cooper, 44 Chappie V. Durston, 271, 286 Charles v. Marsden, 98, 129 Charrington v. Milner, 350 Chaworlh v. Beech, 3 Chalers v. Bell, 118, 201, 355 Cheap V. Harley, 311 Cheek v. Roper, 141 Cheetham v. Butler, 83 V. Ward, 41,42, 188 Cheminant v. Pearson, 318 Chesmer v. Noyes, 205 Chesterfield v. Jansen, 248 Chievly v. Bond, 279 Child V. Monins, 44 Childers v. Boulnois, 9, 19 Cholmley v. Darley, 75, 96 Christie v. Fonsick, 273 V. Peart, 335, 338 Church V. Imperial Gas Company, 32 Clanricarde, ex parte, 365 Claridge v. Dalton, 191, 234 Clark V. Alexander, 281 V. Clement, 185 V. Hooper, 284 , V. Lazarus, 99 Clarke v. Cock, 143, 147 V. Devlin, 198 V. Fell, 295 V. Hougham, 274, 286 V. Percival, 72 V. Powell, 108 V. Quince, 301, 329 V. Sharpe, 219 V. Wilson, 192 Claxton V. Swift, 195 Clayton v. Gosling, 64, 73, 273, 361 V. Jennings, 106 V. Kynasion, 42 Clayton's case, 178, 179 Cleeg V. Levy, 318 Clements v. Langley, 363 \ Clerk V. Blackstock, 6, 32, 256 v. Marlin, 4 V. Pigol, 116, 117 Clifford V. Parker, 258 Clode V. Bayley, 224, 229 Cloves V. Williams, 333, 334 Clugas V. Penaluna, 318 Clun's case, 333 TABLE OF CASES CITED. XXXIX Cock V. Coxwell, 258 Cockell V. Gray, 159 Cocks V. Borradale, 118 V. Masterman, 268 V. Nash, 188, 194 Cockshott V. Bennetl, 101 Cole V. Blake, 180, 327 V. Gower, 105 Colehan v. Cooke, 59, 72 Coleman v. Bredman, 322 V. Sayer, 160, 162 Coles V. Gum, 325 V. Sybsye, 275 Colkett V. Freeman, 372 CoUinge v. Hey wood, 374 CoUenridge v. Farquharson, 96, 130 Collins V. Benning, 273 V. Buller, 142, 170 V. Collins, 289 V. Jones, 294 V. Martin, 98, 126 Collis V. Emett, 61, 65 Collison's case, 261 Collott V. Haigh, 191 Colombier v. blim, 134 Collyer v. Willock, 281 Combe's case, 22, 25 Compton V. Taylor, 334 Conier and Holland's case, 182 Connop V. Meaks, 251 Connor v. Martin, 49 Conway v. Nail, 360 Cook V. Clay worth, 48- V. Long, 96 Cooke V. Colehan, 72 V. French, 216 Coombe's case, 22, 26 V. Miles, 249 V. Woolf, 194 Coombs V. Ingram, 64, 96 Cooper V. Amos, 327 V. Machin, 372 V. Meyer, 155 V. Morecraft, 343 V. Pepys, 371 V. Shepherd, 324 V. Turner, 286 V. Willomatt, 324 Coppock V. Bower, 88, 105 Coppin V. , 49 Coore V. Callaway, 25 Corlett V. Jones, 224 Corner v. Shew, 44 Corney v. Mendez da Costa, 232 Cory V. Scott, 232, 238, 336 Cotes V. Davis, 50 V. Harris, 279 Cothay v. Fennell, 36 Cottam V. Partridge, 272 Cotton V. Godwin, 181 V. Horsemanden, 241 Court V. Partridge, 43 Cowell V. Edwards, 199 V. Watts, 43 Cowie V. Halsall, 254 V. Harris, 57, 374 Cowper V. Garbett, 345 V. Green, 188 V.Smith, 187,197, 198 Cowley V. Dunlop, 95, 364, 372 Cox V. Coleman, 147 V. Reid, 382 V. Troy, 116, 152 Coxon V. Lyon, 58 Cramlington v. Evans, 63, 114, 121 Crank v. Frith, 352 Cranch v. Kirkman, 279 v. White, 46, 323 Craven v. Edmondson, 292 Crawford v. Stirling; 289 Crayihorne v. Swinden, 192 Cresswell v. Crisp, 333 Critchlow v. Parry, 118, 355 Cripps V. Davis, 131, 284 Crisp V. Griffiths, 304, 343 Cromwell v. Hynson, 203, 218 Crook V. Jadis, 126 Crookshanks v. Rose, 110, 111, 179 Crosby v. Clarke, 325 Cross V. Morgan, 324 V. Smith, 221, 228 Crossley, ex parte, 370, 372 V. Ham, 128 Crotty V. Hodges, 258 Crowfoot V. Gurney, 80 Croxon v. Worthen, 171 Cruikshanks v. Rose, 110, 111, 179 Crutchley v. Clarance, 62, 128 V. Mann, 62,, 319 Cuffv. Browne, 99 Culverhouse v. Alexander, 331 Cumber v. Wain, 182 Cumming v. French, 237 V. Bailey, 3, 292, 372, 378 Cundy v. Marriott, 88, 236 Cunliffe v. Maltass, 326 V. Whitehead, 115 Curlewis v. Corfield, 338 V. Clark, 174 Curtis V. Headford, 345 V. Rickards, 20 V. Rush, 304 Cuthbert v. Haley, 250 D. Dabbs V. Humphries, 321 Da Costa v. Jones, 104 Dacy v. Clinch, 275 Dagnall v. Wigley, 248 Daintree v. Hutchinson, 106 \ Dalrymple v. Fraser, 6 Darbyshire v. Parker, 163, 220, 221 Darnell v. Williams, 99 Davy V. Prendergrass, 194 David V. Preece, 184 Davidson v. Cooper, 152, 253 Davies v. Dodd, 118 V. Humphreys, 199 V. Wilkinson, 71 Davis V. Barker, 328, 353 V. Clark, 66, 144 V. Dodd, 300, 302 V. Gyde, 305 ' V. Hardacre, 249 V. Lowndes, 374 V. Mason, 104 V. Smyth, 241 xl TABLE OF CASES CITED. Davison, ex parte, 361 V. Franklin, 111 V. March, 324 V. Robertson, 310 Dawe V. Holdsworth, 179 Dawkes v. Lord de Loraine, 73 Dawson v. McDonald, 89 V. Morgan, 323, 327 Day V. Padrone, 49 V. Stuart, 109 Deacon v. Siodhart, 175, 210, 343 Deakin v. Pennial, 86, 90 Dean v. Newhall, 188 De Begnis v. Armistead, 110 De Bergareche v. Pillan, 168 De Berd v. Atkinson, 171 De Bernales v. Fuller, 144 Deering v. Winchelsea, Earl of, 199 Deey, ex parte, 372 ■• Deeze, ex parte, 293 Dehers v. Harriot, 66, 69, 162, 311 De La Chaumette v. Bank of England, 5, 28, 93, 96, 317, 326 De La Courtier v. Bellamy, 57 De La Torre v. Barclay, 154 De La Vega v. Vianna, 320 Delauney v. 'Mitchell, 93 De Mautort v. Saunders, 36 Dendy v. Powell, 289 Denne v. Knott, 383 Dennis v. Morrice, 231, 236, 237 Dent V. Dunn, 17, 242, 243 Derry v. Duchess Mazarine, 49 Desbrow v. Wheatherley, 254, 258 De Tastet, ex parte, 371 V. Baring, 330 Dewar v. Span, 250 Dewdney, ex parte, 270, 360 Dickenson, ex parte, 372 V. Dickenson, 57 V. Prentice, 350 V. Teague, 69, 275, 286 V. Valpy, 33, 37 Dickinson v. Hatfield, 278, 330 Dickson, ex parte, 305 V. Cass, 292 V. Evans, 292 V. Thompson, 276 Dillon v.'Rimmer, 185, 307 Dingwall v. Dunster, 153 Ditchburne v. Goldsmith, 104 Dixon V. Chambers, 83 V. Elliot, 236, 238 V Nuttal, 9, 59,70, 72, 160, 162, 170, 273 Dobree v. Eastwood, 218, 220 Dod V. Edwai-ds, 42, 134, 177, 187 Doe V. Boulcot, 359 V. Figgins, 322 V. King, 252 V. Somerton, 239 V. Whittingham, 86, 90 Doman v. Dibden, 241 Don V. Lipman, 317, 320 Done V. Whalley, 199 Donaldson v. Thompson, 338, 340 Donovan v. Duff, 359 Dorchester v. Webb, 41, 42 Doiy v. Smith, 6 Douglas V. Holme, 20 Douthat, ex pane, 372 Dowbiggin v. Bourne, 191 V. Harrison, 43 Dowling V. Ford, 284 Down V. Hailing, 58, 130, 301 Downes v. Garbutt, 252 V. Richardson, 256 Downman, ex parte, 361 Drage v. Ibberson, 105 V. Netter, 187 Drake v. Mitchell, 304 Draper v. Glassop, 271 Drayton v. Dale, 46, 155, 377, 378 Drury V. Smith, 7,136 v. Macaulay, 72 Du Belloix v. Lord Waterpark, 180, 243 Duck V. Braddyl, 90 Dufaur v. Oxenden, 147 Duffield v. Creed, 180, 286 V. Elwes, 136 Dumas, ex parte, 375 Duncan v. Lowndes, 36 V. Scott, 88, 93 Dunn v. O'Keefe, 213 Dupays v. Shepherd, 144 E. Eagle Bank of Newhaven v. Smith, 125 Bales V. Dicker, 354 Earle, ex parte, 367, 369 Easley v. Crockford, 298 East V. Smith, 213, .214, 226 East London Waterworks Company v. Bayley, 51 East India Company v. Tritton, 118, 174 Easton v. Prachett, 95, 341 Eastwood V. Brown, 382 V. Saville, 284 Easum v. Cato, 293 Eaton V. Bell, 54 Eddison v. Pigram, 339 Edge V. Frost, 326 Edgecombe v. Rodd, 105, 183 Edie V. East India Company, 115, 121, 123 Edia V. Bury, 69 Edmeads v. Newman, 293 Edmonds v. Cates, 216 V. Lowe, 350 Edmunds v. Downes, 278 V. Groves, 94, 107, 352 Edwards, ex parte, 363, 374 V. Baugh, 183 V. Cooper, 3 v. Dick, 69, 107, 229, 324 V. Grace, 43 v. Jones, 65, 77 Egan V. Threlfall, 126 Egg V. Barnett, 16, 180 Elford V. Teed, 166 Elgar, ex parte, 361 Eliot's case, 58, 62 Elliott V. Cooper, 65 Ellis V. Mason, 9 V. Wild, 125 Ellison V. Collingridge, 60 V. Dezell, 196 Emanuel v. Randall, 344 TABLE OF OASES OITED. xli Umblin v. Dartnell, 169 Enjfiry v. Day, 272, 282 Etnly, ex parte, 32 V. Lye, 32, 124 English V. Darley, 185, 194, 195, 198 Ereskine v. Murray, 65 Esdaile v. La Nauze, 22, 138, 266 V. McLean, 326, 335 V. Sowerby, 158, 219, 236 Evans v. Cramlington, 114, 121 V. Drummond, 35, 38, 154, 386 «r. Jones, 195 V. Kymer, 120, 323 V, Lewis, 336 V. Philpotts, 20 V. Prosser, 290 V. Underwood, 72 V. Whyle, 123 V. Williams, 109, 196, 382 Everett v. Collins, 17 Ewer V. Clifton, 304 V. Jones, 271 Exon V. Russell, 67, 75, 169 Eyre v. Everest, 193 Eyton V. Littledale, 290 Faikney v. Reynous, 108 Fair v. M'lver, 293 Fairlee v. Herring, 148 Faith v. M'Intyre, 349 - v. Richmond, 32 Fallowes v. Taylor, 105 Falmouth v. Roberts, 258 Fancourt v. Thorne, 9, 70, 76, 86, 90 Fannin v. Anderson, 276 Farquhar v. Southey, 154, 255 Farr v. Ward, 243 Farringlon v. Lee, 279 Favenc v. Bennett, 178 Fawcett v. Fearne, 360 Fayle v. Bird, 66, 166 Fearn v. Filica, 23, 24 v. Lewis, 278 Fearne v. Cochrane, ,289 Feiee v. Randall, 102 Fenn v. Harrison, 123, 125 Fentum v. Pooock, 6, 98, 153, 191, 379 Fereday v. Hordern, 29 Ferral v. Shaen, 245 Ferris v. Bond, 73 Ferguson v. Douglas, 161 Fesenraeyer v. Adcock, 19, 20 Field v. Carr, 173, 179 v. Woods, 11,58, 85,91, 258 Fieldhouse v. Croft, 7, 136 Figgins v. Ward, 320 Finlayson v. Mackenzie, 340 Firbank v. Bell, 80 Firth V. Thrush, 224, 235, 237 Fisher v. Beasley, 245 v. Leslie, 9, 19, 20 V. Mowbray, 44 V. Wood, 345 Fitch V. Sutton, 153, 179, 183 Fitzgerald v. Williams, 234 Fleming v. Brooke, 7 V. St. John, 331 Fletcher v.Braddyl, 219 V. Froggatt, 237 V. Manning, 16, 374 V. Sandys, 163 Flight V. Browne, 301,329 V. McLean, 5, 65 Flint, ex parte, 294 Floyer v. Edwards, 245 Fogg V. Sawyer, 122 Foflett V. Moore, 70, 251, 252 V. Hoppe, 360 Ford V. Beech, 186 V. Dornford, 291 Forman v. Drew, 381 Forster v. Wilson, 293 Foster v. Jolly, 77 ' V. Pearson, 25, 28, 96, 126 Fowler v. Hendon, 222, 223 Fox V. Frith, 30, 52, 54, 65 Frampton v. Coulson, 170 Francis v. Mott,.114 V. Nash, 7, 136 V. Rucker, 370 - Franks, ex parte, 49 Fraser v. Newton, 339 V. Welsh, 341 Freakley V. Fox, 41, 17« Free v. Hawkins, 76, 118, 236 Fry v. Hill, 139, 140 Fryer v. Browne, 353 v. Gildridge, 41,42 Fuller v. Smith, 125, 311 Furze v. Sharwood, 35, 213, 216 Fydell v. Clarke, 124 Gala v. Capern, 284, 286 v. Walsh, 200, 204, 218 Galway v. Matthew, 6, 34 Gardner v. Baillie, 22 v. M'Mahon, 278 Garnet v. Clarke, 96 Garrard v. Cottrell, 323 V. Woolmer, 303 Garratt v. Jull, 6, 92 Gaters v. Madely, 50 Gatty V. Field, 335 Gay V. Lauder, 5, 68 Geary v. Physic, 57, 115 Geill V. Jeremy, 222, 223 George v. Stanley, 104, 107, 111 V. Surrey, 57, 65, 114, 353 Gibb V. Mather, 167, 169, 254 Gibbon v. Coggon, 204, 205, 238 V. Scott, 50 Gibson, in re, 371 V. Baghott, 281 V. Bell, 294 V. Bruce, 102 V. Dickie, 104 V. Hunter, 61 Gifford, ex parte, 88, 360 Gilbert v. Piatt, 340 Giles V. Bourn, 7 V. Perkins, 375 Gill V. Cubitt, 126, 298 Gillett V. Whitmarsh, 737 Gilpin V. Enderdy, 29 xlii TABLE OF CASES CITED. Girardy V. Richardeon, 104 Gladstone v. Hadwen, 306 Glaister v. Hewer, 373 Glasfurd v. Laing, 248, 250 Glendinning, ex parte, 191, 197 Glengal v. Edwards, 231 Glennie v. Edmunds, 293 V. Imry, 99 Glover, ex parte, 363 Glynn v. Soares, 331 Godard v. Benjamin, 322 Goddard v. Cox, 179 V. Ingram, 282 Godfrey v. TurnbuU, 38 Goggerly v. Cuthbert, 120, 323 Goldir^v. Grace, 327 Goldsmith v. Bland, 221 Good V. Chessman, 183, 303 Goodal V. Dolley, 171, 212, 237 Goodallv, Polhill, 211 V. Ray, 130, 131 . Goodbody v. Foster, 18, 242 Goodburne v. Manley, 106 Goode V. Harrison, 46 Goodered v. Armour, 353 Goodman v. Harvey, 120, 126, 128, 203, 213, 218 - , Goodtille v. Milburn, 374 Goodwin v. Coates, 306 Gordon v. Ellis, 33, 34 Gore v. Gibson, 47, 48 Gorgier v. Mieville, 127 Gorham v. Thompson, 38 Gough v. Davis, 179 Gould v. Coombs, 20 V. Johnson, 285, 286 v. Robson, 194 Gouldney, ex parte, 34 Goupy V. Harden, 26, 117, 141 Gowan v. Forster, 280 Graham v. Hope, 38 V. Pitman, 341 Grant v. Da Costa, 63, 64 v. Hawkes, 35 V. Hunt, 148 V. Mills, 308 v. Vaughan, 8, 62, 93, 114 V. Welchman, 99 Greaves v. Key, 88, 133, 181, 356 Gray v. Mendez, 276 v. Milner, 66, 69, 144 Green v- AUday, 12 V. .Croft, 180 V. Davies, 60, 90 v. Deakin, 34 v. Farmer, 288 V. Price, 104 v. Skipworth, 57 V. Steer, 360 V. Sutton, 351 Greenslade v. Dower, 33 Greenway, ex parte, 302, 362 V. Hindley,.171, 204,205 Gregory v. Eraser, 89 V. Hurrill, 276 V. Parker, 281 V. Walcup, 207 Grey v. Cooper, 46 Grew V. Bevan, 101 Griffin v. Ashby, 282 v. Goff, 162 v. Yates, 345 Griffith v. Roxburgh, 338 Griffiths v. Owen, 304 Grigby v. Oakes, 7 Grimes v. Blofield, 182 Groom v. Mealey, 295 Grosvenor, ex parte, 34, 363 Grout V. Enthoven, 34, 339 Grove v. Neville, 46 Grugeon v. Smith, 216 Gunson v. Metz, 237 Guy v. Harris, 9 Guyard v. Sutton, 50 Gwinnell v. Herbert, 112, 340 Gwynne v. Burnell, 342 Haddock V. Bury, 171,237 Hagedornv. Reid, 219 Hague V. French, 57 Haigh V. Jackson, 362, 363 Halifax v. Lyle, 155 Hall V. Cole, 191 V. Franklin, 110 V. Fuller, 17, 266 V. Potter, 104 V. Rex, 350 V. Smith, 6, 32 V. Wilcox, 6, 192 V. Wyburn, 276 Halliday v. Ward, 284 Halstead v. Skelton, 167 Hamber v. Roberts, 353 Hamelin v. Brack, 255 Hamilton v. Spottiswoode, 59 Hammersley v. Knowlys, 179 Hammet v. Yea, 247 Hammond v. Dufresne, 233 Hamson v. Harrison, 374 Hankey v. Cobb, 109 v. Smith, 294 v. Jones, 374 i V. Trotman, 163 V. Wilson, 355 Hanley v. Morgan, 324 Hansard v. Robinson, 180, 299, 300, 302 Hansom, ex parte, 295 Hardman v. Bellhouse, 184 Hardwick v. Blanohard, 349 Hardy v. Woodrofe, 67, 168, 169, 170 Hargreaves v. Mitchell, 279 Harington v. McMorris, 336 Harley v. Greenwood, 363 V. Thornton, 122 Harman v. Lasbrey, 350 Harmer v. Steele, 41, 54, 136, 341 Harries, in re, 305 Harris v. Benson, 204 V. Boston, 247 v. Parker, 167, 168, 169 v. Shipway, 304 V. Wall, 45 V. Woolford, 275 Harrison, ex parte, 361 V. Clifton, 57 V. Courtauld, 191, 197 TABLE OF CASES CITED. xliii Harrison v. Fitzhenry, 235 V. Jackson, 31 V. Hannel, 250 V. Richardson, 47 V. Rigby, 325 V. Ruscoe, 217, 218, 225, 226, 227 V. Turner, 290 Hart V. King, 302 • V. Nash, 280 V. Prendergast, 278 « V. Stevens, 49, 50 Hartley v. Case, 176, 214, 215 V. Manton, 187,345 V. Rice, 104 V. Wharton, 46 V. Willcinson, 75 Harvey v. Archbold, 245, 249 V. Martin, 148 Hatch V. Trayes, 64, 333 Haussoulier v. Hartsinli, 72 Hawkes v. Salter, 219, 222 Hawkey V. Borwick, 168, 169 Hawkings v. Billhead, 285 V. Cardy, 134 Hawkins v. Penfold, 377 V. Rutt, 218 V. Whitien, 292 Hawley v. Beverley, 102 Hawse v. Crowe, 306 Hay V. Goldsmid, 22 Haydock v. Lynch, 72, 73 Haydon v. Williams, 277, 278, 286 Hayes v. Caulfield, 340 Hayling v. Mulhall, 185, 195 Haynesv. Birks, 176, 222 V. Foster, 25 Healey v. Story, 54 Heath, ex parte, 232, 360 V. Hanley, 72 v.«ey, 192, 194 V. Percival, 38, 39 V. Sansom, 37, 38, 39, 93 Heathcote v. Crookshanks, 182 Hebden v. Hartsink, 330 Hedger v. Steavenson, 214, 216 Hedley v. Bainbridge, 33 Hemings v. Robertson, 355 Hemming v. Brooke, 175 v. Trenery, 258 Hemp V. Garland, 272 Henderson v. Appleton, 158, 171 V, Bise, 108 Henman v. Dickenson, 258 Henneker v. Wigg, 96 Henry v. Burbidge, 338 Herbert v. Sayer, 345 Hesketh v. Fawcit, 181 Hetherington v. Kemp, 219 Hewettv. Goodrick, 195 Hewitt V. Thomson, 219, 235 Heyhoe v. Burge, 40 Heywood v. Watson, 97 Hicks V. Beaufort, 237, 337 Higginbotham, ex parte, 370 Higains v. Senior, 427 Highmore v. Primrose, 64 Hill v. Halford, 72,73 v. Heap, 141, 171,231 v. Lewis, 62, 1)2 Hill V. Mesnard, 169 Hilliard v. Lenard, 284 Hills V. Hills, 136 Hilton V. Fairclough, 222 V. Shepherd, 227, 235 Hine v. Allely, 168, 169, 170, 223 Hipwell V. Knight, 159 Hitchcock V. Humfrey, 158, 159, 230 V. Way, 107, 251 Hoar V. Da Costa, 163 Hoare v. Gazenove, 207, 208, 209 V. Graham, 76, 150 Hobbs V. Christmas, 203 Hobson V. Richards, 350 Hodge v.Fillis, 66, 71 Hodges V. Steward, 333 Hodgins v. Hancock, 343 Hodgkinson v. Wyatt, 252 Hodgson V. Murray, 131, 331 V. Temple, 105 Hodson V. Gunner, 328 Hogg v. Snaith, 22 Hoffinan, ex parte, 370 Holbrow V. Wilkins, 230 Holcombe v. Lambkins, 324 Holden's case, 264 Holding, ex parte, 373 Holdsworth v. Hunter, 101, 310, 311 Holford V. Wilson, 236 Holiday v. Boas, 42 Holland v. Jourdine, 322 HoUiday v. Atkinson, 95 HoUis v. Palmer, 47, 277 Holman v. Johnson, 318 Holme v. Barry, 123 Holmer v. Viner, 102 Holmes v. Kerrison, 59, 273 v. Wilson, 324 Holroyd v. Whitehead, 87 Homan v. Thompson, 347 Holt V. Miers, 77, 252 V. Ward, 45 Holy V. Lane, 51 Hood V. Ashton, 331 Hooper v. Stevens, 280 V. Treffry, 93 V. Williams, 5 Hopes V. Alder, 236 Hopley V. Dufresne, 171, 236, 238, 337 Hopper V. Richmond, 241 Horden v. Dalton, 298 Horford v Wilson, 238 Horn V. Iron, 383 Hornblower v. Proud, 3, 376 Horncastle v. Farran, 307 , Home V. Redfearn, 8, 19 Horner v. Keppel, 328, 344 Horsfall v. Fauntleroy, 266 Hough's case, 265 Houlditch V. Cauty, 216 Houle V. Baxter, 372 Houriet v. Morris, 5 Housego V. Cowne, 217, 220, 221, 228 Hovil V. Browning, 38 Howard v. Baillie, 22 V. Hodges, 104 V. Oakes, 50 Howcutt V. Bonsor, 278 Howden v. Haigh, 102 xliv TABLE OF CASES CITED. Howe V. Bowes, 158, 169 Howell V. Coleman, 325 Hoyles v. Blore, 382 Hubbard v. Ja^kaon, 132, 133 Huber v. Steiner, 271, 320 Hubner v. Richardson, 111 . Huckfield v. Kendal, 329 Hudson V. Fosset, 240 V. Hudson, 43 Huffam V. Ellis, 168 Hughes v» Wynn, 279 Hulme V. Coles, 195 V. Mugglestone, 294 V. Tenant, 49 V. Saunders, 333 Huinber v. Roberts, 335 Humbert v. Ruding, 93 Hume V. Peploe, 176, 193, 223, 326 Humphries v. Winslow, 325 V. Moxon, 350 Humphreys v. Jones, 278 V. O'Connell, 345 V. Waldegrave, 107, 345 Hunlock V. Blacklowe, 104 Hunt V. Braines, 333 V. Massey, 45, 46, 338 Hunter, ex parte, 18 V. Agnew, 44 V. Wilson, 97 Huntley v. Sandersun, 26, 231 Hustler, ex parte, 361 Hutchinson v. Hargrave, 324 V. Heyworth, 80 Hutchison v. Bowker, 206, 217 Button V. Eyre, 188 V. Ward, 335 Hyde v. Johnson, 281 V. Skinner, 49 Ibbett V. Lealver, 291 Imeson, ex parte, 70, 361 Ingledew v. Douglas, 46 Ingles V. Grant, 374 V. Haigh, 272, 279 Ingram v. Foster, 142 Innes v. Munro, 77 V. Stephenson, 173 Ireland, Bank of, v. Archer, 146 V. Beresf'ord, 98, 191, 370 Irving V. Veitch, 278, 280 Isaac V. Daniel, 93 V. Farrar, .345 Isbester, ex parte, 124, 362 Israel v. Benjamin, 91 V. Israel, 199 J. Jacaud v. French, 34 Jackson v. Collins, 238 V. Duchaire, 192 ' V. Fairbank, 283 V. Hudson, 145, 151, 202. 207 V. Pigot, 146, 338 V. Warwick, 97 V. Yate, 324 Jacob V. Hart, 254, 256 V. Hungate, 94 V. Tarleton, 348 James v. Child, 179 V. Catherwood, 318 V. David, 183 V. Houlditoh, 164, 165 V. Williams, 304, 342 Jameson v. Swinton, 166, 222, 225, 227. Janson v. Thomas, 162 Jaques v. Withy, 289 Jardine v. Payne, 88, 354 Jarvis v. Wilkins, 8 Jay V. Warren, 195 Jeffery v. Walton, 56 Jeffreys v. Evans, 110 Jeffries v. Austen, 97 Jelf v. Oriel, 356 Jenkins v. Blizard, 38 V. Hutchinson, 144 V. Morris, 32, 54 Jennings v. Newman, 44 V. Rundall, 46 Jenney v. Herle, 73 Jenys v. Fawler, 155 Jeune v. Ward, 46, 148, 149 Jobson v. Forster, 43 Jocelyn v. Hawkins, 159 v. Lassere, 66, 73 Johnson, ex parte, 228 v. Barln, 107 V. Ceilings, 446 V. Duke of Marlborough, 258 V. Kennion, 133, 134, 175 V. Medlicotte, 48 V. Pye, 46 V. Smith, 271, 274 V. Windle, 266 Johnstone, ex parte, 158 Jolly V. Young, 159 Jombart, ex parte, 375 V. Wollett, 374 Jones, ex parte, 247 V. Broadhurst, 175, 323 V. Brooke, 348, 349 V. Corbet, 34, 340 V. Dank, 46 V. Darcb, 55 V. Fort, 120 V. Hibbert, 98, 370 V. Jones, 97, 99, 256, 353 V. Eane, 134, 138 V. Lewis, 48 V. Morgan, 355 V. Ryde, 124, 125, 266 V. Ryder, 89, 285, 280, 354 V. Scott, 279 V. Senior, 345 V. Simpson, 80 V. Thomas, 93 V. Yates, 33, 34 Jordaine v. Lashbrooke, 348, 351 Joseph V. Orme, 372 Joy V. Campbell, 376 Julian V. Shobrooke, 149 K. Kay V. Duchess de Pienne, 49 TABLE OI' CASES CITED. xlv Kearney v. King, 317, 336 Kearns v. Durell, 77, 93 Kearslake v. Morgan, 184, 304, 306 Kearsley v. Cole, 198 Keates v. Wieldon, 83 • Keaton v. Lynch,. 93 Keily v. Villebois, 339 Keir v. Leeman, 105 Kell V. Nainby, 36, 37 Kemble v. Atkins, 108 V. Milla, 341 Kemp V. Finden, 199 Kendrick v. Lomax, 185, 203, 307, 330 Kennard v. Knott, 193 Kennerly v. Nash, 241, 255 Kennett v. Milbank, 278 Kent V. Lowen, 219, 351 Kershaw v. Cox, 114, 256 Keasebower v. Tims, 354, 355 Key V. Flint, 294 Kidd V. Walker, 242 Kidson v. Del worth. 331 Kilbey v. Wilson, 306 Kilgour V. Finlyson, 22, 38 Kilpack V. Major, 348, 349 Kilaby v. Williams, 15, 131, 268 Kine v. Beaumont, 219 King, ex parte, 370, 371 V. Bickley, 214 V. Braddon, 252 V. Gillelt, 182 V. Hoare, 6 V. Milsom, 93 V. Phillips, 100 V. Taylor, 241 V. Thorn, 43, 44 V. Walker, 275 Kingston v. Long, 71 Kinnersley v. Knott, 335 V. Somers, 28 Kirby v. Duke of Marlborough, 179 Kirk V. Almond, 324 V. Blurton, 32 V. Strickwood, 105 Kirkpatrick v. Tattersall, 378 Kitchenman v. Skell, 44 Knight V. Clements, 258 V. Criddle, 7, 136 V. Hunt, 101 Knill V. Stockdale, 335 V. Williams, 255 Knowles v. Burward, 328, 344 Kuft V. Weston, 218 Kymer v. Laurie, 13, 151 Lacey v. Forester, 341 Lackington v. Combes, 293 Lacy V. Kynaston, 188 V. Woolcott, 40 Lafitte V. Slatter, 232, 234 La Forest V. Wall, 345 Laing v. Barclay, 67 V. Stone, 243 Lamb v. Newcomb, 325 Lambert, ex parte, 209, 211 V. Oakes, 118 V. Pack, 118, 355 Lamey v. Biahop, 356 Lanauze v. Palmer, 219 Lane v. Chapman, 106 V. Cotton, 297 V. Horlock, 252 V. MuUins, 328, 352 V. Ridley, 344, 346 V. Williams, 31, 39 Lang V. Gale, 159 V. Smith, 310 Langdale v. Trimmer, 224 , Langdon v. Hulls, 218, 219 V. Stokes, 182 V. Wilson, 19 Langston v. Corney, 150 Langton v. Lazarus, 258 Latraile v. Hoepfner, 324 Lawrence v. Clark, 353 Lawaon v. Sherwood, 225 V. Weston, 24 Laxton v. Peat, 191 Lazarus v. Cowie, 75, 91, 129, 132 Leach v. Buchanan, 156 Leadbitter v. Farrow, 26, 27 Leaf V. Robaon, 344 Le Cheminant v. Pearaon,318 Lechmere v. Fletcher, 96,. 278 Lee, ex parte, 370, 372, 373 V. Leater, 289 V. Levi, 195 V. Muggeridge,49 V. Rogera, 285 V. Zagury, 24 Leeds v. Lancashire, 70, 73, 75 Leeds Bank, ex parte, 375 Leers, ex parte, 371 Leeson v. Holt, 38 V. Pigott, 171 Lefevre v. Lloyd, 26 Leftley v. Mills, 176, 202, 203 Legge V. Thorpe, 203, 233, 234, 351 Leicester v. Rose, 102 Lemon v. Deane, 65 Leonard v. Baker, 382 V. Wilson, 115,206 Leslie v. Hastings, 65 Leveck v. Shaftoe, 36 Le Veux v. Berkley, 276 Levy V. Baker, 47 V. Dolbell, 382 V. Home, 380 V. Webb, 326, 335 Lewin v. Edwards, 333 Lewis V. Cosgrave, 100, 101 V. Dalrymple, 327 V. Gompertz, 203, 214, 216, 324, 325 V. Lee, 48 V. Lyater, 183 V. Maaon, 382 V. Parker, 131 • V. Reilly, 378 V. Sapio, 354 Leykr^ifTv, Ashford,-258 Lickbarrow v. Mason, 74 Lightbody v. Ontario Bank, 22 Lindo v. Unsworth, 224 Lindus v. Brad well, 27, 144 Linsell v. Bonsor, 278, 282 Lisle V. Liddle, 324 xlvi TABLE OP CASES CITED. Lithgow V. Lyon, 241 Little V. Slackford, 60 Littlefield v. Shee, 49 Llewellyn v. Llewellyn, 183 V. Winckworth, 23 Lloyd, ex parte, 362 V. Archbowl, 36 V. Aahby, 36 V. Lee, 49 V. Maund, 281 V. Sandilands, 16 Load V. Green, 376 Lobb V. Stanley, 378 Lobbon, ex parte, 363 Lockett's case, 262 Lockart v. Graham, 348 Lockier v. Smith, 43 Lockyer V. Jonea, 8 Lomas v. Bradshaw, 31, 94, 99 Lomax v. Landells, 335 Long V. Baillie, 300 V. Greville, 281 Longridge v. D'Orville, 183 Lordv. Farrand, 181 V. Hall, 26 Loring, ex parte, 308 Lovell V. Hill, 72 V. Martin, 174, 301 Low V. Burrows, 345 Lowe V. Copestake, 114 V. Peers, 104 • Lowes V. Mazzaredo, 251 Lowndes v. Collins, 241 Lowry v. Murrell,'22 Lucas V. Winton, 381, 382 Luce V. Irwin, 325 Ludlow, Mayor of, v. Charlton, 52 Lumley v. Hudson, 185 V. Musgrave, 185, 243, 306, 307 V. Palmer, 146 Lundie v. Robertson, 171, 236, 237, 238, 337 Lyon V. Holt, 168, 197 Lysaght v. Bryant, 225 M. Mackay v. Wood, 345 Macartney v. Graham, 302 Machu V. Fraser, 324, 325 Machell v. Kinnear, 115 Mackintosh v. Haydon, 169, 170, 254, 273 Mackworth v. Marshall, 138 M'AUister v. Haden, 107 M'Donald v. Bovington, 381 M'Dowall V. Lyster, 11 V. Boyd, 257, 304 M'Gae, ex parte, 375 M'Kinnell v. Robinson, 106, 108 M'Leod V. Snee, 74 M'Nair v. Fleming, 35 M'Neillape v. Holloway, 49, 373 M'Taggart v. Ellice, 325 Maghee v. O'Neil, 284 Magnus, ex parte, 373 Mahoney v. Ashlin, 313, Maillard v. Duke of Argyle, 304 Main's case, 158 Mainwairing v. Newman, 5, 30, 68 Mallan v. May, 104 Malpas V. Clements, 374 Mammatl v. Matthew, 325 Manby v. Scott, 46 Mann v. Lent, 399 • V. Moors, 219 Manners, ex parte, 361 Manwaring v. Harrison, 153 March v. The Attorney-General, 252 V. Ward, 6, 32 Margetson v. Aitkin, 196, 236 Markham v. Gonaston, 253 Markle v. Hatfield, 125 Marlar, ex parte, 370 Marryatt v. White, 179 V. Winkfield,.329 Marsh v. Chambers, 292 V. Houlditch, 179 V. Martindale, 246, 250 V. Maxwell, 222, 227, 238 V. Newell, 134 V. Pedder, 17, 305 Marshall, ex parte, 323 V. Broadhurst, 43 V. Griffin, 328 V. Poole, 241,243 V. Rutton, 48 Marston v. Allen, 2, 116, 341 Martin v. Chauntry, 70 V. Morgan, 12 V. Pewtress. 3T8 Marzetti v. Williams, 13, 175 Mason v. Barff, 148 V. Bradley, 258 V. Hunt, 145 V. Morgan, 419 V. Rumsey, 32, 33 Master v. Miller, 254 Masters v. Barretto, 169 V. Ibberson, 110 Masterman v. Cowrie, 247 Mather, ex parte, 361 Matthews v. Griffiths, 247 V. Haydon, 157 V. Philips, 274 Maughan v. Hubbard, 181 Mavor v. Pyne, 2, 71 Mawman v. Gilett, 36 May V. Sevier, 345 Mayer V. Jadis, 118 Mayhewv. Crickelt, 185, 192,194, 198, 199 Mayor v. Hammond, 69 V. Johnson, 301 Meadv. Braham, 362, 363, 372 V. Young, 68, 125, 262 Maggadow v. Holt, 336 Megginson v. Harper, 55, 60, 273, 283 Meggott V. Mills, 179 Melanotte v. Teasdale, 20 Mellish V. Rawdon, 139, 140, 141 V. Simeon, 330 Mendizabel v. Machado, 147, 150 Mercer v. Cheese, 304 V. Jones, 242 ' V. Southwell, 142 Merchant's Bank v. Birch, 228 Mertens v. Winnington, 211 Merton's case, 261 Messenger v. Southey, 215, 217 TABLE OF CASES CITED. xlvii Metcalf, ex parte, 368 Michael v. Myers, 193 Middleton v. Earned, 98 V. Onslow, 192 Midford v. Finden, 344 Miers v. Brown, 214, 225 Miley v. Walls, 344 Millar v. Henrick, 318 Miller v. Hay, 335 V. Miller, 7, 136 V. Race, 7, 24 V. Thompson, 1, 70, 143 Mills V. Alderbury Union, 199 V. Barber, 94 V. Fowkes, 179, 280 V. Gibbon, 238 V. Oddy, 341, 347 V. Stafford, 8 Milne's case, 264 Milne v. Graham, 5 V. Prest, 146 Minet v. Gibson, 58, 61. Mitchell V. Baring, 201, 208 V. Reynolds, 104 Mitchinson v. Hewson, 50, 51, 128 Mitford V. Finden, 328 Moffat V. Edwards, 8 V. Van Millingen, 5, 30, 68 Mogadora v. Holt, 231 Moageridge v. Jones, 99 Moline, ex parte, 176, 223, 228 Molloy V. Delves, 65, 146 Molten V. Camroux, 47, 48 , Mondel v. Steele, 326 Moor V. Vanlute, 70 V. Withy, 147 Moore ex parte 370 V. Barthrop, 16 V. Manning, 115, 122 V. Strong, 280 V. Warren, 123, 163 V. Wright, 292 Morgan v. Brundrett, 379 V. Davidson, 166 V. Jones, 354 V. Richardson, 99 Morley v. Culverwell, 31, 87, 176 V. Inglis, 289 Morrell v. Frith, 278 Morris v. Dixon, 280, 285 V. Lee, 8, 59, 73, 103 V. Norfolk, 283 Morrison v. Buchanan, 142 Morse v. Wilson, 249 Mortimer v. M'Callan, 103, 109 Moseley v. Hanford, 76, 77 Mossop v. Aden, 301, 302 Mott V. Hicks, 117 Moule V. Brown, 14, 163 Mountford v. Harper, 16 Mountslephen v. Brook, 284, 336 Mullman v. D'Eguino, 139, 141, 220 Mullett V. Hutchinson, 19 Munroe v. Bordier, 97 Murray v. East India Company, 22, 40, 52, 273 V. King, 230, 231 v. Reeves, 383 Musgrave v. Drake, 35, 349 Mutford V. Walcot, 146, 207 Mutton v. Ward, 353 Myers v. Lazarus, 345 N. Nadin v. Battle, 195 Napier v. Schneider, 330 Nash V. Brown, 95 V. Dunoomb, 356 Neale v. Ovington, 336 V. Proctor, 339 v. Turton, 30, 31 Nedham v. Sir John's case, 41 Nelson v. Serle, 44, 96 Nerot V. Wallace, 105 Nevison v. Whitley, 248 New V. Swain, 307 Newen v. Gill, 225 Newmarch v. Clay. 38 Newsome v. Coles, 26 Nias V. Nicholson, 381 Nichols V. Bowes, 169 V. Norris, 191, 192, 197 Nicholson V. Revill, 198 V. Gouthit, 158 Nightingale v. Adams, 276 V. Withington, 46 Nind V. Rhodes, -306, 310 Nisbett V. Smith, 192 Noble V. Adams, 306 Noel V. Boyd, 342 V. Rich, 342, 345 Nordenstrom V. Pitt, 244 Norman v. Booth, 3:i9 Norris V. Aylett, 184, 197 V. Salmonson, 238 V. Solomon, 70, 80 Northam v. Latouche, 382 Norton v. EUam, 170 V. Pickering, 232 V. Seymour, 32 Norwich Navigation Company v. Theo- bald, 38 Novell! V. Rossi, 118, 152 Noyes v. Price, 8 Nye V. Moseley, 104 0. Oakley v. Prichard, 357 v. Rigby, 108 Obbard v. Betham, 57, 99, 374 Ockenden, ex parte, 293 O'Keefev. Dunn, 128,213 Ord v. Fenwick, 43 V. Portal, 114 Oridge v. Sherborn, 5, 162 Orme v. Young, 193 Orr V. Maginnis, 200, 201, 233 Outerlony v. Easterbury, 292 Outhwaite v. Luntley, 149, 255, 256 Owen V. Von Usier, 144 V Waters, 338 Owens V. Porter, 110 Owenson v. Morse, 8, 124, 306 P. Pack V. Alexander, 218 xlviii TABLE OF CASES CITED. Padwick v. Turner, 338 Page, ex parte, 373 V. Thomas, 348 V. Wiple, 322 Paine v. The Guardians of the Strand Union, 52 Palethorp v. Furnish, 281 Paley v. Field, 169 Palliser v. Ord, 26 Palmer's case, 264 V. Pratt, 72 Palfray v. Baker, 305 Par, ex parte, 371 Parker v. Gordon, 163, 166, 218 V. Hutchinson, 241 V. Leigh, 154 V. Riley, 345 Parkin v. Moon, 131 Parnther v. Gaitskell, 276 Parka v. Edge, 167, 168, 356 Parry v. Nicholson, 258 Partridge v. The Bank of England, 127 Pasmore v. North, 48, 128 Paterson v. Hardacre, 93 V. Zacharia, 38 Paton, ex parte,, 370 Patterson v. Becher, 204, 205 Payler v. Homersham, 102 Payne v. Jenkins, 19 Peacock's case, 262 V. Jeffery, 289 V. Murrell, 90 V. Rhodes, 114 Pearce v. Davis, 16, 354 Pease, ex parte, 375 V. Hist, 96, 177 Pearse v. Pemberthy, 229 Pearson v. Crallen, 220 V. Garrett, 71 Pemberton v. Sheltoo, 333 Pell V. Browne, 329 Pellecat v. Angell, 318 Penkivil v. Connell, 54 Pennell v. Stephens, 360 Penny V. Innes, 112, 117 Percival v. Frampton or Framplin, 28, 94, 96 Perfect v. Musgrave, 192 Perham v. Raynal, 282, 283 Perreira v. Jopp, 151, 310 Perring v. Hone, 32 Perry v. Jackson, 27 Peters v. Anderson,' 179 V. Brown, 283 Petrie v. Hanney, 108 Pfiel V. Vanbatenbergh, 180, 181 Pheton V. Whitmore, 350 Phillips V. Astling, 230 V. Cockayne, 246 V. Cole, 352 V. Don, 326 V. Gould, 213, 215 " V. Pickford, 380 V. Turner, 325 V. Warren, 356 Philliskirk v. Pluckwell, 50 Philpot V. Aslett, 382 V. Briant, 168, 193, 194 Fhipps V. Tanner, 63 Phipson V Kneller, 231 Pickard v. Banks, 8 Pickin V. Graham, 226, 237, 239 Pidcock V. Bishop, 103, 192 Pierce v, Fothergill, 241 Pierson v. Dunlop, 133, 145, 175 V. Hutchinson, 299 Pike V. Stephens, 360 V. Street, 77, 117 Pillans V. Van Mierop, 145, 207 Pinkerton v. Marshall, 377 Pinkney v. Hall, 31 Pinkus V. Peters, 138 Pipe V. Steele, 351 Pitt V. Chappelow, 155, 378 V. Purrsford, 199 Pittam V. Foster, 283 Plumbers v. Ruding, 93 Plimley v. Westley, 88, 112, 236 Plomer v. Long, 8, 179 Pocock V. BiUing, 351 ^ Pocklington v. Sylvester, 14, 163 Poland V. Glynn, 379 Pole V. Ford, 185, 194 Polglass V. Oliver, 8 Polhill V. Walter, 27, 144 Pontifix V. Jolly, 347 Poole V. Dicas, 355 V. Palmer, 348 V. Smith, 301 Poplewell V. Wilson, 63, 96, 98 Porthouse v. Parker, 155, 229, 236 Potez V. Glossop, 57, 374 Pott V. Beavan, 370 V. Clegg, 280 V. Eyton, 29 Potter V. Browne, 316 V. Rayworlh, 237 Portugal (Queen of) v. Glyn, 330 Powell V. Ancell, 333 V. Eason, 381 V. Ford, 354 V. Graham, 44 V. Jones, 148 V. Monnier, 147, 148, 302 V. Roche, 177, 180 Powles V. Page, 54,229 Prescot, ex parte, 294 V. Flinn, 23 V. Levi, 345 Preston v. Jackson, 111, 250 Prestwick v. Marshall, 50 Preussing V. Ing, 90 Price V. Easton, 338 V. Edmunds, 6, 191, 192, 194, 195 V. Mitchell, 67, 169 v. Neal, 155, 267 V. Price, 284, 299, 300, 304 Priddy v. Hembry, 64, 333 Prideaux v. Collier, 171, 231, 237 V. Webber, 275 Prince v. Brunatte, 50, 155 V. Heylin, 271 Pring V. Clarkson, 196 Puckford V. Maxwell, 306 Puckle V. Moor, 285 Puget de Bras v. Forbes, 97 Pugh V. Hookham, 382 Purchell v. Salter, 345 TABLE OP CASES CITED. xlix Purdon v.Purdon, 281 Pursaford v. Peek, 344 Putman v. Sullivan, 47 Q. . Quantock v. England, 271 Quarrier v. Colston, 20, 317 R. Ralli V. Sarell, 150 , Ramsboltom v. Cator, 120, 378 Ramsey v. Eaton, 369 Ramuz v. Crowe, 299, 300 Ranelagh (Lord) v. Champante, 250 Rankin v. Weguelin, 136 Raper V. Birkbeck, 118, 152 V. Todd, 169 Rapp V. AUnut, 89 Rathbone, ex parte, 361 Rawlings v. Hall, 331 Rawlinson v. Stone, 42, 40 Rawson, ex pane, 367 Rayner v. Grote, 37 Raynea v. Jones, 383 Read, ex parte, 365, 369 V. Gamble, 353 Reader, ex parte, 372 Reay v. Packwood, 351 Reed V. Deere, 89 V. While, 154, 306 Rees V. Abbott, 336 V. Berrington, 192, 194 V. Warwick, 148 Reeves v. Hearn, 183 V. Lambert, 381 Reg. V. Bartlett, 69 V. Blenkinsop, 262 V. Butterwilc, 246 V. Chawton, 159 V. Cook, 265 V. Hill, 264 V. Kinner, 70, 143 V. Ferry, 11 V. Radley, 379 V. Rogers, 262 V. White, 260, 263 V. Winterbottom, 44 v., Wilson. 262 Regil V. Green, 343 Reid V. Croft, 382 V. Dicksons, 281 V. Furnival, 133, 134, 175 Renew v. Axton, 279 Rew V, Petet,26, 54, 281 Rex V. Bingley, 265 V. Birkett, 264 V. Bontien, 262, 265 V. Box, 62 V. Bullock, 359 V. Burke, 261 V. Butterwick, 261 V. Collison, 261 V. Craven, 265 V. Dade, 265 V. Davis, 260 V.Dick, 265 Rex v. Dunn, 261 V. Elsworth, 263 V. Francis, 262 V. Hales, 262 V. Hart, 262 V. Hawkswood, 89, 261 V. Hevey, 263 V. Holden, 264 V. Holt, 38 V. Hough, 265 V. Hunter, 66, 69 V. Johnson, 219 V. Jones, 261 V. KirkWood, 265 V. Lambton, 116 V. Lee, 261 V. Lockett, 262 V. London, Sheriffs of, 328 V. M' Kay, 265 V. Merton, 261 V. Millard, 265 V. Milne, 264 V. Moffat, 261 V. Morris, 264 V. Palmer, 264 V. Parkes, 263 V. Pateman, 261 V. Peacock, 262, 265 V. Plummer, 219 V. Pooley, 11 V. Post, 63, 261, 264 V. Randall, 61, 261 V. Revett, 103 V. Richards, 61, 261 V. Shephard, 262 V. Shukard, 264 v. Tuft, 62, 262 V. Teague, 89, 261, 263 V. Treble, 264 v. Watson, 219 v. Watts, 263 V. Webb, 263 V. Whiley, 262, 372 V. Wilcox, 261 v. Wylie, 265 v. Yates, 11 Reynolds v. Blackburn, 345, 346 v. Daviea, 337 V. Doyle, 100, 274 V. Hankin, 325 Rhode V. Proctor, 228 Rhodes, ex parte, 119 v. Gent, 170 V. Smethurst, 274, 276 -Rhymes v. Clarkson, §7 Rice V. Stearnes, 117 Rich V. Topping, 350 Richards v. Frankum, 77,352 V. James, 289 V. Macey, 65, 68, 96 V. Richards, 31, 50, 51, 73, 241 V. Thomas, 77 Richardson v. Allen, 350 V. Bradshaw, 374 v. Jackson, 327 V. Mellish, 104, 105 Richmond v. Heapy. 33, 34, 373 Rickford v. Ridge, 14, 32, 163 Riddell v. Dobree, 18 TABLE OF CASES CITED. Ridley v. Blackett, 16 V. Taylor, 31, 34, 349 V. Tindal, 343 Ridout V. Bristow, 44, 65, 77, 96 Roach v. Osller, 69, 70 V. Thompaon, 323, 349 Roberts, ex parte, 361 V. Bradshawe, 219 V. Eden, 120, 132 V. Elsworth, 327 V. Peake, 71 / V. Roberts, 104 V. Trenayne, 248, 250 Robertson v. Kensington, 117 V. Sheward, 55, 60 Robins v. Gibson, 203, 218 V. Lord Maidstone, 181 V. May, 72 Robinson, ex parte, 361 V.Bland, 66,69, 111, 242,315 ' V. Hawksford, 14, 165 V, Little, 116, 345 V. Read, 197, 305 V. Reynolds, 97 v.'Y arrow, 24, 155 Robson V. Bennett, 14, 15, 147, 163, 224 V. Curlewis, 217 V. Oliver, 124, 158,160,202 V. Rolls, 120 Roche V. Campbell, 66 Roden v. Ryde, 353 Roderick v. Hovill, 89 Rofey, ex parte, 361 Roffey V. Greenwell, 72, 241 Rogers, ex parte, 372 V. Chilton, 342 V. Kingston, 383 V. Langford, 123, 124, 158, 171 V. Stephens, 200, 218, 236 Rogerson v. Hare, 226 Rolfe v. Caslon, 364 Rolleston v. Dixon, 339 V. Hibbert, 119 Rolt V. Watson, 300 Roscow V. Hardy, 213, 238 Rose V. Bowler, 43 V. Hart, 293 V. Main, 109, 360 V. Poulton, 31' V. Rowcroft, 57, 373, 374 , V. Sims, 95, 119, 294 V. Tomlinson, 90 Rosher v. Kieran, 226 Ross, ex parte, 295 Rotch V. Edie, 318 Rothery v. Mannings, 279 Rothschild v. Barnes, 320 v. Corney, 130 V. Currie, 313, 317, 320 Rothwell V. Timbrell, 360 Rouse V. Redwood, 237 ' Rowe V. Young, 149. 166, 169 Rowlands v. Sprinjett, 218 Rowley v. Horn, 38 Rowning v. Goodchild, 297 Rowton, ex parte, 375 Royal Bank of Scotland, ex parte, 371 Rucker v. Hannay, 281 v. Hiller, 234 Rudder v. Price, 233 Ruffv. Webb, 59 Rufford, ex parte, 371 Rumball v. Ball, 170, 273 Rushton V. Aspinal, 336 Rushworth, ex parte, 371 Russell V. Blake, 348 V. Bell, 293, 294 V. Hankey, 16, 177 V. Langstaffe, 65, 128, 158, 236 V. Lee, 44 V. Phillips, 143, 154 V. Pollett, 33 V. Powell, 60, 73 Rust V. Cooper, 379 Ryal V. RoUe, 3, 376 Ryder v. Ellis, 322 S. Sadi's case, 3 Salomans v. Stavely, 204 Sanderson v. Colman, 346 Sands v. Clark, 158, 170, 171 Sard v. Rhodes, 183, 184 Sargeant, ex parte, 375 Sarratt v. Austin, 365, 372 Saunderson v. Bowes, 66, 169 V. Griffiths, 22 V. Jackson, 65 V. Judge, 167, 218 V. Piper, 62 Savage V. Aldren, 117,272 Sayer v. Chaytor, 6 V. Wagstaff, 305 Scales V. Jacob, 50, 278 Scarpellini v. Atoheson, 272 Schild V. Kilpin, 339, 345 Scholey v. Ramsboitom, 174 V. Walsby, 181, 3.55 V. Walton, 279, 282 Schultz V. Astlevj 128, 145, 335 Scotland, Royal Bank of, ex parte, 371 Scott V. Chappelow, 345 V. Gillmore, 110, 111 V. Liflbrd, 187, 222 Scruggs V. Gas, 122 Searle v. Norton, 12, 58 Sebag v. Abithol, 149 Secar v. Atkinson, 44 Selby V. Eden, 66, 166 Semple v. Cole, 254, 258 Sentance v. Poole, 47 Serle v. Norton, 14 V. Waterworth, 44, 95 Sewell V. Dale, 339 V. Evans, 353 Sharp V. Bailey, 67, 234 Sharp V. Guy, 382 V. Lethbridge, 327 Shaw V. Broom, 252 V. Croft, 226 V. Harvey, 320 V. Picton, 179 Shearm v. Burnard, 353 Sheerman v. Thompson, 383 Shelton v. Braithwaite, 168, 216, 217, 221 Shenton v. James, 70 Shepherd's case, 262 TABLE OF CASES CITED. li Shepherd v. Shepherd, 338 Sheppard v. Dry, 32 Sherrington v. Yates, 50 Shilito V. Theed, 106, 107 Shirley v. Jacobs, 324 Shirreffv. Wilkes, 35 Shute V. Robins, 139, 140, 164, 165 Shuttleworth, ex parte, 124 V. Stephen, 66, 69, 349 Sibley v. Fisher, 258 Sibree v. Tripp, 8 Siddallv.-RawcliflFe, 333 Sidford v. Chambers, 118, 355 Siffkin V. Walker, 32 Sigell V. Jebb, 106 Siggers v. Lewis, 176, 193, 327 V. Brown, 219, 835 V. Nicholls, 151 Sigourney v. Lloyd, 122 Simmonds v. Parminter, 336 Simpkins v. Polecary, 333 Simpson, ex parte, 379 V. Bloss, 103 V. Clarke, 93 V. Dick, 325 V. Margetson, 159 V. Pogson, 381, 382 Sims V. Simpson, 295 Simpson v. Ingham, 179 Sinclair v. Baggaley, 57, 374 Skilbet V. Garbett, 218, 219 Skinner v. Stocks, 36 Skip V. Hucy, 192 Slade's case, 3 Slater v. Lawson, 282 Sleigh V. Sleigh, 232 Slipper V. Stidstone, 290 Sloman v. Cox, 185, 257 Smallwood v. Vernon, 112 Smart v. Nokes, 88 V. Rayner, 347 Smith, ex parte, 196, 360, 371 V. Abbott, 150 V. Ball, 335 V. Battens, 57, 285, 374 V. Bellamy, 169, 171 y. Boheme, 70 V. Chester, 155 V. Clarke, 115 V. Clench,, 344 V. Cox, 338 V. De Wruitz, 352 V, Ferrand, 197, 305 V. Forty, 280 V.Hill, 276 ■ V. Hodson, 294, 295 V. Kendall, 62 V. Knox, 98, 191 V. Lord, 58 V. McClure, 62, 299 V. Marsack, 119, 155 V. Martin, 94 V. Mercer, 17, 174, 265, 267, 311 V. Moneypenny, 353 V. Mullett, 222, 223, 227 V. Nightingale, 70, 71 V. Pickery, 119 V. Prager, 348 V. Sheppard, 173 Smith V. Thatcher, 229 V. Whiting, 44 V. Winter, 39, 198 V. Woodcock, 327 Smout V. Ilberry, 27 Snaith v. Mingay, 65, 128, 319 Snee v. Prescott, 121 Snellgrove v. Bailey, 136 Snow V. Peacock, 126,298 V. Saddler, 298 Soaresv. Glynn, 117, 118 Solarte, ex parte, 365 V. Palmer, 215, 221 SoUers, ex parte, 375 Solly V. Forbes, 188 V. Hinde, 98 V. Neish, 345 Solomon v. Turner, 100 Solomons- V. Bank of England, 28, 126 South Carolina Bank v. Case, 32 South Sea Company v. Wymondsell, 274 Soutten V. Soutten, 363 Soward v. Palmer, 176, 193, 231, 363 Sowerby v. Butcher, 26, 95, 96 Sparrow v. Carruthers, 49 V. Chisman, 34 Spears v. Hartley, 271 Spieer v. Burgess, 256 Spiller V. Johnson, 335 V. Westlake, 99, 150 Spindler V. Grellet, 169 Spong V. Wright, 278 Spooner v. Gardiner, 93, 234 Bpratt V. Hobhouse, 8 Sproat V. Mathews, 149, 150, 202 Sprowle V. Legge, 67, 317, 336 Spyer v. Thelwell, 335 Stables v. Ely, 39 Stack wood v. Dunn, 290 Stafford, Mayor of, v. Till, 52 Slandage v. Creighton, 237 Staples V. Okines, 233, 351 Starey v. Barnes, 294 Siarke v. Cheesman, 66, 69, 170, 338 Siarhouse v. Barnston, 272 Steadraan v. Duhamel, 313 Steavenson v. Oliver, 336 Stebbing v, Spieer, 60 Stedman v. Gooch, 184, 304 V. Martinnant, 362, 363 Sleel V. Bradfield, 328 Steele v, Benham, 154 V. Harmer, 31,54, 137, 154, 184, 341 Steers v. Lashlev, 109 Stein V. Yglesias, 129, 130, 146 Stephens, ex parte, 295 V. Underwood, 343 V. Wilkinson, 99 Stericker v. Barker, 338 Sterndale v. Hankinson, 275 Stevens v. Jackson, 46 V. Lloyd, 254 V. Lynch, 198. 237, 350 Stevenson v. Roche, 195 Steward v. Dunn, 54 , Stewart v. Kennett, 225 V. Kirkwall, 49 V. Lee, 15, 173 Stock V. Mawson, 102 lii TABLE OF CASES CITED. Stockbridge v. Susaams, 291 Stocken v. Collin, 216, 218, 219, 223 Stockman v. Parr, 217 Stone, ex parte, 292 V. Compton, 192 V. Marsh, 173 V. Metcalf, 76 Stones V. Butt, 321 Story V. Atkins, 4 Stoughton V. Kilmorey, 341 Stoveldv. Ede, 179 Straker v. Graham, 141, 309 Strange v. Lee, 179 V. Price, 215 V. Wigney, 298 Stratton v. Hill, 333 V. Mathews, 323, 326, 349 Strickland v. Mansfield, 11 Strithorst v. Grseme, 276 Strong V. Hart, 197,305 Stuart V. Bute, 135 Sturdy v. Henderson, 59, 79, 162, 273 Sturleyn v. Albany, 41 Sturtivant v. Ford, 129 Sutton, ex parte, 26 V. Toomer, 59, 257, 273, 354 Swain v. Lewis, 239 Swan V. Steele, 31, 32, 35, 36 Swann v. Cox, 150 Swansey V. Vanderkeyden, 46 Swayn v. Stephens, 276 Swayne v. Wallinger, 271 Swears v. Wells, 89 Sweeting v. Fowler, 60 V. Halse, 89, 154 Swinyard v. Bowes, 229, 230, 305 Sykes v. Giles, 305 T. Tanner v. Smart, 278, 281, 286 Tapley v. Martens. 17 Tarleton v. Allhusen, 184, 304 V. Shingler, 256 Tassell V. Lewis, 162, 224 Tate V. Hilbert, 17, 18, 136 Tatlock V. Harris, 61 Tattersall v. Parkinson, 343 Taylor. V. Booth, 63, 336 V. Briggs, 305 V. Croker, 46, 155 V. Dobbins, 65 V. Forbes, 324 V. Hipkins, 274 V. Jones, 237 V. Kinloch, 57, 374 V. Mosely, 254, 258 V. Plumer, 306 V. Steele, 67 Teague's case, 261 Teague v. Hubbard, 30, 54, 68 Terry V. Parker, 171, 337 Thackray v. Blackett, 233, 299 Thibault v. Gibson, 237,251, 252 Thicknesse v. Bromilow, 32 Thimbleby v. Barron, 186, 188, 194 Thomas, ex parte, 372, 373 V. Bishop, 26 Thomas v. Courtenay, 102 V. Dunn, 268, 326 V. Fenton, 234 V. Newton, 93, 331 V. Taylor, 331 Thotnason v. Frere, 39, 377 Thompson v. Browne, 179 V. Clubley, 117, 192 V. Dominy, 2 V. Giles, 375 V. Percival, 35, 154, 183, 306 V. Universal Salvage Company, 52 V. Wesleyan Newspaper Asso- ciation, 33 Thorpe v. Booth, 273 Thornton v. Dick, 151 V. lUingworth, 45 Threli'all v. Lunt, 138 V. Webster, 326 Thrupp V. Fielder, 45 Tickell V. Short, 279 Tigar v. Gordon, 335 Tiley v. Coursier, 8 Timmis v. Piatt, 340 Timms v. Williams, 55 Tindal v. Brown, 163, 198, 225, 226 Tinson v. Francis, 129 Tippets v. Heane, 279 Titus v. Lady Preston, 159 Toley v. Carlon, 138 Tolhurst v. Notley, 345 Tomkins v. Ashby, 9, 19, 354 Toms v. Powell, 177, 322 Took v. Tuck, 101 v. Holling worth, 377 Toolel, ex parte, 361 Toulmin v. Price, 302 Towgood, ex parte, 371 Towler v. Chatterton, 284 Townhend v. Downing, 349 Townrow v. Benson, 296 Townsend v. Deacon, 276 Treacher v. Hintan, 229 Trecothick v. Kdwin, 67, 169 Trent Navigation v. Harley, 193 Treuttel v. Barandon, 24, 121, 122, 323 Tricky v. Lame, 99 Trier v. Bridgman, 4, 334 Triggs v. Newnham, 166 Trimby v. Vignier, 135, 200, 316 Trimmer y. Oddie, 148, 151 Trinder v. Smedly, 341 Trueman v. Fenton, 97 V. Hurst, 46 Tucker v. Roberts, 155 Tuft's case, 62, 262 TuUock V. Dunn, 279, 282 Turner v. Denman, 339 V. Fitt, 335 v. Hoole, 101 V. Leach, 228, 236, 238 V. Mead, 163 V. Stones, 124, 158, 230 V. Taylor, 328 Twopenny v. Young, 154, 196 Tye V. Gwynne, 99 Tyers v. Stunt, 382 TABLE OF CASES CITED. liii U. Udal V. Walton, 360 Upstone V. Marchant, 90 Usburne, ex parte, 38 Usher v. Dauncey, 128 Uiher V. Rich, 120, 126, 342 V. Vallance v. Siddal, 96, 251 Vanderdonckt v. Thellusson, 169 Vandewall v. Tyrrell, 201, 206, 208, 210, 211 Vandyck v. Hewitt, 104 Vansandau v. Corsbie, 363 Van Wart v. Woolley, 28, 117, 124, 239, 230 Vaughan v. Fuller, 171, 256 V. Harris, 328 V. Matthews, 346 Vernon v. Boverie, 16, 177 Vere V. Ashby, 22, 36 V. Lewis, 61 Vincent v. Horlook, 116 Vice V. Fleming, 37 VuUiamy v. Noble, 38, 39 W. Wackerbath, ex parte, 202, 209, 211 Wade V. Beasley, 337 Wagstaff, ex parte, 294 Wain V. Bailey, 180, 285, 299, 300 Wainman v. Kynnian, 278 Wake V. Tinkler, 289 Wakefield Bank, ex parte, 375 Walker, ex parte, 366, 367 V. Atwood, 150 V. Barnes, 176, 193, 242, 327 V. CoUick, 260, 275 V. Macdonald, 115 V. Pibeam, 362 V. Seaborn, 183 Wallace v. Hardacre, 105, 375 V. Kelsall, 177, 290 Waller v. Lacey, 278, 280 Wallis V. Swinburne, 363 Walmesly v. Child, 302 V. Cooper, 188 . Walpole V. Pulteney, 153 Waller v. Cubley, 254 » V. Haynes, 218 Walton V. Hastings, 255, 256 V. Mascall, 96, 158, 230 Walwyn v. St. Uuintin, 133, 175, 195, 232, 234 Wankford, v. Wankford, 41, 42 Ward V. Byrne, 104 V. Clark, 359 V. Evans, 8, 16, 123, 124, 163, 307 Waring, ex parte, 375 Warmsley y. Macey, 325 Warren v. Woods, 329 Warrington, v. Farbor, 158, 159, 230 Warwick v. Bruce, 47 V. Noakes, 302 V. Rogers, 152 Washbourne v. Borrows, 252 Waters V. Brogden, 11 V. Tompkins, 284 Watkins v. Benausan, 345 V. Maule, 40, 119 V. Morgan, 240 V. Wake, 333 Watson V. Rightly, 64, 333 V. Medex, 363 V. Wilkes, 345 Watters v. Smith, 183 Waynam, v. Bend, 9, 118, 354 Webb's case, 263 V. Fairmaner, 159 V. Geddes, 334 V. Inwards, 326 V. Spicer, 186 V. Weatherly, 343 Webster v. Spencer, 43 Wedlake v. Hurley, 144 Weeks v. Argent, 340 Wegersloffe v. Keene, 150, 338 Welby V Drake, 179, 183 Wells V. Hopkins, 98 V. Girling, 101,248 V. Masterman, 31, 34 V. Porter, 108 Westcott V. Hodges, 362 Westmacott v. Cook, 324 Weston V. Tomlinson, 241 Whaley v. Pajot, 107 Whatley V. Tricker, 153 Wheatley v, Williams, 9 Wheelwright v. Jutting, 326 Whiley's case, 262 Whitaker v. Bank of England, 144, 166, 175 Whitcomb v. Whiting, 282 White, ex parte, 256 V. Ledwich, 63 V. North, 9, 19 V. Wright, 250 Whitehead Vr Walker, 129, 130, 213, 274, 343 Whitelock v. Underwood, 58, 165 Whitefield v. Le Despenser, 297 Whitmore v. Francis, 331 Whittaker v. Edmunds, 94 V. Mason, 345 Whitwellv. Bennett, 12 Wiffen V. Roberts, 98, 162 Wigan V. Fowler, 52 Wilde V. Porter, 66 Wilders V. Stevens, 96, 119 Wildman, ex parte, 322, 371 Wilkes V. Hopkins, 354 Wilkinsv. Casey, 377 V. Jadis, 166, 238 Wilks V. Adcock, 326 V. Back, 32 V. Jacks, 232 Wilkinson v. Byers, 183 V. Godfrey, 18 V. Johnson, 118, 152,268 V. L'Eaugier, 20, 331 V. Lutwidge, 155 Williams v. Bartholomew, 237 V. Burrell, 40 V. Clarke, 119 v. Everett, 144 liv TABLE OP CASES CITED. Williams v. Germaine, 162, 207, 209 V. Griffith, 179, 278 V. Griffiths, 279 V. Harrison, 45 V. Jarret, 79, 90 V. Jones, 271 V. Keats, 38, 39 V. Miles, 322 V. Moore, 45, 46 V. Seagrove, 118 V. Smith, 165, 222 V. Thomas, 40 V. Waring, 67, 169 Williamson v. Bennett, 19, 72 V. Johnson, 32 V. Watts, 45, 46 Willis V. Bank of England, 126 V. Barrett, 60 V. Newham, 284 Willeson v. Patteaon, 51, 105 V. Whitaker, 194 Wills V. Noot, 90 Willsheir v. Cox, 350 Wilmot V. Williams, 168 Wilson, ex parte, 196, 360 V. Barthrop, 27 V. Justice, 255 V. Ray, 101 V. Reddall, 336 V. Stubs, 60 V. Swabey, 225, 227 V. Tumman, 22, 36 V. Vysar, 88 Wilton, In re, 305 Windle v. Andrews, 63, 204, 205 Windham v. Wither, 322, 327 Winch V. Fenn, 247 Winchester, Bishop of, v. Fournier, 137 Winterbottom's case, 44 Wintle V. Crowther, 35 Wise V. Charlton, 9, 76, 86 V. Prowse, 322 Withall V. Masterpian, 198 Witham v. Gompertz, 325 Wittersheim v. Carlisle, 272 Wooley V. Clarke, 41 Wood V. Braddick, 282 V. Brown, 236 V. Dodgson, 362, 363 V. Grimwoodj 246 V. Jowett, 381 V. Mytton, 5, 65 V. Peyton, 346 V. Smith, 295 Woodbridge v. Spooner, 3, 76 Woodcock V. Houldsworth, 218 Woodford v. Whiteley, 299, 300, 306 Woodroffe v. Hayne, 96, 179 Woodthorpe v. Lawes, 2)6, 217, 226 Woodward v. Dacy, 42 Wookey v. Pole, 127 Woolner v. Devereux, 268 Woolsey v. Crawford, 330 Woolway v. Rowe, 352 Worley v. Harrison, 72 Worrall, ex parte, 371 V Jones, 351 Worthington v. Grimsditch, 279, 280, 281 Wright V. Laing, 179 V. Lainson, 57, 374 V. Reed, 7 V. Riley, 89 V. Shawcross, 222 V. Watts, 343 Wyatt V. Bulmer, 110 V. Marquis of Hertford, 17 Wych V. East India Company, 275 Wylie's case, 265 Wynne v. Calendar, 111, 316 V. Jackson, 316, 318 V. Raikes, 146, 147, 148 X. Ximenes v. Jacques, 107 Yallop V. Ebers, 191 Yarborough v. Bank of England, 115 Yates V. Bell, 144 V. Grove, 73 V. Hoppe, 100 V. Sherrington, 50 Yea V. Fouraker, 281 Yeomans v. Bradshaw, 41 Yonge, ex parte, 362 York V. Blott, 348 Young V. Adams, 122, 125 V. The Bank of Bengal, 294 V. Geiger, 291 V. Grote, 17, 266 Z. ,\ Zinck V. Waller, 375 Zouch V. Clay, 253 V. Parsons, 45 BILLS OF EXCHANGE. CHAPTEK I. GENERAL OBSERVATIONS ON A BILL OF EXCHANGE. EXPLANATION OF TERMS, . . .1 PECULIAR QUALITIES OF CONTRACTS OU BILLS OK NOTES, . . .2 EFFECT OP DRAWING OR INDORSING! A BILL, 2 HOW FAR BILLS AND NOTES ARE CON- SIDERED AS CHATTELS, . . .3 MAT BE TAKEN IN EXECUTION, . . 3 WHERE A BILL OR NOTE MAT OPERATE AS A WILL OR TESTAMENTARY IN- STRUMENT, 3 A Bill of Exchange is a ■written order(a) from A. to B. directing B. to pay 0. a sum of money therein named.(l) (a) It is said that it was formerly essential to the validity of a bill of exchange, that it should be drawn in one place and payable in another : no such requisite now exists by the English law, although it is in general otherwise, according to the defi- nitions in the codes prevailing on -the continent of Europe ; see the note of Mr. Serjeant Manning to Miller v. Thompson, 4 M. & G. 260 ; E. C. L. R. vol. 43. (1) This definition is remarkable for its conciseness and accuracy. Yet, perhaps, it does not sufficiently express the quality of absoluteness, or that the money shall be paid absolutely and at all events. The learned author uses the word " direct " instead of the word " request," which is 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 (1 Moody and Malkin, 111; 22 Bng. Com. Law, 280), is sup- posed 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, how- ever, 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. 129, 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 nature of the , instrument ; and in order to displace the construction, that the instrument is a bill, it would seem to require, that the language necessarily imported to ask a favor and 56 BTLES ON BILLS OF EXCHANGE. A. is called the drawer, B. the drawee, and C. the payee. Sometimes A. the drawer is himself the payee. And usually the bill is made payable, not to the payee 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 delivering it into his hands, and then D. stands not to be words of civility. Story on Bills, I 33, note. It must be admitted that this is attempting a very refined distinction, and frequently of very difficult applica- tion in the construction of such instruments. It is well settled that it is not neces- sary to constitute a bill of exchange 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 agreement 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 drawer without acceptance in the name of the drawee, this is an assignment in equity, but not a bill of exchange. Harrison v. Williamson, 2 Edw. Rep. 430 ; Quin v. Hanford, 1 Hill, 82 ; Maude- ville V. Welch, 5 Wheaton, 286. It seems therefore that Bayley's definition, which has been adopted by Chancellor Kent, is preferable to that in the text. " A bill of exchange is a written order or request by one person to another 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 speaking, among merchants constitutes its true character. Story on Bills, \ 2, 3, 4. He accordingly expresses a preference for Mr. Kyd's defi- nition, 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 payaljle 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 without notice cannot be affected by any equities, 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. And as to promissory notes, the point is well settled that though not made payable to order or bearer, yet if the payer puts his name upon it and transfers it he is liable as an indorser (p. *62), and the instrument may be declared on as a promissory note. It would be inaccu- rate therefore to include the idea even of assignability. It is evident that all the qualities of an instrument need not enter into the definition, but only such as dis- tinguish it on its face from other instruments. GENERAL OBSERVATIONS, ETC. 57 in the same situation with regard to B. the acceptor, as 0. the origi- nal payee did. If the bil^be payable to C, or order, then C. cannot transfer, ex- cept by a written order, usually on the back of the bill, called an in- dorsement, after which C. is called the indorser, and D., to whom it may be so transferred, the indorsee. (1) (1) It is worthy of note that the author hy transfer in this passage means a transfer to pass a legal title to the holder so as to enable him to sue in hia own name. There may be an assignment iu equity for a valuable consideration of a bill or not, just as there may be of any other chose in action. Jones v. Witter, l.S Mass. 304; Dunn v. Snell, 15 Ibid. 485 ; Titcomb v. Thomas, 5 Greenleaf, 282. A deed of assignment of bills of exchange and negotiable notes does not pass the legal but only the equitable title to them. Grand Gul^ Bank v. Wood, 12 Smedes and Marshall, 482. 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. They 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. 2 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 on 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 pre- served, even against the acts and deeds of the legal plaintiff on the record. Thus the bankruptcy of the assignor was decided to be no impediment to an action in his name where the debt had been assigned before the bankruptcy. Winch v. Keeley, 1 T. R. 619 : Carpenter v. Morrell, 3 Bos. & Pul. 40. So in other respects. See the learned opinion of Buller J. in Master v. Miller, 4 T. R. 340. The American Courts have followed in the track of these decisions with even still greater liberality. In Welch v. Mandeville, 1 Wheat. 233, it was determined that a nominal plaintiff, suing for the benefit of his assignee, cannot, 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 themselves 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 6f the assignment, is no defence. Little- field 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. 316 ; Laughlin V. Fairbanks, 8 Missouri, 367 ; Parker v. Kelley, 10 Smedes and Marshall,- 184; the State v. Jennings, 5 English, 428. The nominal plaintiff wiU not be allowed to discontinue the action. McCuUum t. Coxe, 1 Call. 139. 58 BYLES ON BILLS OF EXCHANGE. Solder is a general word, applied to any one of the parties in pos- Nor can the debtor set off any demands against the assignor which accrued after notice of the assignment. Goodwin v. Cunningham, 12 Mas. 193; Jenkins v. Brewster, 14 Ibid. 291 ; Sampson v. Fletcher, 1 Vermont, 168 ; Cummingsv. FuUum, 13 Vermont, 434 ; Bartlett v. Pearson, 29 Maine, 9. So the assignee is protected against the declarations and acts of the assignor sub- sequent to the assignment : they are inadmissible in evidence against him. Kimball V. Huntington, 10 Wend. 675 ; Lister v. Baker, 6 Blackford, 439. An assignment of a particular claim passes to the assignee all securities and remedies which the assignor had to secure and recover it, though they are not speci- fically mentioned in the assignment. Miller v. Ord. 2 Binn. 382 ; Mehaffy v. Share, 2 Penna. Rep. 361 ; Waller v. Tate, 4 B. Monroe, 529 ; Farmers' and Drovers' Bank v. Fordyce, 1 Penna. State Bep. 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 defendant, 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. Eidgway, 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. Where 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 liable not only for the costs accrued at the time of the assignment, but for all which may subsequently accrue. Wistar v. Walker, 2 P. A. Browne, 171; Martin v. Stille, 3 Wharton, .337 ; MoLughan 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 ; Groverv. Grover, 24 Pick. 261. The assignee will be protected against attachments by creditors of the assignor, i 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. Perkins, 3 Day, 364 ; Judah v. Judd, 5 Ibid. 534 ; Warren v. Copelin, 4 Metcalf, 594 ; Vanbuskirk v. Ins. Co. 14 Conn. 141. Even in that state, however, an assign- ment of a chose in action, without notice to the debtor, is valid as between the parties ; and no person who has knowledge of the assignment can be regarded as a bonajide creditor for the purpose of defeating it. Bishop v. Holcomb, 10 Conn, 444. But the law has not been so held elsewhere. It is sufficient 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 Ashmead, 190; Stockton V. Hall, Harden, 160 ; Nesmith v. Drum, 8 Watts & Serg. 9 : Littlefield v. Smith, 5 Shepl. 327. -^-(^ Ox^i^i^ X A,eV '' /^ O. r- t 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. MandeviUe v. Welch, 5 Wheat. 285 ; Bobbins v. Bacon, 3 Greenleaf, 346 ; Corser v. Craig, 1 Wash. C. C. 424. But although notice is necessary, in order to make it available against pavment 59 session *of the bill, and entitled, at law, to receive its contents r^^on from another. (J) By the common law of England, no contract or debt is assignable, our ancestors appearing in the times of simplicity, to have appre- hended from such transfer much oppression and litigation. But mer- cantile experience has proved the assignment of debts to be indispensa- ble, and bills of exchange to be the most convenient instruments for facilitating, securing, and authenticating the transfer. They have, (6) This latter branch of the definition is 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 indorse- ment or delivery to himself, which he must allege in his declaration, the circum- stances attending his acqidsition of the bill may be shown. Marston v. Allen, 8 M. & W. 494.* or other discharge of the debtoiyit hag 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 an 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 creditor 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 has been made on valuable or even good consideration." Nes- mith V. Drum, 8 Watts & Serg. 10. But see Kennedy v. Ware, 1 Penna. State Eep. 445, in which it is held that such an assignment, in consideration of natural love and affection, is void. See Anon. 2 Hayw. 352 ; Ellis v. Amason, 2 Dev. Ch. 273 ; Braham v. Ragland, 3 Stewart, 247 ; Blin v. Pierce, 20 Vermont, 25 ; Langley v. Berry, 14 New Hamp. 82 ; Brown v. Poster, 4 Gushing, 214. In a valuable note to the case of Welch v. Mandeville, 1 Wheat. 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 fiction, 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 suam, 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, this 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. lb. 110, 554 ; Cod. Napoleon, liv. 3, tit. 6 ; De la Vente, c. 8, s. 1690/0 ^ . • / 60 BYLES ON BILLS OF EXCHANGE. therefore, come into universal use among all civilized nations, and the common law has recognized them as part of the law merchant.{c) The common law again distinguishes contracts into two kinds : con- tracts under seal or by deed ; and contracts not under seal or simple contracts. Contracts under seal are valid without consideration ; simple contracts are void unless consideration be averred in pleading and established in evidence. All the contracts arising on a bill of exchange are simple contracts, but they differ from other simple contracts in these two particulars : first, that they are assignable ;(c?) secondly, that consideration will be presumed till the contrary appear.(l) (c) Usages which 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 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 be- comes part of the law merchant, which courts of justice are bound to know and recognize." Brandao v. Barnett, 3 G. B. Rep. 530, B. C. L. R. vol. 54 ; Dom. Proc; Barnett v. Brandao, 6 M. & G. 665, B. C. L. R. vol. 46. (d) In one sense a bill of lading is assignable, that is to say, its indorsement as- signs the property, but it does not transfer the contract. Thompson v. Dominy, 14 M. & W. 403.* (1) Bills and notes, unlike other parol- contracts, are prima facie evidence of valu- able consideration, not only as between the original 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 bUl of exchange, therefore, 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 speciality, 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 con- ceded to inland or domestic bills, and promissory notes. Mandeville v. Welch, 5 Wheaton, 5H1 ; Murry v. Clayburn, 2 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 party, to rebut this presumption. Clark v. Schneider, 17 Missouri, 295. 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 merchandiseMoes not import consideration. Jeffries T. Hager, 18 Missouri, 272. As between the original parties, however, the bill is only prima facie evidence of consideration, and it may be inquired into and rebutted. The People v. Howell, 4 Johns. 296, 303 ; Pearson v. Pearson, 7 Johns. 26, 28 ; Schoonmaker v. Roosa et al. 17 Johns. 301 ; Ryberg et al. t. Snell, 2 Wash. C. C. Rep. 294. And on the same principle, where the consideration is less than the amount of the bill or note, GENERAL OBSERVATIONS, ETC. 61 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 the 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 one, or maker of the other, to pay the payee, or order, or bearer, as the instrument may require. The effect of indorsing is a conditional contract, 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 pg-, of larceny at common law. For the words bona et eatalla, used in indictments, " don't of their proper nature," says Lord Coke, " extend 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 defence, this is equally provable as a want or failure of con- sideration between the original parties. It is to be carefully noted as a very impor- tant 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 sufficient 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, 338 ; Albrecht v. Strimpler, 1 Barr, 476. But want or failure of con- sideration may be set up against a holder who takes the instrument after it becomes due. Barnet v. Offerman, T Watts, 130. If, however, an action is brought by the indorsee of a bill or note, who has given value for it, before it arrives at maturity, when it is not void in its creation, the con- sideration in general cannot be the subject of inquiry. The diversity is founded iu this : that to strengthen and facilitate commercial inter- course, 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 consideration betjveen the prior parties. If, howejer, the holder of a bill received it without consideration, then, as was justly said by Byre,'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. Stonington Bank, 6 Conn. 521. (1) It should be added, perhaps, and in case proper and prompt measures be taken to fix the indorser by making demand of the acceptor or maker, and giving notice of his default to the indorser. This is that which distinguishes a mercan- tile indorsement from an ordinary contract of guarantee for the debt or default of anothe^. 62 BYLES ON BILLS OF EXCHANGE. to charters and evidences concerning freehold, or inheritance, or obligations, or other deeds or specialities, being things in action."(e) In an indictment, bills or notes ought not to be described as chat- tels.(/)' But, for almost all 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 be the subject of reputed ownership or fraudulent transfer.(^)(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, 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 sheriff to ■the execution creditor, and the sheriff, on receiving a sufficient indemnity, is to sue in his own name, on the checks, bills, and notes. (A) Bills and notes may be taken under an extent. A bill, check, or note, or an indorsement thereon, made before the late act, 1 Vict. c. 26, may be a testamentary instrument. A testa- tor gave three checks, at different times, to a lady, and on the corre- sponding parts of the check-book were found entries by him to the effect that they were given by him to make provision for her in case of his death. The checks were held to be testamentary instruments, giving cumulative legacies. (i) But parol evidence is inadmissible to show that an instrument was only to be payable in case of the testa- (e) Caley's case, 8 Rep. 33. (/) Sadi and Morris's case, 2 Bast, P. C. c. 16, s. 37. \g) Slade's case, 4 Co. Rep. 93 ; Bullock v. Dodds, 2 B. & Al. 258 ; Ryal v. Rolle, I Atk. 165 ; 1 Ves. sen. 363 ; HornHower v. Proud, 2 B. & Al. 327 ; Gumming v. Baily, 6 Bing. 363, E. C. L. R. vol. 19 ; 4 Moo. & P. 36,.S. C. ; Edwards v. Cooper, II Q. B. Rep. 33 ; E. C. L. R. vol. 63. See Chapter xxxv. on Bankruptcy. (A) See Chapter xi. on Transfer. (i) Bartholomew v. Henley, 3 Phill. 317. (1) At commonlaw a chose in action is not the subject of larceny. United States V. Davis, 5 Mason, 356 ; Culp v. The State, 1 Porter, 33 ; The State v. Calvin, 2 New Jersey, 207. In most of the States express statutes have been passed, making the stealing of bank notes, promissory notes, and other securities, indictable and punishable as larceny. OF A PROMISSORY NOTE. 63 tor's death.(i) An indorsement on a note, as " I give this note to C. D.," may be testamentary.(?)(l) *CHAPTEE II. OP A PROMISSORY NOTE. [*4] WHAT IT IS, . . . . .4 HOW CONSIDERED AT COMMON LAW AND WHAT BY STATUTE, . . 4 PROMISSORY NOTES MADE OUT OF ENGLAND, 4 FORM OP A NOTE, .... 5 NOTE BY A MAN TO HIMSELF, . . 5 NOTE BY A MAN TO HIMSELF AND ANOTHER, 5 NOTES PAYABLE BY INSTALMENTS, . 5 JOINT AND SEVERAL NOTES, . . 6 BANK NOTES, 1 BANK OP ENGLAND NOTES, . . T COUNTRY BANK NOTES, . . .7 WHEN BANK OP ENGLAND NOTES ARE A GOOD TENDER, .... 7 WHEN COUNTRY BANK NOTES ABE A GOOD TENDER, .... 8 WHEN MONEY HAD AND RECEIVED WILL LIE FOR THEM, .... 8 OP THE CONTRACTING WORDS IN A PROMISSORY NOTE, . . .8 OTHER MATTERS CONTAINED IN A NOTE, 9 A PROMISSORY note,(a) or, as it is frequently called, a note of hand, is an absolute(5) promise in writing, signed but not sealed, to pay a specified sum at a time therein limited, or on demand, or at sight, to a person therein named, or to his order, or to the bearer.(c)(2) (k) "Woodbridge v. Spoouer, 3 B. & Aid. 23,3 ; E. C. L. R. vol. 5 ; 1 Chit. R. 661, S. C. • (I) Chaworth v. Beech, 4 Ves. 565. For the circumstances under which bills and notes will pass under a will, or as a donatio mortis causa, see Chapter xi. on jn-ansfer. (a) As to notes in an irregular form, see post. Chap. vii. (6) As to conditional instruments, see post, Chapter vii. (c) 2 Bla. Com. 467. (1) The payer 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, after my decease, I promise to pay 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 testa- mentary character, to be proved as a will, but was a promissory note, negotiable and irrevocable. Bristol v. Warner, 19 Conn. 7. (2) A written promise to pay a sum certa,in, absolutely and unconditionally, at a time specified on its face, is a good promissory note, although a memorandum at 64 BTLBS ON BILLS OF EXCHANGE. The person who signs the note is called the maker. (1) At common law, no note of hand was transferable ; and before 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 instrument, but that it was only evidence of a dieht.{d) 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 there- r^r-i fore* to receive a liberal construction. It is for the advantage of commerce, that foreign, as well as inland bills should be negotia- ble."(e) It has been suggested to be a doubtful point, whether this (d) BiiUer v. Cripps, 6 Mod. 29 ; Clerks v. Martin, 2 Ld. Eaym. 151 ; Story v. Atkins, 2 Ld. Raym. U27 ; 2 Stra."rl9, S. C; Brown v. Harraden, 4. T. R. 148; Trier v. Bridgman, 2 East, 359. (e) Milne v. Graham, 1 B. & C. 192 ; B. C. L. R.'vol. 8 ; 2 D. & E. 294, S. C. ; Houriet v. Morris, 3 Camp. 303 ; Bentley v. Northouse, 1 M. & M. 66 ; E. C. L. R. the foot of it states a different mode in which it may be discharged. Pool v. McCrary, 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 a person named^ and to his , order, is a negotiable promissory note. Miller v. Austin, 13 Howard, S. C. Rep. 215 ; Carey v. McDougald, 1 Georgia, 84 ; Lowe v. Murphy, 9 Ibid. 338. 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 an indorsement on the note, that it was to be delivered to B. in consideration of a judgment 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 undertaking. EUett v. Britton, 6 Texas, 229. (1) It is important to remember this remark. The maker of a note is sometimes 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-acceptance 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 somewhat peculiar, as he is held to be primarily liable as princi- pal debtor, unless by the failure to present, he has been injured. See post. OF A PKOMISSORY NOTE. 65 statute makes English notes assignable abroad,(/) but it is now decided tbat it does.(^) No precise form of words is essential to the validity either of a bill of exchange, or of a promissory note.(A) A note cannot be made by a man to himself without more. But if made to himself or order, and indorsed in blank, it becomes a note payable to bearer ;(«) and if especially indorsed, it becomes a note payable to the indorsee or order. (^)(1) A note by which the defendant and four other persons promised to pay 750Z. " to our and to each of our order," and indorsed by defen- dant alone, was held good.(Z) vol. 22. But it was at one time thought that the act did not extend to notes made abroad. Carr v. Shaw, H. T. 39 Geo. 3 ; Bay. 22. (/) De la Chaumette v. the Bank of England, 9 B. & C. 208, E. C. L. E. vol. 17. [g) S. C. 2 B. & Ad. 385, E. C. L. R. vol. 22. As to the transfer abroad of notes made abroad, and English notes, see the Chapter on Foreign Bills and Foreign LaiDS. (h) Chadwiek v. Allen, Stra. 706. (i) Browne v. De Winton, 17 L. J. 281, C. P. ; 6 C. B. Rep. 336, E. C.L. R. vol. 60, S. C. (k) Gay V. Lander, 17 L. J. 286, 0. P. ; 6 C. B. Rep. 336, E. C. L. R. vol. 60. See also. Wood v. Mytton, 10 Q. B. Rep. 805, E. C. L. R. vol. 59, and Flight v. McClean, 16 M. &. W. 51.* (I) Absolon V. Marks, 11 Q. B. Rep., 19 E. C. L. R. vol. 63. (1) A note made payable to the maker or order. Miller v. "Weeks, 22 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 v. 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 ordinary promissory note. The first indorsee does not take a derivative, but a primitive title. Scull v. Edwards, 8 English, 24. When there is any ambiguity 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 according 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 promise 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 indorsed 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 pro- missory note. " It is an instrument," said Lord Tenterden, " of an ambiguous nature, and I think that where a party issues an instrument of an ambiguous nature, 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. 433 ; 13 Eng. Com. Law Rep. 227. 5 88 BYLES ON BILLS OF EXCHANGE. A note payable to the maker's order, and afterwards indorsed, should be declared on and stamped according to its legal effect.(m) Nor can there be a note by the maker to himself and another man.(M)(l) A note may be made payable by instalments, and yet be within the statute of Anne.(o) Days of grace are allowed on each in- stalment, (p) It is conceived that presentment and notice of dishonor 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 instalment *cannot be indorsed over for '- -* less than the entire sum due upon it. A note payable by instalments is within the statute, although it contains a provision that on failure of payment of one instalment, the whole debt is to become payable. (§') A note by two or more makers may be either joint or joint and several. A note signed by more than one person, 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 one person, and beginning, "I promise," (m) Hooper v. Williams, 2 Ex. Rep. 13 ;* Flight v. MoClean, 16 M. & W. 451.* (n) See Moffatt v. Van Millingen, 2 Bos. & Pul. 124, n. ; Mainwaring v. Newman, Ibid. 120. See Teague v. Hubbard, 8 B. & C. 345, B. C. L. R. vol. 15. But in- dorsement may reinove the difficulty. Qmsere as to the effect of survivorship. (0) Orridge v. Sherbom, 11 M. & W. 3Y4;* 12 L. J. 313, Ex. S. C. (p) Ibid. (g) Carlon v. Kenealey, 12 M. & W. 139.* (1) 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 when such 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 in- dorsee. Heywood v. Wright, 14 New Hamp. 13 ; Rambo v. Metz, 5 Strobhart, 108. And see Muldrow v. Caldwell, 1 Missouri, 563. A promise in writing, by one firm, to pay a sum cei-tain, 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 action in his own name, against the makers. Murdock v. Caruthers, 21 Alabama, 785. OF A PROMISSORY NOTE. 67 &c., is several as -well as joint.(r) So, a note beginning in the singulnr, " I promise," and signed by one partner for his copartners, is the joint note of all,(«) and has been held to be also the several note of the signing partner.(i)(l) A joint and several note, though on one piece of paper, comprises, in reality and in legal effect, several notes. Thus, if A. B. and C. join in making a joint and several promissory note, there are, 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. (z()(2) (r) Marci v. Ward, Peake's Eep. 130 ; Clerk v. Blackstock, Holt, N. P. C. 474. So a bond in the singular number, executed by several, is several as well as joint. Sayer v; Chaytor, 1 Lutw. 695; Galway v. Mathew, 1 Camp. 403; 10 Bast, 264, S. C. As to a joint or joint and' several warrant of attorney, see Dalrymple v. Praser, 15 L. J. 193, C. P. ; 2 C. B. 698, E. C. L. R. vol. 52, S. C. (s) DoJ;y v. Smith, 11 Johnson's American Rep. 543. , (i!) Hall v. Smith, 1 B. & Cress. 407, E. C. L. R. vol. 8 ; 2 Dowl. & 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. (m) See the observations of Parke, B., in King v. Hoare, 13 M. & W. 505.* (1) A note in the form, "I promise," &c., subscribed by two persons, is a joint and several note. Hemmenway v. Stone, 7 Mass. 58 ; Barnet v. Skinner, 2 Bailey, 88 ; Partridge v. Calby, 19 Barbour, S. C. Rep. 248; Ladd v. Baker, '6 Postei;, 76. 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, 270 ; Chandler v. Ruddick, 1 Carter (Indiana), 391. If one of two joint debtors, not copartners, 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 sufficient ratification. Waite v. Poster, 33 Maine, 424. When a note is made by two persons, 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. (2) 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 indorse A.'s note to one, B.'s note to another, and C.'s note to a third person ; nor could he 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 proportion. 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 severally, 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 68 BTLBS ON BILLS OF EXCHANGE. Where a note is on its face joint, or joint and several, it is con- ceived that evidence to show that one maker is surety for the other,(D) is inadmissible at law, if the question arise between the creditor and the surety; but evidence to that effect has been received.(w)(l) (b) Price V. Edmunds, 10 B. & C. 518, B. C. L. E. vol. 21. («)) Garrett v. JuU, S. N. P. 3^7 ; Hall v. Wilcox, 1 M. & Rob. 58. The ad- mission 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 Pentum v. Pocooke, 5 Taunt. 192, 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. And see Perfect v. Musgrave, 6 Price, 111, and Chapter xviii. on Principal and Surety, 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. /Sscms when the debt is joint and several. " The distinction," says Baron Parke, " between the case of a joint and several contract is very clear. It is argued that each party 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 a joint and several bond, which instrument, 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 supportthe 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 pro- misors 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, | 239, 255. 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 sufficient, it is because the holder has a right to elect, to consider it a joint note ; or if demand on all three is necessary, it is still in legal effect but one note, otherwise a different result would follow. (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, 215. It would clearly be inadmissible as against a bonaflde holder without notice. OF A PROMISSOKY NOTE. 69 Where, however, the question *ari9e3 between the principal p^- -. debtor and the sureties, such evidence is admissible. A bank note is a promissory note, made by the banker, payable to bearer on demand, and intended to circulate as money. («) 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 goods, not securities or documents for debts, nor are they so esteemed ; but are treated as money, as cash, in the ordi- nary course and transaction of business, by the general consent of mankind, which gives them the credit aiM currency of money, to all intents and purposes. They are as much money as guineas themselves are, or any other current coin that is used in common payments as money or cash. They pass by a will which bequeaths all the testa- tor's money or cash, and are never considered as securities for money, but as money itself. On payment of them, whenever a receipt is required, the receipts are always given as for money, not as for secu- rity or notes. So, on bankruptcies, they cannot be followed as iden- tical, and distinguishable from money, but are always considered as money or cash."(y) Like money, they cannot, at common law, be taken in execution. (g) (1) (a;) As to the power of the Bank of England and other banks to issue promissory notes, see the Chapter on the Capacity of Parties to a Bill or Note. {y) Miller v. Race, 1 Burr, 452 ; Fleming v. Brooke, 1 Soh. & Lefr. 318, 11 Ves. 662 ; Drury v. Smith, 1 P. W. 404 ; Miller v. Miller, 3 P. W. 356, Ambler, 68. {z) Francis v. Nash, Eep. temp. Hardwicke, 53 ; Knight v. Criddle, 9 East, 48 ; Armistead v. Philpot, 1 Dougl. 219 ; Fieldhouse v. Croft, 4 East, 510. (1) For every purpose, in the ordinary transaction of business, except that of a legal tender, bank notes are considered as money. Edwards v. Morris, 1 Ham- mond, 524 ; Bradley v. Hunt, 5 Gill & Johns. 58 ; Morrill v. Brown, 15 Pick. 177 ; Pierson v. Wallace, 2 English, 282. Bank post notes, being intended 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. Pulton 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 the time of the adoption of its charter, is void TO BYLBS ON BILLS OF EXCHANGE. Gold coin was formerly the only legal tender above a certain amount ;(a) bank notes were, nevertheless, a good tender, unless ob- jected to on that account. (J) But it is enacted, by 3 & 4 Wm. 4, c. 98, s. 6, that Bank of England notes shall be a legal tender for all sums above bl., 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 P ^ 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. 3 & 4 Anne, c. 9, made them assignable like bills. Checks on bankers have now super- seded goldsmiths' notes, in London ; but bankers' cash notes, or, as they were formerly called, g'Aop notes, and country bank notes, are now what goldsmiths' notes were f6rmerly.(l) Country bank notes are also a legal tender, unless objected to, and are considered as cash.(c) Assumpsit for money had and received, will lie for country bank notes and checks which have been treated as money,(d) but not other- (a) 56 Geo. 3, u. 68, s. 11. (6) Wright V. Reed, 3 T. R. 554 ; Grigby v. Oakes, 2 B. & P. 526 ; Brown v. Saul, 4 Esp. 267. (c) Chitty, 521, 2 ; Owenson v. Morse, 7 T. R. 64; "Ward v. Evans, 2 Ld. Raym. 928 ; Tiley v. Coursier, K. B. 1817, overruling Mills v. Stafford, Peake, N. P. 240, n. ; Lockyer v. Jones, Peake, N. P. 240 n.; Polglass v. Oliver, 2 C. & J. 15,* 2 Tyr. 89, S. C. {d) Piokard v. Bankes, 13 East, 20 ; Spratt v. Hobhouse, 4 Bing. 173,* E. C. L. R. vol. 13; 12 Moo. 395, S. C. ab initio, and no action can be maintained 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 con- sideration for a promissory note. Skinner v. Bearing, 2 Carter (Ind.), 558. (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 ruleSi as bills of exchange. So long ago as the time of Lord Holt (Ld. Raym. 744, 1 Salk. 132) goldsmiths' bills were held to be governed by the rules of bills of exchange, and if the money be demanded in a reasonable time and not paid, it will charge him who gave the bill." Per Kent, J., in Cruger. v. Armstrong, 3 Johns. Cas. 5. OP .A PEOMISSORY NOTE. 71 wise;(e) for it has been held that an action for money had and re- ceived will not lie against the finder of lost notes unless they have been turned into money.(l) No precise words of contract are essential in a promissory note, provided they amount in legal eifect to a promise to pay. Thus, " I promise to account with A. B. or order, for 50Z., value received by me," has been held a good note within the statute.(/) So, " I do acknowledge myself to be indebted to A. in lOQL, to be paid on de- mand, for value received," was, after solemn argument, held to be a good note within the statute, the words, "to be paid," amounting to a promise to pay ; the Court observing, that the same words in a lease would amount to a covenant to pay rent.(^) And where, for p^q-. *an executed consideration, a note was given, expressed to be (e) Noyse v. Price, Chitty, 524. (/) Morris v. Lee, 2 Ld. Raym. 1396, 1 Stra. 62,9,^ Mod. 362, S. C. (g) Casborne v. Dutton, S. N. P. 381; Brdoke 'v. Elkins, 2 M. & Wels. U* But in Home v. Eedfearne (4 Bing. N. C. 433, E. C. L. R. vol. 33; 6 Scott, 260, S. C), the following instrument was held not to be a promissory note: " I have received the 20Z. which I borrowed of you, and iTiave to be accountable for the same sum with interest." In Jarvis v. Wilkins, t M. & W. 410,* the following instrument was held to be a guarantee, and not a note: "Sept. 11, 1839. I undertake to pay to Mr. Robert Jarvis the sum of 61. 4.?. for a suit of clothes ordered by Daniel Page.'' The Court observed that the expression " ordered" showed that the consideration was execu- tory. " I, E. J. M., owe Mrs. B. the sum of 6Z., which is to be paid by instalment for rent. Signed, R. J. M." Held not to be a promissory note, as no time was stipu- lated for the payment of the instalments. Moffatt v. Edwards, 1 Carr. & M. 16, E. C. L. R. vol. 41. "Memo. Mr. Sibree has this day deposited with me 5001. on the sale of 10,300Z. (1) Bank notes and any other property received as ipioreey will support the action, the same as if money itself had been received. 'Mason v. "Waite, 17 Mass. 560 ; Ainslie v. Wilson, 7 Cowen, 662 ; Arms v. Ashley, 4 Pick. 74; Murray v. Pate, 6 Dana, 335 ; Kellogg' v. Budling, 7 Howard (Miss.), 340 ; Houx v. RufuU, 10 Mis- souri, 246 ; Muir v. Rand, 2 Carter (Indiana), 291. Negotiable notes received by defendant are often regarded as money. Floyd v. Day, 3 Mass. 405 ; Hemmenway v. Bradford, 14 Mass. 122 ; Willie v. Green, 2 N. Hamp. 333 ; contra, Mercer v. Xolen, Anthon, 119. Positive evidence is not, m all cases, necessary, that the defendant has received money belonging to the plaintiff; but when, from the facts proved, it is a fair pre- sumption that he has received it, the action is maintainable. Tuttle v. Mayo, 7 Johns. 132; Hatten v. Robinson, 4 Blackford, 479 ; Haskins v. Dnnham, Anthon, 81 ; Hutchinson v. Phillips, 6 English, 270 ; Mair v. Rand, 2 Carter (Indiana), 291. 72- BYLES ON BILLS OP EXCHAN&E. "for 20?., borrowed and received," but at the end were the words, "which I promise never to pay," Lord Macclesfield rejected the word never. {h) For a contract ought to be expounded in that sense in which the party making it apprehended that the other party understood it.(l) If there be no words amounting to a promise, the instrument is merely evidence of a debt, and may be received as such between the original parties. (?) Such is the common memorandum, I. 0. V.Qi;) 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. (Z) But an agreement to give further security in future would invalidate the instrument as a promissory note.(wi) 31. per cent. Spanish, to be returned on demand." Held not to be a promissory note. Sibree v. Tripp, 15 L. J. Ex. 318 ; 15 M. & W. 23,* S. C. "Borrowed of Mr. J. White the sum of 200Z. 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, 18 L. J. 316, Bxch. ; 3 Exch. Rep. 689,* S. C. The following instrument was held to be a promissory note : " John Mason, 14th Feb. 1836, borrowed of Mary Ann Mason, his sister, the sum of 14Z. in cash, a loan, in promise of payment of which I am truly thankful for." EUis v. Mason, 1 Dow. 598. A letter in this form is a promissory note : " Gentlemen, I have received the im- perfect books, which, together with the costs overpaid on the settlement of your account, amounts to 801. 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. 320, B. C. L. R. vol. 25, 1 C. M. & R. 307.* (A) 2 Atkyns, 32 ; Allan v. Mawson, 4 Camp. 115, Bayley, 5 Ed. 5. (i) Wayman v. Bend, 1 Camp. 175. (k) Israel v. Israel, 1 Camp. 499 ; Fisher v. Leslie, 1 Esp. 426 ; Childers v. Bonl- nois, D. & R., N. P. C. 8. 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 Tompkins v. Ashby, 6 B. & C. 541, B. C. L. R. vol. 13, 9 D. & R. 543, 1 M. & M. 32, S. C. See further on this subject Chapter iv. on an I. 0. U. {I) Wise V. Charlton, 4 Ad. & E. 786, E. C.L. R. vol. 31, 6 N. & M. 364, 2 Har. & W. 49, S. C. ; Fancourt v. Thorn, 15 L. J., Q. B. 344. But such a note will gene- rally require a mortgage stamp, which may, however, be impressed on the note after it is made. See further Chapter xxiii. on Interest and Usury. (m) See Chapter xii. on Irregular Instruments. (1) See Edis v. Bury, 6 Barnw. & Cressw. 433, 13 Eng. Com. Law, 227. OF A CHKOK ON A BANKER. 73 *CHAPTER III. OF A CHECK ON A BANKER. [*10] 10 ■WHEK IT AMOUNTS TO PAYMENT, 16 WHEN IT MAT BE TAKEN IN PAYMENT, 16 11 WHETHEB HOLDER BE ASSIGNEE OP A CHOSE IN ACTION, 17 12 EEFECT OF DRAWER'S DEATH, . ir 12 OF FRAUD IN FILLING UP CHECKS, 17 13 WHEN SEVERAL MUST JOIN IN DRAWING 13 CHECK, 18 13 FROM WHAT PERIOD CUSTOMERS TO BE DEBITED, 18 14 CHECKS NOT PROTESTABLB, MAY BE REFERRED TO MASTER TO COM- 18 14 PUTE, CANNOT BE THE SUBJECT OP DONATIO 18 14 MORTIS CAUSA, .... 18 RIGHT TO CASH A CHECK, . IS- 15 OVERDUE CHECK, . . . < . IS 15 MAY BE TAKEN IN EXECUTION, . 18 16 WHAT INSTRUMENTS ARE CHECKS, REQUISITES TO BRING CHECKS WITHIN THE EXEMPTION OF THE STAMP ACT, EFFECT AND PENALTY OF OMITTING A STAMP ON CHECK WHERE NECESSARY, AMOUNT FOR WHICH IT MAY BE DRAWN, banker's OBLIGATION TO PAY, TIME OF PRESENTMENT, ■. AS BETWEEN HOLDER AND DRAWER, . A3 BETWEEN THE HOLDER AND HIS OWN BANKER, .... WHERE THE PARTIES DO NOT LITE IN THE SAME PLACE, AS BETWEEN THE HOLDER AND A TEANS- FEEEB WHO IS NOT A DRAWER, WHAT AMOUNTS TO AN ENGAGEMENT TO PAY A CHECK, .... CROSSED CHECKS, .... WHAT A CHECK IS EVIDENCE OP, A CHECK on a banker is, in legal effect, an inland bill of exchange, drawn on a banker, payable to bearer, on demand. A check is con- sequently 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 to supersede in payments of any considerable amount, not only gold and silver coin, but bank notes themselves. With their universal use have grown up certain usages peculiar to checks, which usages are now en- grafted on the commercial law of the country.(l) Moreover, the legis- ( 1 ) A bank check is substantially the same as an inland bill of exchange : it passes by delivery, when payable to bearer, and the rules, as to presentment, dili- gence of the holder, &c., which are applicable to the one, are generally applicable to the other. Woods v. Schrader, 4 Har. & J. 276 ; Cruger v. Armstrong, 3 Johns. Cas. 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. 192 ; Bowen v.Newell, 4 Selden, 190. It is said by Judge Cowen, in Hooker v. Anderson, 21 Wend. 372, that a cheek is a bill of exchange payable on demand ; and he refers to Brown v. Lush, 4 Yer- ger, 216, in which a draft payable at a certain day after date was held not to be a 74 BTLES ON BILLS OF EXCHANGE. lature having exempted them from stamp duty, questions have arisen as to what instruments are or are not within the exemption, and as to the consequences of attempts to violate the provisions of the Stamp dieels. This case is said to have been determined on the authority of a passage in Chitty on Bills (Y Am. Ed. 322, 10th Am. Ed. 512). "Checks are not due before payment is demanded, in which respect they dififer from bills of exchange and pro- missory notes payable on a particular day." The passage by no means war- rants the inference ; but if it did, it would find no support in the authority Chitty cites. Judge Story entirely repudiates such a distinction. In the matter of Brown, 2 Story Eep. 602, 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 sufiiciently apparent from the case of Allen V. Reeves, 1 Bast Rep. 435. That it may be declared upon as a, bill of exchange is no proof that it may not also be declared upon as a check. In many cases they are identical in their legal results ; but by no means in all. Mr. Chitty 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 acting as such. Chitty on Bills, 10 Am. Ed. p. 511. I agree that it nearly resembles 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, although 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 me) that they are always drawn on a bank or banker; that they are payable immediately on presentment without the allowance 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 presented for acceptance, or what amounts to acceptance. They are marked "good" by the bank officer, and charged to the account of the drawer as paid. See post, p. 16, note 1. Chancellor Kent (3 Kent's Com. 104, n. Tth Ed.) questions Judge Coweu's doc- trine in the same case, that a check is, to all intents and purposes, but a bill of exchange. He says, " A check differs from a bill of exchange in several particulars. 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 appropriation 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 banker. 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 distinct 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 oh the day of its date with- out any days of grace. Mohawk Bank v. Broderick, 10 Wendell, 405 : Salter v. Burt, 20 Wendell, 206. It has since been held in New York, in conformity to the views of Story t Kent, OF A CHECK ON A BANKER. 75 Acts. In this Chapter it is intended to point out some of those quali- ties and incidents, which distinguish checks from other bills. The learned reader will perhaps think that such observations are at present premature, *but it has been thought conducive to perspicuity, p ^^ ., -, that the rest of the book should be disembarrassed of distinc- '- -^ tions solely applicable to checks, and that a summary of the law pecu- liarly relating to them, should be attempted in the same part of the work, where observations relating peculiarly to bills or notes are to be found. It is hoped that any obscurity, caused by anticipating what is to follow, will be removed by turning to subsequent Chapters. The present general Stamp Act,(a) while it subjects bills in gene- ral to stamps, exempts 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 bankers, or any person or persons acting as a banker, who shall reside or transact the business of a banker, within ten miles (now fifteen miles, 9 Geo. 4, c. 49, s. 15), (6) of the place where such drafts or orders shall be issued, (c) provided such place shall be specified in such drafts or orders, and provided the same shall bear date on or before the day on which the same shall be issued, and providing the same do not direct the payment to be made by bills or promissory notes. In order, therefore, to bring checks within the exemption, they must be drawn on a banker,(cZ) must specify truly the place where actually drawn,(e) and that place must be within fifteen miles of the (a) 65 Geo. 3, c. 184, Sohed. (6) If a defendant wisli to avail himself of this defence, he should plead that he did not make the check declared on. McDowell v. Lyster, 2 M. & W. 52;* Field V. Woods, 7 Ad. & B. 114, E. C. L. E. vol. 34, 2 N. & P. 117, 6 Dowl. 23, S. C. (c) What not an issuing, Ex parte Bignold, 2 Mont. & Ayr. 663 ; 1 Deac. 712, 5. C. Chitty, 118. [d) Castleman v. Ray, 2 Bos. & Pul. 383. (e) Walters v. Brogden, 1 Y. & J. 457 ;* Bopart v. Hicks, 18 L. J. 33, Exch., 3 Exch. Rep. 1,* S. C. 8 Q. B. Rep. 674, E. C. L. R; vol. 55, S. C. Where a person residing in a country house four miles fironj Llannelly, actually dated it as if drawn at Llannelly, 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, E. C. L. R. vol. 34, 2 N. & P. 117, 6 Dowl. 23, S. C. ; and see Rex v. Pooley, 3 B. & P. 311 ; see zXsp Strickland v. Mansfield, 15 L. J. 226, Q. B., where it was held that the superscription "Dobohesteb old Bank, established ^s 11S6" printed on a check was a suflBcient designation of the place where drawn, in the absence of proof that it was not drawn there. 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, 326, S. C. 2 Duer, 584, 4Selden,,590. 76 BTLBS ON BILLS OF EXCHAN.aB. banker's place of business, they must be payable to bearer(/) on r*-io-i demand, must not be *postdated,(^) nor direct the payment to be made by bills or notes. (A) The penalties attached to checks made under color of this exemp- tion, but not falling strictly within it, are extremely severe. For the 65th Geo. 3, c. 184, s. 13, enacts, that if any person shall make or issue any check(i) or draft on a banker, payable to bearer on demand, not duly stamped, and not falling in every respect within the exemp- tion, the drawer shall forfeit lOOL, any person knowingly/ taking it 201., the banker knowingly paying it 1001. ; and the banker shall not be allowed it in account against the persons by whom or for whom it was drawn, or against any person claiming under them respec- tive]y.(y) Where the defendants, knowing a check to be postdated, and therefore void, and that the drawers are insolvent, presented it for payment to the bankers on whom it was drawn, who without know- ledge of these facts paid the amount, though they had no funds of the drawer's in th-eir hands at the time, but expected some in the course of the day, it was held that the bankers were entitled to re- cover the money back in an action for money had and received.(A) A check for less than the sum of 20s. is absolut^y void, and the uttering or negotiating such an instrument is an offence subjecting the offender to a penalty of 201., mitigable to 5l.{l) So also it is an offence to utter a check on which less than 20s. remains due.(wi) 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, c. 6, which repeals the act repealing the 17 Geo. 3, c. {/) Eex V. Yates, Moo. C. C. 170; Carrington's Criminal Law, 3d ed. 273,8.0. The twelve Judges there decided that a check payable to D. F. J., and not to bearer, was not within the exception in the Stamp Act in favor of checks, and ought to have been stamped as a bill, and not being so, was not a " valua"ble security" within the 7 & 8 Geo. 4, c. 29, s. 5, and an indictment for larceny was not sustain- able. 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, B. C. L. R. vol. 47. (g) Allen v. Keeve^ 1 East, 435, 3 Bsp. 281, S. C; Whitwell v. Bennett, 3 B. P. 559. (7i) 55 Geo. 3, c. 184, sehed. part Ij and 9 Geo. 4, c. 49, s. 15. (i) Ex parte Bignold, supra. {j) See Green v. AUday, 1 Gale, 218. {k) Martin v. Morgan, Gow. 123, 1 B. & B. 289, E. C. L. R. vol. 5; 3 Moore, 635, S. C. [l) 48 Geo. 3, c. 88, s. 3. (m) Ibid. OF A CHECK ON A BANKER. 77 30, and consequently revives that act, enacts,(»i) that nothing in that latter act(o) contained shall extend to any draft drawn by a man on his own banker /or money held hy that hanker to the use of the drawer. It seems to be generally considered, therefore, that a check for an amount above 20s. and under hi. is good,(^) but nevertheless it may be illegal to utter such a check where a man has no balance at his banker's though the banker be likely to pay it. *Generally speaking, the drawee of a bill is not liable till p^-|qn acceptance. But a banker, having in his hands effects of his "- ^ customer, is an exception to this rule :(g) 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 between banker and customer, that the banker shall pay the customer's checks ; and the customer's, credit may be seriously impaired by a refusal. M. kept his account with Williams and Co., bankers. One day, in the morning, the balance in their hands, due to M., was 69Z. 16s. ^d. About one o'clock on the same day a 40Z. Bank of England note was paid into M.'s account ; a little after three o'clock, a check drawn by M. for 87Z. 7s. %d., was presented. The clerk, after having referred to a book, said, there were not sufiBcient assets, but that the check might, probably, go thlough 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 plaintiff with nominal damages. On a rule for a new trial, " I cannot forbear to observe," says Lord Tenterden, " 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 calcu- lated to be injurious to a person in trade. My judgment in this case, however, proceeds on the ground, that the action is founded on a con- tract between the plaintiff and the bankers — that the bankers, when- ever they should have money in their hands belonging to the plaintiff, or within a reasonable time after they should have received such money, would pay his checks : and there having been a breach of such contract, the plaintiff is entitled to recover damages." (n) Sec. 9. (o) 7 Geo. 4, c. 6. (jj) See IT Geo. 3, c. 30, s. 20. (g) Marzetti t. Williams, 1 B. & Ad. 415, E. C. L. E. vol. 20, 1 Tyr. ni n. (b), S. C. 78 BYLES ON BILLS OF EXCHANGE. But if the funds in the banker's hands have been applied to the payment of the customer's acceptance, made payable at the banker's, though without any further authority, that is a defence to an action for dishonoring the check.(r) (1) We have already observed, that checks are in legal effect inland bills of exchange, payable to bearer on demand; and we shall here- after see, that an ordinary bill of exchange, payable on demand, must be presented for payment, or, if the parties live at a distance, for- warded for presentment within a reasonable time, which is generally held to comprehend the day after it is issued. r *i 4.1 *Such also is the general rule as to the presentment of checks, '■ -' when the question of due presentment arises between the holder and a transferer not being the drawer. " The result of the cases," • says Tindal, C. J., "from Rickford 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 so."(s) 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.(^) i Government checks are not payable at the Bank of England after three o'clock.(M) But there is a material difference between the liability of the drawer of a check and the drawer of a bill. The drawer of a check is not discharged by the holder's failure to present in due time, unless he have sustained actual prejudice, as by the failure of the banker, (w) (2) (r) Kymer v. Laurie, 18 L. J. 218, Q. B. (s) Moule V. Brown, 4 Bing. N. Ca. 268, B. C. L. E. vol. 33, 5 Scott, 694, S. C. [t] Pocklington v. Sylvester, 1817, Chitty, 385 ; Bobsou v. Bennett, 2 Taunt. 388 ; Riokford v. Ridge, 2 Camp. 537. (m) 4 & 5 "Wm. 4, c. 15, s. 2;i. (u) Serle v. Norton, 2 Mood. & Rob. 401 ; Alexandar v. Burcbfield, 3 Scott, N. R. 655, 7 M. & G. 1067, E. C. L. E. vol. 49, S. C; Robinson v. Hawksford, 9 Q. B. Rep, 52, B. C. L. R. vol. 58. (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 contradicted 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, 121." (2) Daniels v. Kyle, 1 Kelly, 304. In Little v. Phoenix Bank, 2 Hill, 425, C. J. Nelson and J. Bronson held, that as between the holder and drawer mere delay in OF A CHECK ON A BANKER. 79 If the payee of the check pay it into his bankers that they may present it, the bankers may be, as between their customers and the presenting a check for payment would not discharge the latter, unless he had been injured thereby ; that it was incumbent upon the holder, however, in an action upon the check, to show afBnnatively that no loss had happen^ to the drawer. Cowen, J., adhered to the opinion expressed by him in Hooker v. Anderson, 21 Wend. 372, 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 indorser will be discharged ; and see Bowen v. Newell, 5 Sandf. 326. As a general rule, how- ever, 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. 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 parties 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 iu 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 distinction. The fact that one instrument is drawn upon a bank, and the other upon an individual, can make no difference in principle concerniAg the duty of the holder. What will be due diligence in the one case, will be due diligence in the other. Mohawk Bank v. Broderick, 13 Wendell, 133 ; Janes v. Smith, 20 Wendell 192. Where a postdated bank check falls due on Sunday, presentment must be made on the following Monday, and notice of non-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 presentment for payment or notice. True v. Thomas, 16 Maine, 36 ; Hoyt v. Seeley, 18 Conn. 353. But it cannot be maintained 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 dihgence 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, 21 Wendell, 372. The 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 presentment, 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 presentment and notice. In the matter of Brown, 2 Story Rep. 516. ^ One who takes a check long over due, having on its face a time appointed for its 80 BYLES ON BILLS OF EXCHANaB. drawer, still bound to present it on tte day after it was issued. But as between their customer and themselves they may be bound to pre- sent it earlier, or justified in postponing the presentment later.(w) 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 it.(aj) The banker should send it direct to the drawee, and cannot postpone the time of presentment by circulat- ing it through agents or branches of the bank.(«/) He must not keep it till the third day, and then present it, though, by such a course, it reach the drawee as soon as it would have done had it been despatched by post in the regular course. (2) But where a cheek, instead of being presented for payment in due (w) Boddiugton v. ScMencker, 4 B. & Ad. 752, E. C. L. E. vol. 24, 1 N. & M. 540, S. C. ; Alexander v. Burchfield, 1 Carr. & M. 15, E. C. L. R. vol. 41 ; 3 Scott, N. R. 555, E. C. L. R. vol. 36 ; 7 M. & G. 1067, E. C. L. R. vol. 49, S. C. (a;) Riohford v. Ridge, 2 Camp. 537. {y) Moule v. Brown, 4 Bing. N. Ca. 266, B. C. L. R. vol. 33, 6 Scott, 694, S. C. (z) Beeching v. Gower, Holt's N. P. Ca. 315. 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 money 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. Malus usus dbolendus est. Our 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 in the line of regular business transactions, the more effectually will they ac- commodate the public and secure their own interests." OP A CHECK ON A BANKER. 81 *course, is transferred and circulates, through several hands, r*-|r-i 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 time necessary to charge the person from whom the check was immediately received. The liability of the drawer cannot, it is apprehended, 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 sufiScient, 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 circumstances which will be evidence of presentment,'or which will excuse or waive non-presentment, the reader is referred to the Chapter on Present- ment FOR Payment. Checks being intended for immediate payment, on being presented, ■ are not usually accepted. It has been said, however, that the custom of London bankers, to mark checks as good, is equivalent to accep- tance, and binds the banker to pay the checks so marked, (a) And no doubt the mark is an acceptance of which any holder of the check may avail himself, provided the mark amount to a writing within the 1 & 2 Geo. 4, c. 78, s. 2. If it so happen that the drawee of the check is the banker of the holder, as well as of the drawer, no pro- mise 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 following day,(6) for prima facie he will be taken to have received it as the holder's agent.(c)(l) — (fls) Eobson V. Bennett, 2 Taunt. 388 ; and see 2 M. & Rob. 404, note. (6) Boyd V. Emmerson, 2 Ad. & E. 184, E. C. L. E. vol. 29. (c) And see KJlaby v. WiUiams, 5 B. & Al. 816, E. C. L. R. vol. 7, 1 D. & R. 4T6, S. C. (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 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 fund in his hand^ But where an order is drawn either dn a general or a particular fund, for a part only, it does not amount to an assignment of that part, or 6 82 _ BYLES ON BILLS OP EXCHANGE. It is now a common practice, not only in the City of London but throughout England, to write across the face of a check the name of give a lien as against the drawee, unless he consent to the appropriation by an ac- ceptance 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 con- tract. 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 contem- plated in his original contract. He has a right to stand upon the singleness of his original contract, and to decline any legal or equitable assignments by which it may be broken into fragments. When he undertakes to pay an integral sum to his creditor, it is no part of his contract that he shall be obliged to pay in fractions to any other persons. 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 banks and their customers, that they shall hav^e the right to draw for the whole or a part of the funds deposited with them. It might perhaps be inferred that a check duly pre- sented 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 notwithstanding the drawer may afterwards withdraw his funds. This point does not seem settled. Chitty on Bills, 281, 10th Ed. See Bullard v. Randall, 1 Gray, 605 ; Corser v. Craig, 1 Wash. C. C. Rep. 424. This last case as applicable to a bill of exchange cannot now be considered as law. A bill of exchange is not an equita- ble assignment or appropriation, but the cases treat a .check on a banker as such; and if the holder is a holder for value, as to whom the drawer cannot revoke rightful^ 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 equivalent to the acceptance of a bill, and operates an appropriation to that check by the assent of the bank.. Willets v. Phoenix Bank, 2 Duer, 121. See 2 Story Rep. 502, In the matter of Brown. The mere priority how- ever in the drawing of a check gives no preference to the holder over subsequent checks ; 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 sufficient 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 nego- tiability, 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 cheek 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 only; 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 payment is the production and receipt of the check, which the holder cannot safely part with unfess he receives full payment, nor the bank exact unless under the like circumstances. In the matter of Brown, OFACHBCKONABANKER. 83 a banker. The effect of this crossing is to direct the drawees to pay the check only to the banker whose name is written across, and the object of the precaution is to invalidate the payment to a wrongful holder in case of loss. It seems, however, that the holder may erase the name of the banker and substitute that of another banker. (cZ) It is also not unusual to write the words, and Co., only, in the first in- stance, leaving the particular banker's name to be filled up afterwards, so as to *insure the presentment by some banker or other.(e) ^ ^.^ „ -, 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 into that account ; it was held, that the bankers were justified in applying it to that account, the drawer's writing the name of the bankers of the payees of the check across it not being, according to . the custom of trade, information to the bankers that the money was the money of the payees. (/) A check presented and paid is no evidence of money lent or ad- vanced by the banker to the customer.(^) 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 presented, is not evi- dence of money previously lent by the drawer to the paye^.(A) In other words, the mere circumstance of one man drawing a check in favor of another is no evidence of a debt due from the drawer.(l) {d) Stewart v. Lee, 1 M. & M. 158, E. C. L. R. vol. 22. (e) Boddington v. Sehlenoker, 4 B. & Ad. T52, E. C. L. R. vol. 24, 1 N. & M. 540, S. C. (/) Ibid. (g) Fletcher v. Manning, 12 M. & W. 571.* . (h) Pearce v. Davis, 1 M. & Rob. 365 ; see Aubert v. Walsh, 4 Taunt. 293 ; Gary f. Gerrish, 4 Esp. 9. 2 Story Rep. 519. In a suit against a bank for money deposited -w.hh it by the plaintiff, the defendant produced 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. (1) A check payable to A. B. or bearer, is not evidence of money lent and advanced to A. B. by the drawer of the check. Plemming's Exrs. v. McClain, 13 Penna. State Rep. 177 ; Baker v. Williamson, 4 Ibid. 469. The presumption 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 bank or baliker upon which it is drawn, is merely prima facie evi- 84 BYLES ON BILLS OF BXCHANGBi A check, unless dishonored, is payment, (i) But, upon a question whether a debt have been paid, the mere production of a check drawn by the debtor in favor 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 hands. For this purpose it is prudent to cause the payee to write his name across the check or to indorse it.(Z) But, it is not necessary to go on and show that the debtor paid the check to the creditor.(m)(l) 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 guilty of neglect in giving up the bill before the check is paid,(o) but it is be- lieved not to be usual at this day *with London bankers to ex- r*171 L , J change 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 dishonored, the creditor's remedies remain en- tive.{p){2) It has been said that the holder of an unpaid check as assignee of (i) Pearce v, Davis, 2 M. & Rob. 365 ; see Moore v. Barthrop, 1 B. & C. 5, B. C. L. R. vol. 8, 2 D. & R. 25, S. C. (k) Egg V. Barnett, 3 Bsp. 196 ; Pearce v. Davis, supra ; Lloyd v. Sandilands, Gow. 15. (I) Aubert v. Walsb, 4 Taunt. 293 ; Lloyd v. Sandilands, Gow. 15. (to) Mountford v. Harper, 16 M. & W. 825 ;* Boswell v. Smith, 5 C. & P. 60, E. C. L. R. vol. 24. (n) Marius, 21 ; Ward v. Evans, 12 Mod. 521 ; Vernon v. Boverie, 2 Show. 296. (0) Russell V. Hankey, 6 T. R. 13 ; Ridley v. Blaokett, Peake's Ad. C. 62. (p) Everett v. Collins, 2 Camp. 515 ; Dent v. Dunn, 3 Camp. 296 ; Marsh v. Red- der, Holt, 72, 4 Camp. 257, S. C. ; Tapley v. Martens, 8 T. R. 451 ; Wyatt v. Mar- quis of Hertford, 3 East, 147. dence 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. (1) A naked check, payable to A. or bearer, is not per 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 debtor, evidence of the consideration of the check should be given. Pattou V. Ash, 7 Serg. & Rawle, 116. See Cromwell v. Lovett, ,1 Hall, 56, S. C. 6 Wend. 369 ; People v. Newell, 4 Johns. 296 ; The People v. Baker, 20 Wend. 602. (2) A bank check, until cashed, is no payment. The People v. Baker, 20 Wend. 602. OF A CHECK ON A BANKER. 00 a chose in action, has an equitable claim on the drawee, and in the event of his bankruptcy may prove under the fiat.(5') It seems that the death of the drawer of a check is a countermand of the banker's authority to pay it. But that if the banker do pay the check before notice of the death, the payment is good.(7') 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.(s) But should any act of the drawer himself have facilitated or given occa- sion 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 fifty- two pounds two shillings, beginning the word fifty with a small letter in the middle of the line. The figures, 52 : 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, " three hundred" before the word fifty, and the figure 3 between the printed £ and the figures 52 : 2, so that it then appeared to be a check for 352 : 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, (f) *When a plurality of persons, not being partners in trade, p ^-, q -, 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 money.(M) It has been not 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 (2) 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 dis- allowed the claim. (r) Tate v. Hilbert, 2 Vesey, Jr. 118. [s) Hall V. Fuller, 5 B. & C. 750, B. C. L. E. vol. 11, 8 D. & B. 464, S. C. ; Smith V. Mercer, 6 Taunt. T6, B. 0. L. R. vol. 1, 1 Marsh, 453, S. C. (i!) Young V. Grote, 4 Bing. 253, E. C. L. R. vol. 13, 12 Moore, 484, S. C. («) Ex parte Hunter, 2 Rose, 363. See post, Chapter v. on Payment. 86 BYLES ON BILLS OF EXCHANGE. they were actually paid, and to calculate interest accordingly. But a banker should debit his customer, not from the date of the check, but from the time of payment.(t)) The 9 & 10' Wm. 3, c. 17, applies only to bills of exchange payable after date. Checks, therefore, are not protestable.(w) A check, like a bill or note, may now, it seems, be referred to the Master to compute principal and interest.(a;) A check cannot be the subject of a donatio mortis causa.{y) But if the payee receive the money before the donor's death or before the banker has notice of it, the gift will be good.(3)(l) 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.(a) As to the title of a man receiving moriey on an overdue check which had been lost, see the Chapter on Transfer. A check may be taken in execution.(6) {v) Goodbody v. Foster, Camb. Sum. Ass. 1831, Lyndburst, C. B. (to) Grant v. Vaughan, 3 Bur. 1516. (x) See Bentbam v. Lord Cbesterfield, 5 Scott, 417. (y) Tate v. Hilbert, 2 Yes. Jr. Ill ; Eiddell v. Dobree, 1838 ; 3 Jurist, 722. , (z\ Ibid. (a) Wilkinson v. Godefroy, 9 Ad. & E. 536, B. C. L. R. vol. 36. (6) 1 & 2 Vict. c. 110, s. 12. (1) 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. Eep. 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 pf 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. As to the analogous cases of promis- sory notes, see p. 136 post, note. OF AN I. 0. U. 87 *CHAPTEE IV. OF AN I. 0. U. [*19] ■WHAT IT IS, 19 REQUIRES NO STAMP, . . .19 UNLESS IT AMOUNT TO A NOTE OR AGREEMENT, . . . .20 NEED NOT BE ADDRESSED, . .20 BILL IN EQUITY TO DISCOVER CONSI- DERATION, 20 TO RESTRAIN AN ACTION, . . .20 A MERE acknowledgment of a debt does not amount to a promis- sory note.(l) Such an acknowledgment is frequently made in an abbreviated form, thus : , London, 1st January, 1846. Mr. A. B. I. 0. U. 100. O.D. An acknowledgment of a debt in this form is called an I. 0. U. It is evidence of an account stated, but not of money lent.(a) Not amounting to a promissory note, and being merely evidence of a debt due by virtue of some antecedent contract, it requires no stamp.(6) Nor indeed is a stamp required for any instrument which is merely an acknowledgment of money deposited to be accounted (a) Fesenmayer v. Adcock, 16 M. & W. 449.* (6) Fisher v. Leslie, 1 Esp. 425 ; Israel v. Israel, 1 Camp. 499 ; Cliilders v. Boulnouis, D. & R. N. P. Ca. 8 ; Beeohing v. "Westbrook, 8 M. & W. 412.* (1) That a due bill is a promissory note, see Cummings v. Freeman, 2 Humph. 14,'? ; Finney v. Shirley, 1 Missouri, 42 ; McGowen v. West, Ibid. 569 ; Harrow V. Dugan, 6 Dana, 341 ; Marrigan v. Page, 4 Humph. 24T. A written acknowledgment of indebtedness in a certain sum to a certain person, with a statement of the consideration, 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. hi3 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 instrument, in legal contemplation, was a due bill, and might be declared on as a promissory note. Lowe v. Murphy, 9 Georgia, 338. 88 BYLES ON BILLS OF EXCHANGE. for, and not a receipt for money antecedently due.(c) Therefore a paper stating that the party signing it had certain bills in his hands which he held to get discounted or returned on demand, requires no stamp. (c?) *But if the I. 0. U. contain an agreement that it is to be -' paid on a given day it will be a promissory note, and must 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 accord- ingly,(e) unless it be under 201. in amount.(/) The following instrument was held to be a mere I. 0. U., not to be a promissory note, and to require no stamp : " 1839, Nov. 11, I. 0. U. forty pounds thirteen shillings, which I borrowed of Mrs. Mela- Hotte, and to pay her five per cent, till paid."(^) An instrument in this form, " I. 0. Mr. John Gould the sum of 2001. for value received," requires no stamp. (A) It is conceived that a mere I. 0. U., given by a surety for the debt of another man, is void by the Statute of Frauds.(«) An I. 0. U. ought regularly to be addressed to the creditor by name ; but though not addressed to any one it will be evidence for the plaintiif, if produced by him.(A) This rule is convenient and safe. For if the I. 0. U. were given (as it often is) when no one but the plaintiff and defendant were present, it would be impossible for the plaintiff to prove how he became possessed of it, but if the I. 0. U. were given to a third party, the defendant has ordinarily the means of proving it. (c) Tomkins v. Ashby, 6 B. & C. 541, E. C. L. R. vol. 13,' 9 D. & R. 543, 1 M. & M. 32, S. 0. ; Casborne v. Dutton, Selwyn's N. P. 381, 9th ed. ; Payne v. Jenkins, 4 C. & P. 324, B. 0. L. R. vol. 19. (d) MuUett V. Hutchison, 3 C. & P. 92, E. C. L. R. vol. 14, T B. & C. 639, E. C. L. R. vol. 14, S. C. ; Langdon v. Wilson, 2 Man. & R. 10, E. C. L. R: vol. 17 ; Wil- liamson V. Bennett, 2 Camp. 417 ; Home v. Redfearne, 4 Bing. N. Ca. 433, B. C. L. R. vol. 33, 6 Scott, 260, S. C. (e) Brooks v. Elkins, 2 M. & W. 74.* (/) Evans v. Phillpotts, 9 C. & P. 270, E. C. L. R. vol. 38. (g) Melanotte, Adm. v. Teasdale, 13 M. & W. 216.* {h) Gould v.' Coombs, 14L. J. 175, C. P., 1 C. B. Rep. 543, E. C. L. R. vol. 50, S. C. (i) So held by the Court of Exchequer, in 1845. Admitted by counsel to be so. And see Gould v. Coombs, 14 L. J. 175, C. P., 1 C. B. Rep. 550, E. C. L. R. voL 50. (/c) Curtis V. Riokards, 1 M. & G. 46, E. C. L. R. vol. 39, 1 Scott, N. R. 155 ; Douglas v. Holme, 12 Ad. & E. 641, B. C. L. R. vol. 40 ; Fisher v. Leslie, 1 Esp. 427 ; Fesenmayer v. Adcock, 16 M. & W. 449.* CAPACITY OF CONTRACTING PARTIES. 89 It has been held that a bill in equity will lie to discover whether an I. 0. U. were given for a gaming deht.(l) The Court will not restrain an afetion on an I. 0. U. given partly for money lent to play at games of chance not illegal in Germany, and partly for money won at cards not exceeding lOZ. at a time.(wi) *CHAPTER Y. [*21] OF THE CAPACITY OP CONTRACTING PARTIES TO A BILL OR NOTE. AGENTS, 22 WHO MAT BE AN AGENT, . . .22 HOW AGENT APPOINTED, . . .22 PEOOURATION, . . . .23 WHEN AUTHOKITT MAT BE INFER- RED, 23 TO INDORSE, 23 WHEN ADMITTED, . . . .24 CONSEQUENCES OE AN AGENT EXCEED- ING HIS AUTHORITT, . . .24 UNAUTHORIZED INDORSEMENT, . 24 DELIVERY, 24 PLEDGING, 24 BILL BROKERS, . . . .25 WHEN THE PRODUCTION OF HIS AU- THORITT MAT BE REQUIRED, . 25 HOW DETERMINED, . . . .25 WHEN IT MAT BE DELEGATED, . .26 PERSONAL LIABILITY OF AN AGENT TO THIRD PERSONS, . . .26 PAROL EVIDENCE INADMISSIBLE TO DISCHARGE THE AGENT, . . 26 SIGNATURE WITHOUT AUTHORITT, . 27 LIABILITT HOW AVOIDED, . . 27 RIGHTS OF AN AGENT AGAINST THIRD PERSONS, 27 LIABILITY OF AN AGENT TO HIS PRIN- CIPAL, 28 EIGHTS OF PRINCIPAL AGAINST THIRD PERSONS, 28 PARTNERS, 29 =) PARTNERSHIP, BOTH ACTUAL AND OS- TENSIBLE, AGREEMENT, INTER SE, NOT TO DRAW BILLS, CASES IN WHICH PARTNERS ARE BOTH ENTITLED AND LIABLE IN RESPECT OF BILL, RIGHTS AND LIABILITIES AS BETWEEN THE FIRM AND THE WORLD, . ONE PARTNER BINDING THE OTHER BY BILLS, BY PROMISSORY NOTES, . IN FARMING AND MINING PARTNER- SHIPS, IN JOINT STOCK COMPANIES, IN PARTNERSHIPS NOT IN TRADE, CONSEQUENCES OF PARTNER EXCEED- ING HIS AUTHORITT, . . WHEN THERE IS NOTICE, . COMMON PARTNER IN TWO FIRMS OP THE SAME NAME, NEW PARTNER, .... FRESH SECURITY, .... DORMANT, OR SECRET PARTNER, HIS LIABILITT, .... NOMINAL PARTNER, DISSOLUTION, RETIREMENT OF SECRET PARTNER, . OCCASIONAL PARTNERSHIP, EXECUTORS AND ADMINISTRATORS, . THEIR RIGHTS AND DUTIES, 2.9 29 30 31 31 31 33 33 33 33 M 35 35 35 36 36 36 37 38 40 40 40 {I) Wilkiuson v. L'Eaugier, 2 (m) Quarrier v. Colston, 12 L, Younge & CoUyer, 366.* J. 57, Ch. ; 6 Jurist, 959. 90 BYLES ON BILLS OF EXCHANGE. EFFECT OF PROBATE, 41 PERSONS DRUNK, .... 47 DEBTOR MADE EXECUTOR, 41 MARRIED -WOMEN, .... 48 DEBTOR BECOMING ADMINISTRATOR, 42 CONVICTED FELONS, 51 WHEN EXECUTOR MAT SUE AS SUCH, 43 ALIENS, 51 DELIVERY AFTER INDORSER's DEATH, 43 CORPORATION AND COMPANIES, 51 INDORSEMENT DT ONE EXECUTOR OP BANK OP ENGLAND, . . • . 52 SEVERAL, 43 BANKS OP NOT MORE THAN SIX PART- PERSONAL LIABILITY ON A BILL, 44 NERS, 53 JOINDER OF COMMON COUNTS IN AC- BANKS OF MORE THAN SIX PARTNERS, 53 TION AGAINST, .... 44 PERSONS ACTING IN AN OFFICIAL CA- INFANTS, 44 PACITY, 54 LUNATICS, 47 FRIENDLY SOCIETIES, 55 r *oo 1 *Whatbvbe 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, infants,(J) married women, persons attainted, outlawed, or excommunicated, aliens, and other persons laboring under disabilities, may be agents.(c)(l) No particular 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 purpose, or may derive his power from some general or implied authority. (2) Subsequent recognition of an agent's acts is equivalent to previous authority ; provided the agent, when he acted, assumed to act as agent. (cZ) General authorities to transact business, and to receive and dis- (a) Coombe's case, 9 Co. 75. (6) But an infant thdugh lie may be a private, cannot be a public attorney ; that is, an attorney at law to conduct suits. Mirror, c. 2, s. 21 ; Co. Litt. 128, a. (c) Co. Litt. 52, a. (d) Viner's Ab. Ratihabition ; Saunderson v. Griffiths, 5 B. & C. 909, E. C. L. R. vol. 11, 8 D. & R. 643 ; Vere v. Ashby, 10 B. & C. 288, B. C. L. R. vol. 21. See the law of Ratihabition, discussed in Wilson v. Tumman, 6 Man. & G. 236, B. C. L. R. vol. 46. (1) A slave may be an agent. The Governor v. Daily, 14 Alabama, 469. (2) The authority of an agent to transfer a note by indorsement may be created verbally, whether the principal be an individual or a corporation. And such autho- rity may be inferred from facts and circumstances connected with the transaction. Trundy v. Farrar, 32 Maine, 225. CAPACITY OF CONTRACTING PARTIES. 91 charge debts, do not confer upon an agent the power of accepting or indorsing bills, so as to charge his principal.(e) (1) And special au- thorities to accept or indorse are construed strictly.(2) A. B., who (e) Hogg V. Snaith, 1 Taunt. 347, and Hay v. Goldsmid, there cited ; Murray v. Bast India Company, 5 B. & Al. 204, E. C. L. R. vol. 1 ; and see Howard v. Baillle, 2 H. Bla. 618 ; Gardner v. Bailie, 6 T. R. 591 ; Kilgour v. Pinlyson, 1 H. Bla. 155 ; Hay v. Goldsmid, 2 Smith's Rep. Y9 ; Bsdaile v. Lanauze, 1 Y. & Col. 394.* -* : (1) Verbal authority from the principal to his agent to transact all his business confers the power to assign and transfer negotiable papers. I Swan (Tenn.), 205. (2) Whether an agent has power to draw or indorse bills or notes, will depend upon the construction of the words used in his appointment. When certain special objects are enumerated, subsequent general words will be restrained to these ob- jects. Thus a power of attorney to collect debts, to execute deeds of lands, to ac- complish 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. Ros- siter 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 at- torney 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 aocommoda- tion of third persons. The general intention was, that the attorney should trans- act the business which it particularizes Jbr 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 Yerger, 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 Ken- tucky, 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 therefore a " company note ;" it was held that the terms " company note" were not used in the vote to designate a tech- nical promissory note, and that a bill of exchange drp,wn by the agent in the name of the company, upon the dishonor of which by statute they could not be liable for any damages, was a company note within the meaning of the vote. The law, how- ever, is very clear, that the party giving the authority may limit it precisely, 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 Co., 13 Pick. 291. A supercargo cannot bind his principals as acceptors of a bill drawn by himself, with- out express authority to that effect communicated to and relied on by the person who receives the bill. Scott v. McLellan, 2 Greeuleaf, 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 92 BYLES ON BILLS OP EXCHANGE. carried on business on his own account, and also in partnership, went abroad, and gave to certain persons in this country two powers of at- torney ; by the first of which, authority was given for him, and his name, and to his use, to do certain specific acts (and amongst others, to indorse bills, &c.), and generally to act for him, as he might do if he were present ; and, by the second, authority was given, " for him and on his behalf, to accept bills drawn on him by his agents or cor- respondents." C. D., one of A. B.'s partners (and who acted as his agent), in order to raise money for payment of the creditors of the joint concern, drew 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 afi"airs; L -' thirdly, that the special power to accept extended only to bills drawn by an agent in that c'apacity, and that CD. 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 general powers for the carrying into effect the special purposes for which they were given.(/) An authority to in- dorse 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) (/) Attwood V. Munnings, Y B. & C. 218, E. C. L. R. vol. 14, 1 Man. & R. IS. [g) Fearn v. Filioa, 14 L. J. 15, C. P., 7 M. & G. 513, E. C. L. B. vol. 49, S.C. (h) Ibid. maker of tie note. Walter v. Trustees of Schools, 12 Illinois, 63. If one pro- mise 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 observed that, although, as stated in the text, ratification ds in gene- ral equivalent to antecedent authority, yet it has been decided, that where the drawer of a note affixes his signature as the agent of another, if in an action 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 per- mitted to show ar 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. Rossiter, 8 Wendell, 494. CAPACITY OP CONTRACTINa PARTIES. 93 The words ^'^ per procuration" are an express intimation of a spe- cial and limited authority. And a person who takes a bill so drawn, accepted, or indorsed, is bound to inquire into the extent of the au- thority, (i) 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 principal has recognized his acts. Thus, to an action against an acceptor of a bill, the defentee was, that the drawer had forged the acceptor's signature, in answer to which it was proved that the defendant had previously paid such acceptances ; and this was held proof of authority to the drawer.(A) "It tnay 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 not."(Z) And therefore, from the facts that the defendants' confidential clerk had been accus- tomed to draw checks for them, that in one instance they had autho- rized him to indorse, and in two other instances had received money obtained by his indorsing in their name, a jury was held warranted in inferring that the clerk had a general authority to indorse,(Z) The acceptance of a bill drawn by procuration *is an admis- ■- ^.^ . -, sion of the agent's authority to draw, but no admission of his '- -' authority to indorse, though the indorsement were on the bill at the time of acceptance, (m) An agent, who exceeds his authority in negotiating a bill, cannot, in any case, 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 discharge of the bill from the previous parties ; or, if in lieu of money, he take a substituted (i) Alexander v. McKenzie, 6 C. B. Rep. 766, E. C. L. R. vol. 60, 18 L. J. 94, C. P., S. 0. (h) Barber v. Gingell, 3 Esp. 60 ; Lewellyn v. Winckworth, 13 M. &. W. 598 ;* Cash V. Taylor, Lloyd and Welby's Mercantile Cases, ITS. (I) Presoott V. Flinn, 9 Bing. 19, B. C. L. R. vol. 23, 2 Moo. k Sc. 22, S. C. (m) Robinson v. Yarrow, 7 Taunt. 455, B. C. L. R. vol. 2, 1 Moo. 150. See the Chap, on Acceptance. 94 BTLBS'ON BILLS OF EXCHANGE. till, such second bill belongs to the principal, and the principal may countermand payment. For neither in the first bill, nor 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, (w) If an agent indorse, without authority, a bill payable only to order, such indorsement conveys no right of action, except against the party indorsing, (o) But the unauthorized delivery of bills or notes payable to bearer, gives a bona fide holder a claim on the other parties.(p) But in any case, if the transferee know that the transferrer 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 action of trover.(g') An agent who receives a bill for the purpose of getting it discounted, has no right to pawn it for a sum smaller than the amount of the bill, minus the discount, for his employer may, by the pawnee's deten- tion of the bill, or by his change of residence, or by its future nego- tiation, be prevented from raising on the bill its full value, and yet r *2'i1 ^® exposed to pay its full amount to *a subsequent bona fide L ^ 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.(r) And it is very doubtful whether a usage entitling him to do so, would be legal, (s) Prima facie, a bill broker has no right to pledge the bills of his different customers in one mass, for that might subject a (n) Lee v. Zagury, 8 Taunt. 114, E. C. L. R. vol. 4; 1 Moo. 656. (o) See Fearn v. Filica, 7 M. & G-. 513, E. C. L. R. vol. 49 ; 14 L. J. 15, C. P., S. C. (p) Bayley, 106 ; Miller v. Race, 1 Burr. 452 ; Lawson v. Weston, 4 Bsp. 56. See Chap. xi. on Transfer. {q) Treuttell v. Barandon, 8 Taunt. 100, E. C. L. R., vol. 4; 1 Moo. 543, S. C. See the subject of restrictive indorsement more fully treated in the Chapter on Transfer. (r) Haynes v. Foster, 2 C. & M. 2.37.* [s] Foster v. Pearson, 1 C. M. & R. 849 ;* 5 Tyr. 255, S. C. CAPACITY OF CONTKACTING PARTIES. 95 bill to lien beyond the amount advanced upon i.t.{t) 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 mass.(M) 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.(w) If an offer to accept be made by an agent, the holder may and should require the production of his authority, and, if satisfactory authority be not produced, may treat the bill as dishonored. "A person taking an acceptance importing tb be by procuration," 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 authority. "(w) 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 accept a conveyance to be executed by a power of attorney, viz. : that it will multiply the proofs necessary to sustain his title. (a;) The authority of an agent will be presumed to continue till due notice of its revocation has been given ; and such notice should be, as to strangers, by publication in the Gfazette; and as to customers r*2«-] and correspondents, by express individual *communication.(2/) * A mere agent cannot delegate his authority, unless specially au- thorized so to do.(s)(l) {t) Haynes v. Foster, 2 C. & M. 237.* [u) Foster v. Pearson, 1 C. M. & R. 849 ;* 5 Tyr. 255, S. C. (v) " 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.* {w) Attwood v. Munuings, 7 B. & C. 278, B. C. L. R. vol. 14; 1 Man. & R. 78.* (x) See Coore v. Callaway, 1 Esp. 115 ; Chitty, 283. (y) See Newsome v. Coles, 2 Camp. 617. (z) Coombe's case, 9 Coke, 75 ; Palliser v. Ord, Bunb. 166. But an authority to indorse, may imply an authority to indorse by the hand of another in the agent's presence. Lord v. Hall, 9 L. J. 147, C. P. ; see also Ex parte Sutton, 2 Cox, 84. (1) An agent with power to give notes cannot delegate that power. Brewster v. Hobart, 15 Pick. 302 ; Emerson v. Providence Manufacturing Co. 12 Mass. 237. 96 BTLES ON BILLS OF EXCHANGE. An agent will be personally liable on his drawing, indorsing, or accepting, unless he either sign his principal's name only, or expressly state in writing his ministerial character ; "unless," to use the words of Lord Ellenborough,(a) " 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 following* bill, " Pay to the order of A. B. 50Z., 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.(5) So if a broker draws upon the buyer of goods which he has sold for his principal in favor of the latter, to whom he indorses the bill, he is liable, as drawer, to his principal. (e) A bill for 2001. was drawn upon the defendant by the description of " Mr. H. Bishop, Cashier of the York Buildings Company, at their house in Winches- ter Street, London;" and the bill directed him to place the 200Z. 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 defen- dant accepted it, in this foi-m, " Accepted, 13 June, 1732, per H. Bishop." He was held responsible, the Court considering the addi- tion to his name as merely descriptive, the order to place the sum to the account of the company as a direction how to reimburse him- self, and the letter of advice inadmissible to superadd to the terms of the bill, as against the plaintiff, an indorsee. (c?)(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 (a) Leadbitter v. Farrow, 5 M. & Sel. 345 ; Sowerby v. Butcher, 2 C. & M. 368;* • 4 Tyr. 320, S. C. (6) Ibid. ; Goupy v. Harden, T Taunt. 160, B. 0. L. E. vol. 2 ; 2 Marsh. 454. (c) Lefevre v. Lloyd, 5 Taunt. 749, B. C. L. R. vol. 1 ; 1 Marsh. 318. [d) Thomas v. Bishop, 2 Stra. 955; Rew v. Pettet, 1 Ad. & B. 196, B. C. L. B. vol. 28, 3 Nev. & M. 456, S. C, nom. Crew v. Pettet, ante. As to agent's remedy, see Huntley v. Sanderson, 3 Tyr. 469, 1 C. & M. 467,* S. C. (1) An officer 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 official character, and who indorses it in behalf of the corporation, is not personally responsible as in- dorsee. Babcock v. Beman, 1 Kernan, 200. CAPACITY OF CONXEACTING PARTIES. 97 principals, and so it is to give them the benefit of *the con- ^ ^^^ -j tract ;(e) but is inadmissible for the purpose of discharging the agent who signs in his own name. In the two former cases the evidence is consistent with the instrument, for it admits the agent to be entitled or bound by it, but in the latter case it is inconsistent with the terms of it.(/) But it is conceived that the law as to nego- tiable instruments is in one respect different, and that where the prin- cipal's name does not appear, he is not liable on a bill or note.(^)(l) (e) As to the cases in whicli a man who signs himself agent may come forward and sue as principal, see Bickerton v. Burrell, 5 M. & S. 383, and Rayner v. Grote, 16 L. & J. Ex. 82 ; 15 M. & W. 359,* S. C. (/) Higgins V. Senior, 8 M. & "W. 834* (g) See an American case, Story on Agency, 125, n., and the observations of Lord Ellenborough and Mr. J. Holroyd, in Leadbitter v. Farrow, 5 M. & S. 349 ; Bult V. Morrell, 12 Ad. & E. 750, E. C. L. R. vol. 40. But see Lindus v. Brad- well, 5 C. B. Eep. 583, E. C. L. R. vol. 51, where a bill drawn on the principal, ac- cepted by the agent in the agent's naiue, was held binding on the acceptor. (1) Deeds by an agent or attorney must be executed in the name of the principal to bind him, but it is otherwise in case of simple contracts. New England Ma- rine Ins. Co. V. De Wolf, 8 Pick. 56. In contracts not under seal, if the agent in- tend to bind his principal and not himself, it will be sufBcient if it appear in such contract that he acts as agent. Andrews v. Bstes et al. 2 Fairfield, 267 ; Shotwell V. McKown, 2 Southard, 828. It is not sufficient to charge the principal or protect the agent from personal responsibility, merely to describe himself as agent, if the language of the instrument imports a personal contract on his part. But when the name of the principal appears on the face o^ 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. Pentz v. Stanton, 10 "Wendell, 271. It will of course be remembered that the above case respects the liability of the principal on the hill as such, — for a principal is liable on his agent's contracts for him whether his name was disclosed or not — unless, the principal being known, credit was ex- clusively given to the agent, — in an action founded on the original consideration. Ibid. A note signed by the authorized agents of a corporation, with words an- nexed 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. G. had authority. Long v. Colburn, 11 Mass. 97 ; and see Emerson v. Providence Man. Co., 12 Mass. 237 ; Rice v. Gove, 22 Pick. 158 ; Robertson v. Pope, 1 Richardson, 501 ; Orfult v. Ayres, 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. Porster 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 con- tract bind the person or estate of his ward. Ibid. When individuals subscribe their proper names to a promissory note, prima facie 7 98 BYLBS ON BILLS OE BXCHANSE. -' If an agent, having no authority so to do, write, without a fraudu- lent intent, another man's name as acceptor of a bill, that is a fraud in law for which such agent is responsible, even to a subsequent in- dorsee ;{h) but no one can be liable as acceptor but the real drawee, unless he be acceptor for honor. And where g, man assuming to act as agent is really not so, in consequence of a revocation, by the death of his principal unknown to the agent, so that there is no fault in the agent, the agent is not liable, («') nor the executors of the deceased principal.(^)(l) The proper mode for an agent to indorse, so as to avoid personal responsibility, is by adding the words, sans recours, or without re- course to me.{l) {h) PolhUl V. Walter, 3 B. & Ad. 114, E. C. L. R. vol. 23 ; L. J. 92, K. B. If he had signed the drawer's name without authority, qusere, whether he would not have been personally liable on the bill as drawer. Wilson v. Barthrop, 2 Mees. & Wels. 863.* (i) Smout v. Ilberry, 10 Mees. & Wels. 1.* (k) Blades v. Free, 9 B. & C. 167, E. C. L. R. vol. 17. (I) Vide post, Chap. vi. 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. Brockway v. Allen, 17 Wendell, 40 ; Webb v. Burke, 5 B. Monroe, 51 ; Hovey v. Magill, 2 Conn. 680; and see Hills v. Bannister, 8 Cowen, 31 ; Fogg v. Virgin, 19 Maine, 352 ; Pomeroy v. Slade, 16 Vermont, 220 ; Packard v. Nye, 2 Metcalf, 47 ; Fitch v. Lawton, 6 Howard (Miss.), 371 ; Rupert V. Madder, 1 Chandler, 146 ; Collins v. Johnson, 16 Georgia, 458. If one draws a bill in his own name, without stailing that he acts as agent, unless when acting for the government, he is personally liable, although he 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. Newhall v. Dunlap^ 14 Maine, 180; Snow V. Goodrich, Ibid. 235. A public agent is not answerable personally for any con- tract 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. (1) If a person assumes to act as the agent of another, and acts without autho- rity or exceeds his powers, he binds himself. Keenan v. Harrod, 2 Maryland Ch. Dec. 63. An agent, who e:!^eeds his authority as such, in signing a note, which purparts to express the promise of his principal, is not personally liable thereon, Jefts V. York, 4 Cushing, 371. In case of a defective power to bind the princi- pal, if the agent speaks only in the 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 a false assumption of authority. ^ Johnson v. Smith, 21 Conn. 627. CAPACITY OF CONTRACTING PARTIHS. 99 If a man holds a bill or note as agent for another, and the circum- stances 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. and Co., residing at Middleburgh, remitted to the plaintiff, in Lon- don, a Bank of England note for 500?., 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 p ^na n was identified with his principals, and that, as there was no evidence of their having given full value for it, he could not recover.(TO) So where 0. and Co., in Paris, being indebted to the plaintiff, in Lon- don, to the amount of 1300Z., remitted to him a Bank of England note for 5001., 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. and 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 princi- pals, 0. and Co., gave full value for it.(w) From this case, it seems to follow, as a general rule, that wherever a bill or note, payable on demand, is remitted 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 doc- trine which, while it cannot injure the creditor (for if he cannot recover, he is but where he was before he received the remittance) will tend to prevent gratuitous, fraudulent, or felonious holders of paper from obtaining its value by paying it away to their creditors.(o)(l) (to) Solomons v. The Bank of England, 13 East, 135 ; 1 Rose, 99, S. C. (n) De la Chaumette v. the Bank of England, 9 B. & C. 208, B. C.L. R. vol. 17. (0) This doetrine was much discussed in the case of Kinnersley v. Somers, Exch. M. T. 1832, in relation to Serjeant Onslow's Act, 58 Geo. 3, u. 93. The Court appeared inclined to support the rule deducible from De la Chaumette v. Bank of England, but no judgment was given, and the case was, I believe, afterwards settled. But see Perceval v. Pramplin, Dow. 750 ; Foster v. Pearson, 1 C. M. & E. 849 ;* 5 Tyr. 255, S. C. It is to be recollected that a bill or note, payable at a fature day, suspends tOl its maturity the remedy for the antecedent debt. There may, there- fore, in this respect be a difference between an instrument payable on demand, and one payable at a future day. (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 equities between 100 BYLES ON BILLS OF EXCHANGE. An agent who fraudulently negotiates or dfeposits bills, is guilty of a misdemeanor, under the 7 & 8 Geo. 4, c. 29, and is punishable with fourteen years' transportation. 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 C. J. Spencer: "We are called upon to establish a new principle, or rather to ascertain a principle from decisions in cases as nearly analogous as can be found. In the cases of Miller v. Race, 1 Burr, 452 ; Grant v. Vaughan, 3 Burr. 1516, and 1 Bl. Rep. 485, and Peacock v. Rhodes, Doagl. 633, the Court lay stress on the fact, that the holder came by the notes for a full and valuable consideration, 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 appear- ances, which he was justified in doing, has been induced to part with his money or property 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 remuneration. 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 the 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, with- out 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 or possibility." See also Wardell v. Howell, 9 Wendell, 170 ; Rosa v. Brotherton, 10 Wendell, 85 ; Briggs v. Rockwell, 11 Wendell, 504 ; Hart v. Palmer, 12 Wendell, 623 ; Root v. French, 13 Wendell, 570 ; Payne v. Cutler, Ibid. 605 ; Morton v. Rogers, 14 Wendell, 575 ; Dickerson v. Tillinghast, 4 Paige, 205 ; Pulton Bank v. Phoenix Bank, 1 Hall, 562 ; Manhattan Company v. Reynolds, 2 Hill, 140. It is confined, however, to the case where the note is taken as collateral security only, and not in payment or satisfaction of the pre-existing debt. Bank of St. Alban's v. Gilliland, 23 Wendell, 31 ; Bank of San- dusky V. Scoville, 24 Wendell, 115 ; Mohawk Bank v. Corey, 1 Hill, 513 ; Norton v. Waite, 2 Appleton, 175 ; Riley v. Anderson, 2 McLean, 589 ; Bertrand v. Barkman, 8 English, 150 ; Young v. Lee, 18 Barbour's S. C. Rep. 187. 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, 252 ; Depeau v. Waddington, 6 Ibid. 220 ; and the maker, it is said, may aver any ground of defence against the indorsee of such a note which would have been competent against the CAPACITY OF COKTRACTINS PARTIES. 101 If an agent, employed to present a bill, fails to make a due pre- sentment, or to give due notice of dishonor, he is liable to an action original payee : Kirkpatriek v. Muirhead, 16 Penna. State Eep. 1 17, yet the maker of an accommodation note cannot set up the want of consideration as a defence against it in the hands of a third person, though it be 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 Mont- gomery County, 12 Serg. & Rawle, 382 ; and has no more right to complain, if his fi:iend 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. Accommoda- tion paper is the loan of the maker's credit without restriction as to the manner of its use. Lord v. Ocean Bank, 20 Penna. State Eep. 384 ; per Black C. 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 promissory note has been transferred before due, as collateral security for indorsements to be made by him, which are afterwards made, and who takes it without 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 holder, however, cannot recover upon the note when it is not available as between the original parties, beyond what is due on the indorsements against which it was designed to secure him. Williams Ex. v. Smith, 2 Hill, 301. In Brush v. Williams, 11 Connecticut, 388, C. J. Williams, aftera.learned and elabo- rate review of all the authorities, maintains, that such a transfer, as security for a pre- existing debt, ought to invest the transferree with all the rights of a bona fide holder for value in the regular course of trade. In Pennsylvania, it has been held, as already stated, that although the taking of the note of a third person as collateral security 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, yet 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, 220. In the subsequent case of Appleton 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 of others, not being applied to commercial paper of this character. Rogers, J. : "The case of Petrie v. Clark (11 Serg. & Rawle, 238), as to the general principle is affirmed in Depeau v. Waddington, with the expression of regret, that the negotiability of commercial paper should have been restrained, so as to prevent it fi-om 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 interpose 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 Petrie v. Clark the executor was not the owner of the note pledged ; here the payee is the legal and 102 EYLES ON BILLS OF EXCHANGE. at the suit of his principal,(p) who may recover nominal damages, though he have sustained no actual injury.(l) {p) Van Wart v. "WooUey, R. & Moo. 4 ; 3 B. & C. 439, E. C. L. R. vol. 10 ; 5 D. & R. 374 ; 1 M. & M. 520, S. C. 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, however, have gone the full length of holding, that receiving a note in payment 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 holder bona fide and for valuable consideration. Swift v. Tyson, 16 Peters, 1. Story, J. : " It is for the benefit and convenience of the com- mercial world, to give as wide an extent as practicable to the credit and circulation of negotiable paper, that it may pass not only as security for new purchases and advances 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 con- clusion, that negotiable paper cannot be applied in payment of or as security for pre-existing debts, without letting in all the equities between the original and antecedent parties, and the value and circulation of such securities must be essen- tially diminished, and the debtor driven to the embarrassment of making a sale thereof, often at a ruinous discount, to some third person, and then by circuity to apply the proceeds 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 other parties, by way 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 thu^ forcibly presented as to the disastrous conse- quences of the doctrine upon commercial business generally, it may be observed, 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). See also Washing- ton Bank v. Lewis, 22 Pickering, 24. The plaintiffs had advanced some money and taken the note for that and as security for a prior debt: it was held to be avail- able in their hands for both amounts, as the money was advanced for the purpose of securing the prior debt. (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 Washing- ton V. Triplett, 1 Peters, 25 ; McKinster v. Bank of Utica, 9 Wendell, 46, 11 Ibid. 473 ; Stowe v. Bank, 3 Devereux, 408 ; Fabers v. Mercantile Bank, 23 Pick._330 ; Branch Bank v. Knox, 1 Alabama, 148 ; Bank of Mobile v. Huggins, 3 Ibid. 206 f Phipps V. Millbury Bank, 8 Metoalf, 79; Tyson v. State Bank, 6 Blackford, 225. CAPACITY OF CONTKACTING PARTIES. 103 As a principal is bound by his agent's contracts, so he may take *advantage of them, but he is subject to any defence, partial [-;);oq-i 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 obliged 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.(^) (q) Baetable v. Pool, 1 C. M. & R. 410 ;* 5 Tyr. Ill, S. C. 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. Belle- mire V. The Bank U. S., 1 Miles, 113, 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 Whart. 112; Bank of Utica v. Smith, 18 Johns. 239; Smedes V. Bank of Utica, 20 Ibid. .^93 ; Agricultural Bank v. Commercial Bank, 7 Smedes and Marsh. 592 ; Baldwin v. Bank of Louisiana, 1 Louis. Ann. Rep. 13. In South Carolina, however, it has been determined that the general custom 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 of the State, 3 HiU, 11 ; 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 transmitted for collection to another place, the bank was not liable for the laches of its correspondent. It seems that if the transmitting bank had entered into a special agreement or received a pecuniary reward for its services in collecting 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 have been main- tained for damages commensurate with the injury sustained in consequence of such neglect. And see Lawrence v. The Stonington Bank, 6 Conn. 528 ; Bank of New Orleans v. Smith, 3 HiU, 560 ; Allen v. Merchants' Bank, 22 "Wendell, 215 ; Dorchester and Milton Bank v. New England, 1 Cushing, 111 ; The Montgomery County Bank v. Albany Bank, 8 Barbour Sup. Ct. 396 ; Commercial Bank v. Union Bank, 1 Kernan, 203. 104 BTLES ON BILLS OP BXCHANGB. An agent yrho has authority to take cash in payment has thereby no authority to take bills.(?-)(l) A partnership is where several persons are jointly engaged in an undertaking with a communion of profit and loss.(s) But, to render a man liable to third persons as a partner, it is suffi- cient if he merely hold himself out to the world as such, though he really have no interest whatever ; or if he really have an interest, though his name'does not appear.(() In treating of partnership in its relation t6 bills of exchange, we shall consider, first, the case of a partnership which is both actual and ostensible ; secondly, the case of a secret or dormant partner ; thirdly, the case of a mere nominal or ostensible partner ; fourthly,' the consequences of a dissolution ; and lastly, the case of an occa- sional partnership. First, as to a partnership both actual and ostensible. And, first, j with respect to the rights and liabilities of the partners inter se. i In many deeds and agreements of partnership, there is a stipula- j tion that one partner shall not draw, indorse, or accept bills without, the consent of his copartner ; the consequence of a violation of this; stipulation is, as between the partners, to create a right of action ati the suit of the injured partner against the partner violating it, and,i as we shall presently see, to *protect the former against bills ■- -■ improperly drawn, and in the hands of a holder with notice. Where a plaintitf is interested in a bill or note, both as plaintiff and jointly with the defendant, though the objection do not appear (r) Sykes v. Giles, 5 M. & W. 645,.* Post, Chapter xxv. (s) But a communion of loss does not seem essential to the existence of a part- nership. Gilpin vr. Enderby, 5 B. & Aid. 954, B. C. L. E. vol. 7 ; 1 D. & E. 570, S. C. ; Bond v. Pittard, 3 Mees. & Wels. 357 ;* Fereday v. Hordern, Jac. 144. Sed nee damni communio ad substantiam societatis pertinet ; quippe quae etiam ita con- stitui potest ut unus e sociis damni sit expers. Vin. Com. 3-26; see Smith's Commercial Law, 3d Ed. p. 21. (t) Pott V. Byton, 3 C. B. Eep. 32, E. C. L. E. vol. 54. And see post, as to occa- sional partnerships. (1) An agent with authority only to collect a debt, cannot take a note for the amount of it, from the debtor to himself, and thus substitute himself as creditor ; but if the principal subsequently ratifies such an arrangement, he is bound by it, and the debtor is released from liability to him on the original claim. McCuUoch v. McKee, 16 Penna. State Eep. 289 ; Corning v. Strong, 1 Carter (Indiana), 329. CAPACITY OF CONXKACTING PARTIES. 105 on the face of tlie 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.(M) So, where a note was made by E. in favor 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 abatement but in bar) that C, one of the plaintiffs, was also liable as an indorser, together with D., the defendant, the plea was held good.(w) So, where the plaintiff, the holder of shares in a washing company, drew bills on the direc- tors of the company for goods furnished by him, which bills were accepted for the directors by their secretary, in an 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 sepa- rate right is acknowledged to exist. But that is not the case here ; for the bills are drawn on the directors of the company and accepted fpr the directors. They are the agents of the company, and accept as agents of the company. The case, therefore, is that of one part- ner drawing on the whole firm, including himself."(w) 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 pur- chaser of the goods ; he then indorsed it to the actuary of the com- pany, who indorsed it to another member and creditor of the com- pany. It was held 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."(2;) 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 (u) Moffat v. Van Millingen, 2 B. & P. 124, n. (k) Mainwaring v. Newman, 2 B. & P. 120. (w) Neale v. Turton, 4 Bing. 149, E. C. L. R. vol. 13 ; 12 Moore, 365, S. C. (a;) T«ague v. Hubbard, 8 B. & C. 345, B. C. L. R. vol. 15 ; 2 Man. & Ryl. 369 ; Dans. & 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 note given by the directors. Fox v. Frith, 10 M. & W. 131.* 106 BYLES ON BILLS OF EXCHANGE. promissory note 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.(«/) So, where the holder of a bill is also liable upon it, the technical difficulty in the way of an -action may be removed by indorsement before the bill is due.(2) 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 both entitled and liable on the face of the instru- ment, though that does not appear on the declaration, and though the defendant omit to plead the non-joinder in abatement. Nor in certain cases where he is both entitled and liable to contri- bute, though such liability appear neither on the instrument nor on the record.(a) But the giving of a bill or note may be an acknow- ledgment of a separate right.(J) But 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 each partner in trade is intrusted by his copartners with a general authority in all partnership affairs. Each partner, therefore, by making, drawing, indorsing, or accepting nego- tiable instruments,(c) in the name of the firm, and in the course of {y) Eicharda v. Rieiiards, 2 B. & Ad. 447, E. C. L. R. vol. 22 ; see Eose v. Ponl- ■ton, 2 B. & Ad. 822, E. C. L. E. vol. 22. {z) Morley v. Culverwell, 7 M. & W. 174;* Steele v. Harmer, 15 L. J. 219, Exoh. ; 14 M. & W. 831,* and 19 L. J. 34; 4 Ex. Rep. 1,* S. C. in error. (a) But see as to Joint Stock Companies, 7 & 8 Vict. c. 110, s. 45, and 8 & 9 Vict. c. 16 ; and as to Joint Stock Bank Companies, 1 & 2 Vict. c. 96 ; 3 & 4 Vict. 0. Ill ; 5 & 6 Vict. c. 85. (5) See the observations of Best, C. J., in Neale v. Turton, 4 Bing. 149 ; B. C. L. E. vol. 13 ; 12 Moore, 365, S. C. ; see also Bedford v. Brutton, 1 Bing. N. Ca. 399, E. C. L. R. vol. 27 ; Andrews v. Ellison, 6 B. Moore, 199 ; Lomas v. Brad- shaw, 19 L. J. 273, C. B. (c) Harrison v. Jackson, 7 T. E. 207 ; Pinkney v. Hall, 1 Salk. 126 ; 1 Ld.Raym. 175, S. C. ; Lane v. Williams, 2 Vera. 277 ; Wells v. Masterman, 2 Esp. 731 ; Swan V. Steele, 7 East, 210; 3 Smith, 199, S. C; Eidley v. Taylor, 13 East, 175. CAPACITY OF CONTRACTINfl PARTIES. 107 the partnership transactions, *binds the firm, whether he r*qo-| signs the name of the firm, or signs by procuration, or accepts in his own name, a bill drawn on the firm.(c?)(l) But an action can- not be maintained against the firm where a partner has signed his own name only to an instrument, though the proceeds were in reality applied to partnership purposes,(e) unless the name of the signing partner were also the name of the firm ;(/) in which case it was for- merly held that the holder might charge either the signing partner or the firm, at his election.(^) Where one of the partners indorsed the name of the firm on fictitious bills, the firm was held liable. (A) ' But a partner cannot bind his copartner by a joint and several note,(i) and it is conceived that such a note would be void even as a joint note, for there was no implied authority from the copartner to sign any such instrument. [d] Mason v. Rumsey, 1 Camp. 384; see Jenkins v. Morris, 16 M. & W. 879.* (e) Si£fkiu v. Walker, 2 Camp. ,308 ; Ex parte' Bmly, 1 Rose, 61 ; Emly v. Lye, 15 East, 1. if) South Carolina Bank v. Case, 8 B. & C, 427, E. C. L. R. vol. 15 ; 2 Man. & Ry. 459, S. C. ; and see Ex parte Bolitho, 1 Buck. 100 ; Swan v. Steele, 7 East, 210 ; 3 Smith, 192, S. C; and see post, 33. (g) HaU V. Smith, 1 B. & C. 407, E. C. L. R. vol. 8 ; 2 D. & R. 484 ; Clerk v. Blackstock, Holt, 474 ; March v. Ward, Peaks, 130 ; Wilks v. Back, 2 East, 142 ; but see now Ex parte Buckley, In re Clarke, 14 M. & W. 469 ;* 15 L. J. Bkcy, 3S. C. (h) Thicknesse v. Bromilow, 2 C. & J. 425.* (j) Perring v. Hone, 4 Bing. 28, B. C. L. R. vol. 13 ; 12 Moore, 125 ; 2 C. & P. 401, S. C. (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 Missouri, 1 ; Gano v. Samuel, 14 Ohio, 592. A partner has no right to bind his copartner by a note, except in a partnership transaction. Wagnon 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, 2 Penna. Rep. 160; Huntington v. Lyman, 1 Chip. 438; Munroe v. Cooper, 5 Pick. 412 ; Chazournes v. Edwards, 3 Pick. 5 ; Catskill Bank V. Stall, 15 Wend. 364 ; Baird v. Cochran, 4 S. & R. 397 ; Davenport v. Ranlett, 3 N. Hampshire, 386 ; Weed v. Richardson, 2 Dev. & Bat. 535 ; Ralston v. Click, 1 Stewart, 526 ; Grraeff v. Hitchman, 5 Watts, 454 ; Livingston v. Roosevelt, 4 Johns. 251 ; Smith v. Lusher, 5 Cowen, 688 ; Williams v. Walbridge, 3 Wend. 415 ; Mor- cein V. Andrus, 10 Wend. 461; Holmes v. Burton, 9 Verm. 252; Plemming v. Prescott, 3 Richardson, 307 ; King v. Paber, 22 Penna. Stat. Rep. 21. 108 BYLBS ON BILLS OF EXCHANGE. The firm is not liable where the partner varies the style of the firm, unless there be some evidences of assent by the firm to the variation, or unless the name used, though inaccurately, yet substantially describe the firm.(^) Therefore, where a firm consisted of John Blurton and Charles Habershon, 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 and Co.(?) And where defendants never traded under the firm of Dry and Co., but only under the firm of Dry and Everett, it was held that de- 'fendant Everett was not bound by a bill accepted by Dry, not for partnership purposes, in the name of Dry and Co.(m)(l) r*qq-i ^'^t if ^ ^^ ^^ drawn on a firm, *and accepted by one *- -' partner in his own name for partnership purposes, that accept- ance will bind the firm.(w)(2) 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 express authority, do not bind the firm.(o) The members or directors of a joint-stock company cannot, in general, bind the company by bills.(^) But if such an authority {h) Williamson v. Johnson, 1 B. & 0. 146, E. C. L. R. vol. 8 ; 2 D. & R. 281; Faith V. Richmond, 11 Ad. & E. 339, E. C. L. R. vol. 39 ; 3 Per. & D. 187, S. C. [1] Kirk T. Blurton, 9 M. & W. 284.* _ (m) Sheppard v. Dry, Norwich, ] 840 ; Cor. Parke, B., affirmed in Q. B. Quaere, whether a partner may not bind his copartner by signing the true names of the partners, though such names be not the style, of the firm. Norton v. Seymour, 16 L. J. 100, C. B. ; 3 C. B. Rep. T92, E. C. L. R. vol. 54, S. C. (n) Mason v. Rumsey, 1 Camp. 384. (0) Greenslade v. Dower, 7 B. & C. 635, E. C. L. R. vol. 14 ; 1 M. & R. 640, S. C. ; Dickinson v. Valpy, 10 B. & C. 128, E. C. L. R. vol. 21 ; 5 M. & R. 126 ; Russell V. PoUett, executors, 1840. [p) Bramah v. Roberts, 3 Ring. N. C. 963, B. C. L. R. vol. 32 ;,5 Scott, 172, S. C; Bult V. Morrell, 12 Ad. & BU. 745, B. C. L. R. vol. 40. (1) A promissory note given by one of two partners in the business of farming and coopering, signed " A. B. and C. D." is binding upon both. McGregor v. Cleve- land, 5 Wend. 475. 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. Doty v. Bates, 11 Johns. 544. (2) 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. Dougal v. Cowles, 5 Day, 511. CAPACITY OF CONTRACTING PARTIES, 109 exist, it will receive a reasonable construction in favor of a bona fide holder for value.(g') And partners not in trade cannot bind each other by bills. There- fore one attorney, who is partner with another, has not from that circumstance alone, power to bind his copartner by a bill or note.(r)(l) Even if a partner exceed his authority, and pledge the partnership credit on a negotiable security for his own private advantage, his copartners are liable. And if there be a good defence against one of several partners or coplaintiffs suing on a bill, note, or other joint contract, it is a good defence against all ; although ^he copartner or coplaintiff to whose right to sue the objection applies, have been guilty of a fraud on his copartners 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 ?','(s) The defrauded partner's remedy (at least during his companion's lifetime) must be in equity. (^) Thus if one partner assume to relieve an acceptor of his responsibility, the firm lose their action. Two bills had been drawn by a partnership, and accepted, and it was proved that the value received for the acceptance had been employed in taking up other acceptances for the accommodation of the partner- ship ; the promise of one partner, in fraud of his copartners, to provide {q) Thompson v. Wesleyan Newspaper Association, 19 L. J. 114, C. P. (r) Headley v. Bainbridge, 3 Q. B. Rep. 316, E. C. L. R. vol. 43. («) Richmond v. Heapy, I Stark. 204, B. C. L. R. vol. 2. (i) See Jones v. Yates, 9 B. ife C. 539, B. C. L. R. vol. 17 ; Gordon v. BUis, 7 M. & G. 607, E. C. L. R. vol. 49 ; 2 C. B. Rep. 821, E. C. L. R. vol.,52. (1) A. and B. entered into a contract with C. for a conveyance from him to them of a farm, and agreed to pay a part in good negotiable notes, to be indorsed by them : held, that this will not constitute them special partners, so that the indorse- ment of the names of both by one, without the other, will bind both. Ballou v. Spencer, 4 Cowen, 163. A partner in the practice of physic, 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 accommodation. Crosthwait v. Ross, 1 Humph. 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 not partners in a mer- cantile trade, but only in the business of tavern-keeping. This ascertained, he took the note at his peril. Ibid. 110 BTLBS ON BILLS OF EXCHANGE. „ . -, for the acceptances, *was held to be a sufficient defence to an L -' action by them against the acceptor.(tt) So, -where D. drew a bill in bis own name, and gave the acceptor a memorandum, in writing, that he would provide for it when due, having indorsed it to the firm of A., B., C, 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.(w) And the taking a joint security for a sepa- rate debt raises a presumption that the creditor knew that' it was given without" the concurrence of the other partners, (w) If there ex- isted fraud and collusion between the partner and his creditor, the bill is void in the hands of the fraudulent holder, not only against the partnership, but against other parties to the bill.(a;) But securities which may be 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.(l) («) Richmond v. Heapy, 1 Stark. 202, B. C. L. R. vol'. 2. («) Sparrow v. Chisman, 9 B. & C. 241, E. C. L. R. vol. 17 ; 4 M. & R. 206. [v) Richmond v. Heapy, 1 Stark, 202, B. C. L. R. vol. 2 ; Arden v. Sharp, 2 Bsp. 524 ; Barber v. Backhouse, Peake, 6,1 ; and see Wallace v. Kelsall, ? M. & W. 264 ;* Jones V. Yates, 9 B. & C. 532, E. C. L. R. vol. 17; Jacaud v. French, 12 East, 317 i Gordon v. Ellis, 7 M. & G. 607, E. C. L. R. vol. 49. [w) Ex parte Bonbonus, 8 Ves. 540 ; Wells v. Masterman, 2 Bsp. 731 ; Greeu v» Deakin, 2 Stark. 347, B. C. L. R. vol. 3 ; Ex parte Gouldney, 2 G. & J. 118 ; 8 L. J. Bktcy. 1, S. C. {x) Ridley v. Taylor, 13 East, 175. » . (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; Ensminger v. Marvin, 5 Blackford, 210; Knapp v. McBride, 7 Ala- bama, 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, 2 Alabama, 502 ; Stainer V. Tysen, 3 Hill, 279 ; Noble v. McClintock, 2 Watts & Serg. 152 ; Smyth v. Stra- der, 4 Howard (U. S.) Rep. 404 ; Williams v. Gilchrist, 11 New Hamp. 535. Such a note is binding when given with the assent of the other partners, and such an assent may be implied from facta and circumstances. Gansevoort v. Williams, 14 CAPACITY OF CONTRACTINfl PARTIES. Ill Articles of agreement between the partners, that no one partner shall draw, accept, or negotiate bills of exchange, will not protect Wendell, 133. Assent must, be clearly shown and not left to be inferred from vague and slight circumstances. . Kemeys v. Richards, 11 Barbour S. C. Eep. 312 ; McKinney v. Bright, 16 Penna. State Rep. 399. If the firm afterwards should with knowledge reap the fruits of the transaction, as where an administrator gave the note of his firm for a debt of his intestate, and afterwards appUed to the partnership money which belonged to the estate. Richardson v. French, 4 Metcalf, 577 ; "Whitaker v. Brown, 11 Wendell, 75. Though the payee of a partnership note be- lieved 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, 12 B. Mon. 11. The admissions 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 holder of such a note, however, is undoubtedly protected. 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, by giving the note or check of the firm, but without their authority, the transaction will nevertheless bind all the partners, un- less there be something in it to induce the lender to suspect that the money is not borrowed for their benefit. Miller v. Maniee, 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 suffi- cient 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 for the occasion, unless there are circumstances fi:om which the authority can be implied. Tanner v. Hall, 1 Penna. State Rep. 417. ''A partner," says C. J. Hosmer, "strictly speaking, has an im- plied authority by virtue of the partnership connection to perform 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 him, and when for his own use, those who are not guilty of gross negligence and act bona fide are protected in their contracts, 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 subject the partnership. Public convenience demands the establishment of these principles. If a secret fi-aud 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 impedi- ment to their free circulation. But neither justice 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 irom 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 112 EYLES ON BILLS OF EXCHANGE. the firm against bills drawn, accepted, or indorsed, in violation of the agreement, unless the holder had, at the time of taking the bill, no- ^:tice of the stipulation. But if notice of such agreement can be brought home to the holder, or if, in the absence of such agreement between the partners, the other partners have given him notice that they will not be responsible for bills circulated by their copartner, the firm cannot be charged, though the bill was given in the course of partnership transactions.(y) The proper mode of raising the defence of unauthorized and fraud- ulent acceptance by one partner, and notice to the plaintiff, is by a traverse of the acceptance. (s) If the defendants show that the bill was circulated in violation of P^„r-i partnership articles, it has been held that *they will thereby put the plaintiff to prove that he gave value for it.(a) But it seems, from a recent decision in the Court of Queen's Bench, after , conference with the Judges of the other Courts, that in order to maintain the action, where it appears that one partner has accepted in fraud of his copartners, and where issue is taken on the accep- tance, it is not necessary for the plaintiff to prove that he gave value, (l/) Galaway v. Mathew, 10 East, 264 ;, 1 Camp. 403, S. C. (z) Jones V. Corbett, 2 Q. B. Rep. 828, E. C. L. R. vol. 42 ; Grout v. Enthoven, 1 Exch. Rep. 382 ;* 17 L. J. 70, Ex. S. C. (a) Grant v. Hawkes, Chitty, 42. acquires no right by tMs attempted prostitution of the firm.'' New York Firemen 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 the 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 Cashing, 309; Andrews v. Planters' Bank, 7 Smedes & Marshall, 192 ; Langan v. Hewitt, 13 Ibid. 112 ; Rollins v. Stevens, 31 Maine, 454; Lang v. Waring, 17 Alabama, 145. Nevertheless a bona fide holder, without notice, of an 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 partner- ship. Austin V. Vandermark, 4 Hill, 259 ; Maudlin v. Branch Bank, 2 Alabama, 502 ; Catskill Bank v. Stall, 15 Wendell, 364 ; S. C. 18 Wendell, 466 ; Wells v. Evans, 20 Wendell, 251 ; S. C. 22 Wendell, 324; Emerson v. Harmon, 14 Maine, 271 ; 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 partnership, the holder will be required to show his bona fides, and the value he gave for it. Bank of St. Alban's v. Gilliland, 23 Wendell, 311. CAPACITY OF CONTRACTING PARTIES. 113 but the defendants must affect the plaintiff with notice of the fraud,(6) or otherwise impeach his title. If a man be at one time a partner in two distinct firms, 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.(c) 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.((^)(l) If a new partner be introduced into the firm, an acceptance by the old partners for an old debt in the name of the new firm, will not, in the hands of the party taking it, bind the new partner.(e) The taking security from one of several partners, joint makers of a note, or acceptors of a bill, will, in general, discharge the ether co- partners. (/) But, where one of three partners, after a dissolution of partnership, undertook to pay a particular partnership debt on two (6) Musgrave v. Drake, 6 Q. B. Rep. 185, B. C. L. R. vol. 51. The case of Grant v. Hakes, however, does not appear to have been brought to the notice of the Court, though, perhaps, distinguishable. (c) Baker v. Charlton, Peake's N. P. C. 80 ; M'Nair v. Fleming, Mont. 32 ; Swan V. Steel, 1 East, 210 ; 3 Smith, 109, S. C. ; see, however, Ex parte Buckley, In re Clarke, 14 M. & W. 469 ;* 15 L. J. Bkcy. 3 S. C. {d) See Ex parte Bolitho, 1 Buck. 100, and the observations of Bayley, B., on that case in Wintle v. Crowther, 1 C. & J. 316 ;* 1 Tyr. 210, S. C. ; and see Furze V. Sharwood, 11 L. J., Q. B. 121 ; 2 R. B. 388, S. C, and Ex parte Buckley, supra. (e) ShirreflF v. Wilks, 1 East, 48. (/) Evans v. Drummond, 4 Esp. 89 ; Thompson v. Perceval, 5 B. & Ad. 925, B. C. L. R. vol. 27 ; 3 N. & M. 667, S. C. (1) A note in common form, signed by an individual in whose name a partner- ship 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 individual obligation, unless his partner be a dorniant partner. Scott v. Colmesnil, 7 J. J. Marsh. 416. To render a firm responsible for a note'given by one member thereof 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, Daveis, 320 ; Buckner v. Lee, 8 Georgia, 285. 114 BYLBS ON BILLS OP EXCHANGE. 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 reserving 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 against the other partners ; and that the taking, under these circumstances, the sepa- P ^qe -1 rate notes, and even afterwards renewing *them several times successively, did not amount to satisfaction of the joint deht.{g) Where the circumstances were such that the partner had not power to bind the firm by a bill, subsequent recognition of the act will be equivalent to previous authority.(A) 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 copartners in the name of the firm, and not only when the bills are negotiated for the 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 circum- stance :{i) 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 commencement of the partnership, but before the actual agreement, the members of the firm had nego- tiated 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 negotiated, 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 having ratified the acts of his Copartners, for there can be no ratification where there was no assumed authority. (A;) (ff) Bedford v. Deakin, 2 B. & Al. 210 ; 2 Stark 178, E. C. L. R. vol. 3, S. C. {h) Duncan v. Lowndes, 3 Camp. 478 ; and see Vere v. Ashby, 10 B. & C. 288, E. C. L. E. vol. 21 ; and Wilson v. Tumman, 6 M. & Gr. 236, B. C. L. R. vol. 46. As to Banking partnerships, see Corporations and Companies. (i) Vere v. Ashby, 10 B. & C. 288, E. C. L. R. vol. 21 ; Lloyd v. Ashby, 2 B. & Ad. 53, E. C. L. R. vol. 22 ; Swan v. Steele, 1 Bast, 210 ; 3 Smith, 199, S. C. (/c) Vere v. Ashby, 10 B. & C. 288, E. C. L. R. vol. 21 ; see Battley v. Lewis, 1 M. & G. 155, E. C. L. R. vol. 39; 1 Scott, N. R. 143, S. C; and Wilson v. Tum- man, 6 M. & G. 236, E. C. L. R. vol. 46. CAPACITY OF CONTRACTING PARTIES. 115 A dormant partner may join and sue on a biIl,(Z) or the ostensible party may sue alone.(m) But the non-joinder of a dormant partner as defendant cannot be pleaded in abatement.(M) Thirdly, as to a mere nominal or ostensible partner. Though 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 thereby '- -' authorizes those to whom he has been 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, (o) Fourthly, as to the consequences of a dissolution. After a dissolu- tion, the ex-partners have no longer power to bind each other by bills or notes to persons aware of the dissolution.(^) But notwithstanding a valid dissolution of an ostensible partnership by an agreement between the partners, still 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. (1) &uch 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, to advertise the dissolu- tion in the London Gfazette. (0 Cothay v. Fennell, 10 B. & C. 671, E. C. L. R. vol. 21 ; Skiuner v. Stocks, 4 B. & Aid. 437, E. C. L. B. vol. 6. (m) Leveck v. Shafto, 2 Esp. 468 ; Lloyd v. Archbowl, 2 Taunt. 324 ; and see Mawman v. Gillett, 2 Taunt. 325, n. ; Kell v. Nainby, 10 B. & C. 20, E. C. L. E. vol. 21. (n) De Mautort v. Saunders, 1 B. & Ad. 398, E. C. L. R. vol. 20. (0) Where the contract is made with a firm in which there is a nominal partner, the real partner may sue alone without joining the nominal partner as co-plaintiff. ' KeU V. Nainby, 10 B. & C. 20, E. C. L. R. vol. 21. To make a man Hable as a nominal partner, he must have been held out as such to the plaintiff. Per Parke J., Dickenson v. Valpy, 10 B. & C. 141, E. C. L. R. vol. 21 ; 5 M. & Ry. 126, S. c! (p) Heath v. Sansom, 4 B. & Ad. 172, E. C. L. R. vol. 24; 1 Nev. & M 104 S. C. ' (1) A valid title to a negotiable promissory note, payable to a copartnership 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 dissolu- tion was unknown to the iudorsee. Cony v. Wheelock, 33 Maine, 366. 116 BYLES ON BILLS OF EXCHANGE. 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 dissolution, but the in- dorsee had. It was held, that though the indorsee had had notice of the dissolution, he could recover on the bill against the firm, because the payee had had no notice, and the indorsee had a right to stand on the payee's title.(g') When bankers had dissolved partnership, a change in their printed check was, as against a person who had drawn a check in a 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."(r) Where a bill had been accepted by an ex-partner, in the name of -, the *firm, in favor of an attorney who had a year before pre- ^ -* pared the draft of a deed of dissolution between the partners, which deed it did not appear had ever been executed. Lord Ellen- borough held, that if the attorney would insist on the continuance of the partnership, it lay on him to show that the intention to dissolve had been abandoned. (s) A ;iotice of the dissolution in the G-azette is not sufficient to ex- empt a retiring partner from responsibility to a former dealer with the firm, unless it be shown that such dealer was in the habit of read- ing the Q-azette.it) But a mere notice in the Gazette has been held, as against a man who had had no previous dealings with the firm, evi- dence from which a jury might infer notice of dissolution. (m) An advertisement of a dissolution in a newspaper is not even admissible, without proof that the party sought to be affected with such notice (2) Rooth V. Qnin, 1 Price, 193. (r) Barfoot v. Goodhall, 3 Camp. 147 ; and see Vise v. Fleming, 1 Tounge & J. 227.* (s) Paterson v. Zachariah, 1 Stark, 71, E. C. L. R. vol. 2. [t) Godfrey v. Turnbull, 1 Esp. 371 ; Lesson v. Holt, 1 Stark. N. P. C. 186 ; Gra- ham V. Hope, Peake's N. P. C. 154 ; Gorham v. Thompson, lb. 42 ; Rex v. Holt, 5 T. R. 443 ; WHIiams v. Keats, 2 Stark. N. P. C. 290, E. C. L.R. vol. 3 ; see also Ex parte Usburne, 1 Glyn. & Jam. 358. A notice of dissolution in the Gazette may be given in evidence without a stamp. Jenkins v. Blizard, 1 Stark. N. P. C. 418. (m) Godfrey v. Turnbull, 1 Esp. 371 ; Newsomes v. Coles, 2 Camp. 617. CAPACITY OF CONTRACTING PARTIES. 117 took in the newspaper. («) But then it is not necessary that the dis- solution should have been advertised in the Grazette.{w){l) A secret partner is not liable after a dissolution without notice, on a bill or note given by the continuing partners in the name of the jBrm ; for the contract was not made on his credit, nor had he any interest in it.(2;)(2) Where the dissolution is by death, notice is not necessary to protect the estate of the deceased.(«/) After a dissolution, and the due notice thereof, the ex-partners become tenants in common of the partnership effects, and their authority as mutual agents is at an end. One cannot, therefore, indorse in the name of the firm a bill which belonged to the firm, but all must join : (2) though *the ex- p^qnT partner indorsing have authority to settle the partnership ii ^^^ (v) Leeson v. Holt, 1 Stark, 186, B. C. L. E. vol. 2 ; Boydell v. Drummond, 11^ East, 142 ; Norwich Navigation Company v. Theobald, 1 M. & M., N. P. C. 153, ' B. C. L. E. vol. 22 ; Jenkins v. Blizalrd, 1 Stark. 420, E. C. L. E. vol. 2 ; Hovil v. Browning, 1 East, 161 ; Eowley v. Home, 3 Bing. 2, E. C. L. R. vol. 11 ; 10 Mo. 247. (w) Rooth v. Quin, 1 Price, 193. (x) Evans v. Drummond, 4 Esp. 89 ; Newmaroh v. Clay, 14 East, 239 ; Heath v. Sansom, 4 B. & Ad. 172, B. C. L. E. vol. 24; 1 N. & M. 104, S. C. (y) VuUiamy v. Noble, 3 Mer. 619. («) Abel V. Sutton, 3 Esp. 108; Kilgour v. Finlayson, 1 H. B. 155; but see Lewis V. Eeilly, 1 Q. B. Eep. 349, B. C. L. E. vol. 41. (1) The rules of the mercantile law in regard to notice of dissolution have been fully adopted in this country. The oases are too numerous to cite, but some of the more recent ones, in which the earlier ones are to be found referred to, are, Simonds v. Strong, 24 Vermont, 642 ; Conro v. The Port Henry Iron Co. 12 Bar- bour, 27 ; Brown v. Clark, 14 Penna. State Rep. 469 ; Davis v. Allen, 3 Comstock, 168 ; Wardwell v. Knight, 2 Barb. S. C. Eep. S49. To constitute a person a pre- vious dealer with a firm, and entitled to actual notice of the dissolution of the part- nership, 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. Hutchins v. Bank of Tennessee, 8 Humphreys, 418. (2) Scott V. Colmisnil, 7 J. J. Marshall, 416 ; MagiU v. Merric, 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 he was thus known as a partner, it seems, that he will not be liable to persons so dealing with the partnership after his retirement, even although no no- tice has been given. Davis v. AUen, 3 Comstock, 168. 118 BYLBS ON BILLS OF EXCHANGE. affairs. " I even doubt much," says Lord Kenyon, " if an indorse- ment 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 evidence from which a jury may infer an authority to indorse.(6) An authority to indorse may be inferred, though the written agreement of dissolution contain no such authority. But an authority to the continuing partner " to wind up the business" will not enable him to indorse the securities of the late firm.(c) Both ex-partners ought, therefore, to indorse, and that is the proper mode of indorsing by persons who are not part- ners.(£i) But if the outgoing partner suffer his name to appear as partner, new customers, notwithstanding notice in the Grazette, may charge him. K. and A. dissolved partnership, and advertised the dissolution in the Grazette. K. accepted a bill in the name of the firm, antedating it so that it appeared to have been drawn before the dis- solution. This bill came into the hands of the indorsee, for value, without actual notice of the dissolution, A. had allowed his name to remain over the door of a hatter's shop in the Poultry, where the business had been carried on. Lord Bllenborough 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.(e) (a) Abel v. Sutton, 3 Bsp. 108. (&) Smith v. "Winter, 4 M. & W. 454.* (c) Ibid. [d] Carvick v. Vickery, 2 Doug. 653, n. (e) Williams v. Keats, 2 Stark. 290, E. C. L. R. vol. 3 ; and see Newsome v. Coles, 2 Camp. 617 ; Stables v. Ely, 1 C. & P. 614, B. C. L. R. vol. 12. (1) After the dissolution of a partnership, a power given to one of the late co- partners " to settle all demands in favor or against said firm," does not authorize him to give a note in the name of the firm. Lockwood v. Comstock, 4 M'Lean, 383 i Lusk V. Smith, 8 Barb. S. C. 570 ; Hamilton v. Seaman, 1 Smith (Ind.), 129; 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 Strobhart, 473 ; Hansen v. Irvin, 3 Watts & Serg. 345 ; Robinson v. Taylor, 4 Penna. State Rep. 242 ; 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. Sehoneman v. Pegely, 7 Penna. State Eep. 433. -d-u_, /./ \ ,'t ■■ ■' !(■ CAPACITY OF CONTRACTING PARTIES. 119 If one partner die, being liable or entitled on a bill or note, the legal right or liability survives, but the personal representatives of the deceased are entitled or liable in equity. (/) Bankruptcy is a dissolution, and therefore it was held, before the 2 & 3 Victoria, c. 29, that an indorsement by one of the several part- ners, after a secret act of bankruptcy, is invalid.(^) *But it ^ ^.^ -.\ has been also held, that, as they still hold themselves out to "- -^ the •world as partners, they are liable to third persons ;(gg) and it is conceived that the giving of a bill by or to the bankrupt, without notice of an act of bankruptcy, would be a payment, protected by 6 Geo. 4, c. 16, s. 82,(A) independently of the protection against a secret act of bankruptcy, afforded by the 2 & 3 Victoria, c. 29. (i) 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 joint security given by one partner, in a mere occasional partner- ship, for a private separate debt, does not charge his copartner, though in the hands of a bona fide holder for va]ue.(Z) 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. "(?w) Therefore, if a bill be indorsed to a man who is dead, by a person ignorant of his death, that will be an indorsement to the personal representative of the deceased, (w) On the death of the holder of a (/) Lane v. Williams, 2 Vern. 211; Bishop v. Clmrcli, 2 Ves. sen. 100, 371 ; Vnlliamy v. Noble, 3 Mer. 614; Heath v. Peroival, 1 P. Wms. 682 ; 1 Stra. 403, S. C. . (g) Thomason v. Frere, 10 Bast, 418. (gg) Laoy v. 'Wooleott, 2 D. & R. 458, B. C. L. R. vol. 16. (Ji) Post, Chapter on Banh-uptcy. (i) See now 12 & 13 Vict. c. 106. [k) Heyhoe v. Surge, 19 L. J. 243, C. P. (Z) "Williams v. Thomas, 6 Bsp. 18. \ (m) Hyde v. Skinner, 2 P. Wms. 196. See Williams v. Burrell, 1 C. B. Rep. 402, B. C. L. R. vol. 50. {n) Murray v. Bast India Company, 5 B. & Aid. 204, B. C. L. R. vol. 1. 120 BYLES ON BILLS OF EXCHANGE. bill or note, Ms executors or administrators may indorse ;(o) and an indorsement by the executors or administrators is for all purposes as effectual as an indorsement by the deceased.(^)(l) Presentment,(g') notice of dishonor, and payment, should be made by and to the executor or administrator, in the same manner as by or to the deceased.(2) If the holder be dead, and the executor have not yet proved the will, still it seems the executor is bound to present the bill when *^-l -1 presentable •,{r) for his title to his testator's property *is ^ -' derived exclusively from the will, and vests in him from the moment of the testator's death.(s) But, as the title of an adminis- trator is derived wholly from the Ecclesiastical Court, and he has none till the letters of administration are granted, he would probably be excused by impossibility.(3) (0) Rawlinson v. Stone, 3 Wila. 1 ; 2 Stra. 1260, S. C. (p) Watkius V. Maule, 2 Jac. & Walker, 243 ; but it is conceived that one of several executors cannot indorse in his own name alone. Vide infra. (g) MoUoy, 2, 10. (r) Marius, 135 ; MoUoy, 2, 10 ; Poth. 146. Is) Com. Dig. Admiuis. B. 10; Woolley v. Clark, 5 B. & Aid. 745-6, B. C. L. R. vol. 7 ; 1 Dowl. & Ey. 409, S. C. (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. 373. An administrator may assign a promissory note payable to his intestate, so as to vest the legal interest in the assignee. Cahoun v. Moore, 11 Vermont, 604; Morse v. Clayton, 13 Smedes & Marshall, 373; Makepeace v. Moore, 5 Gilman, 474 ; Cryst v. Cryst, 1 Smith (Ind.), 370. The transfer of a note due to an estate by an administrator, 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 B. R. administrator, and M. B. administratrix of J. B., it was held that E. H. 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. (2) Notice of non-payment must be given to the executor of the indorser. Hal- lett V. Branch Bank, 12 Alabama, 193. (3) An executor may commence an action before probate of the will: it is neces- sary that he should have taken out letters before filing his declaration. The exe- cutor 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 probata courts. There is, however, no such a thing as an administrator without a legal grant from CAPACITY OF CONTRACTING PARTIES. 121 A probate being a judicial act of the Ecclesiastical Court, is conclu- sive 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 temporal Courts. Therefore, a voluntary payment to an exe- cutor who has obtained probate by a forged will, is a discharge to the debtor, notwithstanding that the probate is afterwards declared null.(i) Bills of exchange are to be paid in the course of administration, as simple contract debts. They are bona notabilia ; not, as in case of a specialty, where the instrument is, but where the debtor resides at the time of the creditor's death.(M) It is a general rule of law, that if a creditor constitute his debtor executor, the debt is released and extinguished ; for the same hand being at once to receive and pay, the action is suspended : and a personal action, once suspended by act of the parties,' is gone for ever.(i))(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 demand, constitute the maker of the 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.(w) But it is conceived, that if the note, (t) Allen V. Dundas, 3 T. R. 125. (u) Yeomans v. Bradshaw,. Carthew, 373 ; 3 Salk. 70, S. C. («) Year Book, 20 Edw. 4, 17; 21 Bdw. 4, 36; Dyer, 140; Nedham's case, 8 Rep. 135, a. ; Fryer v. Gildridge, Hobart, 10 ; Sturleyn v. Albany, Cro. Eliz. 150 ; Dorcliester v. Webb, Cro. Car. 372 ; "Wankford v. Wankford, 1 Salk. 299 ; Cheetham V. Ward, 1 Bos. & Pnl. 630. (w) Freakley v. Pox, 9 B. & C. 130, E. C. L. B. vol. 17 ; 4 Man. & B. 18, S. C. See also Harmer v. Steele, 19 L. J. 37, Exch. Such a release in law might formerly have been made by an infant testator at the age of seventeen years com- plete ; Co. Litt. 264, b. the proper authority ; the party entitled 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, 2 Hill (S. Car.), 592 ; Jewett v. Smith, 12 Mass. 309 ; Lawrence V. Wright, 23 Pick. 128 ; McVaughters v. Elder, 2 Brevard, 307. (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 modified upon equitable principles. Mitchell v. Rice, 6 J. J. Marshall, 623. 122 BYLBS ON BILLS OP EXOHANQB. at the time of the testator's death, had been in the hands of an indorsee, the executor would still have been liable as maker to the r *4.9 1 iii'^o^see, and that if the note *had been payable at a period ^ -' certain, and indorsed by the executor after the testator's death, but before the note was due, the executor would have been liable as maker to an indorsee without notice ; for since a premature secret payment by the maker would not have protected him,(2;) no more, it should seem, would a premature secret release to him.(«/) If one of several joint debtors be appointed executor, it is a release to all;(2) and though they were liable severally as well as jointly, for judgment and execution against one would have been a discharge to all ;(a) and an express release to one might have been pleaded in bar by all. (6) The debt is also released where one only of several execu- tors is indebted,(e) and though the executor die without having either proved the will or administered.((;?) But if a sole executor refuses to act, the debt is not dis charged. (e) If the creditor makes the executor of the debtor his executor, that is no discharge.(/) 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 favor both of creditors and legatees. (^) The taking out letters of administration by a debtor to his creditor, (a;) Burbridge v. Manners, 3 Camp. 193. iy) Dod V. Edwards, 2 C. & P. 42, E. C. L. E. vol. 12. (z) Wentworth, Off. Exors. c. 2 ; Com. Dig. Adminis. B. 5. (a) Bro. Ab. Bxor. p. 118; Fryer v. Gildridge, Hob. 10; Cheetham v. Ward, 1 Bos. & Pul. 630 ; Wankford v. Wankford, 1 S^lk. 299. (6) 2 Eol. Abr. 412 ; Clayton v. Kynaston, 2 Salk. 574 ; 2 Saund. 47, t. (c) Bro. Exors. pi. 114; Went. Off. Exors. c. 2, pp. 74, 75, 14tli ed.; Com. Dig. Adminis. B. 5 ; Wankford v. Wankford, 1 Salk. 299, by Powel, J. ; Cheetham v. Ward, 1 Bos. & P;il. 630. (d) Wankford v. Wankford, 1 Salk. 299 ; Went. c. 2 ; Com. Dig. Adminis. B. 5. (e) Wankford v. Wankford, 1 Salk. 299 ; but see Abram v. Cunningham, 1 Vent. 303 ; Butler's Co. Litt. 264, b. (/) Bac. Ab. Exors. A. 10 ; Dorchester v. Webb, Cro. Car. 372 ; W. Jones, 345, S. C. ; 1 Salk. 305 ; Alston v. Andrew, Button, 128. {g) Bac. Ab. Exors. A. 10; Brown v. Selwyn, Cases temp. Talbot, 241, 242; Holiday v. Boas, 1 Eol. Abr. 920 ; Woodward v. Lord Dacy, Plowd. 186 ; Dorches- ter V. Webb, Cro. Car. 373 ; Shep. Touchstone, 497-8 ; Wankford v. Wankford, 1 Salk. 299. See Wentworth, Off. Exors. c. 2. CAPACITY OF CONTRACTING PARTIES. 123 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 administrator are no longer in the r:^An-\ hands of the same person. (A) *- If a note or a bill be made or indorsed to an executor as executor, he may sue on it in his representative capacity, and join counts on promises to the testator ;(z) and a note given to the executor for a debt due to the testator will go to the administrator de bonis non -.{k) though a payment of the amount of the instrument to the adminis- trator of the executor would be good in equity, and perhaps at law.(Z) After considerable conflict, the rule of law is now firmly established, that whenever the money sought to be recovered is assets, the execu- tor may sue, as executor, on a contract made with himself in his repre- sentative capacity, and join counts on promises to his testator.(»M)(l) Thus, to counts on a bill or note given to his testator, he may join a count for money paid by himself as executor ;(w) a count for goods sold by himself,(o) for work done by himself,(^) a count on an account stated with the plaintiff as executor, of moneys due to the testator ;(§') or a count on an account stated with the plaintiff as executor, of moneys due to himself as executor. (r) (7i) Sir John Nedham's case, 8 Coke, 135 ; Wankford v. Wankford, 1 Salk. 299; Wentworth, Off.'Exors. c. 2 ; Lockier v. Smith, 1 Sid. 79 ; 1 Keb. 313, S. C; Hud- son V. Hudson, 1 At. 461. (i) King v. Thorn, 1 T. E. 487. {Jc) Catherwood v. Chabaud, 1 B. & C.150, B. C. L. E. vol. 8 ; 2 Dowl. & E. 271 ; Court V. Partridge, 7 Price, 591. (Z) Barker v. Talcot, 1 Vern. 473 ; and see the remarks of Lord Tenterden on this case, in Catherwood v. Chabaud, 1 B. & C. 150, B. C. L. R. vol. 8; 2 Dowl. & E. 271. (to) 2 Wms. Saunders, 117, d. (n) Ord V. Penwick, 3 Bast, 104. As to money lent, see "Webster v. Spencer, 3 B. & Aid. 365, B. C. L. E. vol. 5. (0) Cowell V. Watts, 6 Bast, 405 ; 9 Smith, 410, S. C. (jP) Marshall v. Broadhurst, 1 C. & J. 403 ;* Edwards v. Grace, 2 M. & Wels. 190 ;* 5 Dowl. 302, S. C. (2) Jobson V. Forster, 1 B. & Ad. 6, B. C. L. E. voL 20. (r) Dowbiggin v. Harrison, 9 B. & C. 666, B. C. L. E.vol. 17 ; 4 Man. & E. 622, S. C. (1) An executor or administrator may join in the same declaration, counts or promises to himself, with counts or promises to the intestate or testator; the rule being that counts may be joined, whenever the money, if recovered, would be assets. Fry V. Evans, 8 Wendell, 530. 124 BTLBS ON BILLS OF EXCHANGE. When an action on a bill or note is brought, not by an executor or administrator, but by one who derives a title through an executor or administrator, the plaintiff need not make profert of the probate or letters of administration, (s) An executor cannot complete his testator's indorsement by deliver- ing the instrument, (i) It is conceived 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 indorsement *in fact, L -I for forgery of which an indictment may be sustained.(M) An executor, like an agent, is personally liable on making, draw- ing, indorsing, or accepting, negotiable instruments, though he de- scribe himself as executor, unless he expressly confine his stipulation to pay out of the estate. («)(2) In an action against an executor, on a bill or note of his testator, a count for money had and received by defendant, as executor, cannot (s) Rawlinson v. Stone, 3 Wils. 1 ; 2 Str. 1260, S. C. {t) Bromage v. Lloyd, 1 Bxch. Eep. 32.* (m) Winterbottom's case, 1 Dennison's C. C. 51 ; 2 Car. & Kir. 37, E. C. L. R. vol. 61, S. C. It has been so held in America. Smith v. Whiting, 9 Mass. Rep. 320. (v) Child V. Monins, 2 B. & B. 460, E. C. L. R. vol. 6 ; 5 Moo. 281 ; King v. ,Thom, 1 T. R. 489 ; Ridout v. Bristow, 1 Tyrw. 90 ; 1 C. & J. 231,* S. C; Serle V. Waterworth, 4 M. & W. 9 ;* 6 Dowl. 684, S. C. ; Nelson v. Serle, 4 M. & W. T95.* (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 ; and his act will bind his co-executors. Wheeler v. Wheeler, 9 Cowen, 34. 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 person- ally liable therefor, unless they have assets, or forbearance was the consideration of the note. Bank of Troy v. Tapping, 9 Wendell, 273. Such a note, prima facie, imports a sufficiency of assets ; the defendant may, however, show that in part there was a deficiency of assets, and the onus prohandi rests on him. Bank of Troy v. Topping, 13 Wendell, 557 ; and see Sleighter v. Harrington, 2 Taylor, 249, 2 Murphy, 250 ; Sims v. Stilwell, 3 Howard (Miss.), 176 ; Byrd v. HoUoway, 6 Smedes and Marshall, 473 ; Rucker v. Wadlington, 5 J. J. Marshall, 238 ; Steele V. McDowell, 9 Smedes and Marshall, 193. CAPACITY 01 CONTKACTINQ PARTIES. 125 be joined ;(w) nor a count for money lent to the executor ■,{x) nor a count for goods sold to the executor, or work done for him.(2/) A count for money paid to the use of the executor probably may.(») A .count on an account stated by the executor, of moneys due by the testator,(a) may be joined ; and so may an account on an account stated by the executor, of moneys due from him as executor.(6) Wherever the judgment on a common count is de bonis testatoris, the count may be joined ; but where the judgment is de bonis pro- priis, it cannot.(c)(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 car- rying interest, ((i) What are to be considered necessaries(e) depends on the rank and circumstances of the infant in the particular case.(2) (w) Jennings v. Newman, 4 T. E. 347 ; Ashby v. Ashby, 7 B. & C. 444, B. C. L. R. vol. 14 ; 1 Man. & R. 180, E. C. L. R. vol. 17, S. C. (x) Rose V. Bowler, 1 Hen. Bla. 108. (j/) Corner v. Shew, 3 M. & Wels. 350 ;* Kitchenman v. Skell, 3 Ex. Rep. 49.* (z) Ashby v. Ashby, 7 B. & C. 444, B. C. L. R. vol. 14; 1 Man. & R. 180. (a) Seear v. Atkinson, 1 H. Bla. 102. (6) Powell V. Graham, 7 Taunt. 581, E. C. L. R. vol. 2 ; 1 Moo. 305 ; Ashby v. Ashby, 7 B. & C. 444, E. C. L. R. vol. 14; 1 Man. & R. 180. (c) See 2 Wms. Saund. 117, c. (d) Co. Litt. 172, a., u. 2 ; RusseU v. Lee, 1 Lev. 86 ; and, 'therefore, a bond cannot be set up by a promise to pay made after full age, and the replication of such promise is ill. Baylis v. Dineley, 3 M. & Sel. 477 ; see B. N. P. 182 ; Hunter V. Agnew, 1 Pox and Smith, 15 ; 1 Rol. Ab. 729 ; Fisher v. Mowbray, 8 Bast, 330. A bond with a penalty given by an infant seems to be absolutely void. Ayliffe v. Archdale, Cro. Eliz. 920 ; Vin.' Ab. Actions, D. d. (e) See the observations of the Court in a very singular case, Chappell v. Cooper, 13 M. & Wels. 252.* (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 counter a promise by the deceased. Howard v. Powers, 6 Hammond, 92 ; 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 note made by their intestate, if the de- claration allege a promise by the deceased and also by the administrators', though informal, it is not bad on general demurrer. Curtis v. Bowrie, 2 McLean, 374. (2) An infant can never bind himself, even for necessaries, when he has a parent or guardian who supplies his wants. Guthrie v. Murphy, 4 Watts, 80 ; Angel v. 126 BTLES ON BILLS OF KXCHANGE. All his other contracts are distinguishable into two sorts, voidable r *4. - -1 *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 : and, secondly, because a void contract may be treated by all 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 efi'ect by the delivery of his hand, are only void- able; whereas such as do not so take effect are void.(/) According 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 invalid, (^) and cannot be confirmed by a promise to pay made after he is of age, and after action brought.(^) And all his contracts made in the course*of trade were formerly considered 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 ;{k) and it (/) Perkins, 12. (g) Zouch y. Parsons, 3 Bur. 17Q4, recognized as law by Lord Eldon in v. Handcock, 17 Ves. jun. 383 ; and see Holt v. Ward, 2 Stra. 937 ; Williams v. Moore, 11 M. & W. 256.* (A) Williamson v.' Watts, 1 Camp. 652 ; and see Williams v. Harrison, Carthew 160;3Salk. 197, S. 0. (i) Thornton v. Illingworth, 2 B. & C. 824, B. C. L. R. vol. 9 ; 4 Dowl. & E. 545, S. C. (k) Ibid. ; Hunt v. Massey, 5 B. & Ad. 902, B. C. L. R. vol. 27 ; 2 Nev. & M. 109, S. C. Whether a ratification be in all cases a new contract, resting on the McLellan, 16 Mass. 28 ; Kline v. L'Amoureux, 2 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. Keeler, 7 Watts, 237 ; Watson V. Heasel, 7 Watts, 344; see Grace v. Hale, 2 Humph. 27. The question whether articles are necessary ox not, is one of fact, to be determined by the jury and not by the court. Bent v. Manning, 10 Vermont, 225. It is a mixed question of law and fact ; but where there has manifestly been an excessive supply, the court may pronounce upon it. Johnson v. Lines, 9 Watts & Serg. 80. A collegiate education is not ranked among those necessaries for which an in- fant can render himself absolutely liable by contract. Middleburg College v. Chan- dler, 16 Vermont, 683. The board of an infant is' included among the necessaries for which he may pledge his credit. Bradley v. Pratt, 23 Vermont, 378. CAPACITY "OF CONTEACTINS PARTIES. 127 has been held that no mere acknowledgment, or part payment, would, under such circumstances, create a liability.(^) But it now seems that ^n infant's contract on a bill or note is voidable only, and that his liability may be established by ratification after full age.(»i)(l) original obligation as a moral consideration, or whether it merely impart validity to ,the original promise, has been considered doubtful. Williams v. Moore, 11 M. & W. 256 ;* but sfee Harris v. "Wall, 1 Ex. Eep. 122.* (I) Thrupp V. Fielder, 2 Esp. 628. (m) Harris v. "Wall, 1 Ex. Eep. 122.* (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 ; Bverson v. Carpenter, 17 Wend. 419 ; Best v. Givens, 3 B. Monroe, 72 ; Goodsell v. Myers, 3 Wend. 479 ; Stokes v. Brown, 4 Chandler, 39. A promissory negotiable note, executed by an infant, is not void so as to be inca- pable of ratification after the infant becomes of age ; and a re-promise by him ia valid, though not made until after the commencement of the suit against him. After the infant became of age, he wrote a lelter to the plaintiflf containing these , words, "All that is justly your due shall be paid." Held that this was a sufficient re-promise, and that the legal presumption that claims are just and also due, after the usual evidence in support of them, is sufficient, till rebutted by other evidence of injustice or of payment. Wright v. Steele, 2 N. Hamp. 51 ; Pout v. Cathcart, 8 Alabama, 725. 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 under- stand 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. Han- sell, 2 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 procure 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 contract to bind him, although the agent has not done anything. Orvis v. Kimball, 3 N. Hamp. 314. An infant purchased a kettle 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. Aldrieh v. Grimes, 10 N. Hamp. 194. In an action on a note of an infant, the evidence of ratification 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 laud 128 BYLES ON BILLS OP EXCHANGE. The Stat. 9 Geo. 4, c. 14, enacts, 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. Oral evidence may supply defects in the written ratification as to the sum, the date, and the person *to whom it is addressed. (w) A person of full age, ^ -" who accepts a bill drawn while he was an infant, is liable on (ra) Hartley v. Wharton, 11 Ad. & El. 934, E. 0. L. R. vol. 39. 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 conversa- tion concerning a note made by him during infancy, said that he owed the plaintifi", but was unable to pay him ; and that he would endeavor to procure his brother to be bound with him ; it was held not to be a renewal of the promise. Ford v. Phil- lips, 1 Pick. 202. 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 pay- ment or ratification of the contract. Hoit v. TJnderhill, 9 N. Hamp. 436. A new promise, made by an 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 plaintiff iu another suit, but had not then been employed in the present suit against the infant. Bige- low V. Grannis, 2 Hill, 120. A plea of infancy, 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 part- ner 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 liable 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. Margaritz, 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. Phillips, 1 Pick. 202; Barnaby v. Baruaby, 1 Pick. 221 ; Thompson v. Lay, 4 Pick. 48; Wilcox v. Routh, 12 Conn. 650; Curtis v. Patton, 11 Serg. & Rawle, 305; AldrioJ) v. Grimes, 10 N. Hamp. 194 ; Hoit v. Underbill, 9 N. Hamp. 436, 10 N. Hamp. 220 ; Bigelow v. Grannis, 2 HiU, 120 ; Alexander v. Hutchinson, 2 Hawks, 535 ; Millard v. Hewlett, 19 Wendell, 301; West v. Penny, 16 Alabama, 186. CAPACITY OF CONTRACTING PAKTIES. 129 the bill.(o) But it is conceived that a bill drawn, indorsed, or ac- cepted in blank by an infant, and" filled up without his express consent after he is of full age, will not bind him.(p) Whether a promissory note, given by an infant for necessaries, 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.(g')(l) An (0) Stevens v. Jackson, 4 Camp. 164. (p) Hunt V. Massey, 5 B. & Ad. 902, B. C. L. B. vol. 27 ; 2 Nev. & M. 109, S,C. (2) Trueman v. Hurst, 1 T. E. 40 ; Bayley, 19 ; Williamson v. "Watts, 1 Camp. 552. In the United States it has been decided that a promissory note given for necessaries is void. Swasey v. Vanderheyden, 10 Johns. Rep. 33 ; Nightingale v. Withington, 15 Massey's Rep. 212. So in the French law, Pardessus, 2, 459. (1) It will be seen by the cases thrown together in the preceding note, that the general doctrine of the American Courts is, that the bill or note of an infant is not void, but voidable only, and therefore, capable of ratification after his arrival at full age. The decisions, however, are not harmonious upon the question ; whether a negotiable bill or note for necessaries falls within the same category, or is to be considered as absolutely binding without such ratification, as a single biU for neces- saries not negotiable undoubtedly is. It geems 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 liable. In the hands of the payee, however, it may be inquired into, and it would seem necessarily in the hands of the indorsee. Infancy is, prima facie, a good defence, and as the holder must in answer prove the consi- deration to be necessaries, that throws open the whole question for the benefit of the infant. Upon these grounds it has been determined in South Carolina, that such a note is valid. Dubose v. Wheddon, 4 McCord, 221 ; Haine's Adm. v. Tanant, 2 Hill, 400. See Bouchell 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 precluded from questioning the consideration. Swazey v. Vanderheyden's Adm., 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 therefore to be unsound. A note may be valid as such, though not 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 that the maker is an infant, the negotiability of the note is at an end : but it does not cease to be a note. It may be sued on by the holder in his own name. He stands in the shoes of the original payee, and can recover whatever 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 130 BTLES ON BILLS OF EXCHANGE. infant is not bound by an account stated, in respect even of necessa- ries. (r) But he may, after he becomes of age, ratify an account stated.(s) If an infant be a party, jointly with an adult, to a negotiable in- , strument, the owner may sue the adult alone, without taking notice of the infant.(i) 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.(M) Where an infant is not liable on a contract, he cannot be made liable by suing him in an action in form ex delicto. {v)(l) An infant drawing and indorsing bills may convey a title to the in- dorsee, so that the indorsee can sue the acceptor and all other par- ties, except the infant himself ;(w) but the infant may avoid the con- tract, except where the acceptor has estopped himself by admitting (as we shall see he does) the capacity of an infant drawer to in- dorse.(a;)(2) (r) Trueman v. Hurst, 1 T. K. 40 ; Bartlett v. Emery, Ibid. 42 n. ; Ingledew t. Douglas, 2 Stark. 36, B. C. L. K. vol. 3. (s) Williams v. Moor, 12 L. J., Exch. 253 ; 11 M. & W. 256,* S. C. {t) Burgess v. Merrill, 4 Taunt. 468 ; Chandler y. Parkes, 3 Esp. 16, n. (m) Good V. Harrison, ,5 B. & Aid. 147, E. C. L. E. vol. 1. {v) Gr6ve v. Neville, 1 Keb. 778 ; Jolinson v. Pye, 1 Keb. 905-913'; 1 Lev. 169, S. C. ; Mandy y. Scott, 1 Sid. 109 ; Jennings v. Eundall, 8 T. R. 335 ; and see Crauch v. White, 1 Bing. N. C. 417, E. C. L. R. vol. 27 ; 1 Scott, 314, S. C. (w) Taylor v. Croker, 4 Esp. 187 ; Nightingale v. Withington, 16 Mass. American Bep. 272 ; and see Drayton v. Dale, 2 B. & C. 299, 302, 9th ed., E. C. L. R. vol. 9 ; 3 Doug. 65, S. C. i Grey v. Cooper, 1 Selw. N. P. ; 3 D. & R. 534, S. C, E. C. L. R. vol. 16; Jones v. Dank, 4 Price, 300 ; Jeune v. Ward, 2 Stark. 330 ; 1 B. & Aid. 653, S. C. ; see post, Chapter on Accqiiance, {x) See Chapter on Acceptance. the infant in thejiame of the payee, on a declaration founded on the original con- sideration. It is evident that the Kentucky case can only be supported on this foot- ing, and contrary to its own syllabus, it really afBrms that the note is valid as a note, though it is not a negotiable note. See McMinn v. Richmonds, 6 Yerger, 9. (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 Boot, 273 ; West y. Moore, 14 Verm. 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, 226 ; Lewis v. Littlefield, 3 Shepley, 233 ; Fitts v. Hall, 9 N. Hamp. 441 ; Towne v. Wiley, 23 Vermont, 355. (2) An infant may, for a valuable consideration, indorse a negotiable promissory note or bill of exchange, so as to transfer the property to an indorsee. Nightingale V. Withington, 15 Mass. 272. CAPACITY OP CONTRACTING PARTIES. 131 *An infant may sue on a bill.(2/) But payment should be „ made to his guardian, yet payment to the infant may, under <- some circumstances, be good.(«) An infant is not estopped by his own representations.(a) It is a general rule of universal law, that the contracts of a lunatic, an idiot, or other person non compos mentis, from age or personal infirmity, are utterly void.(J) And the old authorities in the English law, that a man cannot be allowed to stultify himself by alleging his own lunacy, are shaken by the modern decisions. (c) 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 yoid even in the hands of an indorsee, at least if there be anything unusual on the face of the note.((^) So, if the consideration be executory merely, it was said that it might perhaps be void, though the party dealing with the lunatic were not cognizant of his infirmity.(e) But it was held, that a defendant could not set up his own insanity as a defence, unless it were known and taken advantage of by the plaintiff, so that there was a fraud in him.(/) And it still seems that in order to avoid a contract for lunacy it must be known to the other contracting party.(^)(l) {y) Chitty, 20 ; Warwick v. Bruce, 2 M. & Sel. 205 ; HoUiday v. Atkinson, 5 B. & C. 501, E. C. L. R. vol. 11 ; 8 D. & C. 163, S. C. (z) Bayley, 255. (a) Cannam v. Parmer, 2 Bxeli. Rep. 598.* (6) Puriosus nullum negotium gerere potest, quia non intelligit quid agit. Inst. Lib. 3, tit. 20, s. 8 ; Dig. Lib. 50, tit. 1, 5, 40, 124. (c) Kent's Comm. 451 ; and see the observations of Parke, B., in Gore v. Gibson, 13 M. & W. 623 ;* and Aleock v. Alcock, 3 M. & G. 268, E. C. L. R. vol. 42. {d) Sentence v. Poole, 3 C. & P. 1, E. C. L. R. vol. 14 ; Baxter v. Lord Ports- mouth, 2 C. & P. 1T8, B. C. L. R. vol. 12 ; 5 B. & C. 110, E. C. L. R. vol. 11 ; 8 Dowl. & R. 614, S. C. (e) Ibid. (/) Brown v. Joddrell, 1 M. & M. 105, E. C. L. R. vol. 22 ; 3 C. & P. 30, E. C. L. R. vol. 14, S. G. ; Levy v. Baker, 1 M. & M. 106, E. C. L. R. vol. 22 ; but see Gore V. Gibson, 13 Mees. & W. 623.* In Putnam v. Sullivan, 4 Massachusetts American Reports, 45, it is said by Parsons, C. J., that, "perhaps, if a blind man had a note falsely and fraudulently read to him, and he indorsed it, supposing it to be the note read to him, he would not be liable as indorser, because he is not guilty of any laches." It is, however, conceived that he must plead the fraud specially. (^r) Molton v. Camroux, 4 Ex. Rep. 19.* (1) Sanity is to be presumed, and the burden of proof is on the party denying it. But after a general derangement has been shown, the burden is upon the other party to show the sanity at the time of doing a particular act. Jackson v. Van 132 BYLES ON BILLS OF EXCHANGE. Imbecility of mind cannot be proved under a plea that defendant did not make a promissory note. (A) It was formerly held, that a man could not protect himself from *any deed or agreement by pleading drunkenness, unless he L J also showed, that the drunkenness was brought about by the management and contrivance of him who procured the deed or con- tract.(t) And this may still be the law in a case oi partial drunken- ness. (1) [h) Harrison v. Richardson, 1 Mood. & Rob. 504. (i) Johnson v. Medlicotte, 3 P. Wms. 130 ; Cooke v. Clayworth, 18 Vesey, 12. Dusen, 5 Johns. 144. To set aside promissory notes on the ground of mental inca- pacity, it is not necessary to prove partial derangement. It is sufficient if there appears such weakness of mind as to incapacitate the party to guard himself against imposition and undue influence. Johnson v. Chadwell, 8 Humph. 145. An inquisition of lunacy is not conclusive against any person not a party to it. Den V. Clarke, 5 Halst. 21Y. It is, however, not only prima facie evidence of lunacy, but amounts to full proof until overpowered. Rogers v. Walker, 6 Penna. State Rep. 3Y1. The acta of a lunatic before office 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 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. Seaver 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 the time of the purchase, unless there has been a fraud com- mitted on him by the vendor, or he has knowledge of his condition. Beals v. See, 10 Barr, 56. The executed contract of a non compos mentis for necessaries bona fide supplied, stand on the footing of an infant's contract for necessaries. Therefore the executor of a lunatic is liable for necessaries furnished to his testator, while non coiupos mentis before a commission issued, and after the issuing of the commission and before the appointment 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 void, but such a^are fairly made with them for necessaries; or things suitable to their condition and habits of life, will be sustained. Richardson v. Strong, 13 Iredell, 106. ■ (1) Mental incapacity at the time of contracting, produced by drunkenness or any other cause, is a good defence against a contract, whether by deed or parol. Jenners v. Howard, 6 Blaekf 240. 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, 24 Vermont, 424. A note given by one incapable to contract from drunkenness, is not merely CAPACITY OF CONTRACTING PARTIES. 133 But where there is total drunkenness the modern decisions have qualified the old doctrine. Total drunkenness, producing a complete, though temporary, suspension of reason, is of itself a defence to an action on a bill or note.(^) '•' It is just the same," says Alde'rson, B., " as if the defendant had written his name on the bill in his sleep in a state of somnambulism. "(Z) But as an answer to an action on a bill or note, drunkenness must be specially pleaded, (m) The contracts of a married woman are void in law. Without authority from her husband, therefore, she cannot at law charge either him or herself, by making, drawing, accepting, or in- dorsing, negotiable instruments ;(w) not even if she live apart from him, and have a separate maintenance secured by deed.(o) Nor after a valid divorce, ^ mensa et thoro ■,{p) though it is otherwise after a complete divorce, a 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, (g') (1) {h) At least by a person who had notice. Molton v. Camroiix;, 2 Ex. Kep. 487 ;* 4 Ex. Rep. 17,* S. C. (Z) Gore V. Gibson, 13 M. & W. 623.* Marriages have been set aside on this ground. Browning v. Reane, 2 Phil. 69. (m) Ibid. («) She cannot, like an infant, convey a title to third persons. Barlow v. Bishop, 1 Bast, 432 ; 3 Bsp. R. 266, S. C. (0) Marshall v. Rutton, 8 T. R. 545. In one case the Court of C. P. refused to discharge out of custody a married woman, who had been arrested as the drawer of a bin of exchange. Jones v. Lewis, 7 Taunt. 54, B. C. L. R. vol. 2 ; 2 Marsh. 385> S. C. [p) Lewis v. Lee, 3 B. & C. 291, B. C. L. R. vol. 10 ; 6 D. & E. 90, S. C. (g) Beard v. Webb, 2 B. & P. 93. voidable but void, and is incapable of confirmation by the subsequent conduct of the maker. Barkeley v. Cannon, 4 Richardson, 136. (1) A promissory note made by a married woman during coverture is void, and a promise to pay the same made by her after her husband's death, without any new consideration moving her thereto, will not support an action against her. Vance V. Wells, 6 Alabama, 737. Where the wife purchased goods without the knowledge of her husband, and gave 134 BTLBS ON BILLS OF EXCHANGE. Nor can a married Tvoman be estopped by her own representation that she is discovert.(»-) But an acceptor may be estopped from dis- puting her competency, (s) But if a married woman have a separate estate, and make a promis- sory note, or accept a bill of exchange, she is liable in equity.(«g) ^ *And if, while she has a separate estate, she gives a security '- -* for money lent, and after her husband's death promise to repay it, such promise is binding at law on herself and her execu- tors, (i) 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, (m) And, if the husba,nd has been transported, and is not returned to this kingdom, whether or no the term of his transportation be ex- pired ;(v) or if he be an alien, and never was within the kingdom ;(w) or if her husband has been abroad, 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. (1) Where the husband was transported for fourteen years, but instead of going abroad he was confined in the hulks 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 (r) Cannam v. Farmer, 3 Ex. Rep. 698.* («) See the Chapter on Acceptances. {ss) Bullpin V. Clarke, 17 Ves. 366 ; Hnlme v. Tenant, 1 Bro. C. C. 16 ; Stewart V. Kirkwall, 3 Madd. 387. Query, where there is a restraint on anticipation, (<) Lee V. Muggeridge, 5 Taunt. 36, B. C. L. R. vol. 1. («) Lloyd V. Lee, 1 Stra. 94; Littlefield v. Shee, 2 B. & Ad. 811, E. C. L. R, vol. 22. (u) Carrol v. Blencow, 4 Bsp. 27 ; Sparrow v. Carruthers, cited 2 W. Bla. 1197, and more fully 1 f!. R. 7. See Derry v. Duchess of Mazarine, 1 Ld.,Raym. 147. (w) Kay V. Duchess de Pienne, 3 Camp. 123. her note for them, the husband was held not to be liable. Moses v. Pogartie, 2 Hill, (South Carolina), Rep. 335. 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, 2 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. Mlnard v. Mead, 7 "Wend. 68. (1) 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, 3 Missouri, 254, 2d ed. 182. CAPACITY OE CONTEACTING PARTIES. 135 that a bill accepted by her under sucb circumstances, constituted a good petitioning creditor's debt.(2;) "Where a bill or note is given to a single woman, and she marries, the property vests in her husband, and he alone can indorse it;(«/) and husband and wife muBt join in the action upon it •,{z) but if pay- able to order, marriage may operate as an indorsement, so as to enable the husband to sue alone.(a) If not recovered upon, or reduced into possession during their joint lives, it reverts to the woman, if she sur- vive, or goes to the husband as her administrator, if he survive. (6)(1) If the note be made to the woman after marriage, the interest vests in the husband ; he alone can indorse it.((?) But if the hus- band die *without a recovery on it, or reducing it into pos- j- ^g„-, session, the note belongs, at law, to the wife, and not to the (cc) Ex parte Pranks, 1 Bing T62, B. C, L. R. vol. 20. (jf) Connor v. Martin, 3 Wilson, 5 ; 1 Stra. 516, S. C. (z) Com. Dig. Baron & Feme, N. (a) Mac Neillage v. Holloway, 1 B. & AH. 218. Aa to some observations of Lord EUenborough in this case, see the judgment of the Court of Queen's Bench, in Hart v. Stephens, 14 L. J. 149, Q. B. ; 6 Q. B. Rep. 943, E. C. L. R. vol. 51, S. C. (6) Co. Litt. 351, b. ; Coppin v. , 2 P. Wms. 497 ; Day v. Padrone, 2 M. & S. 396, B. C. L. R. vol. 28. (c) Connor v. Martin, 1 Stra. 516 ; 3 Wik. 5, S. C. ; Barlow v. Bishop, 1 Bast, 433 ; Mason v. Morgan, 2 Ad. & BUis, 30, B. C. L. R. vol. 29 ; 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, E. C. L. R. vol. 20 ; 5 M. & P. 513 ; 4 C. & P. 594, E. C. L. R. vol. 19. 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 indorsement was by the hus- band's authority. Cotes v. Davis, 1 Camp. 485. Where in an action by the indorsee of a bill against the acceptor, the declaration 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. C. 435, B. C. L. R. vol. 27 ; 1 Scott, 342 ; 3 Dowl. 382, S. C. (1) A note made payable to a married woman, is in law a note to the husband, and becc^ines instantly his property ; and her indorsement transfers no property in the note. Savage v. King, 17 Maine, 301 ; Shuttleworth v. Noyes, 8 Mass. 229 ; Jones V. Warren, 4 Dana, 333. A feme covert may indorse in her maiden name, a note which was left her before marriage, provided her husband's assent be given. Miller v. Delamater, 12 Wend. 433. 136 BYLBS ON BILLS OF EXCHANGE. husband's executors, and she must bring the action.(^ If the con- sideration for the note were the husband's money, it is conceived that the wife would be a trustee for the husband's executors.(e) The wife may join in an action on the instrument ;(/) but the husband may sue alone.(^) If he sue alone, he lets in, by way of set-off, debts due from himself; if he join his wife in the action, perhaps he lets in, as a set-off, debts due by her dum sola. (A) What amounts to a reduction of the wife's chose in action into possession, is a question of considerable nicety. It is conceived 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 pos- session ; and therefore the assignees of a bankrupt cannot maintain an action in their own name alone, on a promissory note made to the wife of the bankrupt before her marriage. (/) Nor is the receipt of interest by the husband(A;) a reduction into possession.(l) [d] Betts V. Kimpton, 2 B. & Ad. 273, B. C. L. E. vol. 22 ; Richards v. Rich- ards, 2 B. & Ad. 447, E. C. L. R. vol. 22 ; Gaters v. Madely, 6 M. & W. 423 ;* Hart V. Stephens, 14 L. J. 148, Q. B. ; 6 Q. B. Rep. 937, B. C. L. R. vol. 51, S. C. ; Scarpellini v. Atoheson, 14 L. J. 333, Q. B. ; Howard v. Oaks, 18 L. J. 485, Bxoh. ; 3 Bxch. Rep. 136,* S. C. See this last case as to the form of pleading. Coverture of the plaintiffs is only pleadable in abatement. Guyard v. Sutton, 3 C. B. Rep. 153, E. C. L. R. vol. 54. (e) Philliskirk v. Pluokwell, 2 M. & Sel. 396. (/) Philliskirk et Uxor v. Pluokwell, 2 M. & Sel. 393; Arnould v. Revoult, 1 B. & B. 44.3, B. C. L. B. vol. 5 ; 4 Moore, 70, S. C. (g) Burrough v. Moss, 10 B. & C. 858, E. C. L. R. vol. 21 ; 6 M. & R. 296, S. C. ' [h] Ibid. (i) Scarpellini v. Atcheson, 14 L. J. 333, Q. B. ; 7 Q. B. Rep. 864, E. C. L. R. vol. 53, S. C. [j) Sherrington v. Yates, in error, 12 M. & W. 855,* reversing Yates v. Sherring- ton, 11 M. & W. 42.* (/c) Hart V. Stephens, 6 Q. B. Rep. 937, B. C. L. R. vol. 51. (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. Hay- ward, 20 Pick. 517 ; Strong v. Smith, 1 Metcalf, 476 ; Miller's Estate, 1 Ashmead, 323 ; Kintzinger's Estate, 2 Ashmead, 455 ; Killcrease v. KiUcrease, 7 Howard (Miss.), 311; Taliaferro v. Taliaferro, 4 Call. 83; Bell v. Bell, 1 Kelley, 637; Clarke v. M'Creary, 12 Smedes & Marshall, 347. An assignment by a husband of a present interest of his wife in personal property is a suflScient reduction to pos- session, and passes the property to the assignee. Browning v. Headley, 2 Robin- son, 340; Forrest v. Warrington, 2 Dessausnre, 254; Matheneyv. Guess, 2 Hill.Ch. (S. C.) 63 ; Thomas v. Kelsoe, 7 Monroe, 521 ; Rogers v. Bumpass, 4 Iredell Bq. 385 ; Barnes v. Pearson, 6 IredeU Bq. 482 ; Swoyer's Appeal, 5 Barr, 377 ; Siter's Case, 4 Rawle, 468. An assignment under an insolvent law, being a voluntary act by the husband, CAPACITY OF CONTRACTING PARTIES. 137 If a single -woman, being a party liable on a bill or note, marries, her busband becomes responsible, and they mubt be sued jointly.(Z) If (the debt being still unsatisfied) he dies, *she is liable, and ^ ^^^ not his executors ; if she dies, her representatives are liable,- if there be assets, but not her husband, except in his- representative capacity, (m) When a joint and several promissory note -was, during marriage, given to a feme executrix, by her husband and t-wo other persons, it -was held, that after her husband's death she might sue the other makers.(w) And, though 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.(o) Payment of a sum due on a bill or note to a married -woman -will not discharge the party making it, unless she had authority, express or implied, to receive payment. It should be made to her hus- band.(p)(l) By attainder the felon's personal property and choses in action vest in the crown, -without office found. The felon, till he has (Z) MitcUnson v. He-wson, 7 T. E. 348. (to) Ibid. («) Richards v. Eichards, 2 B. & Ad. 44Y, B. C. L. R. vol 22. (0) Holy V. Lane, 2 Atk. 182. (p) Bayley, 256. in order to entitle himself to the benefit of the la-w, defeats the -wife's right of survivorship. Rich-wine v. Keirn, 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 Ra-wle, 279 ; Latourette v. Wil- liams, 1 Barbour, 9. A husband's disclaimer of conversion to his o-wn use, at the time of reducing his -wife's chose in action to possession, may be established by his subsequent admissions, but they must be deliberate, positive, precise, clear, and consistent. Gray's Estate, 1 _Barr, 327 ; Tieibers v. Katz, 6 Watts & Serg. 290 ; Hind's Estate, 5 Wharton, 135. A husband, -who survives his -wife, is en- titled to all her choses in action, -whether reduced into his possession in his life- time or not ; and in case of his death they go to his personal representatives. Whitaker v. Whitaker, 6 Johns. 112 ; Revel v. Revel, 2 Dev. & Bat. 272 ; Peyer v. Kar-wen, 2 Dessaus. 419 ; Lee v. Wheeler, 4 Georgia, 641. (1) Thrasher v. Tuttle, 9 Shepley, 335. 188 BYLBS ON BILLS OF EXCHANGE. undergone his punishment is incapable of taking. Therefore, if a bill be indorsed to him, he acquires no title to it.(2') A contract in favor 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 in- dorsed to a British subject abroad, cannot be enforced even after the restoration of peace.(r) In general, a corporation can only contract by writing under their common seal. But to this rule there are exceptions, which the reader will find enumerated in the case of East London Waterworks Company v. Bayley, 4 Bing. 283. And among them is the power of issuing bills or notes enjoyed by a company incorporated for the purposes of trade, the very object of whose institution requires that they should exercise this privilege. (s)(l) (2) Bullock V. Dodds, 2 B. & Aid. 258. Ir) Willisou v. Pattison, 1 Taunt. 439, E. C. L. R. vol. 2, 1 Moore, 333, S. C; Brandon v. Nesbitt, 6 T. & R. 23. [s] Broughton v. Manchester Waterworks Company, 3 B. & Aid. 1 ; E. C. L. R. vol. 5. (1) The old doctrine that a corporation can contract only under its corporate seal is now repudiated. Chestnut Hill Turnpike Co. v. Rutter, 4 Serg. & Rawle, 16 ; Bank U. S. v. Dandridge, 12 Wheat. 64 ; Bank of Columbia v. Patterson, 1 Cranch, 299 ; Pleckner v. Bank U. S., 8 Wheat. 338 ; Hamilton v. Lycoming Insurance Co., 5 Penna. Stat. Rep. 339. An insurance company may make a valid promissory note. Barker v. Mechanic Ins. Co., 3 Wend. 94. A note in the form " I, G. C. L., treasurer" of a corporation, " promise, &c.,'' is the note of the corporation. Mann v. Chandler, 9 Mass. 335. But see Tucker v. Bass, 5 Mass. 164. Power to advance money for a corporation will not authorize signing a note for them. Webber v. Williams College, 23 Pick. 302. A factor employed by the general agent of a corporation to sell the goods manu- factured and to purchase stock, has power to buy on credit, but not to give the note of the corporation. Emerson v. Providence Manufacturing Co., 12 Mass. 237. The general agent of a corporation can give their note for purchases necessary to carry on their business. Odiorne v. Maxcy, 13 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 Michigan," and accepted by writing across the face thereof, " Accepted, John A. Wells, Cashier," is drawn upon and accepted by the bank, and not by Wells CAPACITY OP CONTRACTING PARTIES. 139 But a company incorporated for carrying on public works is not a corporation within the above exception.(f) *A corporation may, like natural persons, sue in assumpsit. ^ro-\ The old doctrine that the consideration must not be executory, •- -^ so that promises by it need not be alleged,(M) seems to be overruled.(w) And a corporation is liable to be sued in that form of action, on ne- gotiable instruments, wherever it has the- power to issue them.(w)(l) The capacity of corporations to make, draw, or accept negotiable instruments, is further narrowed by the following enactment, con- tained in the various statutes passed for protecting the privileges of the Bank of England ■,{x) " 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 num- ber of six persons, in England, to borrow, owe, or take up any sum or .sums of money on their bills or notes payable at demand, or at any less time than six months from the borrowing thereof, during the (t) Bronghton v. Manchester Waterworks Company, 3 B. & Aid. 1. (m) Mayor of Stafford v. Till, 4 Bing. Y5, E. C. L. R. vol. 13 ; 12 Moore, 260, S. C. {v) Church t. Imperial Gas Company, 6 Ad. & E. 861, E. C. L. R. vol. 33 ; Mayor of Ludlow v. Charlton, 6 M. & W. 815 ;* Paine v. Guardians of the Strand Union, 15 L. J. 89, M. Ca. (w) Murray v. Bast India Company, 5 B. & Al. 204, E. C. L. R. vol. T. (x) 39 & 40 Geo. 3, c. 28, s. 15. 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 commission, may lawfully accept bills drawn on account of future consignments. Munn v. Commission Company, 15 Johnson, 44. (1) A cashier has prima facie authority to indorse, on behalf of the bank, securi- ties held by it, and any restriction on this authority must be proved by the party contesting it. Wild v. Passamaquoddy Bank, 3 Mason, 505 ; Pleckner 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 Marsh. 241 ; Harper v. Cal- houn, 7 How. Miss. 203 ; Parrar 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, though the name of the corporation is not used, if it be drawn or accepted tinder a name adopted by the corporation. Conro v. Port Henry Iron Co., 12 Barbour, 27. 140 BYLBS ON BILLS OF EXCHANGE. \ continuance of the privilege of banking granted to the Governor and Company of the Bank of England."(y) It has been held that these restrictions do not affect a commercial firm consisting of more than six persons.(s) But in consequence of the panic in the latter part of the year 1825, 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 copartnerships 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 copart- nerships may issue notes or bills amounting to 50?., payable in London or elsewhere at any period after date or sight, (a) The third section declares, that any such corporation or partner- ship may discount bills not drawn by or upon them. Each ofience against the provisions of the act subjects to a penalty of 50Z. The act by which the Bank Charter was renewed in 1833, the 8 & 4 Wm. 4, c. 98, continued the. privileges bestowed on the Bank of England by the 39 and 40 Geo. 3, and subsequent *acts, L -■ subject to termination on twelve months' notice, to be given after the first August, 1844. The privileges of the Bank are now further continued by the 7 & 8 Vict. c. 32, subject to termination on twelve months' notice, to be given after the first August, 1855. The 3 & 4 Wm. 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. (S) The 3 & 4 Wm. 4, c. 98, further declares that other corporations 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.(c) [y) For the history and exclusive privileges of the Bank of England more' at large, see the case of the Bank of England v. Anderson, 3 Bing. N. Ca. 589, B. C. L. B. vol. 32 ; 4 Scott, 50 ; Keen, 328. (2) Wigau V. Fowler, 1 Stark. 459, E. C. L. E. vol. 2. (a) The limitation of 50Z. appears to be abolished by the 3 & 4 Wm. 4, c. 83, s. 2, and t & 8 Vict. c. 32, s. 26. As to the mode of recovering penalties, see 8 & 9 Yict. c. 76, s. 5. (6) 3 & 4 "Wm. 4, c. 98, s. 2. (c) Sec. 3. Therefore a banking partnership of more than six persons, in LondoBJ 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 Bing. N. C^ 589, B. C. L. R. vol. 32 ; 4 Scott, 50 ; Keen, 328, S. C. But the restriction is \^ laxed by the 7 & 8 Vict. c. 32, s. 26. CAPACITY OF CONTRACTINa PARTIES. 141 That the notes of the branch banks of England shall be made pay- able where issued. (cZ) The, Bank of England can issue bank notes unstamped, (e) and has the exclusive privilege of doing so within the city of London and three miles thereof.(/) No person who was not a banker issuing his own notes on the 6th ■of May, 1844, can now issue bank notes.(^) Banks of six, or fewer than six persons, existing 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 provi- sions of 9 Geo. 4, c. 23, s. 1. Banking corporations and companies of more than six persons can- not issue in London or within sixty-five miles thereof any bill or note payable on demand.(A) Every member of a banking partnership is liable to the payment of outstanding notes, though he were not a partner when they were issued. («') *The law as to the liability of directors of joint stock com- panies drawing, accepting, or indorsing bills, involves some L ^ J nice distinctions, and is, perhaps, not yet very clearly settled. It is conceived, however, 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 scrip.(Z) If, however, having authority to bind the company by bills, the directors accept, in the name of the company, a bill drawn on the company, it is conceived that every member of the company is liable {d) 3 & 4 Wm. 4, c. 98, s. 4. (e) 7 & 8 Vict. c. 32, s. 7. (/) 9 Geo. 4, c. 23, s. 1. {g) 7 & 8 Viet. i.-. 32, ss. 10, 11, 12. (h) 39 & 40 Geo. 3, c. 28, s. 15 ; 3 & 4 Wm. 4, c. 98, s. 3 ; and see 3 & 4 Wm. 4, c. 83, s. 2. See further Bank of England v. Anderson, supra, and Booth v. Bank of England, 6 Bing. N. C. 415, E. C. L. E. vol. 37 ; 1 Scott, N. R. 701, S. C. See also the provisions of 7 Geo. 4, c. 46 ; 7 & 8 Vict. c. 32, s. 26, and 8 & 9 Viet. o. 76. (i) 7 Geo. 4, c. 46, s. 1. (k) Page 26. (I) Pox V. Frith, 10 M. & W. 131.* 142 BYLES ON BILLS OF EXCHANGE. as a joint acceptor to any holder, not being also a member of the company, (m) An authority(w) to make contracts and bargains, and to transact all matters requisite for the affairs of the company, will not in general authorize the directors to draw bills, (o) Directors signing a joint and several note are personally responsi- ble. (^) If a bill be drawn on several trustees or directors, who have power to bind each other, an acceptance by one in his own name is the ac- ceptance of all.(g') Notice to one member of a joint stock company is not notice to all.(r) If persons who fill ofiScial situations, as churchwardens, overseers, surveyors, commissioners, managers of joint stock banks, 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 commis- sioners," bind the commissioners personally, (s) So does a promissory note given by A. and B. as churchwardens and overseers.(<) So it is conceived that the legal interest in a bill or note given to an officer in his name of office, vests in the person *who hap- L J pens to fill the office at the time. Thus, a note given to the manager of a joint stock banking company vests at law in the person, who fills that office when the note is given.(M) 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.(«) But where a note is given to the treasurer of a friendly society for (m) See Teague v. Hubbard, 8 B. & C. 345, B. C. L. R. vol. 15 : 2 M. & R. 369, B. C. L. R. vol. 1?, S. C. ; Higgius v. Senior, 8 M. & W. 834 ;*'Fox v. Fritli, 10 M. & W. 131 ;* Steele v. Harmer, 15 L. J. Bxch. 217 ; 14 M. & W. 831 ;* 19 L. J. 34, Bxch. ; 4 Ex. 1,* S. C. {n) See as to bills by registered companies, 7 & 8 Vict. c. 110, s. 45. (o) Harmer v. Steele, 19 L. J. Bxch. 34; 4 Ex. 1,* S. C. {p) Healey v. Story, 18 L. J. 8, Exch. See also Penkivil v. Connell, 19 L. J. 305, Bxch. (g) Jenkins v. Morris, 16 M. & W. 877.* (r) Powles V. Page, 3 C. B. Rep. 31, B. C. L. R. vol. 64 ; Steward v. Dunn, 12 M. & W. 664.* (*) Baton v. Petet, 5 B. & Al. 34, B. C. L. R. vol. 7. [t] Rew V. Petet, 1 Ad. & E. 196, E. 0. L. R. vol. 28; 3 Nev. & M. 456, S. C. nom. Crew v. Retit and vide ante, p. 26. (u) Robertson v. Sheward, 1 M. & Gran. 511, E. C. L. R. vol. 39 ; 1 Scott, N. B. 419, S. C. («) Megginson v. Harper, 4 Tyrwh. 96 ; 2 Cr. & M. 322,* S, C. FORM OF BILLS AND NOTES. 143 the time being, neither the treasurer -when the note is given, nor his successor in office, can maintain an action on the note, for the acts of Parliament, establishing friendly societies, contemplate proceed- ings by complaint before a justice of the peace.(w) *CHAPTEIl VI. OF THE FORM OF BILLS AND NOTES. [*56] ON WHAT SUBSTANCE THET MAT BE WKITTBN, .... 56 IN WHAT LANGUAGE, 56 IN PENCIL OE IN INK, 56 SIGKATURE BT MAKK, 57 OF THE SUPEKSORIPTION OP THE PLACE WHERE MADE, . 57 OF THE DATE, .... 57 OF THE SUPERSOBIPTION OF THE SUM PAYABLE, .... 58 OF THE TIME WHEN PAYABLE, . 58 OP USANCE, .... 59 OP THE REQUEST TO PAY, 59 OF THE NAME OF THE PAYEE, . 60 OPTHEWORDS "oRDEk" OR "bEARER," 62 OP THE SUM PAYABLE, . . .62 BILLS AND NOTES UNDER 20s, . . 63 BILLS AND NOTES UNDER 5/. . ., 6.3 OP THE WORDS "tALUE RECEIVED," . 63 OTHER STATEMENT OF THE CONSIDERA- TION, 64 OF THE drawer's SIGNATURE, . . 65 OF THE DIRECTION TO THE DRAWEE, . 66 OP THE PLACE WHERE MADE PAYABLE BY THE DRAWER, . . . .66 OF THE DIRECTION TO PLACE TO AC- COUNT, 67 OF THE WORDS " AS PER ADVICE," . 67 Bills and notes are usually, but it is apprehended not i^ecessarily, written on paper. It is conceived that they might be' written on parchment, cloth, leather, or any other substitute for paper capable of being transferred from hand to hand. 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 de- cision 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 obliterated, will prevent its being generally (to) Timms v. 'Williams, 3 Q. B. Rep. 413, E. C. L. R. vol. 43. 144 BTLES ON BILLS OF BXOHAlirGE. adopted."(«) Contracts written in pencil have been ad- L -I mitted* at Nisi Prius,(J) and testamentary writing often in the Ecclesiastical Courts.(c) The signature or indorsement of negotiable instruments may be by a mark.(i) * 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 bank must, unless stamped as a bill, express the place where drawn, and such place must be written within fifteen miles of the banker's place of business, (e) The 9 Geo. 4, c. 65, prohibits the circulation of all negotiable notes or bills under 51. or on which less than 51. shall remain undis- charged, payable to bearer on demand, and which were made, or pur- port to be made, in Scotland, or Ireland, or elsewhere, out of England, under the penalty of 201., 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.(/)(l) And if in pleading it be stated 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.(5r) (a) Geary v. Physic, 5 B. & C. 234, E. C. L. R. vol. 11 j 7 Do*, h B. 653, S. C. (6) Jeffery v. Walton, 1 Stark. 267, E. C. L. B. vol. 2. (c) Rhymes y^ Clarkson, 1 PhiL 22 ; Green v. Shipworth, 1 Phil. 53; Dickenson V. Dickenson, 2 Phil. 173. {d) George v. Surrey, 1 M. & M. 516, E. C. L. R. vol. 22. (e) 55 Geo. 3, c. 184, s. 13 ; 9 Geo. 4, c, 49, s. 15. See the Chapter on Checks. (/) De la Courtier v. Bellamy, 2 Show. 422 ; Hague v. French, 3 B. & P. 1V3 ; Giles V. Bourn, 6 M. & Sel. 73 ; 2 Chit. B. 300, S. C. {g) Ibid. (1) The indorsee, in a suit against the maker, may prove that there was a mistake in the date of the note. Drake v. Bogers, 32 Maine, 524. In an action on a promissory note, which bears date on Sunday, it is competent to allege and prove that it was, in fact, executed and delivered on a' different day. Aldridge v. Branch Bank, 17 Alabama, 45. A note is not invalidated by being antedated. Gray v. Wood, 2 Har. & Johns. 328 ; Bichter v. Selin, 8 Serg. & Bawle, 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 pre- sumed, until the contrary appear. Woodford v. Dorwia, 3 Vermont, 82 ; Lansing V. Gaiue, 2 Johns. 300. FOEM OF BILLS AND NOTES. 145 The date expressed in the instrument is (except when it is tendered by assignees of a bankrupt as evidence of a petitioning creditor's debt,)(A) prima facie evidence of the time when the instrument was made.(i) Promissory notes, payable to bearer on demand, must not have printed dates, under the penalty of 50l.{j) *In general, a bill or note maybe postdated.(A;) But if r*rg-i this is done so as to postpone the time of payment 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 lOOZ. is incurred,(Z) and the instrument is inadmissible in evi- dence. (m) But an unstamped bill or note issued by bankers under the provi- sions of 9 Geo. 4, c. 23, must not be postdated, under the penalty of im.{n) All negotiable bills, notes, or drafts, for 20s. or any sum between 20s. and 51. must bear date before or at the time of issuing, under the penalty of 20Z.(o) Postdating a check invalidates it, and subjects to a penalty of 100Z.(p) The usual allegation that a bill or note was made on a particular day is not matter of description, and the day need not be proved as laid.fj) It would be otherwise if the declaration went on to describe the instrument as bearing date on a particular day. {h) Wright V. Lainson, 2 M. & "W". 739 ;* 6 Dowl. 146, S. C. ; see post. (0 Anderson v. Weston, 6 Bing. N. C. 296, B. C. L. E. vol. 37 ; 8 Scott, 853, S. C. ; Taylor v. Kinloch, 1 Stark. 175, E. C. L. R. vol. 2 ; Obbard v. Bethara, 1 M. & M. 486, E. C. L. R. vol. 22 ; Smith v. Battens, 1 M. & Rob. 341 ; but see Cowie v. Harris, 1 M. & M. 141, B. C. L. R. vol. 22 ; 4 M. & P. 722, S. C. ; Rose v. Rowcroft, 4 Camp. 245. And this rule applies to written documents in general. Sinclair v. Baggaley, 4 M. & W. 312 ;* Davies v. Lowndes, 7 Scott's New Rep. 213; Potez v. Glossop, 2 Exch. Rep. 195 ;* Harrison v. Clifton, 17 L. J. 233, Bxch. 0') 55 Geo. 3, c. 184, s. 18. {k) Pasmore v. North, 13 East, 517. {I) 55 Geo. 3, c. 184, s. 12. (m) Field v. Woods, 6 Dow. 23 ; 7 Ad. & El. 114, B. C. L. R. vol. 34 ; 2 N. •& P. 117, S. C. ; Serle v. Norton, 9 M. & W. 309.* (n) S. 12. (o) 17 Geo. 3, c. 30, revived by 7 Geo. 4, c. 6. {p) 55 Geo. 3, c. 184, s. 13 ; 9 Geo. 4, c. 49, o. 15. See the Chapter on Checks. iq] Coxon v. Lyon, 2 Camp. 307, n. ; Smith v. Lord, 14 L. J. 112, Q. B. 10 146 BYLBS ON BILLS OF EXCHANGE. The sum for -vvhieli a bill is made is usually superscribed in figures ; in a note or check, the figures are commonily subscribed. The superscription or subscription of the sum payable is not neces- sary, if the sum be stated in the body of the note, but it will aid an omission in the body : as, where the word fifty was written in the body of the note, without the ^flor^Lpounds.{r) The time of payment is regularly and usually stated in the begin- ning of the note or bill ; but, if no time be expressed, the instrument will be payable on demand.(s)(l) Negotiable bills or notes under 5Z. must be made payable within *the space of twenty-one days from the date.(^) But in other L -" cases there is no limitation as to the time when the bill or note is made payable, but it may be on demand, or at sight, or any certain period after date, or after sight, 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."(M) The expression, after sight, on a bill 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. (f)(2) But if a note is made at or after sight, the expression merely imports that payment is not to be demanded till it has been again exhibited to the maker, (w) for a note being incapable of accep- (r) Eliot's ease, 2 Bast, P. C. 951 ; 1 Leach, 1Y5, S. C. \s) Whitlock V. Underwood, 3 Dowl. & R. 356 ; 2 B. & C. 157, B. C.L.R. vol. 9; S. C. ; Down V. Hailing, 4 B. & C. 333, E. C. L. R. vol. 10 ; 6 Dowl. & R. 455 | 2 C. & P. 11, B. C. L. R. vol. 12, S. C. ; Bayley, 5tli ed. 109. But on a motion to set aside an annuity, the Court will not assume that even a Bank of England note, or a draft on a banker, is payable on demand. See the cases collected in the recent case of Abbott v. Douglas, 1 C. B. Rep. 491, E. C. L. E. vol. 50. {t) 11 Geo. 3, c. 30. {%) Willis, C. J., Colehan v. Cooke, Willes, 396. (») Marius, 19, cited by Lord Kenyon in Campbell v. French, 6 T. R. 212. (w) Holmes v. Kerrison, 2 Taunt. 323 ; Sturdy y. Henderson, 4 B. & Aid. 592, E. C. L. R. vol. 6 ; Sutton v. Toomer, T B. & C. 416, E. C. L. R. vol. 14 ; 1 M. & (1) A note payable "twenty-four after date," is not void for uncertainty, nor is it a note. payable on demand: it is payable some time after date. It may be averred in the declaration that twenfy-four months after date was the time meant by the parties ; and the jury will be the judges of the fact of the time of payment intended. Conner v. Routh, Y Howard (Miss.), 1Y6. (2) A bill payable so many days after sight, means legal sight, and the bill begins to run from the presentment and acceptance, and not from the time of mere pre- sentment. Mitchell V. De Grand, 1 Mason, 176. FORM 0]? BILLS AND NOTES. 147 tance, 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, usances, or, as it is sometimes expressed, at single, double, treble, or half usance. Usance signifies the usage of the countries between which bills are drawn with respect to the time of payment. If a foreign bill be drawn, payable at sight, or at a certain period after sight, the acceptor will be liable to pay according to the course of exchange at time of acceptance, unless the drawer express that it is payable ac- cording to the course of exchange at the time it is drawn, en especes de ce jour.(a;) Where half usance stands for half a month, it is fif- teen 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.(«/) The order to pay need be in no particular form ; any expression amounting to an order,(2) or direction, is suffieient.(a) *The ruten-i word "pay" itself is not indispensable. Any synonymous or equivalent expression will suffice, as " Credit in Cash. "(J) The payee should be particularly described, so that he cannot be confounded with another person of the same name. But if the bill get into 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 Ry. 125, S. C. ; Dixon v. Nuttall, 1 C, M. & R. 307 ;* 6 C. & P. 320, E. C. L. R. vol. 25, S. C. {x) Potli. 174. (2/) Vide post, Irregular Instruments. (z) Hamilton v. Spottiswood, 18 L. J. 393, Kxch. ; 4 Ex. 200,* S. C. (a) Beawes, 3 ; Marius, 11. In France, il vous plaira payer, is the common lan- guage of a bill. Morris v. Lee, 2 Ld. Raym. 1397 ; 1 Stra. 629, S. C. Qusre, 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." Ruff V. Webb, 1 Esp. 129. But Lord Tenterden held the following instrument not to be a biU : — " Mr. Little, _pfease let the bearer have seven pounds, and place it to my account, and you will oblige your humble servant, R. Slaokfobd." Little v. Slack- ford, 1 M. & M. 171, E. 0. L. R. vol. 22. " The paper," says his Lofdship, "does not purport to be a demand made by a party having a right to call on the other to pay. The fair meaning is, ' You will oblige me by doing it.' " But see Rus- seU V. Powell, 14 M. & W. 418.* (6) Ellison V. CoUingridge, 19 L. J. 268, C. P. 148 BTLBS ON BILLS OF EXCHANGE. into the hands of another Henry Davis than the one in whose favor it was drawn, was accepted by the defendant, and by the wrong Henry Davis was indorsed to the plaintiff. Held, that the indorse- ment of his own name by Henry Davis was, under these circum- stances, a forgery, and (dissentiente Lord Kenyon) could convey no title to the plaintiff.(c)(l) If the name be spelt wrong, verbal evi- dence is admissible to show who was intended.( > {y) Elliot's case, 2 Bast, P. C. 951 ; 1 Leach, 175, S. C. [z) Rex V. Port, Bayley, 12, 6th ed. * (a) Phipps V. Tanner, 5 C. & P. 488, E. C. L. R. vol. 24. (6) Taylor v. Booth, 1 C. & P. 286, E. C. L. R. vol. 12. (c) 17 Geo. 3, c. 30 ; 7 Geo. 4, c. 6. (1) Booth V. "Wallace, 2 Root, 247. 152 BTLBS ON BILLS OF EXCHANGE. corporation or copartnersliip consisting of more than six members, within sixty-five miles of London. ((^) There are some old cases tending to show that the words value re- ceived are an essential part of a bill ;(e) but it is now well settled that they are not at all material. (/)(1) It has been indeed laid down,(^) that " to entitle the holder of an inland bill or note for the payment of 20?., 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.' "(h) But it is conceived that this opinion is unfounded. It seems to rest on the assumption that a protest is necessary for this purpose, and that the statutes of Wm. 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 protest unnecessary for this purpose ;{{) and, even if it were [- ^f,^ -, necessary *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 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.(A) For this purpose, (d) 1 Geo. 4, e. 46, s. 2. See now tlie ? & 8 Vict. c. 32, and 8 & 9 Vict. c. 16. (e) Cramlington v. Bvaus, 1 Show. 5 ; Vin. Bills of Exch. Gr. 2. (/) White v. Ledwich, Bayley, 40, 6th ed. ; 4 Doug. 427, B. C. L. R. vol. 26, S. C. ; Grant v. Da Costa, 3 M. & Sel. 351 ; and see Poplewell v. Wilson, 1 Stra. 264, and infra, note (J). {ff) Chitty, p. 6T. (A) 9 & 10 Wm. 3, c. 17 ; 3 & 4 Anne, c. 9, s. 4. (0 Windle v. Andrews, 2 B. & Aid. 696 ; 2 Stark. 425, E. C. t. R. vol. 3, S. C. Ik) Per Bayley, J., 2 B. & Aid. 701. (1) The words "value received" are not necessary in a bill of exchange or other negotiable instrument. Benjamin v. Fillman, 2 McLean, 213 ; Townsend 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, nor at a particular place. Kendall v. Galvin, 15 Maine, 131. FORM OF BILLS AND NOTES. 153 therefore (if the statutes made any difference), a bill would be more readily effectual without these words than with them. It has been questioned whether an action of debt will lie on a bill, unless the consideration be expressed,(Z) but it is now decided that debt will lie although the consideration be not expressed, (w) The words " value received," are ambiguous, where the bill is drawn payable to a third person ; for they 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 interpretation ; 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."(?i) If, however, the bijl 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, (o) " Value received," in a note, means received by the maker of the payee. (^) Though the nature or particulars of the consideration appear on the bill or note, it is not necessary to state it in the declaration, or it may be stated generally as value received.(5') " The defendant," says Maule, J., " may prove that the note was given for a different consi- deration, or without any consideration at all."(r) *But it has been held that the defendant will not be allowed ^^„-^ I DO I .to contradict his written admission on the note, of the nature -* of the consideration. Where a note was given by the administratrix, and expressed to be " for value received by my late husband," she (Z) Bishop V. Young, 2 B. & P. Y8 ; Priddy v. Henbry, 3 D. & R. 165 ; 1 B. & C. 674, E. C. L. R. vol. 8, S. 0. (m) Hatch v. Trays ; Watson v. Kightly, 15 Ad. & B. 702 ; 3 Per. & Dav. 408, S. C. (re) Per Lord BUenborough, in Grant v. Da Costa, 3 M. & Sel. 351. (o) Highmore v. Primrose, 5 M. & Sel. 65. ip) Clayton v. Gosling, 5 B. & C. 361, B. C. L. R. vol. 11 ; 8 Dowl. & R. 110. (g) Coombs v. Ingram, 4 D. & R. 211,' E. C. L. R. vol. 16 ; Bond v. Stockdale, 7 D. & R. 110, E. C. L. R. vol. 16. (r) Abbott V. Hendrich, 1 M. & G. 796, E. C. L. R. vol. 89 ; 2 Scott, N. R. 183, S. C. Where the note on the face of it purported to be given for " value received in Pennance shares pursuant to annexed contract," it was held unnecessary to put in any contract. Fox v. Frith, Car. & Mar. 502. 154 BTLES ON BILLS OF EXCHANGE. was not allowed to show that the note was given only as an indemnity, and that the payee had not been damnified.(s)(l) The signature of the drawer or maker of a bill or note is usually subscribed in the right-hand corner ; but it is sufficient 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.(M) An allegation in pleading that a party made his bill or note is sufficient without alleging that he signed it, for making implies sign- ing. {v) If a deed be first executed, and then written or filled up, the deed is void ;(w) 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 amount warranted by the stamp. It is a letter of credit for an indefinite but not unlimited sum.(a;)(2) («) Ridout V. Bristow, 1 Cromp. & J. 231 ; 1 Tyr. 84, S. C. ; and see Edwards t. Jones, 2 M. & W. 414;* 5 Dowl. §85; 7 C. & P. 633, B. C. L. R. vol. 32, S. C. {€) Taylor v. Dobbins, 1 Stra. 399 ; Sannderson v. Jackson, 2 Bos. & Pul. 238. (m) George v. Surrey, 1 M. & M. 516, E. C. L. R. vol. 22. \v) Elliott V. Cowper, 1 Stra. 609; 2 Lord Jlaym. 13Y6, S. C; 8 Mod. 307; Ereskine v. Murray, 2 Lord Raym. 1542 ; 1 Barn. 88, S. C. (lo) Com. Dig. Fait, (A.) 1. \x) Collis V. Emett, 1 H. Bl. 313; Russell v. Langstaffe, 2 Doug. 496; Snaith V. Mingay, 1 M. & S. 87, E. C. L. R. vol. 28; Leslie v. Hastings, 1 M. & R. 119 ; Molloy v. Delves, 7 Biiig. 428, E. C. L. R, vol. 20 ; 5 M. & P. 275 ; 4 C. & P. 492, B. C. L. R. vol. 19, 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 op- pression 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, 2 Wash. C. C. Rep. 294 ; Lawrence v. The Stonington Bank, 6 Conn. 464; Parish v. Stone, 14 Pick. 198 ; Slade v. Halsted, 7 Cowen, 322 ; Pearson v. Pearson, 7 Johns. 26 ; Barnet v. Offerman, 7 Watts, 130. (2) 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 iuto the hands of another, who, without notice of the restriction, fills the blank with a, larger sum, the obligor will be bound by it. Bank of Commonwealth v. Curry, 2 Dana, 142. A person signing his name on a blank paper and delivering it to another author- izes him to fill up the blank with any sum. Bank of Limestone v. Penick, 5 Hon; roe, 25. FORM OF BIIiLS AND NOTES. 155 By the 17 Geo. 3, c. 30, in every negotiable bill, note, or draft, under 51, the signature of the drawer or maker must be attested by one subscribing witness at the least. And though, in all other cases, a subscribing witness is unnecessary, yet if there be one, he must be called ; but if he cannot prove it, other evidence is then admissible.(2/) So, if he purposely keep out of the way, or diligent search have been made for him without effect.(2) If a question arises whether a party signing a note *be the ^ ^gg -. same person who has done some other act, as for example, made a payment on account of the note, the aljtesting witness must be called. (a) A bill of exchange, being, in its original, a letter, should be pro- perly addressed to the drawee. But where a bill was made payable " at No. 1, Wilmot Street, opposite the Lamb, Bethnal Green, Lon- don," without mentioning the drawee's name, and the defendant ac- cepted it, he was not allowed to make the objection. (6) But a bill cannot be addressed to one man and accepted by another, (c) A bill directed to A., or in his absence to B., being accepted by A., may be declared on without taking notice of ^.(d) If the word at precede the drawee's name, whether inserted ignorantly or fraudulently, the instrument is still a bill of exchange.(e) A bill may be directed to the drawer himself, though it is, in that case, rather a note than a bin.(/)(i)- (y) Lemon v. Deane, 2 Camp. 636, n. [z) Burt V. Walker, 4 B. & Aid. 697, E. C. L. E. vol. 6. (a) Wilde v. Porter, 3 N. & M, 585, E. C. L. E. vol. 28. (b) Gray v. Milner, 8 Taunt. 639, E. C. L. E. vol. 4; 3 Moore, 90, S. C. (c) Davis V. Clark, 13 L. J. 305, Q. B. ; 6 Q. B. 16, B. C. L. E. vol. 51, S. C. (d) Anon. 12 Mod. 44T. (e) Shuttleworth v. Stephens, 1 Camp. 40T ; Eex v. Hunter, E. & E. C. C. 511 ; Allan V. Mawson, 4 Camp. 115. (/) Block V. Bell, 1 Mood. & Eob. 149 ; Starke v. Cheesman, Carth. 509 ; Dehers V.Harriott, 1 Show. 163; Eobinson v. Bland, 2 Burr. 1077; Jocelyn v. Laserre, Fort. 282 ; see Davis v. Clarke, 6 Q. B. Eep. 16, B. C. L. E. vol. 51. (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. Eandolph 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, 22. 156 BYLES ON BILLS OF EXOHANSB. If the drawer 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 direction, the acceptance will be general, within 1 & 2 Geo. 4, c. 78,(^) so as to charge the acceptor. The drawer hinaself cannot be charged, unless the bill have been presented at the place where the drawer himself made it payable.(A) This statute does not apply 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.(i) 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 L J pleading, and presentment there is not essential.(A;) But where the whole note was printed (except the names, dates, and sum), and a place of payment was also printed at the bottom of the note. Lord Ellenborough held that a special presentment at this particular place was necesBary.(/) If the drawer of a bill makes it payable at his own house, that circumstance is evidence of its being an accommodation bill.(m) The 7 Geo. 4, c. 6, s. 10, enacts that every promissory note under 20Z. 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 copartnerships or corporations of more {g) Selby v. Eden, 3 Bing. 611, E. C. L. R. vol. 11 ; 11 Moore, 511, S. C. ; Fajle V. Bird, 6 B. & C. 531, E. C. L. E. vol. 13 ; 9 Dowl. & R. 639, E. C. L. R. vol. 22. [h) aibb V. Mather, in error, 8 Bing. 214, E. C. L. R. vol. 21 ; 1 M. & Scott, 38T, S. C; 2 C. & J. 254,* S. C. ; Hodge v. Fillis, 3 Camp. 463. (i) Sanderson v. Bowes, 14 East, 500 ; Roche v. Campbell, 3 Camp. 247. \k) Price v. Mitchel, 4 Camp. 200 ; Bxon v. Eussell, 4 M. & Sel. 506 ; Williams V. Waring, 10 B. & C. 2, E. C. L. R. vol. 21 ; 5 M. & Ry. 9, S. C. But in Hardy v. Woodrufife, 2 Stark, 319, and in Sproule v. Legg, 3 Stark. 156, B. C. L. R. vol. 3, Lord Tenterden held that the note might be described as made payable at a place mentioned in the memorandum only. [1] Trecothick v. Edwin, 1 Stark. 468, E. C. L. R. vol. 2. [m) Sharp v. Bailey, 9 B. & C. 44, E. C. L. R. vol. 17 ;. 4 Man. & Ey. 4, S. C. An order drawn by the president of a corporation on the treasurer, 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 Doug. 193. Such a bill is the same, in legal effect, as a promissory note ; it im- ports a promise to pay on demand, and an action may be maintained upon it with- out proof of a demand of payment from the treasurer of flie corporation. Ibid. IKBEGULAR INSTRUMENTS. 157 than six persons, must, by 7 Geo. 4, c. 46, specify the place of pay- ment, and that place must not be in London, or within sixty-five miles thereof, unless in case of a bill for 501. and upwards, drawn payable at some period after date or 8ight.(w) But this restriction, as to making the bills payable in London, is now removed by 3 & 4 Wm. 4, c. 83, s. 2. And the restriction is further relaxed by 7 & 8 Vict. 0. 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, (o) The direction to place to account is unnecessary.^?) A bill is sometimes directed to he T^aAi " as per advice ;" some- times " without further advice ;" sometimes " with or without further advice;" and sometimes, and more commonly, without any of these words. In the first case, it is said the drawee is not justified in pay- ing without further advice. (5') ♦CHAPTER VIL OF AMBIGUOUS, CONDITIONAL,(a) AND lEREGULAB INSTRUMENTS. [*68] NOTE PAYABLE TO THE MAKER,. EQ0ITOCAL INSTRUMENTS, . BILLS AND NOTES MUST BE FOR PAY- MENT OP A SUM OP MONEY, AND FOB THAT ONLY, AND FOR MONEY IN SPECIE, AND FOR A SUM CERTAIN, . AND FOR PAYMENT OF IT, . MUST NOT SUSPEND PAYMENT ON A CONDITION, 68 68 PERIOD OP PAYMENT MAY BE UNCER- TAIN IF INEVITABLE, . . .72 WHERE SEVERAL MAKERS OR SEVERAL PAYEES ARE RESPECTIVELY LIABLE OR ENTITLED IN THE ALTERNATIVE, 73 MUST NOT BE MADE PAYABLE OUT OP A PARTICULAR FUND, . . .73 IRREGULAR BILL OR NOTE MAY BE AN AGREEMENT, . . . .74 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) (n) 7 Geo. 4, c. 46, s. 1. (o) 3 & 4 "Wm. 4, c. 98, s. 6, which they must now be ; see p. 53. (p) Laing V. Barclay, 1 B. & C. 398, E. C. L. R. vol. 8 ; 2 D. & R. 530, S. C. (2)- Chitty, 162, 9th ed. (a) As to the contracting words in promissory notes, see Chapter ii. (6) See Mofiatt v. Van Milligen, 2 Bos; and Pul. 14, n. ; Mainwaring v. Newman, Ibid. 120 ; and see Teague v. Hubbard, 8 B. & C. 345. Qusere, whether a note 158 BTLBS ON BILLS OF EXCHANGE. But a note made payable to the maker's order becomes, in legal e£Fect,,when indorsed in blank, a note payable to bearer ;(c) and when specially indorsed, a note payable to the indorsee's order, (dl) If an instrument be made in terms so ambiguous that it is doubtful whether it be a bill of exchange or promissory note, the holder may treat it as either, at his election.(l) Thus where *for goods L J sold and delivered, the defendant gave the plaintiff an instru- ment in the following form : £44 lis. 5d. London, 5th August, 1833. Three months after date, I promise to pay Mr. John Bury, or promising to pay to the maker's order, or to tlie maker or order, be a note within the statute. Such a note was sued on in Richards v. Maeey, 14 M. & W. 484.* It should rather seem, when indorsed by the maker in blank, to be in legal effect a note payable to bearer. So decided by the Court of C. P. since these observations were written. Browne v. De Winton, 17 L. J. 281, C. P. ; 6 C. B. 336, B. C. L. E. vol. 60, S. C. ; see ante, Chapter iv. (c) Brown v. De Winton, 17 L. J. 280, C. P. ; 6 C. B. 336, E. C. L. E. vol. 60, S. C. {d) Gay v. Lander, 17 L. J. 287, C. P. ; 6 C. B. 336, E. C. L. E. vol. 60, S. C. (1) ,Au indorsement on a bond, 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. 522. As between indorsee and indorser, a promissory note is a bill of exchange as to demand and notice. Crenshaw v. McKiernan, 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 biU, 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 6th, 1839, and payable on the 1st Dec. then next, to the order of A., and signed by the president of the bank, was assigned to B. for value received by an indorsement thereon, subscribed by A. Held that such indorsement was a bill of exchange, imposing on the parties the ordinary liabilities attached to that kind of paper. Kilgore v. Bulkley, 14 Conn. 362. Although a note be not in form negotiable, the payee may make it so by in- dorsing 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. Breuizer v. Wightman, 7 Watts & Serg. 264. See Leidy v. Tammany, 9 Watts, 353 ; Blkinton v. Fennimore, 13 Penna. State Eep. 173. IRREGULAR INSTRUMENTS. 159 order, forty-four pounds, eleven shillings, and five pence, value re- ceived. J. B. Grutherot, John Bury. 35, Montague Place, Bedford Place. And Grutherot's name was written across the instrument as an ac- ceptance, 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 ndtice of dishonor.(e) So where an instrument was in the following form : 21st October, 1804. Two months after date, pay to the order of John Jenkins, £18 Us., value received. Thomas Stephens. At Messrs. John Morson & Co. Lord Ellenborough held that it was properly a bill of exchange, but that perhaps it might have been treated as a promissory note, at the option of the holder.(/)(l) (e) Edis V. Bury, 6 B. & C. 433, E. C. L. R. vol. 60 ; 39 Dowl. & R. 392 ; see EdwaTdsv. Dick, 4 B. & Aid, 212, E. C. L. R. vol. 6 ; Block v. BeU, 1 M. & Rob. 149 ; see Dickenson v. Teague, 4 Tyrwh. 450 ; 1 C. M. & R. 241,* S. C. (/) Shuttleworth v. Stephens, 1 Camp. 40Y ; AUan v. Mawson, 4 Camp. 115 ; Gray v. Milner, 8 Taunt. 739, E. C. L. R. vol. 4 ; 3 J. B. Moore, 90, S. C; Rex v. Hunter, R. & R. C. C. 511. (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 Venn. 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 testi- mony, under an averment in the declaration that twenty-four months after date was the time meant by the parties; the jury 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 ; Sweetser v. French, 13 Metcalf, 262 ; White v. Word, 22 Alabama, 442 ; Burnham v. Atters, 1 Gray, 496. 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 Blaokf. 144 ; Smith v. Smith, 1 Rhode Island, 398. In an action on a note for "the sum of fifty-two 25-100," it was held that the fraction showed beyond question that the word omitted was " dollars." Murrill v. Handy, 17 Missouri, 406. 160 BYLES ON BILLS OF EXCHANGE. A man may draw a bill on himself,(^) and of ttat opinion were all the Judges of the 0. P. (A) Perhaps such a bill would be good where the drawer draws on himself payahle to his own order, -{i) 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 ^ -I holder as a note.(Z) So maj/ a bill drawn by a banking com- pany in one place, on the same banking company in another place.(TO) An instrument which directs the drawee to pay without acceptance, is nevertheless a bill of exchange.(w) A note written by the creditor to his debtor at the foot of the creditor's account, requesting the debtor to pay that account to the creditor's agent, has been held not a bill of exchange, nor an order for the payment of money within the Stamp Act.(o) Bills and notes must be for the payment of money only, and not for the payment of money and the performance of some other act.(l) There- fore,(^) 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 (g) Starke v. Cheesman, Carthe, 508 ; Dehers v. Harriot, 1 Show. 163 ; Robinson v. Bland, 2 Burr. 1011. Qi) Magor v. Hammond, C. P., cited by Bayley, C. J., 9 B. & C. 364, E.C.L. E. vol. 17 ; and see Roach v. Ostler, 1 Man. & R. 120, E. C. L. R. vol. 17. (i) 1 Pardessus, 351. Qc) Reg. V. Bartlett, 2 Mood. & Rob. 362. (Z) Roach V. Ostler, 1 M. & R. 120, E. C. L. R. vol. 17. (m) Miller v. Thomson, 11 L. J., C. P. 21 ; 3 M. & G. 576, E. C. L. R. vol. 42. (n) Reg. V. Kiunear, 2 Moo. & Rob. 117 ; Miller v. Thomson, 3 M. & G. 576; B. C. L. R. vol. 42. (o) Norris v. Solomon, 2 Mood. & Rob. 266. (ji),Martin v. Chauntry, 2 Stra. 1271 ; Moor v. Vanlute, B. N. P. 272, 5th ed.; PoUett v. Moore, 19 L. J. 6, Exch. ; 4 Exoh. 410,* S. C. In this case a note agree- ing also to give real security, was held void as a note. But a note reciting that real security liad been given, is a good note, and requires only a note stamp. Fancourt V. Thorne, 9 Q. B. Rep. 312, B. C. L. R. vol. 58. See ante, chapter iv. An in- strument in this form, " I promise to pay C. A. D. or bearer on demand the sum of 161. at sight, by giving up clothes and papers, &c.," was held a, good promissory note, it being considered, that the latter words imported the consideration aheady received by the makeA Dixon v. NuttaU, 1 C. M. & R. 307 ;* 6 C. & P. 320, E. C. L. R. vol. 25, S. C. (1) Austin V. Barns, 16 Barbour, 643. IREEGULAR INSTRUMENTS. 161 be in the alternative, as to pay a sum of money, or render A. B. to prison. (g') And it must be for money in specie, therefore, a promise to pay in three good East India bonds,(r) or in cash, or Bank of England notes,(«) is not a promissory note.(l) (g) Smith v. Boheme, Gilb. Ca. L. & B. 93, cited Ld. Raym. 1396. (r) Bui. N. P. 272. {s) Bayley, llj 6th ed. ; Ex parte Imeon, 2 Eose, 225 ; but see 3 & 4 Wm. 4, c. 98, s. 6. (1) A note payable in current funds, or New York funds, is not negotiable. Hasbrook v. Palmer, 2 McLean, 10; Kirkpatrick v. McCuUough, 3 Humph. 171 ; CoUins V. Lincoln, 11 Verm. 268 ; Thompson v. Slown, 23 Wend. 71 ; Whitemari^r. Childress, 6 Humph. 303 ; Fry v. Rousseau, 3 McLean, 106 ; see Swetland v. Creigh, 15 Ohio, 118 ; Besancon v. Shirley, 9 Smedes & Marsh. 457 ; Cockrillv. Kirkpatrick, 9 Missouri, 697 ; White v. Richmond, 16 Ohio, 5 ; Wilburn v. Greer, 1 English, 255 ; Ogden V. Slade, 1 Texas, 13 ; Flemming v. Nail, 1 Texas, 246 ; Chevallier v. Buford, lb. 503. A bin payable in ''currency" is not a biU 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." Philadelphia Bank v. Newkirk, 2 Miles, 442. See Little v. Phcenix Bank, 7 Hill, 359 ; Bank of Ham- burg V. Johnson, 3 Rich. 42. A bill payable in "funds current in the city of New York" was held to be pay- able in gold and silver, or their equivalent, and was therefore good as a bill of ex- change. Lacy V. Holbrook, 4 Ala. 88 ; Carter v. Peun, lb. 140. A note for a sum certain, payable in cotton at a fixed price, is a promissory note, and may be declared on as such. Rankin v. Sanders, 6 How. Miss. 52. 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 States. "In Missouri, current funds is held to mean either coin or notes of the Missouri Bank — a bank authorized by the State — and in Texas the terms "bank notes," "good bank notes*" or "current bank notes," as employed by them, are held to import in their ordinary acceptation such bank bills only as are redeemable in gold or silver, or such as are equivalent thereto. A contract for thfe payment of a certain sum in bank notes or other paper currency may or may not be equivalent to that sum in specie. The extent of the obligation depends on the meaning which usage afBxes to the terms, at the time the contract was made. Usage gives force and effect to language ; and as terms are generally understood in the ordinary transactions of life, so should they be construed by courts of justice. 1 Texas, 246. i As to bills or notes payable in goods or merchandise, see Jerome v. Whitney 7 Johns. 321 ; Thomas v. Roosa, Ibid. 461 ; Pray v. Pickett, 1 Nott & McCord, 254 ■ Rhodes v. Lindley, 1 Hamm. Ch. Rep. 51 ; Atkinson v. Manks, 1 Cowen,' 691 ; Lawrence v. Doherty, 5 Yerger, 435 ; Burns v. Graham, 4 Cowen, 452 ; Wyman v'. 11 162 BYLES ON BILLS OP EXCHANGE, And the sum must be certain, not susceptible of contingent or in- definite additions. Therefore, where an instrument promised to pay J. S. the sum of 65Z., with the lawful interest of the same, and all other sums which should be due to him. Lord Ellenborough held that it was not a promissory note, even for the sixty-five pounds.(«) Nor must the sum payable be subject to indefinite or contingent deduc- tions. Thus, where the defendant promised to pay 400Z. to the repre- P ^».| 1 sentatives of *J. S., first deducting thereout any interest or '- -* money J. S. might owe to the defendant, it was held no pro- misory note.(M) And for the payment of money. Where the instrument contains a stipulation that the money or a portion of it shall be paid by a set-ofi', it is no promissory note.(i)) The order or promise must be to pay absolutely and at all events ;(1) and payment must not depend upon a contingency ; for, as observed by Lord Kenyon,(w) " It would perplex commercial transactions, if paper securities of this kind were issued into the world, incumbered with conditions and contingencies, and if the person to whom they were offered in negotiation were obliged to inquire when these uncer- tain events would probably be reduced to a certainty." Besides, the recognition of conditional promissory notes would make a variety of • conditional promises in writing valid, without evidence of considera- tion, and thus materially infringe on an established and very salutary [f] Smith V. Nightingale, 2 Stark. 375 ; Bolton v. Dugdale, 4 B. & Ad. 619, B. C. L. E. vol. 24 ; 1 N. & M. 412, S. C. (m) Smith V. Nightingale, 2 Stark. Eep. 375, E. C. L. B. vol. 3 ; Barlow v. Broadhurst, 4 J. B. Moore, 471 ; and see Leeds v. Lancashire, 2 Camp, 205 ; Bolton V. Dugdale, 4 B. & Ad. 619, E. C. L. E. vol. 24 ; 1 N. & M. 412, S. C. ; 2 Bligh, 79 ; Ayre v. Pearnsides, 4 M. & W. 168.* («) Davies v. Wilkinson, 10 Ad. & Ellis, 98, B. C. L. E. vol. 37 ; 2 P. & D. 256, S.C. * (w) Carlos V. Fanconrt, 5 T. R. 482. Winslow, 2 Fairf. 398 ; Bailey v. Symonds, 6 N. Hamp. 159; Smith v. Loomis, 7 Conn. 110. 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 McCord, 115 ; Jones v. Fales, 4 Mass. 245 ; MeCormick v. Trotter, 10 Serg. & Rawle, 94 ; Digberty v. Dumell, 5 Yerger, 451 ; Gray v. Donahoe, 4 Watts, 400 ; 3 Kent's Com. 76. (1) Bunker v. Atheam, 35 Maine, 364. IRREGULAR INSTRUMENTS. ibd rule of law.(a;) Thus, a note to this effect, " We promise to pay A. B. 116?. Il8. value received, on the death of George Henshaw, pro- vided 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 Btatute.(y) So, a written engagement to pay a certain sum so many days after the defendant's marriage, is no promissory note, for, possibly, he never may marry.(2) So, a paper, whereby the defen- dants promised to pay the plaintiffs, or order, the sum of 181., for value received, with interest at 5Z. per. cent., " and all fines, accord- ing to the rule," cannot be declared on as a promissory note.(a) So, an order payable, " Provided the terms mentioned in certain letters, written by the drawer, were complied with," is no bill. (J) So a note promising to pay, " On the sale or produce of the White Hart, St. Alban's, Herts, and the goods, &c., value received," is not a promissory note, though it be averred that before action brought, the *White Hart and the goods were sold.(c) The following p ^^^g i instrument was held not to be a note : " Borrowed and re- ceived of A., the sum of 2QQI. in three drafts, by B., dated as under, payable to us on C, which we promise to pay the said A., with interest." The instrument then specified the drafts, which fell dae at a future day. Lord Ellenborough 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 honored."((i) 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.(e) So, an order to pay " 14Z. 3s. out of the fifth payment, when it should be due, and should be allowed by J. S." is no bill of exchange.(/)(l) (a;) See Pearson v. Garrett, 4 Mod. 242. (y) Eoberts v. Peake, 1 Burr. 323 ; Leeds v. Lancashire, 2 Camp. 20S. (z) Beardsley v. Baldwin, 2 Stra. 1151 ; and see Pearson v. Garrett, 4 Mod. 242; Comb. 227, S. C. ; which was before the statute 3 & 4 Anne, c. 9. (a) Ayrey v. Fearusides, 4 M. & W. 168.* ♦ (6) Kingston v. Long, Bayley 16, 6th ed. (c) Hill V. Halford, 2 B. & P. 413. (d) Williamson v. Bennett, 2 Camp. 417; and see Clarke v. Perceval, 2 B. & Ad. 660, E. C. L. R. vol. 22 ; Shenton v. James, 5 Q. B. Rep. 199, B. C. L. R. vol. 48; Drury v. Macaulay, 16 N. & "W. 146 ; 16 L. J. 31, Ex. (e) Palmer v. Pratt, 2 Bing. 185, E. C. L. R. vol. 9 ; 9 Moo. 358 ; Clark v. Perceval, 2 B. & Ad. 660, B. C. L. R. vol. 22 ; Worley v. Harrison, 5 Nev. & M. 173 ; 3 Ad. & Ell. 669, E. C. L. R. vol. 30, S. C. (/) Haydock v. Lynch, 2 Ld. Raym. 1563. - (1) A certificate by the cashier of a bank, "that C. T. has deposited un this 164 BTLES ON BILLS OF EXCHANGE. An instrument in this form, " At twelve months I promise to pay A. B. 500Z., to be held by them as collateral security for any moneys now owing to them by M. & M., which they maybe unable to recover on realizing the securities they now hold, and others which may be placed in their hands by him," is no promissory note.{g) But it is not material that the time when the event 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 good. (A) So, a note payable when a King's ship shall be paid off, 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."(«') But it is said,(A;) that the Court below assigned as a reason, that the ship would certainly be paid off one time or other.(Z) The contingency, in order to vitiate *the note, as such, must be apparent on the face of the instru- L J ment.(m) A promissory note payable with interest, twelve months after notice, is not to be considered as payable on a contin- gency, and is, consequently, valid, (w) The happening of the contingency on which the payment of the bill is dependent will not cure the defect.(o) A note beginning " I, A. B., promise, &c.," and signed A. B., or (g) Robins v. May, 11 Ad. & B. 214, E. C. L. R. vol. 39 ; 3 Per. & D. U1 ; 3 Jurist, 1188, S. C. (A) Cooke V. Colehan, 2 Stra. 1217 ; Roffey v. Greenwell, 2 Per. & Dav. 365 ; 10 Ad. & BI. 222, E. C. L. R. vol. 37, S. C. (i) Andrews v. Franklin, 1 Stra. 24 ; Bvans v. Underwood, 1 Wils. 262. (k) And see HaussouUier v. Hartsink, 7 T. R. 733 ; Dixon v. Nuttall, 6 0. & P. 320, E. C. L. R. vol. 25 ; 1 C. M. & R. 307,* S. 0. ; Goss v. Nelson, 1 Burr. 226. " I promise to pay or cause to be paid," is a good note, the alternative expression importing the same thing. Lovell v. Hill, 6 C. & P. 238, E. C. L. E. vol. 25. Q) dolehan v. Cook, Willes, 399 ; 1 Selw. N. P. 375. A note to an infant, pay- able when he shall come of age, has been held good, if it specify the particular day. Goss V. Nelson,,! Burr. 226 ; 1 Lord Kenyon, 498, S. C. (m) Richards v. Richards, 2 B. & Ad. 447, E. C. L. R. vol. 22. (n) Clayton v. Gosling, 5 B. & C. 360, E. C. L. R. vol. 11 ; 3 D. & R. 110, S. C. (o) Chitty, 7th ed. 45 ; Hill v. Halford, 2 B. & P. 413 ; Chitty, 9th ed. 135, 144. bank, payable twelve months from the first day of May, 1839, with five per cent, interest, until due, per annum, $3691 63 for the use of R. P. & Co., and payable only to their order upon the return of this certificate," is not a promissory note. Patterson v. Poindexter, 6 Watts & Serg. 227. IRKEGUIiAK INSTRUMENTS. 165 else 0. D., is a good note against A. B., but only evidence as against 0. D. of a conditional agreement to pay, if A. B. does not.(p) • In ttis last case the maker or payer was uncertain : the note, as such, is not available at all, if the payee be uncertain. Thus, where the maker promised to pay to A., or to B. and C. a certain sum, Abbott, C. J., said, " I have no doubt this instrument is not a pro- missory note within the statute of Anne ; for, if a note is made pay- able to one or other of two persons, it is payable only on the contin- gency of its not having been paid to the other, and is not a good promissory note, within the statute."(g) Upon the same principle, the bill or note must not be made pay- able out of a particular fund,(r) for the fund may prove insufficient. (1) (p) Ferria v. Bond, 4 B. & Aid. 679, B. C. L. E. vol. 6 ; and see Appleby v. Biddulph, B. N. P. 272, cited Moriee v. Lee, 8 Mod. 363 ; 4 Vin. Ab. 240, pi. 16. (g) Blanckenhagen v. Blundell, 2 B. & Aid. 417. \r) Jenny V. Herle, 2 Ld. Eaym. 1361; 8 Mod. 265 ; 1 Stra. 591, S. C; Hay- dock V. Lynch, 2 Ld. Eaym. 1563 ; Dawkes t. Lord de Loraine, 2 Bla. Eep. 782 ; 3 Wils. 207, S. C. ; Yates v. Grove, 1 Ves. jun. 280 ; Carlos v. Fancourt, 5 T. E. 482. (1) It is essential to a bill or note tliat it be payable in money only, at all events and not out of a particular fund. Atkinson v. Mauks, 1 Cow. 691 ; Cook v. Sat- terlee, 6 Cow. 108 ; Waters v. Carlton, 4 Porter, 205 ; Tucker v. Maxwell, 11 Mass. 143 ; Wooley v. Sergeant, 3 Halst. 262 ; Mills v. Kuykendall, 2 Blaokf. 47 ; May v. Lansdown, 6 J. J. Marsh. 170 ; Van Vacter v. Flack, 1 Smedes & Marsh. 393 ; Ha- milton V. Myrick, 3 Pike, 541 ; Eice v. Porter, 1 Harr. 440 ; Wallace v. Dyson, 1 Spears, 127 ; Strader v. Batchelor, 8 B. Monroe, 168 ; Warden v. Dodge, 4 Denio, 159 ; Wnamoice v. Adams, 8 English, 12. An order pf a client 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. Grwinn v. Eoberts, 3 Pike, 72 ; Bradley v. Morris, 3 Scamm. 182 ; Carleton 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 thousand dollars, for value received, and charge 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. Eeeside v. Knox, 2 Whart. 233. An order drawn upon the treasury by a public officer, for his salary ,~is not a bill of exchange. Strader v. Batcheler, 8 B. Monroe, 168. A bill of exchange in form, drawn by one government on another, as the bill drawn by our government on the government of France, for moneys due accord- ing to a treaty stipulation, is not and cannot be governed by the law merchant, and 166 BYLBS ON BILLS OF EXCHANGE. Plaintiff drew upon A., and required him to pay B. 70?. per month out of plaintiff's growing subsistence. This was held no bill of ex- change : for had plaintiff died, or his subsistence been taken away, the bill would not have been pay'able.(s) So, an order from the owner of a sliip 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, is subject to a contingency. (it) And the same rule holds if the con- tingency is expressed on the back of the note by an indorsement made before the note was a perfect instrument. (m) *But the statement of a particular fund in a bill of exchange L -1 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. 91. 10s., " as my quarterly half-pay," was held to be a good bill.(v) If the instrument be defective as a bill or note, it still may be evi- dence of an agreement, (w). («) Josselyu v. Lacier, 10 Mod. 294 ; Port. 281, S. C. ; see Russell v. Powell, 14 M. & W. 418.* (i!) Banbury v. Lissett, 2 Stra. 1211. (u) Leeds v. Lancashire, 2 Camp. 205. {v) Macleod v. Suee, 2 Str. Y62. (ic) As to the proper stamp in such a case, see ante, Chapter iv. therefore is not subject to protest and consequential damages. United States v. Bank of the United States, 5 Howard (U. S.) Rep. 382. An order drawn in express terms for a particular fund, will operate as an assign- ment of the fund ; but it will not be negotiable, and is not a bill of exchange. Cow- perthwaite v. Sheffield, 1 Sand. Sup. Ct. Rep. 416. A bill of exchange, although accepted, does not operate to invest the payee with the character of an assignee of a particular fund, unless drawn on such fund. Wheeler v. Stone, 4 Gill. 38. If the fund described in a bill is certain, and is mentioned only as a means by which the drawee is to be indemnified, the bill is good. Banck, &c. v. Sanders, 3 Marsh. 184 ; Varner v. Nobleborough, 2 Greenl. 123 ; Kelly v. Mayor, &c., 4 Hill. 263 ; Wiggin v. Vaught, Cheves, 91 ; Hoyt v. Lynch, 2 Sandf. Sup. Ct. Rep. 328; Smith v. Ellis, 29 Maine, 442 ; see West v. Foreman, 21 Alabama, 400; Shields v. Taylor, 25 Mississippi, 143. OF AaUEBMKNTS ON BILLS OR NOTES. 167 *CHAPTEE VIII. [*75] OF AGREEMENTS INTENDED TO CONTROL THE OPERATIONS OP BILLS OR NOTES. VARIOUS SORTS OP AGREEMENTS, . 15 EFFECT OF CONTEMPOBANEOUS AGREE- MENT WRITTEN ON THE INSTRU- MENT, 15 EFFECT OF AN AGREEMENT SUBSE- QUENTLY WRITTEN ON THE INSTRU- MENT, 16 EFFECT OF AN AGREEMENT "WRITTEN ON A DISTINCT PAPER, . AGREEMENT CONTEMPORANEOUS, BUT COLLATERAL, .... EFFECT OF A VERBAL AGREEMENT, AGREEMENT TO RENEW, . AGREEMENT ON BILL MUST BE BEAD, . PLEADING AN AGREEMENT, T6 76 76 77 77 77 Such agreements are either written or verbal. A written agreement is either on the instrument itself or on a distinct paper. Again, a written agreement on the instrument 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. If the memorandum make the payment contingent, we have seen that it will be incorporated in the note.(a) But, where it is merely directory, as if it points out the place of payment,(6) or be merely the (a) Leeds v. Lancashire, 2 Camp. 205 ; Hartley v. Wilkinson, 4 M. & Sel. 25 ; 4 Camp. 127, S. C. Thougli by way of indorsement, Leeds v. Lancashire, ubi supra. A joint and several promissory note had 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 be made, together with commission, stamps, postages, &c., and all usual charges and disbursements, not exceeding, in the whole, the sum of lOOZ. within mentioned." It was held to be an agreement which could not be read in evidence without an agreement stamp. Sed quaere, whether the in- dorsement were anything more than an explanation of the consideration. Cholmley V. Darley, 14 M. & W. 344.* See the Chapter on Consideration. (6) Exon V. Russell, 4 M. & Sel. 505. 168 BYLBS ON BILLS OP EXCHANGE. expression of an intended courtesy, *as if it intimate a wish ■- J that the money lent should not be called in by the payee's executors till three yeaKS after his death ;(c) or if it import that a collateral security (as the deposit of title deeds) has been giyen ;(c?) or be intended only to identify and ear-mark the instrument ;(e) it does not affect its operation. A memorandum made after the note is perfected and delivered 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 defeazance, and it lay upon the defen- dant 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 parties.(^) Thus, if the drawer agree to indem- nify 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 which the indemnity applies, the accep- tor's liability, as between himself and the drawer, will be reduced pro tanto, and he will not be turned round to his cross action on the indemnity. (A) But a written agreement, though contemporaneous, will not restrain the operation of the bill or note if it be collateral, e. g. if other per- sons besides the parties to the bill or note be parties to it.(i) No VERBAL agreement can take effect, if contemporaneous with the making of the instrument; for that would be to allow verbal evidence (c) Stone V. Metcalf, 4 Camp. 2^ ; 1 Stark. 53, E. C. L. R. vol. 2, S. C {d) Wise V. Charlton, 4 Ad. & B. 786, B. C. L. R. vol. 31 ; 6 Nev. & M. 364; 2 Har. & W. 49, S. C. ; Fanoourt v. Thome, 15 L. J., Q. B. 344; 9 Q. B. 312, E. C. L. R. vol. 58, S. C. (e) Brill v. Crick, 1 M. & W. 232.* (/) Stone V. Metcalf, 4 Camp. 217 ; 1 Stark. 53, E. C. L. R. vol. 2, S. C. [g) Bowerbranch v. Mouteiro, 4 Taunt. 844. [ji) Carr v. Stephens, 9 B. & C. T58, B. C. L. R. vol. 17 ; 4 Man. & Ryl. 591, S. C. (i) Webb V. Spice, 19 L. J. 34, Q. B., on error in Exchequer Chamber. OF AGEEBMENTS ON BILLS OK NOTES. 169 to vary a written contract.(^)(l) " Every bill or note," says Parke, J., "imports two things, * value received, and an engagement r^irir-i to pay the amount on certain specified terms. Evidence is {Jc) Hoare v. Graham, 3 Camp. 57 ; Free v. Hawkins, 8 Taunt. 92, E. C. L. B. vol. 4 ; 1 Moore, 28, S. C. ; Woodbridge v. Spooner, 3 B. & Aid. 233, B. C. L. R. vol. 5 ; 1 eh. R. 661, S. 0. ; Moseley v. Hanford, 10 B. & 0. 729, E. C. L. R. vol. 21 ; Foster v. Jolly, 1 0. M. & R. 703 ■* 5 Tyr. 255, S. C. ; Bioliards v. Thomas, 1 C. M.^& R. 772;* Holtv. Miers, 9 C. & P. 191, E. C. L. R. R. vol. 38. (1) The American cases in aifirmance 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 in a written contract, but evi- dence 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 recog- nized exception is fraud or mistake, 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 afllrmatively that which the law presumes in general — the consideration which 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 Nill 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 pay- ment 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 inadmissible, and no de- fence 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 ex- planation, 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 negotiable instrument, though when the question is as between the original parties, there is no difference between 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 oppo- sition 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 fraudulent intention at the time of the execution of the writing. His original object may have been perfectly honest and upright ; and if, to procure an unfair advantage to himself, he subsequently deny the parol qualification of the written contract, it is such a fraud as wiU, under the rules, ope- rate to let in evidence of the real intent and final conclusion of the contractors." Hurst's Lessee v. Kirkbride, 1 Binn. 6 1 6 ; Christ v. Dififenbach, 1 Serg. & Rawle, 464 ; 170 BYLES ON BILLS OP EXCHANGE. admissible to deny the receipt of value, but not to vary the engage- ment. "(Z) (?) Abbott V. Hendricks, 1 M. & G. 796, E. C. L. E. vol. 39 ; Moseley v. Hanford, lOvB. & C. T29, E. C. L. R. vol. 21. "The cases," says Maule, J., "sbowthat although a oonsideratioQ is stated in the note, you may show that it was given for a different consideration or without any consideration at all." Abbott v. Hendricks, 1 M. & a. 791, B. C. L. R. vol. 39 ; 2 Scott, N. B. 183, S. C. ; but see Ridout v. Bristow, 1 C. & J. 231 ;* 1 Tyr. 84, S. C, and Edwards v. Jones, 2 M. & W. 414 ;* 5 Dowl. 585 ; 7 C. & P. 633, E. C. L. R. vol. 32 ; S. C. In Pike v. Street, 1 Dans. 6 Lloyd, 159 ; 1 M. & M. 226, E. C. L. B. vol. 22, 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 dishonored, not to proceed against the drawer who had indorsed the bill to him. Vide the Chapter on Transfer. Clark V. Partridge, 2 Barr, 13 ; Parke v. Chadwick, 8 Watts & Serg. 98. The Courts in Pennsylvania exercise a mixed jurisdiction of law and equity. Equity is part of the 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 from the writing, equity will naturally incline to refer it to the head of mistake, or if that be precluded by the circumstances, to a design at the time to take advantage subsequently of the omission. It might be said with propriety in such eases, 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. Swine- hart, 11 Penna. St. Rep. 233. It was held, therefore, by the same Court, in Miller V. Henderson, 10 Serg. & Rawle, 290, in which it was decided 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 should be called on for payment, that- it must appear affirmatively that the instrument was executed upon the faith of such representations. " The destruction of a written 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 established as an inflexible rule that when a man's hand was once got to an instrumentj no matter by what means, the door should be shut against all inquiry. The encouragement to fraudulent vil- lany would be so great, under such a system, that the consequences might be in- tolerable." Upon the question of fraud see Stark v. Littlejohn, 4 Randolph, 368 j Prentiss v. Euss, 4 Shepley, 30 ; Sanford v. Handy, 23 Wendell, 260 ; Holbrook v. Burt, 22 Pick. 546 ; Gooch v. Conner, 8 Missouri, 391 ; McMahon v, Spangler, 4 Randolph, 51 ; Hunt v. Rousmanier, 8 Wheat. 174; Pishell v. Bell, 1 Clark, 37; Jarvis v. Palmer, 11 Paige, 650; Leonard v. Smith, 11 Metealf, 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 to notice. The reasons which forbid the admission of parol evidence, to alter or explain written agreements, or other instruments, do not apply to those contracts imphed by operation of law, such as that which the law implies in respect to the indorser OF AGREEMENTS ON BILLS OR NOTES. 171 An agreement to renew, without more, is an agreement to renew once only.(m) (m) Innes v. Munro, 1 Excli. Eep. 473.* of a note of hand. Susquehanna Co. v. Evan's, 4 Wash. C. C. 480. Smith v. Barber, 1 Root,-207. Contra, Barry v. Morse, 3 N. Hamp. 132. The contract of indorsement may be converted by parol evidence into an abso- lute and unconditional engagement to pay ; and it may be explained by the same kind of evidence to mean nothing more than the transfer of the note without recourse to the indorsee. Patterson v. Todd, 18 Penna. State Eep. 426 ; Bircleback v. Wilkins, 22 Ibid. 26. An indorsement of negotiable paper ia 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 imphcation is liable to be changed by the exhibition of circumstances inconsistent with it, whether sliown orally or in writing. The duty of demand and notice is not a part of the contract, but is merely a step in the remedy, which may be waived by the indorser. Barclay V. Weaver, 19 Penna. State Rep. 396. Under a plea of non est factum, in an action upon a note, parol evidence is ad- missible 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 collateral 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. Phillips v. Preston, 5 Howard (U. S.), 278. A written instrument may be contradicted by the party making it, when offered in a suit to which a stranger to the instrument is a party. Veuable 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 th^ 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, 24 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 delivered it to the plaintiff; the plaintiff afterwards indorsed, putting his name above that of the defendant. Held that parol evidence was admissible to explain the circumstances under which ihe note was executed by A. and the defendant, and indorsed by the plaintiff; that the defendant was liable on the note as original maker or promissor, and that the plaintiff, by afterwards indorsing the note, did not change its character or discharge the defen- dant. Baker v. Scott, 5 Richardson, 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 party, parol evidence is admissible to show that he signed as an indorser, and that such was the understanding of the parties at the time. Lewis v. Harvey, 18 Missouri, 74. 172 BYLBS ON BILLS OF BXCHANfiB. A defendant has a right at the trial to call on the plaintiff to read any indorsement that may be on the bill.(w) Though it may be necessary that the agreement affecting the ope- ration of the bill or note should be in writing, it is not necessary in pleading to aver that it is in writing, (o) [*T8] *CHAPTEE IX. OP THE STAMP. WHEN STAMPS WEEE FIRST IMPOSED ON BILLS OE NOTES, . . .18 PRESENT STAMPS ON BILLS AND PRO- MISSORY NOTES, . . . . Y8 WHAT REGULATIONS OP FORMERSTAMP ACTS ARE STILL IN FORCE, . . 85 IN WHAT CASES A BILL OR NOTE MAT BE RESTAMPED, . '. . .86 EFFECT OP ALTERATION OF THE LAW, 86 WHAT NEGOTIABLE INSTRUMENTS ARE EXEMPT FROM STAMPS, . . 86 REQUISITES FOR BRINGING CHECKS WITHIN THE EXEMPTION, . . 81 STAMPS OF FOREIGN NOTES, . . 87 PENALTY ON UNSTAMPED INSTRU- MENTS, 8Y PENALTY FOR POSTDATING, . . 87 WHAT NOTES MAT BE RE-ISSUED, . 87 STAMPS ON FOREIGN BILLS, STAMPS ON IRISH OR COLONIAL BILLS, 88 WHAT IS SUCH A MAKING WITHIN THE KINGDOM AS TO SUBJECT TO A STAMP, ,88 EFFECT OP WANT OP A STAMP ON THE INSTRUMENT, . . . .88 FRESH DIES, 89 EFFECT OF POST STAMPING AGAINST LAW, 89 RESERVATION OF INTEREST DOES NOT MAKE A LARGER STAMP NECESSARY, 90 ON BILLS POSTDATED, . . .90 ON INSTRUMENTS WHICH ARE IN LAW BUT AGREEMENTS, . . .90 SUFFICIENCY OF STAMP ADMITTED BY PAYING MONET INTO COURT, . . 91 WHEN THE OBJECTION TO THE STAMP SHOULD BE TAKEN, . . .91 PLEADING, 91 In treating of the Stamp Laws as they affect bills and notes, let us first review the principal statutory enactments, and then the most important decisions of the Courts on this subject ; postponing the consideration of the effect, under the Stamp Laws, of altering a bill or note, to a subsequent Chapter, which will show the effect of altera- tion both at common law and under the Stamp Acts. (ra) Richards v. Praukum, 9 C. & P. 221, B. C. L. R. vol. 38. As to agreements by clerks in fraud of their employers, see Bosanquet v. Poster, 9 C. & P. 659, E. C. L. R. vol. 38 ; Bosanquet v. Corser, 9 C. & P. 664, B. C. L. R. vol. 38. (o) Kearns v. Durell, 18 L. J. 28, C. P. ; 6 C. B. 596, B. C. L. R. vol. 60, S. 0. Sete Gilbert v. Whitmarsh, 8 Q. B. Rep. 969, E. C. L. R. vol. 55. OF THE STAMP. 173 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 many regulations still in force, though the amount of duty which they impose is altered by the pre- sent general stamp act, 56 Geo. 3, c. 184. The stamps imposed by the latter act *on bills and notes, are as follows : — L J Inland Bill of Exchange, draft, or order, (a) to the bearer or to order, either on demand or otherwise, not exceeding two months after date, (J) or sixty days after sight, of any sum of money — Amounting to 408., and not exceeding 51, 5s Exceeding 51. 5s., not exceeding 201. . Exceeding 201., not exceeding oOl. Exceeding 301., not exceeding 50Z. Exceeding 50Z., not exceeding lOOZ. . Exceeding 1001., not exceeding 2001. . Exceeding 200Z., not exceeding 300?. . Exceeding SOOL, not exceeding 5001. . Exceeding 5001., not exceeding 1000?. Exceeding 1000?., not exceeding 2000?. Exceeding 2000?., not exceeding 3000?. Exceeding 3000?. .... £ s. d. s. . .0 1 . 1 6 . 2 . 2 6 . 3 6 . 4 6 . 5 . 6 . 8 6 . 12 6 . 15 . 1 5 Inland Bill of Exchange, draft, or order for the payment to the bearer, or to order, at any time exceeding two months after date, or sixty days after sight,(e) of any sum of money — Amounting to 40s., and not exceeding 5?. 5s. . .016 Exceeding 5?. 5s., not exceeding 20? 2 Exceeding 20?., not exceeding 30?. . . , .026 Exceeding SO?., not exceeding 50?. . , . .036 (a) The words " for the payment," seem here omitted. (6) The value or amount of the stamp upon a bill of exchange depends upon the date expressed upon the face of the bill, not on the time it was actually drawn or issued. Williams v. Jarrett, 5 B. & Ad. 32, E. C. L. R. toI. 27 • 2 Nev & M 42, S. C. (c) If payable two months after sight, the bill must be stamped with the higher rate of duty imposed by the next head. Sturdy v. Henderson, 4 B. & Aid. 592 E C. L. E. vol. 6. 174 EYLBS ON BILLS OF EXCHANGE. 501., not exceeding 1001. . iOOl, not exceeding 2001. . 200Z., not exceeding ZOOl. . BOOL, not exceeding 500Z. . 500Z., not exceeding 1000?. lOOOZ., not exceeding 2000Z. Exceeding Exceeding Exceeding Exceeding Exceeding Exceeding Exceeding 2000?., not exceeding 3000? Exceeding £. s. d. .046 .050 .060 .086 . 12 6 . 15 .15 . 1 10 3000? Inland bill, draft, or order for the payment of any sum of money, though not made payable to the bearer, or to order, if the same shall be delivered *to the -I payee, or to 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 to some person on his or her behalf, Vfhere the total amount of the money thereby made pay- able shall be specified therein, or can be ascertained therefrom — the same duty as on a bill payable to bearer * or order on demand, for a sum equal to such total amount. And, where the total amount of the money thereby made payable shall be indefinite — the same duty as on a bill on demand, for the sum therein expressed only. And the following instruments shall be deemed and taken to be(c?) inland bills, drafts, or orders, for the payment (d) These and the corresponding provisions relating to promissory notes were introduced to include such instruments as being payable on a contingency or out of a particular fund are not, strictly speaking, either bills or notes. See Chapter vii; Fairbank v. Bell, 1 B. & Aid. 39. Where A. having directed B. by letter to pay C. 1500Z. 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 bet-ween A. and 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, 6002. out of the first proceeds of a stock of gunpo-wder, and to charge the same to account, -was held liable to a bill stamp, though it formed partof a subsequent correspondence bet-ween the three houses. Butts v. Swann, 2 B. & B. 78, E. C. L. R. vol. 6 ; 4 J. B. Moore, 484, S. C. But unless the order specify a definite sum, these provisions do not OF THE STAMP. 175 of money, -within the intent and meaning of this schedule, viz. : All drafts or orders for the payment of any sum of money, by a bill or promissory note, or for the delivery of any such 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 payee, or some person on his or her behalf. All receipts given by any banker or bankers, or other person or persons, for money received, which shall en- title, or be intended to entitle, the person or persons paying the money, or the bearer of such receipts, to receive the like sum from any third person or persons. And all bills, drafts, or orders, 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 contin- gency which may or may not be performed or hap- pen, if the same shall be made payable to the bearer, or to order, or if the same shall be delivered to the payee, or to some person on his or her behalf. Foreign Bill of Exchange (or bill of exchange drawn in but payable out of Great Britain), if drawn singly, and not in a set — the same duty as on an inland bill of the same amount and tenor. Foreign bills of exchange, drawn in sets, according to the custom of merchants, for every bill of each set, where the sum made payable thereby shall not exceed 1001. .016 And where it shall exceed lOOZ., and not exceed 2001., 3 apply, and a bill stamp is not required. Therefore where the consignor of goods gave his consignee this order, "Pay to A. B, the proceeds of a shipment of goods value about 2000Z. consigned by me to you,'' and C, by writing, agreed to pay over the foil amount of the net proceeds of the goods ; it was held, that neither of these instruments required a bill or note stamp. Jones v. Simpson, 2 B. & C. 318, E. C. L. R. vol. 9 ; 3 D. & R. 545, S. C. ; and see Barlow v. Broadhurst, 4 J. B. Moore, 471 ; Crowfoot v. Gurney, 9 Bing. 372, E. C. L. R. vol. 25 ; Hutchinson v. Hey- worth, 1 Per. & D. 266 ; 9 Ad. & B. 375, E. C. L. R. vol. 36, 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.- 176 BTLBS ON BILLS OF EXCHANGE. £ S. d. Where it shall exceed 200Z., and not exceed 500Z., .040 Where it shall exceed 500Z., and not exceed lOOOZ., .050 Where it shall exceed lOOOZ., and not exceed 2000Z., 7 6 Where it shall exceed 2000Z., and not exceed 3000Z., 10 5 Where it shall exceed 3000Z., 15 Exemptions from the preceding and all other Stamp Duties. 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 *certifi- cates, drawn by commissioned officers, masters, L °'^J and surgeons in the Navy, or by any commis- sioner .or commissioners of the Navy, under the au- thority of the act passed in the thirty-fifth year of his Majesty's reign, for the more expeditious payment of the wages, and pay of certain officers belonging to the Navy. All bills drawn pursuant to any former act or acts of Par- liament, by the commissioners of the Navy, or by the commissioners for victualling the Navy, or by the com- missioners for managing the transport service, and for taking care of sick and wounded seamen, upon, and payable by, the Treasurer of the Navy. All drafts or orders for the payment of any sum of money to the bearer on demand, and drawn upon any banker or bankers, or any person or persons acting as a banker, who shall reside, or transact the business of a banker, within ten miles of the place where such drafts or orders shall be issued, provided such place shall be specified in such drafts or orders, and provided the same shall bear date on or before the day on which the same shall be issued, and provided the same do not direct the pay- ment to be made by bills or promissory notes: 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 here- after to be prescribed, by his Majesty's orders, by the paymasters of regiments or corps, or by the chief pay- Oy THE STAMP. 177 master, or deputy paymaster, and accountant of the army dep6t, 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 pay- mastership during the vacancy, or the absence, suspen- sion, or incapacity of any such paymaster, as aforesaid ; save and except such bills as shall be drawn in favor of contractors, or others, who furnish bread or forage to his Majesty's troops, and who, by their contracts or agreements, shall be liable to pay the stamp duties on the bills given in payment for the articles supplied by them. *Promissort NoTE((i) for the payment, to thep^„„-, bearer on demand, of any sum of money — '- -* Not exceeding 11. Is. ... Exceeding 11. Is., not exceeding 21. 28. Exceeding 21. 2s., not exceeding 51. 5s. Exceeding 51. 5s., not exceeding 101, Exceeding lOZ., not exceeding 201. Exceeding 201., not exceeding 301. Exceeding SOL, not exceeding 501. Exceeding 50Z., not exceeding 1001. Which said notes may be re-issued, after payment thereof, as often as shall be thought fit. Promissory Note for the payment, in any other manner than to the bearer on demand, but not exceeding two months after date, or sixty days a,fter sight, of any sum of money — Amounting to 40s., and not exceeding 5Z. 5«, Exceeding 51. 5s., not exceeding 201. . Exceeding 20?., not exceeding SOL Exceeding SOL, not exceeding 50L Exceeding 50Z., not exceeding 100?. . These notes are not to be re-issued after being once paid. {d) It was once held that a promissory note for 111. to A. B. on demand, without the words " or bearer," was a note payable to bearer on demand within this class and re-issuable. Keates v. Whieldon, 8 B. & C. 1, E. C. L. R. vol. 15; '2 M. & Ry. 8, S. C. This case, however, was always considered doubtful, and is now overruled. Cheetham v. Butler, 5 B. & Ad. 837, E. C. L. R. vol. 27 ; 2 N. & M. 453, S. C. ; Dixon V. Chambers, 1 C. M. & R. 845,* 5 Tyr. 202 ; 1 Gale, 14, S. C. 12 £ s. d. 5 10 1 3 1 9 2 3 5 8 6 . 1 . 1 6 . 2 . 2 6 . 3 6 178 BYLBS ON BILLS OF EXCHANGE. Promissory Note for the payment, either to the bearer on demand, or in any other manner than to the bearer on demand, but not exceeding two months after date, or sixty days after sight, of any sum of money — Exceeding 100?., not exceeding 200?. . Exceeding 200?., not exceeding 300?. . Exceeding 300?., not exceeding 500?. . Exceeding 500?., not exceeding 1000?. Exceeding 1000?., not exceeding 2000?. Exceeding 2000?., not exceeding 3000?. Exceeding 3000? These notes are not to be re-issued after being once paid. r*S4T *I*'^OJ^issory Note for the payment, to the bearer '- -^ or otherwise, at any time exceeding two months after date, or sixty days after sight, of any sum of money — Amounting to 40s., and not exceeding 5?. 5s, Exceeding 5?. 5s., not exceeding 20?. . Exceeding 20?., not exceeding 30?. Exceeding 30?., not exceeding 50?. Exceeding 50?., not exceeding 100?. . Exceeding 100?., not exceeding 200?. . Exceeding 200?., not exceeding 300?. . Exceeding 300?., not exceeding 500?. . Exceeding 500?., not exceeding 1000?. Exceeding 1000?., not exceeding 2000?. Exceeding 2000?., not exceeding 3000?. Exceeding 3000? These notes are not to be re-issued after being once paid. Promissory Note for the payment of any sum of money by instalments, or for the payment of severaL sums of money at different days or times, so that the whole of the money to be paid shall be definite and certain, the same duty as on a promissory note, payable in less than two months after date, for a sum equal to the whole amount of the money to be paid : And the following instruments shall be deemed and taken to be promissory notes, within the intent of this sche- dule, viz. : £ s. d. 4 6 5 6 8 6 10 6 15 1 5 >s. .016 .020 .026 .026 .046 .050 .060 .086 . 12 6 . 15 .15 . 1 10 OF THE STAMP. 179 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 shall 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. All notes, promising the payment of any sum or r*oc-i sums *of money out of any particular fund, which may or may not be available ; or upon any condi- tion 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 should be deemed special agreements, except those hereby ex- pressly 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 th^ Bank of England. Protest of any bill of exchange or promissory note for any sum of money — Not amounting to 20Z Amounting to 20Z., not amounting to lOOZ. . Amounting to lOOZ., not amounting to 500Z. Amounting to 500?. or upwards. £ s. d. 2 .0 3 5 10 180 BYLES ON BILLS OF EXCHANGE. £ S. d. Protest of any other kind, .050 And for every sheet or piece of paper, parchment, or vel- lum, upon which the same shall be written, after the first, a further progressive duty of . . .050 It is necessary to observe, that the eighth section of the present general stamp act declares that all the regulations in former stamp acts(c?) are still in force, so far as the same are applicable to the duties granted by that act. Among these are the following : — 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. r*8fi1 *1^^6 same section prohibits the commissioners from stamp- ing any bill or note after it is made. But the 37 Geo. 3, c. 136, ss. 5 & 6, authorizes the commissioners 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 V)l, if it be.(e) 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. And, by the present act, 55 Geo. 8, c. 184, s. 10, it will be seen that though the stamp be of a wrong denomination, if of sufficient value, it will be valid, unless on the face of it specifically appro- priated to some other instrument. And in this last case, it is appre- hended that a bill or note may be restamped under the 37 Geo. 3, c. 136, ss. 5 and 6.(/) A promissory note, which amounts to a mortgage, may be impressed with the mortgage stamp after it is made.(^) It is sufficient if an instrument be properly stamped according to the law at the time the stamp is affixed, although a higher stamp should have been necessary at the time the instrument was exe- cuted.(A) {d) Field v. Woods, 1 Ad. & E. 114, B. C. L. R. vol. 34 ; 2 Nev. & P. 117, S. C. (e)-See Bradley v. Bardsley, 15 L. J. 115, Exch. ; 3 D. & L. 476, 14 M. & W. 873,* S. C. (/) See Chamberlain v. Porter, 1 N. Rep. 30. [g] Wise v. Charlton, 4 Ad. & B. 786, B. C. L. R. vol. 31 ; 6 Nev. & M. 364; 2 Har. & W. 49, S. C. (A) Doe V. Whittingham, 4 Taunt. 20 ; Buckworth v. Simpson, 1 C. M. & R. 834;* Deakin v. Pennial, 2 Ex. Rep. 320.* OF THE STAMP. 181 From the foregoing and other statutes, it will appear that the fol- lowing instruments are exempt from duty. 1. All such bills or notes under 40«. as may be issued without violating the provisions of the 17 Geo. 3, c. 30, and the 48 Geo. 3, c. 88. 2. Bank of England bill's and notes.(«) 3. Notes for one pound, one guinea, two pounds, and two guineas, payable to the bearer on demand, issued by the Bank of Scotland, Royal Bank of Scotland, or the British Linen Company in Scot- land. (A;) 4. Bills or notes issued by bankers paying a composition in lieu of stamps, pursuant to 9 Geo. 4, c. 2B.{1) 5. Bills drawn for the expenses of the army and navy.(TO) *6. Checks on bankers. r*87T 7. Notes of loan societies.(n) The requisites for bringing checks within the exemption have been discussed in the Chapter on Checks. Promissory notes, payable to bearer on demand, made out of Great Britain, cannot be negotiated or paid, unless stamped as notes made in Great Britain, under the penalty of 20l.(o) The making, issuing, accepting, or paying, any bill, note or draft, not falling within the above exemptions, and not duly stamped, sub- jects to the penalty of 50l.{p) The 55 Geo. 3, c. 184, s. 29, excepts notes made and payable in Ireland. Postdating bills or notes, so as to evade the higher rate of duty, subjects to the penalty of 100l.(q) Notes payable to the bearer on demand, for any sum not exceeding 1001., duly stamped according to the 55 Geo. 3, c. 184, may be reissued after payment, as often as may be thought necessary, without (t) 55 Geo. 3, c. 184, s. 21 ; 7 & 8 Vict. c. SZ, s. 1. {k) Sect. 23. (I) And see 1 Geo. 4, c. 46, s. 16. (m) 55 Geo. 3, c. 184,, Sehed. part 1. (n) See 6 & 6 Wm. 4, c. 23 ; 3 & 4 Vict. c. 110 ; 5 & 6 Vict. c..4 ;; 6.&1 Vict. c. 41 ; 7 & 8 Vict. c. 54. Althougli the form of note given by tli& statute be joint, only, yet a joint and several note is within the exemption^ BradbiJia v., Whitbreadj 5 M. & G. 439, B. G. L. R. vol. 44; see ante, p. 54. (o) 55 Geo. 3, e. 184, s. 29. (,p) Sect. 11. (g) Sect.. 12. 182 BYLKS ON BILLS OF EXCHANGE. a new stamp,(r) provided an annual license for that purpose be taken out.(s) Reissuing notes, against the provisions of the act, subjects the person reissuing them to a penalty of 501., and the duty ; and any person knowingly taking them, to a penalty of 20l.(t) But the pay- ment mentioned in the act, after which bills and notes cannot be re- issued, is a payment at maturity.(M) Issuing reissuable notes, without a license, subjects to the penalty of 100l.{v) 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 acceptor, (w) But it is other- r *«8i ^'®® ^^ *^® payee were a *third person.(a;) Or if the drawer "- were the party ultimately liable to pay the bill.( y) As to stamps on foreign bills, see the Chapter on Foreign Bills. As to the stamps on Irish or Colonial bills, see the same Chapter. A question sometimes arises as to what shall be deemed such a making within this country as to subject an instrument to the English Stamp Laws. On this subject also, see the Chapter on Foreign Bills. A bill not duly stamped is not available, nor evidence in law or equity, for any purpose in furtherance of its original design, not even as an admission. (2) Defendant indorsed to plaintiff a bill on an (r) Sect. 14. ^ Is) Sects. 24, 25, 26, 27, 28 ; and see 9 Geo. 4, c. 2.% ss. 1 and 12. it) Sect. 19. Holroyd v. Whitehead, 1 Marsh. 128, E. C. L. R. vol. 4. [u) Morley v. Culyerwell, 7 M. & W. 174,* by the party primarily liable^ see Bartrnm v. Caddy, 9 Ad. & B. 275, B. C. L. R. vol. 36 ; 1 Per. & D. 207, S. C. («) Sect. 27. {w) Callow V. Lawrence, 3 M. & Sel. 95. (x) Beck T. Robley, 1 H. B. 89; and see Graves v. Key, 3 B. & Ad. 313, E. C. L. R. vol. 23. (y) Lazarus v. Cowie, 3 Q. B. Rep. 465, E. C. L. R. vol. 43. (z) Wilson V. Vysar, 4 Taunt. 288 ; Jardine v. Payne, 1 B. & Ad. 663, B. C. L. R. vol. 20 ; Cundy v. Marriott, 1 B. & Ad. 696, B. C. L. R. vol. 20.' But an un- stamped instrument is admissible to prove an agreement illegal. Coppook v. Bower, 4 M. & W. 361.* And the Court of C. P. have allowed an unstamped bill to be given in evidence to negative by anticipation a plea of payment. Smart v. Nokes, 13 L. J. 79, C. P. ; 6 M. & G. 911, E. C. L. R. vol. 46, S. C. Sed qasere. OF THE STAMP. 183 insufficient stamp, in payment of goods sold ; plaintiff delayed in pre- senting it for payment, and the acceptor became unable to pay. Defendant proved that the bill would have been paid if presented at maturity. Held, that the bill never operated as a suspension of the debt, and that the plaintiff's laches did not discharge the defen- dant.(a) So the indorser of a bill drawn on an insufficient stamp, is not discharged from his debt by neglect of the indorsee to present or give him notice of dishonor. (J) But an instrument not duly stamped may be looked at for a collateral purpose. Action for money lent : the plaintiff's witnesses proved that plaintiff had lent defendant 40Z., 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 fraudulent. The note was pro- duced. 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 p^oq-, note was put in, and had very much the appearance of having '- -* been written by a drunken man. Verdict for the defendant.(e) So, it is no defence on a prosecution for forgery, that the instrument was not duly stamped.(c^) So, it has been held, that if A. and B. enter into a written agreement, duly stamped, and afterwards enter into another written agreement on the same subject-matter, but in- consistent with the first, and not stamped, though the plaintiff can- not give the second agreement in evidence, it may be looked at by the Court to prove that the first agreement was rescinded. (e) But where the acceptor of the bill required the drawer, who was an illi- terate person, to take Ms second acceptance at six months, in lieu of payment, 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 first (a) Wilson v. Vysar, 4 Taunt. 288. (6) Gundy v. Marriott, 1 B. & Ad. 696, B. C. L. E. vol. 20 ; Wilson v. Vysar, 4 Taunt. 288 ; Plimley v. Westley, 2 Bing. N". Ca. 249, E. 0. L. R. vol. 29 ; 2 Scott, 423 ; 7 Hodges, 324, S. C. (c) Gregory v. Fraser, 3 Camp. 454. [d) Rex V. Hawkswood, Bayley, 91, Bth ed. ; 3 East, P. C. 955 ; Rex v. Teague, Bayl. 574, 6tli ed.; 2 East, P. C. 79, S. C. (c) Beed v. Deere, 7 B. & C. 261, E. C. L. R. vol. 14; see Swears v. Wells, 1 Esp. 317. 184 BTLBS ON BILLS OF BXCHANQE. bill by the drawer against the acceptor, that the second bill could not be submitted to the jury for the purpose of enabling them to judge whether the cancelling of the original acceptance were with the assent of the plaintiff.(/) The 3 & 4 Wm. 4, c. 97, ss. 16 and 17, empowers the commis- sioners of stamps from time to time to change the dies on giving proper notice. A bill or note stamped with a superseded die is to be considered as unstamped. This objection need not be pleaded.(^) A bill accepted in blank on a proper die, but filled up after the die is changed, is void. (A) Though the commissioners are in general prohibited, by the 31 Geo. 3, c. 25, s. 19, from stamping any bill or note after it has been made, yet, if so stamped, it may nevertheless be valid in the hands of an indorsee.(i) Lord Kenyon observed, " that though the commis- sioners might have exceeded their duty in stamping a bill against the positive directions of the act of Parliament, still, that being stamped, he thought it was become *a valid instrument, and a Judge at '- -' Nisi Prius could not inquire how and at what time it was stamped. Much inconvenience might arise, and a great check be put upon paper credit, if the objection was to be allowed ; for how was it possible for a man, taking a bill in the ordinary course of business, to know whether it had been stamped previous to the making of it or not." The authority of the preceding case has been recognized in a late case ;(A;) but it is there intimated that the decision would have been different, had the plaintiff been the original party to the instru- ment, or had it carried on the face of it evidence that it was stamped after it came into the plaintiff's hands, or after it was issued. And it is conceived that if it can be distinctly shown, that the plaintiff, who sues on a bill, became the holder while it was unstamped, he cannot recover on it. (/) Sweeting v. Halse, 9 B. & C. 365, B. C. L. R. vol. 17 ; 4 M. & Ry. 287, S. C. It was held in Jones v. Ryder, 4 M. & W. 32,* that a promissory note impro- perly stamped could not be received in evidence to take a case out of the Statute of Limitations. [g) Dawson v. McDonald, 2 M. & W. 26.* {h) Abrahams v. Skinner, 12 Ad. & B. 763, E. C. R. L. vol. 40. (i) Wright V. Riley, Peake, 173 ; Roderick v. Hovill, 3 Camp. 103 ; Rapp v. AU- nut, Ibid. 106. {h) Green v. Davies, 4 B. & C. 235, E. C. L. R. vol. 10 ; 6 D. & R. 306, S. C. As to post stamping a cognovit, see Rose v. Tomblinson, 3 Dowl. 49. OF THE STAMP. 185 The reservation of interest on a bill or note does not, in any case, make a larger stamp necessary; for the object of the legislature was to impose a pro rata stamp duty on the sum actually due at the time of taking the security, and not upon what might become due in future for the use of the money.(Z) Although interest be reserved from a day prior to the date of 'the instrument; (m) Though postdating a bill, so as to evade the proper duty, subjects, as we have seen, to a heavy penalty, yet, if it be thus postdated, it will not require the higher stamp,(w) for the word date in the Stamp Act means the date expressed on the face of the bill. An instrument, which in point of law is but an agreement, requires . where the matter thereof is of the value of 201. a stamp of 2s. 6d. only.(o) An agreement requiring, when made, a stamp of 11., is now on payment of the penalty well stamped with a 2s. Sd. stamp. (^) A note reciting that deeds had been deposited as a security, does not require a mortgage stamp. (§') *After payment of money into Court on the whole decla- r- ^q.. -. ration, the defendant cannot object to the insufficiency of the stamp. (r) This point can scarcely arise in the superior Courts since the New Rules of pleading. The objection to the want of a stamp should in general be taken before the instrument is read. But where the defect requires ex- trinsic evidence to show it, as where a check has been postdated, the instrument is to be read, and the ground of objection afterwards proved as part of the defendant's case.(s) [l) Pruessing v. Ing, 4 B. & Aid. 204, E. C. L. E. vol. 6. (m) Wills v. Noot, 4 Tyrw. 726. (n) Upstone v. Marchant, 2 B. & C. 10, B. C. L. E. vol. 9 ; 3 D. & E. 198, S. C. ; Peacock v. Murrell, 2 Stark. 558, B. C. L. E. vol. 3 ; Williams v. Jarrett, 5 B. & Ad. 32, E. C. L. E. vol. 2? ; 2 N. & M. 49, S. C. ; Duck v. Braddyll, M'Clel. 235. (o) 55 Geo. 3, c. 184; 1 Vict. c. 21. (p) Buokworth v. Simpson, 1 C. M. & E. 834 ;* Doe v. Whittingham, 4 Taunt. 20 ; Deakin v. Pennial, 17 L. J., C. P. 217 ; 2 Bxch. 320.* (q) Fancourt v. Thorne, 9 Q. B. Eep. 312, E. C. L. E. vol. 58. , (r) Israel v. Benjamin, 3 Camp. 40. («) Field V. Woods, 7 Ad. & Ell. 114, B. C. L. E. vol. 34; 2 Nev. & P. 117, S.C. 186 BYLES ON BILLS OF EXCHANGE. The absence of a stamp on a bill or note cannot be pleaded, unless the plea show that the instrument cannot be made good by being stamped before the trial, (i) [*92] *OHAPTEE X. OP THE CONSIDERATION. PEESUMPTION AS TO THE CONSIDERA- i TION ON BILLS AND NOTES, . 92 WHEN IT MUST BE PEOYED, . . 93 IN THE CASE OF AN ACCOMMODATION BILL, 93 EFFECT OF NEW RULES OF PLEADINGS, 94 GIFT OF BILL OK NOTE, . . 94 NATURE OF THE OONSIDEBATION, . 95 PRE-EXISTING DEBT, . . .95 FLUCTUATING BALANCE, . . .96 DEBT OF A THIRD PERSON, . . 96 A JUDGMENT DEBT, . . .91 MORAL OBLIGATION, . . .97 CASES WHERE MORE THAN ONE CON- SIDERATION COMES IN QUESTION, 9? FAILURE OF A CONSIDERATION, . 98 NOTICE OF ABSENCE OF CONSIDERA- TION, 98 PARTIAL ABSENCE, OR FAILURE OF CONSIDERATION, . . . .98 ACCOMMODATION BILL, . . . 100 FRAUDULENT CONTRACTS OR CONSI- DERATION, 101 WHERE .A PARTY WHO HAS BEEN DE- FRAUDED MUST PAT A BILL OR NOTE SIGNED BY HIM WITHOUT CONSIDERATION, . . . .103 ILLEGAL CONSIDERATIONS AT COMMON LAW, 103 IMMORAL, 103 IN CONTRAVENTION OF PUBLICPOLICY, 104 BY STATUTE, 105 USURY, 106 GAMING, 106 HORSE-RACING, .... 106 INNOCENT INDORSEE, . . . 107 NEW SECURITY, .... 107 STOCKJOBBING, .... 108 OTHER CONSIDERATIONS ILLEGAL BY STATUTE, 109 NOTICE OF FRAUDULENT OR ILLEGAL CONSIDERATION, .... 110 ILLEGALITY OP CONSIDERATION WHERE JUDGMENT RECOVERED, . Ill RENEWAL OP BILL GIVEN ON ILLEGAL CONSIDERATION, . . . .111 If a man seek to inforce a simple contract, he must, in pleading, 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. It is never necessary to aver consideration for any engage- ment on a bill or note, or to prove the existence of such consideration, unless a presumption against it be raised by the evidence of the adverse party, or unless it appear that injustice will be done to the defendant if the plaintiff recover. In the case of simple contracts, the law pre- sumes there was no consideration till a consideration appear ; in the (t) Bradley v. Bardsley, 15 L. J. Bxch. 115 ; 3 D. & L. 476 ; 14 M. & W. 873,* S. C. f see, however, Lazarus v. Cowie, 3 Q. B. Rep. 465, E. C. L. B. vol. 43. CONSIDERATION. 187 case of contracts on bills or notes, a consideration *is presumed r- ^qq -i till the contrary appear, or at least appear probable. (a)(1) (a) To obtain tie usual decree in a creditor's suit, it is not sufficient for the plaintiff to put in an acceptance of the testator proved as an exhibit. Qusere, whether any evidence should be given of the consideration. Keaton v. Linch, 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 suiEcient that the attorney produced bills and notes given by the client to him ; he must prove the con- sideration. Jones V. Thomas, 2 Y. & Col. 498.* (1) A promissory note imports a consideration, and none need be proved unless it be impeached. Middlebury v. Case, 6 Verm. 165/; Schoonmaker v. Eoosa, 17 Johns. 301; Jerome v. Whitney, 7 Ibid. 321; Mims v. Whiddon, 2 Bailey, 451; Horn V. Fuller, 6 N. Hamp. 511 ; Goshen Turnpike v. Hurtin, 9 Johns. 217 ; Camp V. Tompkins, 9 Conn. 545 ; McMahon v. Crockett, Minor, 362 ; Mandeville v. Welch, 5 Wheat. 277 ; Hunleyv. Lang, 5 Porter, 154; Thompson v. Armstrong, 5 Alabama, 383. The consideration of a promissory note is inquirable into between the original parties. Slade v. Halsted, 7 Cowen, 322 ; Pearson v. Pearson, 7 Johns. 26 ; Parish V. Stone, 14 Pick. 198 ; Barnet v. Offerman, 7 Watts, 130 ; Geiger v. Cook, 3 Watts 6 Serg. 266. A promissory note, given for a void patent right, is without consideration, not- withstanding the vendor believed, at the time of the sale, that the patent was valid. Dickinson v. Hall, 14 Pick. 217 ; Higgins v. Strong, 4 Blackf. 182. The maker of a note is not precluded from showing want of consideration by the fact that the note was made to defraud 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 principle is, that in pari delicto potior est conditio defendentis. If a party can make out his case or his defence without showing the fraud, it cannot be objected to him .by the other party who is also a particeps. Here the case of the plaintiff is made out by the production' of the note. It is prima facie evidence of consideration. The defendant shows want of consideration, 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 con- sideration 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 u?e of the maker, though that consideration was an intended fraud. It is a mistake to put such a case on the same footing as an honest accommodation note. It has a consideration sufficient to sustain it as between the parties, though it is void as to third parties. See Murphey v. Hubert, 10 Penna. State Eep. 58 ; which was indeed the case of an executed grant, but the difference does not seem to be material. " Courts of justice do not sit to extricate a rogue from his toils. To enable a party 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 the chance of gaining. He may accom- plish his fraudulent design, and then he is sure to get back his property, or, what is 188 BYLES ON BILLS OF EXCHANGE. The defendant is not permitted to put the plaintiff on proof of the consideration which the plaintiff gave for the bill, unless the defendant can make out a prima facie case against him, by showing that the bill was obtained from the defendant, or from some intermediate party, by undue means, as by fraud, or force,(S) or that it was lost, or that it was originally infected with illegality. (1) 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 defini- r *Q4. 1 tively settled, after consideration *by all the Judges, that mere absence of consideration received by the defendant will not (6) As to a note obtained by duress of goods, see Kearns v. Durell, 6 0. B. Rep. 596, E. C. L. E. vol. 60. (c) See Heath v. Sansom, 2 B. & Ad. 291, B. C. L. R. vol. 22 ; Duncan v. Scott, 1 Camp. 100 ; Grant v. Vaughan, 3 Burr. 1516 ; King v. Milsom, 2 Camp. 5 ; Pater- sou V. Hardacre, 4 Taunt. 114; Thomas v. Newton, 2 C. & P. 606, B. C. L. R. vol. 12 ; De la Chaumette v. Bank of England, 9 B. & C. 208, E. C. L. R. vol. 17 ; Bas- sett V. Dodgin, 10 Bing. 40, E. C. L. R. vol. 25 ; 3 M. & Scott, 417, B. C. L. R. vol. 30, S. C. ; Simpson v. Clark, 2 C, N. & R. 342 ; 1 Gale, 237, S. C. It was for- merly 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 con- sideration. 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, B. C. L. R. vol. 22 ; 10 B. & C. 877, E. C. L. R. vol. 21, S. C. Heath v. Sansom, 2 B. & Ad. 291, E. C. L. R. vol. 22; Baily v. Bidwell, 13M.&W. 75.* It was, however, before the new rules, often prudent to give notice : " For it is," says Lord Tenterden, " matter of cominent if no notice were given, or if it were not given at a reasonable time.'' Mann v. Lent, 1 M. & M. 240, B. C. L. R. vol. 22 ; 10 B. & C. 877, E. C. L. R. vol. 21, S. C. It was formerly held, that where the consideration given by the plaintiff is disputed, and a notice to that effect has been given, the plaintiff must go into his whole case in the first instance, and cannot reserve the proof of consideration as an answer to the defendant's case. Delauney V. Mitchell, 1 Stark.'439, B. C. L. R. vol. 2 ; Humbert v. Ruding, Chitty, 9th ed. 651 ; Spooner v. Gardiner, R. & M., N. P. C. 86 ; 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 con- sideration. R. & M. 255, n. If, however, he call witnesses to prove 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. 254. the same thing, keep it for his family. This would be affording encouragement to such frauds. On the contrary, 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 policy." (1) Seeley v. Engell, 17 Barbour's S. C. Rep. 530. CONSIDEEATION. 189 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 Court of Exchequer, "a substantial distinction between bills given for accommodation only, and cases of fraud, inas- much 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 sus- picion 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 considera- tion 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 proba- bility is, that money was obtained upon the bill. Unless, therefore, the bill be connected 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 cases the holder must show that he gave value for it), the onus proband! is cast upon the defendant. "((i)(l) [d) Mills V. Barber, 1 Mees. & W. 425 ;* 5 Dowl. 77 ; 2 Gale, 5, S. C. ; Percival V. Frampton, 2 C. M. & R. 180 ;* 3 Dowl. 748 ; Whittaker v. Edmunda, 1 M. & R. 366, B. C. L. R. vol. 17 ; 1 Ad. & E. 638, E. C. L. R. vol. 28, S. C. ; Jacob v. Hun- gate, 1 M. & R. 445, E. C. L. R. vol. 17. It has been held by the Court of Ex- chequer, a mere admission on record is not sufficient to put the plaintiff on ptoof that he is a, holder for value, but that the presumption against his title must be raised by evidence before the jury. Edmonds v. Groves, 2 Mees. & W. 642;* 5 Dowl. 775, S. G. ; and see Smith v. Martin, 9 M. & "W. 304.* The Court of Queen's Bench, however, have held otherwise. Bingham v. Stanley, 1 G. & D. 237 ; 2 Q. B. Rep. 117, B. C. L. R. vol. 42, S. C. (1) If the indorser of a promissory note proves that it was issued fraudulently by the maker, the holder may be called on to show what consideration he gave for it. Holme v. Karsper, 5 Binn. 469 ; Thompson v. Armstrong, 7 Alabaina, 256 ; Woodhull V. Holmes, 10 Johns. 231 ; Knight v. Pugh, 4 Watts & Serg. 445 ; Jarden V. Davis, 5 Whart. 338 ; McClintick v. Cummins, 2 McLean, 98 ; Bertraud v. Bark- man, 8 English, 150 ; Catlin v. Hansen, 1 Duer, 309 ; The Exchange Bank v. Mon- teith, 17 Barbour, S. C. Rep. 171 ; Wilson v. Lasier, 11 Grattan, 477. Fraud or want of consideration is no defence for either the maker or accommo- dation indorser of a promissory 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 recover against such payee, unless he received the note in good faith, 190 BYLBS ON BILLS OF EXCHANGE. If the defendant plead that the note was made on an illegal con- sideration, and that the plaintiff 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 plaintiff the burden of proving consideration.(e) And it is conceived that in a case of fraud the de- fendant will equally cast the burden of proving consideration on the plaintiff, by proving so much of the plea as alleges that he, the de- fendant, was defrauded of the bill.(/) But the defendant is in all cases at liberty to show affirmatively, by his own witnesses, absence or failure of consideration, where on the issues raised that would be a defence. It should seem, on general principles, that no bill, note, or check, *given by the maker or acceptor to the payee, as a gift inter L -I vivos, can be enforced between these parties. Thus, where a bill of exchange was accepted by the defendant, as a present to the payee, who indorsed it to the plaintiff for a small sum advanced to him. Lord Ellenborough held, that the plaintiff- was only entitled to recover so much as he had advanced on the bill.(^) The effect of a gift of a negotiable instrument, payable to bearer, should seem on principle to be this : As between the donor and the donee, the donor cannot recover the bill back, but the donee cannot sue him 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 in the donee, who, however, must re- cover from prior parties in the donor's name. The same general rules, as apply to the nature of the consideration for other simple contracts, are also applicable to the various contracts (e) Baily v. Bidwell, 13 M. & W. 13* (/) Ibid.: but see Brown v. Philpot, 2 Mood. & Rob. 285. {ff) Nash V. Brown, Chitty, 9th ed. Y4 ; and see Holiday v. Atkinson, 5 B. & C. 501, E. C. L. B. vol. 11 ; 8 D. & R. 163, S. C. ; Easton v. Prachett, i Tyrwh. 472 ; 1 C. M. & E. Y98 ;* 3 Dowl. 472 ; 1 Gale, 33, S. C. in error ; 2 C. M. & R. 542 ;* 1 Gale, 250. for a valuable consideration and without notice of the arrangement. Small v. Smith, 1 Denio, 583. An indorser of a note for the accommodation of the maker and without consi- deration, and that fact being known to the indorsee when he took the bill, is not- withstanding liable to the indorsee : and even if the indorsee takes the note after it is due. Brown v. Mott, 1 Johns. 361. CONSIDERATION. 191 on a bill or note. It may suffice to observe here, for the sake of the unprofessional reader, that a consideration 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(A) moving from plaintiff. 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 con- sideration 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 respectively considerations for each other.(A;)(l) A previous debt due to the holder of a negotiable instrument is a good consideration : and it should seem, at least where the bill is payable at a future time, places the holder in the same situation as if he had made fresh advances on the*bill;(Z) for the remedy [-^q^-, for the previous debt is suspended till maturity of the bill. ^ -' A fluctuating balance may form a consideration for a bill.(»i) Where a banker's acceptances for his customer exceeded the cash balance in his hands, and accommodation acceptances 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 {h) It is not necessary that the consideration should move to the defendant per- sonally ; if it moves to a third person by his desire or'acquiescence, that is sufficient. Therefore, the debt of a *hird person is a good consideration to support a contract on a bill payable at a future day. Sowerby v. Butcher, 2 C. & M. 368 ;* 5 Tyr. 320, S. C. ; vide infra, p. 96. (i) Rose V. Sims, 1 B. & Ad. 521, B. 0. L. E. vol. 20. (k) Cowley v. Dunlop, 1 T. R. 565 ; Buckler ^. Buttivant, 3 East, 12 ; Rose v. Sims, 1 B. & Ad. 521, E. C. L. E. vol. 20. (I) See Perceval v. Frampton, 2 C. M. & R. 180 ;* 3 Dowl. 784, S. C. ; Foster V. Pearson, 1 C. M. & R.' 849 ;* 5 Tyr. 255, S. C. ; but see De la Chaumette v." Bank of England, 9 B. & C. 208, E. C. L. R. vol. 17; and Vallauee v. Siddel, 6 Ad. & B. 932, E. C. L. R. vol. 33 ; 2 N. & P. 78, S. C. ; see ante, p. 28. (to) Pease v. Hirst, 10 B. & C. 122, E. C. L. R. vol. 21 ; 5 M. & Ry. 89, S. C; CoUenridge v. Farquharson, 1 Stark. 259, E. C. L. R. vol. 2 ; Richards v. Macey, 14 M. & W. 484;* and for a bond, Henneker v. "Wigg, 4 Q. B. Rep. 792, B. C. L. R. vol. 45 ; and see Cholmley v. Barley, 14 M. & "W. 344.* (1) Where cross notes are made and specifically exchanged by the 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. 192 BYLBS ON BILLS OP EXCHANSB. held the collateral bills for valiie.(n) Where bills or notes are depo- sited as a security for the balance of an account current, the succes- sive balances form a shifting consideration for the bill. Thus, where A. and Co., 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 accommoda- tion bill accepted by the defendant ; when the bill becomes due the balance is in favor of A. and Co., but the bill is not withdrawn, and afterwards the balance between the houses turns considerably in favor of B. and Co., the plaintiffs, and is so when A. and Co. become bankrupts, B. and Co. are entitled to recover against the defendant, the accommodation acceptor.(o)(l) A debt due from a third person is a good consideration for a note(p) (re) Bosanquet v. Dudman, 1 Stark. 1, E. C. L. R. vol. 2 ; and see BoUand y. Bygrave, 1 R. & M. 271. (0) Attwood V. Crowdie, 1 Stark. 483, E. C. L. R. vol. 2 ; see Woodrofife v. Hayne, 1 Car. & Payne, 600, E. C. L. R. vol. 12. (p) Popplewell V. Wilson, 1 Stra. 264; Coombs v. Ingram, 4 D. & R. 211, E. C. L. R. vol. 16 ; Sowerby v. Butcher, 2 C. & Mees. 372 ;* 4 Tyr. 320, S. C. ; Garnet V. Clarke, 11 Mod. 226; Ridout v. Bristow, 1 C. & J. 231;* 1 Tyr. 84, S. C; Wilders v. Stevens, 15 L. J. 108, Exch. ; 15 M. & W. 208,* S. C; and see Lechmere V. Fletcher, 1 C. & M. 623 ;* Baker v. "Walker, 14 M. & W. 465 ;* Walton v. Mascall, 14 L. J. 54, Exch. ; 13 M. & W. 453,* S. C. ; Cook v. Long, Car. & Marsh. 510. At least, if the note be payable at a future day, for then the note amounts to (1) A note given in settlement of a doubtful claim, is founded upon a sufiScient consideration without regard to the validity of the claim. Russell v. Cook, 3 Hill, , 504. A promise to forbear, for six months, to sue a third person, on a just cause of action, is a valid and sufficient consideration for a promissory note. Jennison v. Stafford, 1 Cushing, 168. Forbearance to prosecute a legal claim and the compromise of a doubtful right, are both sufficient considerations to support a promissory note. Austell v. Rice, 6 Georgia, 472. 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. Ahrenfeldt, 4 Denio, 189 ; Bullock V. Agburn, 13 Alabama, 346. > In a suit upon a promissory note, made by the defendant, in consideration of the plaintiflf'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. 188. A release from a legal arrest is a good consideration for a note. Waterman v. Barratt, 4 Harrington, 311. CONSIDERATION. 193 *payable at a future day ; and so is a debt due from the defen- r^qir-i dant and a third person.(5')(l) A judgment debt 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) A moral obligation may be a sufficient consideration for a bill or note. Thus, where a bankrupt, after his bankruptcy, gave a promis- sory 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.(8)(2) 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 consideration, (i) Between immediate parties — that is, between the drawer and ac • ceptor, between the payee and drawer, between the payee and maker of a note, between the indorsee and indorser, the only consideration is that which moved from the plaintiff to the defendant, and the ab- sence or failure of this is a good defence to an action. Thus, where a bill w.as drawn in the regular course of trade, and delivered to the payee's agent, before the consideration was given, and the payee's an agreement to give time to the original debtor, and that indulgence to him is a. consideration to the maker. Secus if the original debtor is dead, and has no repre- sentative. Nelson v. Serle, 4 M. & W. 795 ;* reversing Serle v. Waterworth, 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 would not be a consideration, unless credit had been given to the original debtor at the maker's request. (2) Heywood v. Watson, 4 Bing. 496, E. C. L. E. vol. 13 ; 1 M. & P. 268, S. C. (r) Baker v. "Walker, 14 Mees. & W. 465.* (s) Trueman v. Feuton, Cowp. 544 ; and see Brix v. Braham, 1 Bing. 281, E. C. L. E. vol. 8 ; 8 Moore, 261, S. C. {i) Jones v. Jones, 6 M. & W. 84.* ( 1 ) Where a note is given by one man, at the request of another, to a third person, in a suit between the maker and payee, it is not essential to the validity of the note to show a consideration as between him at whose request it was made and the maker. Horn V. Fuller, 6 N. Hamp. 511. (i2) An expectation, on the part of the payee, that the maker would marry her, is not a suiScient consideration for a promissory note. Eaymond v. Sellick, 10 Conn. 480. A promissory note, the only consideration of which is the love and affection of the maker to the payee, will not create a valid obligation against the maker or his representatives, either at law or in equity. Smith v. Kittredge, 21 Vermont, 238. 13 194 BTLES ON BILLS OF EXCHANGE. agent, who was to have paid the consideration, failed, the payee could not recover against the drawer.(M) But, between remote parties — for example, between payee and acceptor, between indorsee and acceptor, between indorsee and remote indorser, two distinct considerations, at least, must come in question : first, that which the defendant received for his liability ; and, secondly, that which the plaintiff gave for his title. An action between remote parties will not fail unless there be absence or failure of both these considerations.(«) And if any inter- mediate holder between the defendant and the plaintiff gave value for the bill, that intervening consideration will sustain the plaintiff's title, (w) *Thus it is no defence to an action by an indorsee for value against an acceptor, that the acceptor received no value.(a;) Nor on the other hand, that though the acceptor received value, the indorsee gave none. On the same principle, if the acceptance were without consideration, and the plaintiff, the indorsee, knew it, he can recover no more than he gave for the bill;(«/) for, suppose the bill to be for 100?., and that the indorsee gave 601. for it, if he could re- cover 1001. from the accommodation acceptor, the acceptor having recovered that sum of the drawer, the drawer might recover back iOl. from the indorsee as money received to the drawer's use.(2)(l) (u) Puget de Bras v. '^Forbes, 1 Bsp. 117 ; Jefiiies v. Austen, 1 Stra. £H; Jack- son V. Warwick, 1 T. E. 121. In Munroe v. Bordier, 19 L. J. 133, C. P., it seems to be held, that the payee who takes a bill bona fide for value from a person to whom the drawer had intrusted the bill, but who parts with it against his instructions, ac- quires a title. Sed quaere. (u) Robinson v. Reynolds, 2 Q. B. Rep. 196, B. C. L. R. vol. 42. Quaere, effect of notice by drawer to acceptor not to pay. (w) Hunter v. Wilson, 19 L. J. 8, Bxch. ; 4 Ex. 489,* S. C. (a;) Collins v. Martin, 1 Bos. & Pul. 651. (y) Wiffen v. Roberts, 1 Bsp. 261. (z) Jones V. Hibbert, 2 Stark. 304, B. C. L. R. vol. 3. (1) The consideration of a promissory note taken before due, cannot be inquired into in a suit between the bona fide holder and maker, unless the note is void in its creation. Baker v. Arnold, 3 Gaines, 2Y9 ; Vallett v. Parker, 6 Wend. 615 1 Woods V. Hynes, 1 Scam. 103. The indorsee who takes the note after it is due, takes it subject to all the equi- ties 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. Hutchins, 4 Mass. 370 ; Wilson v. Holmes, 5 Ibid. 543 ; Rice v. Goddard, 14 Pick. 293 ; Barnet v. Offerman, 7 Watts, 130. In a suit in the name of the payee of a note not negotiable, for the use of an CONSIDERATION. 195 The entire failure of the consideration has the same effect as its original and total absence. A. appointed B. his executor and gave him a promissory note, payable on demand, for lOOZ., in consideration of the trouble he would have in the ofSce of executor after A.'s death. B., however, died first ; 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, (a) It is no defence to an action by an indorsee for value against an acceptor or other person, who has received no consideration, that, at the time the plaintiff took the bill, he knew the defendant had re- ceived no value ;(6) 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, were cognizant of the circumstances.(c) If a message be sent comprising facts, the communication of which would impugn the title to a bill, there is no presumption that the message was delivered ; that must be proved.(c^) (a) Solly V. HInde, 2 C. & M. 516 ;* 6 C. & P. 316, E. C. L. R. vol. 25, S. C. ; Wells V. Hopkins, 5 M. & W. 1* (6) Smith V. Knox, 3 Bsp. 47 ; Charles v. Marsden, 1 Taunt. 224; Fentnm y. Pocock, 5 Taunt. 193, E. C. L. R. vol. 1 ; 1 Marsh. 14, S. C. ; Bank of Ireland v. Beresford, 6 Dow, 237 ; and see Poplewell v. Wilson, 1 Stra. 264 ; and Wiffen v. Roberts, 1 Esp. 261. (c) See the Chapter on Teansfek.- (d) Middleton v. Earned, 4 Ex. Rep. 241.* innocent indorsee against the maker, the defendant may set up want of considera- tion. Long V. Long, 1 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. Calder v. Billington, 15 Maine, 398. A note absolutely void, as for an illegal consideration, 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 transfer of a patent right, 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 squities existing against it in the hands of the assignor. Ragan v. Gray, 27 Miss. 645. 196 BYLES ON BILLS OF EXCHANSE. Where a defendant can insist on a tptal want of consideration as a defence, he may also set up its partial absence or failure, as an an- swer pro tanto. Thus, in an action by the drawer of a bill for 191. 6g., r*QQn V^J^^^^ *" ^^^ ^'^^ order, against *the acceptor, it appearing '- that the bill was accepted for value as to 101., and as an ac- commodation to the plaintiff as to the residue. Lord Ellenborough held, " that although with respect to third persons the amount of the bill might be 191. 5a., yet as between these parties it was an accep- tance to the amount of 10?. only."(6) But the money as to which the consideration fails must be of a specific ascertained amount, for the jury cannot, in an action 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 plaintiff agreed to let a house to the defendant for twenty-one-years, and in consideration of 500Z., to be paid by three bills, to be drawn by the plaintiff 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 defendant was immediately let in possession ; but the plaintiff re- fused to execute the lease. It was argued, therefore, that the con- sideration had failed. But Lord Ellenborough, 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.(/) Where the consideration for an acceptance was goods sold, and the vendor forcibly retook possession, the consideration was held n'ot to have failed. (^) 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.(A) So, where work had been done by the plaintiff foi; the defendant, for which the plaintiff charged the defendant 63?., and the defendant paid the plaintiff 43?., (e) Darnell v. Williams, 2 Stark. 166, E. C. L. R. vol. 3 ; Barber v. Backhouse, Peake, 61 ; Clark v. Lazarus, 2 M. & G. 167, E. C. L. R. vol. 40 ; 2 Scott, N. E. 391, S. 0. (/) Moggeridge v. Jones, 14 East, 486 ; 2 Camp. 38, S. C. ; SpiUer v. Westlake, 2 B. & Ad. 155, E. C. L. R. vol. 22 ; Mann v. Lent, 10 B. & C. 87T, E. C. L. B. vol. 21 ; Grant v. Welchman, 16 East, 207 ; Cuff v. Browne, 5 Price, 297. (g) Stephens v. Wilkinson, 2 B. & Ad. 220, B. C. L. R. vol. 22 ; see also Jones V. Jones, 6 M. & W. 84;* and Lomas v. Bradshaw, 19 L. J. 273, C. P. [h) Morgan v. Richardson, 7 East, 482, n. ; 3 Smith, 487, S. C. ; Tye v. Gwjnne, 2 Gamp. 346 ; Obbard v. Betham, 1 M. & M. 483, E. C. L. R. vol. 22. CONSIDERATION. 197 in money, and gave him a bill for the remaining 201. ; it is no defence to an action by the plaintiff against tlie defendant on the bill that the Tvork done was not worth 43Z.(«) And, where the- amount for which the consideration fails is unliqui- dated, a bill in equity for an injunction to restrain an action on the bill of exchange and for an account cannot be maintained.(^)(l) *But, if fraud can be shown, it is otherwise as between the parties, for there is then no contract. Defendant gave plain- L tiff 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 EUenborough — " I will not admit the evidence for the purpose of reducing the damages, by showing that the pictures were of an- inferior value ; but, if you can, by the inade- quacy of the value, and other circumstances, prove fraud on the part of the plaintiff, so as to show that there was no contract at all, the evidence will be admissible : if it fall short of that, it will be unavail- (i) Tricky t. Larne, 6 M. & W. 278.* (h) Glennie v. Imri, 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; Barl v. Page, -6 N. Hamp. 447; Pryor v. Coulter, 1 Bailey, 517 ; Cook v. Mix, 11 Conn. 432 ; Denniston v. Bacon, 10 Johns. 198; Amherst Academy v. Cowls, 6 Pick. 427; Payne v. Cutler, 13 Wend. 605 ; Barns v. Finch, 2 Root, 53 ; Spalding v. Vandercook, 2 Wend. 431 ; Burton v. Stewart, 3 Ibid. 236 ; Rogers v. McKnight, 4 J. J. Marsh. 154 ; Johnson v. Titus, 2 Hill, 606 ; Lattin v. Vail, 17 Wend. 188 ; Scudder v. Andrews, 2 Mc- Lean, 464 ; Washburn v. Picott, 3 Dev. 390 ; Campbell v. Brown, 6 How. Miss. 106; Jenness v. Parker, 24 Maine, 289; Stone v. Fowle, 22 Pick. 166; Ferguson v. Oliver, 8 Smedes & Marsh. 332. That a partial failure of consideration is no defence, see Jordan v. Jordan, Dud- ley, Geo. 181 ; Hinton v. Scott, Ibid. 245 ; Scudder v. Andrews, 2 McLean, 464 ; Washburn v. Picott, 3 Dev. 390 ; Kernodle v. Hunt, 4 Blackf. 57 ; Wentworth v. Goodwin, 27 Maine, 150 ; Chase v. Weston, 12 N. Hamp. 413. Contra, Moore v. Lanham, 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 ; Hammet v. Emerson, 27 Maine, 308 ; Coburn v. Ware, 30 Maine, 202. In an action on a bill or note, the defendant cannot show a partial failure of con- sideration to reduce the damages, if the quantum to be deducted is of an uncertain and unliquidated 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 Poster, 412. 198 BTLBS ON BILLS OF EXCHANGE. ing."(0 ^°' ^^ * ^°'"®® ^® warranted, a check is given, and the horse turn out unsound, the breach of the warranty is no answer to an ac- tion 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, (m) An accommodation bill is a bill to which the acceptor, drawer, or indorser, as the case may be, has put his name, without considera- tion,(w) for the purpose of benefiting or accommodating some other party who is to provide for the bill when due.(o) A party who pro- cures another to lend his acceptance, thereby engages either himself to take up the bill, or else within a reasonable time before the bill becomes due to provide the accommodation acceptor with funds for so doing, or, lastly, to indemnify the accommodation acceptor against the consequences of non-payment.(^) And, therefore, where the drawer of an accommodation bill a week before the bill became due, handed over bank notes to the accommodation acceptor, it was held that he could not himself revoke this payment, and that his bank- ruptcy before the bill became due did not amount to a revoea- tion.(9)(l) [1) Solomon v. Turner, 1 Stark. 51, B. C. L. R. vol. 2. (m) Lewis v. Cosgrave, 2 Taunt. 2. (») As to his remedy for the costs of an action brought against him, see post, Chapter xxxii. ' (0) 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. Benton, 9 Q, B. Rep. 843, E. 0. L. R. vol. 58 ; 16 L. J. 353, Q. B., S. C. ; see also King v. Phillips, 12 Mees. & "W. 705.* (p) Reynolds v. Doyle, 1 M. & G. T53, E. C. L. R. vol. 39 ; 2 Scott, N. B. 45, S. C. ' (2) Yates V. Hoppe, 19 L. J. 180, C. P. Ha'd the paymeilt been a fraudulent preferment, it would of course have been otherwise. (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. Wallace 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 indorser. Mauldin v. Branch Bank, 2 Alabama, 502. 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. Parrar v. Gregg, 1 Richardson, 378. Indorsers of promissory notes, indorsed for the use and accommodation of the maker, are co-sureties, and the last indorser cannot recover more than a contributive share against a previous indorser. Douglas v. Waddle, 1 Hamm. 413. Contra, Youngs V. Ball, 9 Watts; 139. The last indorser of a note, who pays the amount CONSIDERATION. 199 The consideration or contract on a bill or note must not be in fraud either of the defendant or third persons ; for fraud totally avoids all contracts, both in law and equity. Thus, as we hare just seen, if a man sells goods, warranting them, and *take a bill or note in r^j^oil payment, and the warranty turn out false, and it be proved -that he knew it at the time of sale, he cannot recover on the instrument.(r) 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 defen- dant that the rent was due, in order to induce him to give his accep- tance, and that, if so, the acceptance was fraudulently obtained, and the defendant was entitled to a verdict, (s) So, if by fraudulent representations a man induces another to give him for a business more than it is worth, and take a bill in payment, he cannot recover on the bill.(<) But where the defendant insists on fraud as a defence, he must altogether repudiate the contract and retain no benefit under it.(M) And he must now plead the fraud specially. Equally unavailing is the instrument, if it were given in fraud of (r) Lewis v. Cosgrave, 2 Taunt. 2. (s) Grew V. Sevan, 3 Stark. 134, E. C. L. R. vol. 3. (t) Archer v. Bramford, 3 Stark. 175, E. C. L. E. vol. 3. (u) Ibid. to the holder, may recover it against any prior indorser, whether the note was in- dorsed by all for the accommodation of the maker or not. Ibid. Williams v. Bas- son, 11 Ohio, 62; Catheart v. Gibson, 1 Richardson, 10. See Hunt v. Armstrong, 5 B. Monroe, 399; Stiles v. Eastman, 1 Kelly, 205; Bank of the U. S. •r. 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. & C, but the order of their in- dorsements 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 accommo- dation of the maker die 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 accommodation 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 wUl not be liable to a third person who takes the note with notice. Dogan v. Dubois, 2 Richardson, Eq. Rep. 85. 200 BYLBS O.N BILLS OF EXCHANGE. third persons. An insolvent proposed Co compound with his creditors, but the plaintiffs, being creditors, refused to execute the deed.of com- position, unless the insolvent gave them a promissory note for the residue of his debt to them. He accordingly 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.('y)(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.(w) And the note is equally, void, if given, not by the insolvent, but by a third person. So, the note, being given with a fraudulent intention, would have been void, though the composition had never been effected.(a;) 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, r*l 021 *^^^ i* i^ immaterial whether that be done by receiving more money, or that which ik meant to procure him more money ; namely, a better security for the same sum."(?/) A compounding creditor cannot split his demand, and compound for part, and after- wards sue for the residue, unless he acquaint the other creditors with his proceeding. Therefore, where the plaintiff held two bills, drawn by the insolveiat, both due, one for 400?., the other for 156Z. 19s. 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 sue the insolvent on the first bill.(2) So, if the agreement of composition (w) Coetshott V. Bennett, 2 T. R. 763 ; Knight v. Hunt, 5 Bing. 432, E. C. L. E. vol. 15; 3 M. & P. 18, S. C. ; Bryant v. Christie, 1 Stark. 329, E. C. L. R. vol. 2; and see Took v. Tuck, 4 Bing. 224, B. C. L. E. vol. 13 ; 12 J. B. Moore, 435, E. C. L. R. vol. 22. {w) Wilson V. Ray, 10 Ad. & E. 82, E. C. L. R. vol. 31 ; 2 Per. & Dav. 253, S. C, overruling Turner v. Hoole, 1 D. & R., N. P. Ca. 27. (x) Wells V. Girling, 1 B. & B. 447, E. C. L. R.~ vol. 55 ; 3 J. B. Moore, 79, S. C, E. C. L. R. vol. 4. (y) Leicester v. Rose, 4 East, 372, overruling Feise v. Randall, 6 T. E. 146. {z) Britten V. Hughes, 5 Bing. 460, E. C. L.E. vol. 15; 3 M. & P. 77, S.C, over- ruling, perhaps, Payler v. Homersham, 4 M. & Sel. 423 ; and see Holmer v. Viner, 1 Bsp. 132 ; Cecil v. Plaistow, 1 Aust. 202. (1) A note given by a bankrupt to a creditor for his consent to the bankrupt's discharge, is void from illegality of consideration, though given after his discharge. Rice V. Maxwell, 13 Smedes and Marsh. 289. CONSIDERATION. 201 contain a stipulation that all securities shall be given up, if the com- pounding creditor holds bills drawM 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) But he may retain money so received, if the agreement of composi- tion contained no stipulation for the surrender of securities. (6) A creditor who holds a bill, and accepts a composition, impliedly en- gages that the bill is in his own hands. If, therefore, an indorsee of the bill afterwards compels the compounding debtor to pay the bill, the latter may recover the amount from the compounding creditor as money paid to his use,(e) unless the debtor made the payment volun- tarily to a holder who was a mere agent of the original creditor, and known by the debtor to be so.{d) If the creditors of an insolvent compound with him, and take notes of hand for the amounts 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.(e) 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 him a stipula- tion for an additional sum, which it is secretly agreed between him- self and the principal, that the *principal shall pay in liquida- tion of an old debt, that is a fraud on the surety, and releases ■- -■ him from his engagement.(/) But where a fraud has been practised on the maker or acceptor, an indorsee for value without notice may, nevertheless, recover against him. Thus we have seen, that though a partner fraudulently use the names of his copartners, they will all be bound to pay an innocent indorsee.(^) So, in an action by the indorsee against the maker of a note thirteen years old, the defendant obtained a rule nisi to set aside a judgment by default, on an affidavit that he, the defendant, was (a) Stock V. Mawson, 1 B. & P. 286. (6) Thomas v. Courtnay, 1 B. & Aid. 1. (c) Hawley v. Beverly, 6 M. & G. 221, E. C. L. R. vol. 46. (d) Gibson v. Bruce, 5 M. & G. 399, B. C. L. R. vol. 44. (e) Howden v. Haigh, 11 Ad. & B. 1033, B. C. L. R. vol. 39. (/) Pidcock V. Bishop, 3 B. & C. 605, E. C. L. R. vol. 10 ; 5 D. & R. 505, B. C. L. L. vol. 16, S. C. {g) Ante, p. 33. 202 BYLES ON BILLS OF EXCHANGE. swindled out of the note. An affidavit being made on the other side, that the plaintiff took the note bona fide, and gave a valuable consi- ' deration for it, the Court held, that, however improperly it might have been obtained, a third person, who took it fairly and gave a considera- tion for it, was entitled to recover, and they discharged the rule. (A) A., by false representations^ induced B. to sign his name to a blank stamped paper, which A. afterwards secretly filled up as a promissory note for lOOZ., and induced 0. to advance him 1001. 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.(i) 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 1[k) Considerations or con- tracts are illegal, either, first, at common law, or secondly, by statute. 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 obligations 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. ^x turpi causd 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 cohabitations 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.(Z) So, the rent of lodgings knowingly let for the purpose of prostitution, is an illegal consideration, (wj) A wager as to the sex of a third person is illegal, because it tends to indecent evidence, to injure the feelings of the individual, and disturb the peace of society.(w) So is a wager (A) Morris v. Lee, 2 Kaym. 1396 ; 1 Stra. 629, S. C. ; Bayley, 6th ed. 509. (i) Eex V. Eevett, Bury Summer Assizes, 1829, coram Garrow, B. [k) Simpson v. Bloss, 7 Taunt. 246, B. C. L. R. vol. 2 ; 2 Marsh. 542, E. C. L. R. vol. 4, S. C. (Z) Binnington v. Wallis, 4 B. & Aid. 651, E. C. L. R. vol. 6 ; Gibson v. Dickie, 3 M. & Sel. 463 ; Nye v. Moseley, 6 B. & C. 133, E. C. L. R. vol. 13 ; 9 D. & E. 165, S. C. ; Beaumont v. Reeve, 15 L. J. 141, Q. B. ; 8 Q. B. 483, E. C. L. E. vol. 55, S. 0. (m) Girardy v. Eichardsou, 1 Esp. 13 ; Howard v. Hodges, Sel. N. P. Yth ed. 68. (re) De Costa v. Jones, Cowp. 729. CONSIDERATION. 203 a§ to whether an unmarried •woman had borne, or ■would have, a child, (o) 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. It is said by Best, C. J.,(^) that if it be merely doubtful whether an agreement be at variance with the public interest, it is not void ; it must be clearly and indubitably in contra- vention of public policy. A contract in general restraint of trade, as not to carry on a particular business anywhere 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 good.(g') A contract in general restraint of marriage is void,(r) as, a bond given by a widow conditional for the payment of a sum of money if she should marry again, (s) And it makes no difference that the restraint is only for a limited period, as, for six years. (f) An undertaking for reward to procure a marriage between two parties is void.(M} A contract tending to the injury of the revenue, by evading or violating the custom and excise laws, is illegal. (v) But, if a trader sell goods with the mere hnowledge that the purchaser intends to make an illegal use of them, without in any way lending his aid to the ^effectuationp^lj^r-, of the unlawful purpose, he may sustain an action on the con- tract.(w) "Considerations impeding the course of public justice, as dropping a criminal prosecution for a felony or a public misdemeanor, or suppressing evidence, are illegal considerations.(a;)(l) But it has (0) Ditehburn v. Goldsmith, 4 Camp. 152. [p] Richardson v. Mellish, 2 Bing. 229, E. C. L. E. vol. 9 ; 9 J. B. Moore, 435, B. C. L. E. vol. 17, S. C. (5) Co. Litt. 206, b. II. 1 ; Hunloek v. Blacklowe, 2 Saund. 156, n. 1 ; Mltchel v. Eeynolds, 1 P, Wms. 181 ; 10 Mod. 130, S. C. ; Davis v. Mason, 5 T. E. 118 ; Ward V. Byrne, 5 M. & W. 548;* 3 Jurist, 1175, S. C. Where the covenant is not to carry on business within two districts, one small and reasonable, and the other large and unreasonable, it is divisible. See Mallan v. May, 11 Mees. & W. 653 ;* Green V. Price, 13 M. & W. 695* (r) Lowe v. Peers, 4 Burr. 2225. {s) Baker v. White, 2 Vern. 215. \t) Hartley v. Rice, 10 Bast, 22. (m) Hall V. Potter, 3 Lev. 411 ; Eoberts v. Eoberts, 3 P. Wms. 66 ; Com. Dig. Chancery, 3 Z. 8. (u) Biggs V. Lawrence, 3 T. R. 454 ; Vandyk v. Hewitt, 1 Bast, 97. [w] Hodgson V. Temple, 5 Taunt. 181, B. C. L. E. vol. 1. (x) Nerot v. Wallace, 3 T. R. 17 ; Pallowes v. Taylor, 7 T. R. 475 ; Edgecombe 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 witness against 204 BTLES ON BILLS OF EXCHANGE. been held that compounding a priyate misdemeanor is a good conside- ration for a note.(y) A wager on the result of a criminal prosecu- tion is illegal.(z) And a note given after conviction to the prose- cutor, for the expenses of the prosecution, the amount of which are settled by the Court, is .legal.(a) So, though the particulars of the arrangement are not communicated to the Court and sanctioned by them.(J) And the substitution of a good bill for a forged one, at the instance of the forger, if unaccompanied with any stipulation to stifle a prosecution for forgery, is not illegal.(e) Contracts respecting the sale of public offices are for the most part void at common law,(d) 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, au- thorizes 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 Bllenborough, "-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."(e) Con- tracts with a public enemy are illegal ; and a bill drawn by an alien enemy on his debtor here, and indorsed to the plaintiff, 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 in France drew a bill on an English subject, and indorsed it to the plaintiff, then an alien enemy, it was held that, (y) Drage v. Ibberson, 2 Bsp. 643 ; and see Coppock v. Bower, 4 M. & W. 361.* (z) Evans v. Jones, 5 M. & W. 11* (a) Beeley v. Wingfield, 11 East, 46; see Keir v. Leeman, 9 Q. B. Rep. 394, B. C. L. R. vol. 58. (6) Kirk V. Striekwood, 4 B. & Ad. 421, E. C. L. R. vol. 24 ; 1 N. & M. 275, S. C. ; and see Baker v. Townshend, 1 J. B. Moore 120, B. C. L. B. vol. 4. (c) Wallace v. Hardacre, 1 Camp. 45. (d) Richardson v. Mellish, 2 Bing. 229, E. C. L. R. vol. 9 ; 9 J. B. Moore, 435, S. C. (e) Cole v. Gower, 6 East, 110. (/) Willison V. Patteson, 1 Taunt. 440, E. C. L. R. vol. 2. * him,- is founded on an illegal consideration and is invalid. Swan v. Chandler, 8 B. Monroe, 97 ; Clark v. Ricker, 14 N. Hamp. 44; The Commonwealth v. Johnson, 3 Gushing, 454 ; Gardner v. Maxey, 9 B. Monroe, 90 ; Hiuesburgh v. Sumner, 9 Verm. 23. CONSIDERATION. 205 after the *return of peace the plaintiff might recover. (^) And pi ng-i a bill drawn by a British prisoner, in favor of an alien enemy, cannot be enforced by the payee. Among the considerations, illegal by statute, are the following : — 1. Usury. It will be more convenient to discuss the nature and consequences of usury in the Chapter on Interest. 2. Gaming considerations. The stat. 16 Car. 2, c. 7, avoided all securities, written or verbal, given to secure any sum of money ex- ceeding IQOl. lost at play.(A) 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 betting,(z') and by subjecting to the animadversion of criminal justice," all winnings above 101., it impliedly avoided all contracts to enforce them also. (A;) Both acts avoided judgments for gaming debts, but the judgments to w'hich they refer are voluntary judgments given by the loser, and not judgments obtained by adverse action. (Z) Any game, whether of skill or chance, was within the acts.(OT) 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 Wm. 4, c. 41. Money lent to play at any illegal game cannot be recovered back by the lender. " This principle," says Lord Abinger, " was not for the first time laid down in Cannan v. Bryce,(w) but by that case fully settled that the repayment of money lent for the express purpose of accomplishing an illegal object cannot be enforced. "(o) 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 Geo. 2, c. 19, and 18 Geo. 2, {g) Antoine v. Morshead, 6 Taunt. 237, B. C. L. R. vol. 1 ; 1 Marsh. 558, B. C. L. R. vol. 4, S. C. (A) See Bentinck v. Connop, 5 Q. B. Rep. 693, E. C. L. R. vol. 48. (i) See also 12 Geo. 2, c. 28, and 18 Geo. 2, u. 34. {k) Sect. 5 ; see Daintree v. Hutchinson, 10 M. & W. 85 ;* Applegarth v. CoUey, 10|^. &W. 723* (l) Lane v. Chapman, 11 Ad. & E. 966, E. C. L. R. vol. 39 ; 3 P. & D. 668 ; S. C. afiSrmed in error. Ibid. 980. (m) Sigell V. Jehb, 3 Stark. 1, E. C. L. R. vol. 3. (ji) Cannan v. Bryce, 3 B. & Aid. 179, B. C. L. R. vol. 5. (o) McKinnell v. Robinson, 3 Mees. & W. 434. 206 BYLBS ON BILLS OF EXCHANGE. r*1071 ^" ^^' ^®'"® within the former acts against gaming.(j?) *But a bet under 10^., on a legal horse-race, was valid ;(§') though a bill or note given to secure it would have been void.(r) But if the horse-race be for a sum less than 50Z.,(s) or above 50?., but not a contest between horses running on the turf, the bet was void.(f) A bill of exchange or note given for a gaming debt was, until re- cently, void, even in the hands 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 acceptor or maker ;(u) but the drawer and indorser were and are nevertheless liable.(«;) The same rule of law applies to bills or notes given for the ransom of captured ships or cargoes ;(w) to bills or notes given by a bank- rupt to his creditor to induce him to sign the bankrupt's certificate.(a;) In all these cases, as well as in the case of usury, the acts of Parlia- ment avoiding bills or notes, so far as they make the instruments ab- solutely void, are repealed by the 5 & 6 Wm. 4, c. 41, s. l.(y) This statute enacts, that bills or notes which would otherwise have been void, shall only be taken to have been given for an illegal considera- tion.(2) 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. (p) Goodburn v. Marley, 2 Stra. 1159 ; Clayton v. Jennings, 2 Bla. T06 ; Blaxton V. Pye, 2 Wils. 309 ; Shillito v. Theed, 1 Bing. 405, E. C. L. R. vol. 20 ; 5 M. & P. 303, S. C. (g) McAllester v. Haden, 2 Camp. 438. (?■) 9 Anne, c. 14, s. 1. , (s) Johpson V. Bann, 4 T. R. 1. (t) Ximenes v. Jacques, 6 T. R. 499 ; Whaley v. Pajot, 2 B. & P. 51; see now 3 & 4 Viet. c. 5, which repeals 13 Geo. 2, c. 19, and 8 & 9 Vict. c. 109. (m) Bowyer v. Bampton, 2 Stra. 1155 ; Shillito v. Theed, V Bing. 405, B. C. L. R. vol. 20 ; 5 M. & P. 303, S. C. [v) Ibid. ; Edwards v. Dick, 4 B. & Aid. 212, E. C. L. R. vol. 6. (w) 45 Geo. 3, c. 72, s. 17. (a) 6 Geo. 4, c. 16, s. 125. (y) This statute is preserved in force by 8 & 9 Vict. c. 109, s. 15, the effect of which seems to be, that a winner of stakes may recover, though a promissory note for the amount would be void. Baily v. Marriott, 17 L. J. 215, C. P. ; 5 C. B. 818, B. C. L. R. vol. 61, S. C. (z) As to the effect of this enactment, see Edmunds v. Groves, 2 M. & W. 642.* Both sections of the statute are prospective. Hitchcock v. Way, 2 N. & P. 72 ; 6 Ad. & Ell. 943, E. C. L. R. vol. 33, S. C. ; Humphreys v. Earl of Waldegrave, 6 M. & W. 622.* CONSIDERATION. 207 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. Under the old law, a renewed security was good, if given to an in- nocent indorsee before the bill fell due.(a) *3. Stock-jobbing. The Stock-jobbing Act is the 7 Geo. 2, r^jQg-i c. 8, made perpetual by 10 Geo. 2, c. 8. The principal pro- visions of this statute are as follow :(6) 1. Betting upon stock is 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 of 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 500Z., 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. Contracts to buy or sell stock, of which the seller is not at the time possessed, subjects both parties to the penalty of 50Ql.{p) It was formerly held, that money expended by another person in settling a stock-jobber's diiferences for him, or money lent him to settle them with, could be recovered. ((^) But it is now settled, that as the fifth section of the act prohibits expressly the payment of money for the arrangement of difi'erences, a person paying dififerences for another, or lending him money to pay them himself, advances money for an illegal purpose, and cannot recover it back.(e) The following cases relating to bills have been decided on this statute : — The defendant employed a broker(/) to pay difi'erences for (a) George v. Stanley, 4 Taunt. 683. (6) Transactions in foreign stock are not ■within this statute. Henderson v. Bise, 3 Stark. 158, E. C. L. R. vol. 3 ; Wells v. Porter, 2 Bing. N. C. 123, B. C. L. R. vol. 29 ; Oakely v. Eigby, 2 Bing. N. C. Y32, E. C. L. R. vol. 29. (c) But see Mortimer v. M'Callan, 1 M..&W. 20 ■* afBrmed 9 M. & "W. 636.* {d) Paikney v. Reynous, 4 Burr. 2069 ; Petrie v. Hannay, 3 T. R. 418. (e) Cannan v. Bryce, 3 B. & Aid. 179, E. C. L. R. vol. 5; M'Kinnell v. Robinson, 3M..&W. 434.* (/) Stock-brokers are within the statutes 6 Anne, c. 16, s. 4, and 51 Geo. 3, c. 40 ; Clarke v. Powell, 4 B. & Ad. 846, E. C. L. R. vol. 28 ; 1 N. & M. 492, S. C. ; by which brokers are prohibited under a penalty from acting in London without admis- sion by the mayor and aldermen. For the condition of the bond given by brokers, and the oaths taken by them, see Kemble v. Atkins, Holt, N. P. C. 427. 208 BYLES ON BILLS OP EXCHANGE. him, and after they were settled a dispute arose between them jis to the amount of the money so paid by the broker. The case was re- ferred to the plaintiff and three other arbitrators, who awarded the sum of 306Z. 12s. 6d. to be due from the defendant to his broker. The broker then drew on the defendant for 100?., part of this sum, the defendant accepted 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 situation as r*l non **'^® broker.(^) Where a broker had settled differences for -* his principal in omnium, had taken his principal's acceptance 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 was also void in the hand? of the indorser, as against the acceptor.(^) A stock-jobber gave his broker a promis- sory 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 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.(i) 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 recover against the drawer.(A) And as the statute does not expressly avoid securities given for differences, it should seem, the indorsee might have recovered against the acceptor.(/) Where a man sells stock of which he is not possessed, and after- wards buys it and transfers it to the vendee, he may, notwithstand- ing the statute, maintain an action for the price. (m) (g) Steers v. LasUey, 6 T. R. 61 ; 1 Esp. 166, S. C. (h) Brown v. Turner, 7 T. R. 630 ; 3 Esp. 631, S. C. (i) Amory v. Meryweather, 2 B. & C. 573, E. C. L. R. vol. 9 ; 4 D. & R. 86, S. C. (k) Day v. Stuart, 6 Bing. 109, E. C. L. R. vol. 19 ; 3 M. & P. 334, S. C. (Z) See Mr. J. Holroyd's observations in Broughtou v. Manchester Water Works Company, 3 B. & Aid. 10, E. C. L. R. vol. 5. But may not stock-jobbing be within 9 Anne, c. 14 ? («i) Mortimer v. M'Callan, 7 M. & W. 20 ;* affirmed 9 M. & W. 636.* CONSIDBKATION. 209 Besides the cases •which have been mentioned, there are many other instances of securities expressly avoided by the legislature ; as, gaming policies on ships or lives ;(w) sale of an office ;(o) a stipulation with a sheriff for ease or favor •,{p) a security whereby a creditor of a bank- rupt who has proved his debt is to receive more than others •,{q) or to receive anything for signing a bankrupt's certificate ;(r) a security given by a man for a debt from which he has been discharged by the Insolvent Debtors' Act.(8) And to these the same ^general r;|<-|-|Q-| rules apply as ta securities given for a gaming debt, before the statute 5 & 6 Wm. 4, c. 41. 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 the 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. (i) The 24 Geo. 2, c. 40, prohibits persons from recovering a debt incurred by sale of spirituous liquors in less quantities than of the value of 20«. ; and, where part of the conside- ration for a bill was spirituous liquors, within the statute, and part for money lent, it was holden wholly void in the hands of the payee, (m) But, where the defendant was indebted to the plaintiff for boarding and lodging, and for spirituous liquors in quantities of less value than 20s., and having made the plaintiff several unappropriated 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.(v) (re) 19 Geo. 2, c. 37 ; 14 Geo. 3, c. 48. (o) 5 & 6 Ed. 6, c. 16 ; 49 Geo. 3, c. 126 ; 53 Geo. 3, c. 129. Ip) 23 Hen. 6, c. 9. iq) ,5 Geo. 4, c. 16, s. 8; Rose v. Main, 1 Bing. N. C. 357, B. C. L. R. vol. 27 ; 1 Scott, 127, S. C. (r) 6 Geo. 4, c. 16, s. 125 ; Hankey v. Cobb, 1 Q. B. Rep. 490, E. C. L. R. vol. 41. [s) Evans v. Wiffiams, 1 C. & M. 30 ;* 3 Tyrw. 226, S. C. ; Ashley v. Killick, 5 M. & W. 509.* (i!) Wyat v. Bulmer, 2 Esp. 538. (m) Scott V. Gillmore, 3 Taunt. 226 ; Crookshanka v. Rose, 1 M. & Rob. 100 ; 5 C. & P. 19, E. C. L. R. vol. 24, S. C. Where two sorts of spirits had been supplied at one time, the amount of each sort being under 20s., but of both together above 20s., it was held that the value of both was recoverable. Owens v. Porter, 4 C. & P. 367, E. C. L. R. vol. 19. (v) Crookshanks v. Rose, 1 M. & Rob. 100; 5 C. & P. 19, E. C. L. R. vol. 24, S. C. 14 210 BYLES ON BILLS OF EXCHANGE. So a bill of exchange accepted to secure payment of money taken at the doors of an unlicensed theatre, is Toid(w) in the hands of the -payee, who knew the theatre to be unlicensed. Therefore, also, as the statute 57 Geo. 3, c. 99, prohibits spiritual persons from trading, it was held, that a joint-stock banking company, in which a beneficed clergyman held shares, could not sue as indorsee on a bill of ex- change.(a;) In consequence of this decision, an act of Parliament, 1 Vict. c. 10, was passed to avoid the inconvenience. But a note given for the amount of an attorney's bill not delivered pursuant to 6 & 7 Vict. c. 73, js good.(«/) 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, (s) r*lin *-^ judgment recovered by default will not be set aside, on the ground of illegality in the consideration, unless the de- fendant 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. (J) Where parties have woven a web of fraud or wrong, it is said to be no part of the duty of Courts of justice to unravel the threads. (1) If a bill originally given upon an illegal consideration be renewed, the renewed bill is also void,(c) unless the amount be reduced by ex- cluding so much of the consideration for the original bill as was illegal.(c?) (w) De Begnis v. Armistead, 10 Bing. lOT, E. C. L. R. vol. 25 ; 3 M. & P. 511, S. C. {x) Hall V. Franklin, 3 M. & W. 259 ;* 1 Hor. & W. 8, S. C. {y) Jeffreys v. Evans, 14 M^. & "W. 210.* (z) Masters v. Ibberson, 18 L. J. 348, C. P. (a) George v. Stanley, 4 Taunt. 683 ; Davison v. Franklin, 1 B. & Ad. 142, E. C. L. E. vol. 20. (6) Robinson v. Bland, 2 Burr.. 1077 ; Scott v. Gilmore, 3 Taunt. 226; Crook- shanks V. Rose, 5 Car. & P. 19, B. C. L. R. vol. 24 ; 1 M. & Rob. 100, S. C. j Story on Promissory Notes, s. 190. (c) Chapnian v. Black, 2 B. & Aid. 588 ; Wynne v. Callander, 1 Russ. 293 ; Pres- ton V. Jackson, 2 Stark. 237, E. C. L. R. vol. 3. {d) Ibid. ; and see Hubner v. Richardson, Bayley, 6th ed. 52'7. (1) Carleton v. Bailey, 1 Poster, 230. TRANSFER. 211 *CHAPTER XL OF THE TRANSFER OF BILLS AND NOTES. [*112] DITISIOU OF THE SUBJECT, . . 112 WHAT BILLS TKAtTSFEEABLE, . .113 EFFECT OF INDOnSEMENT OF A BILL NOT NEGOTIABLE, . . . 113 MODES OF A TRANSFER, . . . 114 BLANK INDORSEMENT, . . . 114 SPECIAL INDORSEMENT, . . .115 AN ALLONSE, 115 MISSPELT INDORSEMENT, . . . 115 BY A PLURALITY OF HOLDERS,. . 116 CONVERSION OF BLANK INTO SPECIAL INDORSEMENT, .... 116 DELIVERY NECESSARY, . . . 116 LIABILITY OF INDORSEE, . . . 117 HOW DECLINED, . . . .117 MAY BE SUSPENDED ON A CONDITION, 117 WHAT INDORSEMENT ADMITS, . .118 STRIKING OUT INDORSEMENTS, . . 118 EIGHTS OF INDORSEE, . . . 119 OF TRANSFEREE TO COMPEL INDORSE- MENT, 119 WHERE A BILL IS EEINDORSED TO A PRIOR INDOESER, . . . 119 WHERE THE INDORSEE IS ONLY A TRUSTEE, 119 EESTRICTITE INDOESEMENTS, . . 121 LIABILITY OF PEESONS TEANSFEE- EING BY DELIVEEY, . . . 122 WHERE THE BILL IS CONSIDERED AS SOLD, 123 WARRANTY OF GENUINENESS, . .125 . RIGHTS OF TRANSFEREE BY DELIVERY, 125 TRANSFER UNDER PECULIAR CIRCUM- STANCES, 127 BEFORE BILL FILLED UP, . .127 AFTER REFUSAL TO ACCEPT, . WHERE THE TRANSFEREE HAS NO NO TIOE, .... AFTER DUB, . '. TRANSFER OF AN OVERDUE CHECK, OF A NOTE PAYABLE ON DEMAND, PLEADING, .... EQUITABLE RELIEF IN CASE OF OUT- STANDING OVERDUE BILL, . BUEDEN OF PEOOF, CHEOIv DRAWN ON BEARER'S BANKER, AFTER PAYMENT, ... AFTER PREMATURE PAYMENT, AFTER PARTIAL PAYMENT, WHERE THERE IS A QUESTION WHE' THBR THE BILL WAS PAID OR TRANSFERRED, . TRANSFER FORPART OF THE SUMDUE, FOE RESIDUE UNPAID, . AFTER EELEASB, . AFTER ACTION BROUGHT, OF BILLS AND NOTES UNDER 5l., TRANSFER ABROAD, AFTER holder's DEATH, AFTER BANKRUPTCY, AFTER MARRIAGE, . BY DEPOSIT WITH A BANKER, . BY WILL, .... DONATIO MORTIS CAUSA, EXECUTION, .... LARCENY, .... EMBEZZLEMENT, . WHEN A COURT OF EQUITY WILL RE- STRAIN NEGOTIATION, 128 128 129 130 131 131 131 131 131 132 133 133 133 133 134 134 134 134 134 135 135 135 135 135 136 136 137 137 137 In examining the subject of the transfer of bills and notes, let us consider, first, what bills are transferable ; secondly, *the modes . of transfer ; thirdly, the nature and extent of an indorser's [*113] liability ; fourthly, the rights of an indorsee ; fifthly, the liability of 212 BYLBS ON BILLS OF EXCHANGE. a person transferring by delivery ; sixthly, the rights of a transferee by deliyery; seventhly, 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 already seen that a bill or note which does not contain a direction or promise to pay to the order of the payee, or to hearer, is not transferable ; that is, not so as to charge the drawer or acceptor by an assignment of the right of action. But if, nevertheless, the paye'e does indorse a hill not negotiable, he is liable on his indorsement to his indorsee. (5) For every indorser of a hill is in the nature of a new drawer.(c) If the bill, however, were not origi&ally negotiable, it seems to have been considered by the Court of Common Pleas, that the first drawing exhausts the stamp, and that the indorsee cannot acquire a right, without a new stamp,(c^) which cannot by law be imposed. If the declaration on a bill indorsed in blank, but not originally negotiable, or not indorsed by the payee, state that the defendant the indorser drew and indorsed the bill, payable to his order, it will upon 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 effect of the blank indorsement is to make it payable to bearer.(e)(l) (a) See the observations on the Assignability of Bills, ante, p. 2. (6) HiU V. Lewis, 1 Salk. 1^2 ; Smallwood v. Vernon, 1 Stra. 478 ; Gwinnell v. Herbert, 5 Ad. & E. 436, E. C. L. R. vol. 31 ; 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 sta,mp laws might interpose an obstacle. (c) See Allen V. Walker, 2 M. & W. 317 ;* 5 Dowl. 460. (d) PUmley v. Westley, 2 Bing. N. C. 249, E. C. L. R. vol. 29 ; 2 Scott, 423 ; 1 Hodges, 324, S. C, which however was the case of a note. (e) 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 con- tracts to be 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. McOullough, 3 Humph. 171. The indorser of a note not negotiable has no right in an action against him to insist upon previous demand and notice ; his indorsement is equivalent to a guaranty. Seymour v. Van Slyck, 8 Wend. 403. TRANSFBB. 213 But the indorsement of a note (whether originally negotiable 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 requires notice of dishonor), yet an indorser of a note cannot be treated as a drawer or maker of the note, without altering his *situation for the worse, and de- r#-|^-|^^-| priving him of the right to notice of dishonor. The words or to Ms order or to hearer, 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^ 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, except by in- dorsement ; but that, if payable to bearer, it is transferable by mere delivery. («') If a bill be made payable to A., or order, for the use of B., B. (/) Gwinuell V. Herbert, 5 A. & E. 436, B. 0. L. R. vol. 31 ; 6 N. & M. 723, S. C. ; but see Story on Promissory Notes, s. 138. [g) Kershaw v. Cox, 3 Esp. 246. See the Chapter on Alteration. (h) Grant v. Vaughan, 3 Burr. 1616. (i) It is conceived, that if an agent, a banker, for example, hold a bill transfera- ble by delivery, a direction given to him by the owner to hold it for another, is a sufficient transfer by delivery. And that if the owner make over a bill transferable by delivery, iy deed, and perhaps by any valid written or verbal contract, without actually delivering the bill, the deed amounts to delivery, in law, and the transferer holds it as agent of the transferee. The indorser of a note not negotiable is liable to his indorsee in the same manner as in case of a negotiable note. Jones v. Fales, 4 Mass. 245 ; Sanger v. Stimpson, 8 Ibid. 260. Every indorsement 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 payee is mentioned in the bill. Van Staphorst v. Pearce, 4 Mass. 258. The indorser of a promissory note not negotiable, is not an original promisor, nor does he engage that the maker shall pay the note at all events. Huntington v. Harvey, 4 Conn. 124. The statute 3 & 4 Anne, eh. 9, distinguishes between the indorsement and assign- ment 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 the rights of the assignor ; the assignor being responsible for nothing more than the genuineness of the claim. Lyons v. Dioelbis, 22 Penna. State Rep. 185. 214 BYLES ON BILLS OF EXCHANSB. has but an equitable title, and the right of transfer is in A. alone.(/)(l) Indorsements are of two sorts : an indorsement in blank, or, as it is sometimes termed, a blank indorsement, and an indorsement in full, or a special indorsement.(^) No particular form of words is essential to any indorsement. A blank indorsement is made by the mere signature of the indorser on the back of the bill ; its effect is to make the instrument thereafter payable to bearer. (Z) "An indorsement in blank," says Lord BUenborough, "conveys a joint right of action to as many as agree in suing on the bill."(TO) Therefore, where three persons separately indorsed a bill for the ac- commodation of the drawer, which was afterwards dishonored 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.(ji) But where a bill of exchange was, by the direction of the payee, in- dorsed in blank, and delivered to A. B. and Co., who were bankers, on the account of the estate of an insolvent, which was vested in trus- [j) Evans v. Cramlington, Carth. 5 ; Cramlington v. Evans, 2 Vent. 207 ; Skin. 264. (k) The mark of a person who cannot write is a sufficient indorsement. George V. Surrey, 1 M. & M. 516. {l) Peacock v. Rhodes, Doug. 611 ; Francis v. Mott, Doug. 612. (m) Ord V. Portal, 3 Camp. 239. (ra) Low V. Copestake, 3 C. & P. 300, E. C. L. R. vol. 14. (1) The contract prima facie implied from a blank indorsement of a negotiable . 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. 52?. Indorsement in blank of a note by one to whom it is not payable, as between the original parties, may be §hown by parol to have been merely a collateral undertaking. Barrows v. Lane, 5 Vermont, 161. Where a person, not the payee of a note on demand or on time, puts ' his name on the back at the time of its inception, he is liable as an original promisor orsurety, but not as indorser. Baker v. Briggs, 8 Pick. 122 ; Sumner v. Gay, 4 Ibid. 311 ; Austin V. Boyd, 24 Ibid. 64; White v. Howland, 9 Mass. 314 ; Malbon v. Southard, 36 Maine, 147. See also Tfenuey v. Prince, 4 Pick. 385 ; Ulen v. Kittredge, 1 Mass. 233 ; Birchard v. Bartlet, 14 Mass. 279 ; Moies v. Bird, 11 Mass. 436 ; Baker v. Scott, 5 Richardson, 305 ; Lewis v. Harvey, 18 Missouri, 17 ; Perry v. Barsit, Ibid. 140 ; Pear v. Dunlap, 1 G. Greene, 331; Pierson v. Boyd, 2 Duer, 33. By the law merchant, bills and notes payable to order, can be transferred only by indorsement. Hestone v. Williamson, 2 Bibb. 83; Hopkirk v. Page, 2 Brock. 20 ; Taylor v. Binney, 7 Mass. 479 ; Blakely v. Grant, 6 Ibid. 386 ; Russell v. Swan, 16 Ibid. 314. TEANSFEE. 215 tees, *for the benefit of his creditors, Lord Ellenborough held, ^^^ ^ ^-. that A. ?ind B., two of the members of this firm, and 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. (o) An indorsement in full, besides the signature of the indorser, ex- presses in whose favor the indorsement is made. Thus, an indorse- ment in full by A. B. is in this form ; "Pay Mr. CD., or order. A. B." The signature of the indorser being subscribed to the direc- tion, its efiect is to make the instrument payable to C. D., or his order only ; and, accordingly, C. D. cannot transfer it otherwise than by indorsement. The omission of words, " or order," is not material in a special indorsement ; for the indorsee takes it with all its inci- dents, and among the rest, with its negotiable quality, if it were origi- nally made payable to order. (^) If a bill be once indorsed in blank, though afterwards indorsed 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 ;(§') though, as against the special indorser himself, title must be made through his indorsee. It is not essential to the validity of these written transfers that they be on the back ; they may be on the face of the bill.(r) 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 indorsement may be written on a slip of paper an- nexed to the bill, called in French an " allonge." The allonge is thenceforth part of the bill, and requires no additional stamp. A misspelling will not necessarily avoid an indorsement. («) (o) Macheil v. Kinnear, 1 Stark. 499, B. C. L. R. vol. 2. {p) Moore v. Manning, Com. Rep. 311 ; Aeheson v. Fountain, 1 Stra. 557; Edie V. East India Company, 2 Burr. 1216 ; 1 Bla. 295, S. C; Cunliffe v. Whitehead, 3 Bing. N. C. 829, B. C. L. R. vol. 32 ; 5 Scott, 31 ; 6 Dowl. 63, S. C. ; Gay v. Lander, 6 C. B. Rep. 336, B. C. L. R. vol. 60. (q) Smith v. Clark, Peake, 225 ; Walker v. M'Donald, 2 Ex. Rep. 527 :* 17 L. J. 377, Bx. (r) Yarborough v. Bank of England, 16 East, 6. (s) See Leonard v. Wilson, 2 C. & M. 589 ;* 4 Tyr. 415, S. C. 216 BYLBS ON BILLS OP EXCHANGE. *If two persons, not partners, are payees of a bill or note, L ^^^^ both must indorse.(«)(l) The indorsee may convert a blank indorsement into a special one in his own favor, by superscribing" the necessary words. 0. having a bill payable to himself, or order, 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 ac- ceptor, and it was objected that the action should have been brought by J. S. But, per Holt, 0. J. : " J. S. had it in his power to act either as a 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, that would have witnessed his election to receive it as indorsee."(M) The indorsee may also convert the blank indorsement into a special one in favor of a stranger, by superscribing 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 an indorser.(t))(2) Neither indorsement nor acceptance(w) are complete before de- livery of the bill. Where A. specially indorsed certain bills to B., sealed them up in a parcel, and left them in charge with his servant, {t) Carvick v. Vickery, 2 Doug. 653, u. ; see ante, as to indorsements by ex-part- ners, and by co-executors. («) Clerk V. Pigot, 12 Mod. 193 ; 1 Salk. 126, S. C. [v) Vincent v. Horlock, 1 Camp. 442. Iw) Cox V. Troy, 5 B. & Aid. 474, E. C. L. E. vol. 1 ; 1 D. & Ry. 38, S. C. (1) See Snelling v. Boyd, 5 Monroe, 172. (2) 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. Cole v. Gushing, 8 Pick. 48 ; Emerson v. Cutts, 12 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 collection, and the agent returned the note with the protest for non-payment to such holder. Held, that he might strike out the special indorsement, and make it payable to himself, so as to bring the action in his own name against the indorser. Bank of Utica v. Smith, 18 Johns. 230. ' The holder of a promissory note indorsed in blank may fill it up with any con- tract consistent with the character of an indorsement. Mitchell v. Culver, 7 Cowen, 336 ; Riker v. Cosby, 2 Penn. 911 ; Kiersted v. Rogers, 6 Har. & Johns. 282 ; Hungerford v. Thomson, Kirby, 393 ; Rees v. Bank, 5 Rand. 326 ; Lovell v. Bvert- son, 11 Johns. 52 ; Hunter v. Hempstead, 1 Missouri, 67 ; Moies v. Bird, 11 Mass. 436 ; Tenney v. Prince, 4 Pick. 385 ; Kevins v. Degrand, 15 Mass. 436 ; Leioh v. Hill, 4 Watts, 448 ; Clawson v. Gustin, 2 South. 821 ; Dollfus v. Prosch, 1 Denio, 367 ; Union Bank v. Carr, 2 Humph. 345 ; Hubbard v. Williamson, 4 Iredell, 266. TKANSEBR. 217 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 de- livery to the servant was not sufficient, though it would have been other- wise had the delivery been made to the postman. (a;) Hence the word indorse in the declaration on a bill imports a de- livery 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 indorsement did not effect a legal delivery of the bill to the indor8ee,(2/) whether the actual delivery were to a third person, or to the indorsee himself.(2)(l) *Thirdly, as to the liability of an indorser. Every indorser of a bill is in the nature of a new drawer,(ia!) and is liable to '- every succeeding holder in default of acceptance or payment by the drawee. But a man may indorse a bill without incurring personal responsi- bility, by expressing in his indorsement that it is made with this qualification, that he shall not be liable on default of acceptance or payment by the drawee. Such qualified indorsement will be made by annexing in French the words " sans recours," or in English, " with- out recourse to me," or any equivalent expression ;(5) and this is the proper mode of indorsement by an agent.(2) (x) Eex V. Lambton, 5 Price, 428 ; Adams v. Jones, 4 P. & D. 174; 12 Ad. & El. 455, E. C. L. E. vol. 40 ; Brind v. Hampshire, 1 M. & "W. 369 ;* Bailey on Bills, 6th ed. 137. [y] Marston v. Allen, 8 M. & W. 494;* Adams v. Jones, 12 Ad. & B. 455, E. C. L. E. vol. 40 ; see Eobinson v. Little, 18 L. J. 29, Q. B. (a) Bell V. Lord Ingestre, 19 L. J. n, Q. B. ; 12 Q. B. Eep. 317, E. C. L. E. vol. 40, S. C. (a) Penny V. Innes, 1 0. M. & E. 441 ;* 5 Tyrw. 107, S. C. ; see Allen v. "Walker, 2 M. & W. 317 ;* 5 Bowl. 460 ; 1 M. & H. 44, S. C. ; see ante, p. 113. (6) The words " at his own risk as agent" have been held in America to exclude the personal responsibility of an indorsee. See Eice v. Stearns, 3 Mass. Eep. 225; Mott v. Hicks, 1 Cowen, 512. (1) Where a note is transferable by indorsement only, the mental incapacity of the indorser will be a defence to the maker as against the indorsee. Peaslee v. Bobbins, 3 Metcalf, 164. (2) An indorsement "without recourse," or at the indorsee's "own risk," will not expose the indorser to any liability. Eice v. Stearns, 3 Mass. 225 ; TJpham v. Prince, 12 Mass. 14; Eiohardson v. Lincoln, 5 Metcalf, 201. The indorsee incurs no other obligations than those imposed by the law of the place where the indorsement is made, unless a special indorsement shall subject 218 BTLES ON BILLS OF EXCHANGE. And if there be a written or even a verbal agreement between the first indorser and his immediate indorsee, that the indorsee shaU not sue the indorser, but the acceptor only, it has been held, that such an agreement would be a good defence on the part of the original in- dorser, against his immediate indorsee, suing in breach of the agree- ment, (c) 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 favor of his transferee.(c^) A 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 only. 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 satisfied, it was held that the acceptor was liable to pay the bill again to the payee, (e) But it seems that a bill cannot be indorsed with a condition that in a certain event the indorsee shall p^-,-.o-| not retain the power of further indorsing over.(/) And *it is clear that parol evidence, or evidence of intention, cannot be allowed to engraft such a condition. (^) An indorsement admits the signature and capacity of every prior party.(A) (c) Pike V. Street, 1 M. & M. 226, E. C. L. R. vol. 22 ; 1 Dans..& L. 159, S. C; and see Clark v. Pigott, 1 Salk. 126 ; 12 Mod. 192, S. C. ; Goupy v. Harden, 1 Taunt. 159, E. C. L. R. vol. 2, and Soares v. Glyn, post; see Thompson v. Clubly, 1 M. & W. 212* (d) As -to th,e liability of an indorser, after non-payment by the drawee, see post. (e) Robertson v. Kensington, 4 Taunt. 30 ; Savage v. Aldren, 2 Stark. 232, E. C. L. R. vol. 3. (/) Soares v. Glyn, 14 L. J. 313, Q. B. ; 8 Q. B. Rep. 24, E. C. L. R. vol. 56, S. C. [g) Soares v. Glyn, 14 L. J. 313, Q. B. ; 8 Q. B. 24, E. C. L. R. vol. 55, S. C. (A) Lambert V. Oakes, 1 Lord Raym. 443; 12 Mod. 244; Lambert v. Pack, 1 Salk. 127 ; Williams v. Seagrove, 2 Barnard, 82 ; Crichlow v. Parry, 2 Camp. 182; Free v. Hawkins, Holt, N. P. Rep. 550 ; but see Bast India Company v. Tritton, 3 B. & C. 280, B. 0. L. R. vol. 10 ; 5 D. & R. 214, S. C. him to the lex loci where the bill Is drawn or made payable. Therefore 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 York, need not present it for payment after protest for non-acceptance, notwithstanding the provisions of the French Commercial Code make a presentment for payment at maturity also necessary. Aymar v. Sheldon, 12 Wendell, 439 ; Allen v. Merchants' Bank, 22 Wendell, 215. TRANSFER. 219 The striking out an indorsement by mistake will not discharge the indorser,(i) but the striking it out by design will. Where, in an ac- tion by a remote indorsee, several indorsements are stated m the de- claration, though unnecessarily, they must all be proved,(^) unless the defendant has, by his conduct, as, for example, by an application to .the plaintiff for time, admitted them.(Z) But the plaintiff may omit to state in his declaration all the indorsements, after the first indorse- ment in blank, and aver that the first blank indorser indorsed imme- diately to himself. In this case, however, all the intervening indorse- ments must be struck out. Abbott, 0. J., "All the indorsements must be proved or struck out, although not stated in the declaration. I remember Bayley, J., so ruling and striking them out himself on the trial ;" and this need not be done before the trial,(TO) but maybe done after the plaintiff has finished his case.(m) So where the action is against an indorser, and there are several indorsements between the payee's indorsement, and the defendant's, the plaintiff may state in his declaration that the payee indorsed to the defendant.(o) It was formerly, therefore, usual in an action on a bill where there were several indorsements, to insert two counts ; one setting out the in- dorsements, to avoid the necessity of striking them out ; the other omitting them, so as to prevent a nonsuit if they could not be proved. It se6ms doubtful whether the plaintiff can avail himself of the title of an indorser whose name he has struck out.{p){l) (i) Wilkinson V. Johnson, 3 B. & C. 428, E. C. L. R. vol. 10 ; 5 D. & R. 403, S. C. Nor the striking out hy mistake of the acceptance. Raper v. Birkbeck, 15 East, 17 ; Novelli v. Rossi, 2 B. & Ad. 757, E. C. L. R. vol. 22. (k) Waynam v. Bend, 1 Camp. 175. (I) Bosanquet v. Anderson, 6 Esp. 43 ; Sidford v. Chambers, 1 Stark. 326, E. C. L. R. vol. 2. (m) Cocks V. Barradale, Chitty, 642, 9th ed. (n) Mayer v. Jadis, 1 M. & R. 247, E. C. L. R. vol. 17. (0) Chaters v. Bell, 4 Esp. 210 ; Selw. 9th ed. 360, S. C. Ip) Davies v. Dodd, 1 Wils. Exch. 110 ; 4 Price, 176, S. C. ; and see Bartlett v. Benson, 15 L. J. 23, Exch. ; 3 D. & L. 274 ; 14 M. & W. 733,* S. C. (1) In an action by the holder of a note against an indorser, the plaintiff cannot be permitted to strike out the name of any indorser prior to the defendant. 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 V. United States, 3 Wheat. 183 ; United States v. Barker, Paine, 156 ; Picquet v, Curtis, 1 Sumner, 480. A holder of a bill, with several indorsements in blank, may strike out all the in- 220 BYLBS ON BILLS OP EXCHANGE. r*1 1 Ql *I'ourthly, as to the rights of au indorsee. A transfer by indorsement vests in the indorsee a right of action against all the parties whose names are on the bill, in case of default of accept- ance or payment ; and we have already seen,(5') that, against an in- nocent 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 intended that it should be indorsed, and afterwards refuses to indorse, an action may be maintained against him for refusing to indorse.(r) He, or his personal representatives, may also be compelled by bill in equity to indorse. (s) If a bill be reindorsed to a previous 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.(*) But where a holder has previously indorsed, and the sub- sequent intermediate indorser has no right of action or remedy on that previous indorsement against the holder, there are cases in which the holder may sue the intermediate indorser. (m) And if the party declares, as he may do, on an indorsement from the first blank in- dorser to himself, it will, it seems, be intended that he means to rely (2) Chapter on Consideration. (r) Rose v. Sims, 1 B. & Ad. 521, E. C. L. E. vol. 20. (s) "Watkins v. Maule, 2 Jac. & Walker, 242 ; Smith v. Pickery, Peake, 50 ; Eol- leston V. Hibbert, 3 T. R. 411 ; Ex parte Rhodes, 3 Mont. & Ayr. 217. [t) Bishop V. Hayward, 4 T. R. 470 ; Britten v. Webb, 2 B- & C. 483, B. C. L. E. vol. 9 ; 3 D. & R. 650, B. C. L. E. vol. 16, S. C. (m) Wilders v. Stevens, 15 L. J. 108, Exch. ; 15 M. & W. 208,* S. C. ; Williams v. Clarke, 16 M. & W. 834 ;* Smith v. Marsack, 18 L. J. 65, C. P. ; Morris v. Wal- ker, 19 L. J., Q. B. 400. And to reply the facts is no departure. Ibid., and Story on Promissory Notes, a. 479. dorsers' names after the first, and write over the first indorser's name an assignment to himself. Eitchie v. Moore, 5 Munford, 388 ; Craig v. Brown, Peters, C. C. Eep. 171 ; Bell v. Morehead, 3 Marsh. 158. (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, 22 Connecticut, 617. TEANSFEE. 221 on his first title, and it is doubtful whether he can reply any facta arising on the intervening indorsements without a departure. (f)(1) But where a bill or note is merely indorsed to another, and de- posited with him as a trustee, he can only use it in conformity with the stipulations ctn which he became the depositary of it.(w) If the depositary of the bill indorse it over in breach of trust, *the indorsee, with notice of the breach of trust, can acquire r*]^20] no title to the bill as against the rightful owner, and can nei- ther sue him on the bill, nor hold the bill against him.(a;) Therefore, where the acceptor of a bill, who had received no value, delivered the bill to the drawer, desiring him to hold it for his use, but the drawer indorsed it for value to the defendant, who knew that the drawer had no authority to part with it, the defendant, the indorser, was held liable to the acceptor in trover. " The drawer," says Lord Tenter- den, "having put the bill in the defendant's hands, when the defen- dant 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 plaintiiF, be- cause the defendant took the bill with the knowledge that the per- son from whom he took it had no title to it as against the plain- tiff."(2/) (v) Bartlett v. Benson, 15 L. J. 23, Exch. ; 14 M. & W. 733/ S. 0. {w) As to the consideration where the bill is deposited as security for the balance of a running account, see ante, 96. (a;) Goggerly t. Cuthbert, 2 N. R. 170. (y) Evans v. Kymer, 1 B. & Ad. 528, B. C. L. E. vol. 20. (1) It is competent for an indorser of a note on again coming into possession of the note to maintain an action thereon, without producing extrinsic proof of owner- ship. Earbee v. Wolf, 9 Porter, 366. See Welch v. Linds, 7 Cranch, 159 ; Dugan V. The U. S., 3 Wheaton, 172. "After an examination 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 possession thereof again, he shall be regarded, unless the contrary appear in evidence, 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 in- dorsements in full subsequent to the one to him, without producing any receipt or indorsement back from either of such indorsers, whose names he may strike from the bUl or not, as he may think proper.'' Ibid. Per Livingston, J. See Bond v. Storrs, 13 Conn. 412. 222 BYLBS ON BILLS OP EXCHANGE. So where the drawer of a bill of exchange deposited it with a cre- ditor, and gave him authority to receive the proceeds and apply them in a specified way, and the drawer afterwards committed an act of bankruptcy, on which a commission issued, the creditor 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 bankrupt might recover against him in trover, (s) But it would have been otherwise, if the creditor had merely received the money, for that would not have amounted to a conversion. (a) 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 ;(6) and the transferee's title will not now be affected by proving him guilty of negligence, however gross, if there were no fraud. Gross negligence may, however, be evidence of fraud.(c) And it is conceived, that if the bill had not become payable to bearer, but was r*i 91 1 transferable only by indorsement of the trustee, an *indorse- ^ -* ment by him in breach of trust to an indorsee for value, and without notice, would in general confer a title. The trust may be expressed on the bill itself by a restrictive in- dorsement, 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.(cZ)(l) The following have been held to be restrictive directions or indorse- (z) Robson V. Rolls, 1 M. & Rob. 239. (a) Jones v. Fort, 9 B. & C. 764, E. C. L. R. vol. IT ; 4 M. & Ry. 547, S. C. (b) Bolton V. Puller, 1 B. & P. 539 ; Ramsbottom v. Cator, 1 Stark. 228, B. C. L. R. vol. 2 ; Collins v. Martin, 1 B. & P. 648 ; Gorgier v. Mieville,"3 B. & C. 45, E. C. L. R. vol. 10 ; 4 D. & R. 641, S. C. ; Wookey v. Pole, 4 B. & Aid. 1, E. C. L. R. vol. 6 ; and see Roberts v. Eden, 1 B. & P. 398. (c) Goodman v. Harvey, 4 Ad. & E. 870, E. 0. L. R. vol. 31 ; 6 N. & M. 372, S. C. ; Uther v. Rich, 10 Ad. & E. 784, E. C. L. R. vol. 37 ; 2 Per. & D. 579, S. C. (d) Such restrictive indorsements are not of very late invention, but tbey appear to have been well known before the middle of the last century. Snee v. Prescot, 1 Atk. 247 ; Edie v. East India Company, 2 Bur. 1227 ; 1 Bla. R. 295, S. C. (1) The payee of a note can restrain its negotiability, but a subsequent indorser can revive its negotiable quality. Holmes v. Hooper, 1 Bay, 160. An indorsement, at the time of making a promissory note, rendering it payable on a contingency, does not affect its negotiability ; it is notice of the consideration to a subsequent holder. Tappan v. Ely, 15 Wend. 362. TRANSFER. 223 ments : — " 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." A holder who takes a bill, the circulation of which is restricted by a restrictive direction or indorsement, cannot sue the drawer or ac- ceptor upon it, but holds the bill or the money raised 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 restrictive indorse- ment. For such words cannot be intended as a mere private direc- tion to the immediate indorsee ; for 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 com- munication, or by a letter enveloping the bill. Nor can they be a mere direction to the drawee ; for a restrictive indorsement consti- tutes, not only the restricted indorsee, but his assignees, agents to receive the money, and for its misapplication, when so paid, the drawee is not responsible. As between the restraining indorser, therefore, and the immediate indorsee, or the drawee, the words " to my use," or the like, are of no effect. But as between the restraining indorser and a subsequent indorser, they are a notification that the restricted indorsee has no property in the bill, that he is a mere agent and trustee for his principal, and that he can appoint no sub-agent, except for the purpose of holding the bill or the money upon a similar trust. The subsequent indorsee, therefore, being himself also a mere agent, can have no action on the bill if it is dishonored, nor hold it, orjhe 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. A bill was indorsed by the payee in this form : — " Pay A. B., or order, for tlie account of C. D. ;" A. B. pledged it with the defen- dant, who advanced money upon it to A. B. personally. Held, that *the defendant had sufficient notice, from the indorsement, 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.(/) A., a merchant at Boston, in New England, remitted a bill to B., (e) Anelier v. Bank of England, Doug. 615 ; Edie v. East India Company, 2 Bur. 1227 ; Evans v. Cramlington, Carthew, 5 ; Cramlington v. Evans, 2 Vent. 307, S. C. ; Treuttel v. Barandon, 7 Taunt. 100 ; 1 Moore, 543, S. C. (/) Treuttel v. Barandon, 8 Taunt. 100, E. C. L. E. vol. 4 ; 1 Moore, 543, S. C. 224 BYLBS ON BILLS OF EXCHANGE. his agent, in London, indorsing it in this form : — " Pay B. or Ms or- der, 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 ac- ceptors. Held, in an action for money had and received, that the bankers were liable to refund the money to A.(^) . We have already seen, that the omission of the words " or order," in a special indorsement, will not restrain the negotiability of a bill.(A) Fifthly. As to the liability of a person transferring by delivery. A transfer by mere delivery, without indorsement, of a bill of ex- change or promissory note made or become payable to bearer, does not render the transferer liable on the instrument to the transferee. And it is conceived to be the general rule of the Bnglish(«) law, and the fair result of the English authorities, that the transferer is not even liable on the consideration, if the bill or note so transferred by delivery without indorsement, turn out to be of no value, by reason of the failure of the other parties to it. For the sending to market of a bill or note payable to bearer without indorsing it, is prima facie a sale of the bill. *And there is no implied guarantee of the L -' solvency of the maker, or any other party.(A;) Such seems the general rule governing the transfer by delivery, not only of ordinary bills of exchange and promissory notes, but also of bank notes. Nor is there any hardship in such a rule, for the remedy against the transferer may always be preserved by indorse- [g) Sigourney v. Lloyd, 8 B. & C. 622, E. C. L. R. vol. 15 ; affirmed in the Ex- chequer Chamber, 5 Bing. 515, B. C. L. R. vol. 15 ; 3 Y. & J. 220,* S. C. (A) Moore v. Manning, Com. Rep. 311 ; Acheson v. Fountain, 1 Stra. 557 ; Edie v. Bast India Company, 2 Bur. 1216 ; 1 Bla. R. 295, S. C. (i) In America also it has been repeatedly held, that payment in bank notes after the bank has failed is good, and the loss falls on the receiver. Bayard v. Shunk, 1 Watts & Serg. Rep. 92 ; Young v. Adams, 6 Mass. Rep. 182-185 ; Scruggs V. Gass, 8 Yerger, 175 ; Lowry v. Murrell, 2 Porter, 282. The contrary, however, has been also held. Lightbody v. Ontario Bank, 11 Wend. Rep. 1 ; affirmed on error in 13 Wend. Rep. 107 ; Harley v. Thornton, 2 Hill, 509 ; Fogg v. Sawyer, 9 New Hamp. Rep. 365 ; see Story on Promissory Notes, 125. It is conceived that the confusion has arisen from neglecting to distinguish between questions of law and questions of fact. (/c) See the observations of Littledale, J., in Camidge v. Alienby, 6 B. & C. 373, E. C. L. R. vol. 13, and Rogers v. Langford, 1 C. & M. 637.* TRANSFER. 225 ment, or by special contract. The rule, however, is not without ex- ceptions. If a banker's note be given on account of a pre-existing debt, the note is not to be considered as sold. But if the banker fail, and if the note be duly presented, and due notice be given of the dishonor, the remedy for the antecedent debt revives. " I agree," says Holt, C. J., " the difference taken by my brother Darnell, that taking a note for goods sold is a payment, because it was a part of the original contract, but paper is no payment where there is a precedent debt. 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."(Z) The principle of the exception seems to be this. This creditor is entitled to cash ; if instead of cash he consents to take notes, that is a favor to the debtor, and it will thence be in- ferred, in the absence of evidence to the contrary, that the notes were not to be payment, if they turn out of no value without the fault of the creditor. (1) But if a bill or note, made or become payable to bearer, be de- livered without indorsement, not in payment of a pre-existing 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 is held to be a sale of the bill by the party transferring it, and a purchase 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 ta market without indorsing his name upon it, neither mo- rality nor the laws of this country will compel him to refund the money for which he sold it, if he did not know at the time that it was not a goodbill."(m) So where A. gave a bankrupt, before his bankruptcy, cash for a bill, but refused to allow the bankrupt to indorse it, think- ing it better without *his name, and afterwards, on dishonor r-i.-.^.-. of the bill, proved the amount under the commission, the -' Chancellor ordered the debt to be expunged, observing, that this was [l) "Ward T. Evans, 2 Ld. Eaym. 928 ; Camidge v. AUenby, 6 B. & 0. 3Y3, E. C. L. R. vol. 13. So held also by Pratt, C. J., in Moore v. Warren, 1 Stra. 415 ; and by King, C. J., in Holme v. Barry, 1 Stra. 415. (ot) Fenn v. Harrison, 3 T. E,. 759 ; and see Evans v. Whyle, 5 Bing. 485, B. C. L. E. vol. 15 ; 3 M. & P. 130, S. C. (1) See post, 184, note. 15 226 BYLES ON BILLS OP EXCHANGE. a sale of the bill.(TC) 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 indorsement," says Lord Kenyon, "he has taken the risk on himself. 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 credit only."(o) 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 payment certain promissory notes of the Bank of 0. which had then stopped payment, but which circum- stance 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."(^) In this ease, an interval of a few hours in the same day between the purchase and the payment was held to convert the delivery of the notes into a payment of a pre-existing debt. And it is conceived, that as an express contract would make the transferer liable without indorsement, so there are other circumstances from which a jury may infer that the intention, and implied contract of the parties was, that the notes were not to be payment, if disho- nored, (g') If, for example, a man asked another to change a bank note for him as a favor, 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 dishonored, and due notice given.(r) (n) Ex parte Shuttleworth, 3 Ves. 368. (o) Pydell V. Clark, lEsp. 447; Bank of England v. Newman, 1 Ld. Raym. 442; 12 Mod. 241 ; Com. 51 ; Bmly 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 hills not indorsed, the vendee is liable, if the bills turn out bad. See Jones v. Ryde, 5 Taunt. 488, E. C. L. R. vol. 1 ; 1 Marsh. 157, S. C. ; Owenson v. Morse, 7 T. R. 64. (p) Camidge v. Allenby, 6 B. & C. 373, E. C. L. R. vol. 13 ; 9 D. & R. 391, S. C. ; see Robson v. Oliver, 10 Q. B. Rep. 704, E. C. L. R. vol. 59 ; and see Ward v. Evans, 2 Ld. Raym. 928, and Rogers v. Langford, 1 Cromp. & Mees. 637.* (g) See Van Wart v. Woolley, 3 B. & C. 446, E. C. L. R. vol. 10, and post, Chap, xxii. (r) See Rogers v. Langford, 1 C. & Mees. 637 ;* Turner v. Stones, 1 D. & Lowndes, 122 ; Ex parte Isbester, 1 Rose, 23. TRANSFER. 227 *A transferer, by delivery, though he does not in general „ warrant the solvency of the maker of a promissory note or •- -■ bill of exchange, does -warrant that the bill or note is not forged or fictitious. (s)(l) A transferer, by delivery, cannot be liable in any case to a subse- quent transferee, either on the instrument or the consideration. And therefore it has been held, that such subsequent transferee cannot prove for' the value in the event of the first transferer's bank- ruptcy. (*) But, in all cases, if notes or bills are transferred as valid, when the transferer 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 know- ledge of the maker's insolvency, in the payer, then it would be wholly immaterial whether the notes were taken at the time of sale or afterwards."(M) Sixthly, as to the rights of transferee by delivery. Bills or notes payable to bearer circulate as money, and are considered as such. And it is absolutely essential to the currency of money, that the property and possession should be inseparable. We have already seen that the indorsee of a bill payable to order, and not made pay- able 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.(w) Whereas, if a check, («) Jones V. Eyde, 5 Taunt. 489, B. C. L. R. vol. 1 ; 1 Marsh. 157, E. C. L. K. vol. 4, S. C. ; Bruce v. Bruce, 1 Marsh. 165, E. C. L. B,. vol. 4 ; 5 Taunt. 495, B. C. L. R. vol. 1 ; Puller v. Smith, Ryan & M. 49. So it has been repeatedly held in America. Ellis v. Wild, 6 Mass. Rep. 321 ; Young v. Adams, Ibid. 182 ; Markle v. Hatfield, 2 John. R. 455 ; Eagle Bank of Newhaven v. Smith, 5 Conn. R. 71. Mr. Justice Story lays it down that there is also a warranty of the title of the transferer. Treatise on Promissory Notes, p. 123. But it is conceived that that is not so. In- deed, an honest transferee by delivery needs no such warranty. {i) In re Burrington, 2 Sch. & Lef. 112. (m) Camidge y. AUenby, 6 B. & C. 373, B. C. L. R. vol. 13 ; 9 D. & R. 391, S. C. ; Fenn v. Harrison, 3 T. R. 759. [v] Mead v. Young, 4 T. R. 28. (1) The doctrine of implied warranty in sales, applies to the sale of a note: so that one who sells an indorsed note gives an implied warranty that the indorsement is a genuine one. Strange v. Ellison, 2 Bailey, 385 ; McNeil v. Knott, 11 Georgia, 142. 228 BYLBS ON BILLS OP EXCHANGE. bill, or note, be made or have become payable to bearer, the title of the holder, both as against a former owner on the one hand, and the maker, acceptor, or indorser on the other, is not aflFected by any infirmity in the title of the transferer, provided the holder took it bona fide.(l) It was formerly considered that the transferee's title would be r*i 9Rn ^^^''*^<^ ^y want of due caution on his part, and that he *would ^ -"be liable in trover to the real owner, and unable to enforce payment 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 ob- tained ; Best, C. J., observing, " The party's caution should increase with the amount of the note which he is called upon to change.(«i) 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 required in the case of a discounter than of a payer."(a;) But it is now definitively settled, that if a man takes honestly an instrument made or become payable to bearer, he has a good title to it, with whatever degree of negligence he may have acted, unless hie 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 evi- dence of mala fides, but it is not the same things We have shaken ofi' the last remnant of the contrary doctrine."(^) (w) Snow V. Peacock, 2 C. & P. 221, E. C. L. R. vol. 12 ; and see GiU v. Cubitt, 3 B. & C. 466, E. C. L. R. vol. 10 ; 6 D. & R. 324, S. C. ; Egan v. Thretfall, 5 D. & R. 326, B. C. L. R. vol. 16. (x) Perhaps this last proposition may now be reversed. (y) Goodman v. Harvey, 4 Ad. & El. 870, E. C. L. R. vol. 31 ; 6 N. & M. 372, S. C. ; TJther v. Rich, 10 Ad. & B. Y84, E. C. L. R. vol. 37 ; 2 P. & D. 579, S. C. In the case of Goodman v. Harvey, the bill bore on it when discounted, the notarial mark of non-acceptance. To use the words of the Lord Chief Justice, " the plain- (1) A note payable to A. or bearer, may be negotiated by delivery only, even if indorsed by A. Wilbour v. Turner, 5 Pick. 626 ; 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 ia. Porter v. McCoUum, 15 Georgia, 529. TEANSFBR. 229 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 payment of the maker. (2) It makes no difference that the bill or note is only pledged, and not absolutely transferred ; the pawnee acquires a property in it, and is not liable in trover, to the real- owner, as in the case of goods improperly pledged. (a) *Exchequer bills, which are payable to bearer before the p^^ „_... blank is filled up,(6) bonds of foreign princes and states paya- -* ble to bearer,(c) and East India bonds,((^) resemble money and bills of exchange payable to bearer, in the necessary union of possession and property. Honest acquisition confers title.(e) A metallic token like an I. 0. 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 metab, compounded partly of gold or silver, is liable to the holder.(/) The issuer of a token made wholly or in part of copper, is liable only to the original taker.(^) tiff received the bill with a death-wound apparent on it." See Backhouse v. Harri- son, 5 B. & Ad. 1098, E. C. L. R. vol. 27 ; 3 N. & M. 188 ; Crook v. Jadis, 5 B. & Ad. 909, E. C. L. E. vol. 27 ; 3 N. & M. 257, S. C. ; Foster v. Pearson, 1 C. M. & E. 855 ;* 5 Tyr. 255, S. C. ; WiUis v. Bank of England, 4 Ad. & B. 21, E. C. L. R. vol. 31. (2) Solomons v. Bank of England, 13 East, 135 ; 1 Eose, 99, S. C. (a) Collins v. Martin, 1 Bos. & Pul. 648 ; 2 Esp. 520, S. C. See as to lien of banker, post. (&) Wookey v. Poole, 4 B. & Aid. 1, B. C. L. E. vol. 6 ; see as to divided war- rants, Partridge v. Bank of England, 13 L. J. 281, Q. B., and 9 Q. B. 424, B. C. L. E. vol. 58, in error ; and see further as to Exchequer bills, Barnett v. Brandao, 6 M. & G. 630, E. C. L. E. vol. 46 ; Brandao, v. Barnett, 3 C. B. Eep. 519, E. C. L. R. vol. 54. (c) Gorgier v. Melville, 3 B. & C. 45, E. C. L. R. vol. 10; 5 D. & R. 641, S. C. (d) 51 Geo. 3, c. 64. (e) The embezzling of bills by agents, or pledging them beyond their lien, is a transportable misdemeanor ; 7 '& 8 Geo. 4, c. 29, ss. 49 and 50. As to Lost Bills, see the chapter on that subject. * (/) 53 Geo. 3,0. 114,3.3. iff) 57 Geo. 3, c. 46. 230 BTLES ON BILLS OF EXCHANGE. The issuing of tokens made partly of gold or silver is restrained by the 53 Geo. 3, c. 114, 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, however, cannot in certain trades be paid in tokenB.(^) 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. The plaintiflFs were bankers, with whom one G. had dealings. They refused to let him have more money, un- less he procured them the indorsement of a third person. G. accord- ingly induced the defendant to sign his name across the back of four blank forms of promissory notes. G. then filled them up, and deli- vered 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 r*1 2Rn ^^**®'' °f credit for an indefinite sum. *The defendant said, ' Trust G. to any amount,^ and I will be his security.' It does not lie in his mouth to say the indorsements were not regular."(i)(l) An indorsement may be made either before or after acceptance. If a bill be indorsed after refusal to accept, and notice thereof to the indorsee, or after it is due, these are circumstances which may reason- ably excite suspicion as to iim liability or solvency of the antecedent parties. An indorsee, therefore, of a bill dishonored 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 (h) 1&2 Wm. 4, c. 37. (i) Russell V. Langstaflfe, Dong. 496 ; Usher v. Dauncy, 4 Camp. 9T. A bill may be indorsed before the day of its daj^. Passmore v. North, 13 East, 517 ; and see Snaith v. Miugay, 1 M. & Sel. 86 ; Gruchley v. Clarence, 2 M. & Sel. 90 ; and see 17 Geo. 3, c. 30, s. 1, and Schultz v. Astley, 2 Bing. N. C. 544, E. C. L. B. vol. 29; 2 Scott, 815 ; 1 Hodges, 525, S. C. (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 afterwards written on the paper, the indorser cannot object that the note was written after the indorsement. Violett v. Patton, 6 Cranch, 142. TRANSFER. 231 the credit of his indorser, and has no superior title against the other parties. (A;) Drawer requested defendant to indorse two bills, for his, the drawer's, accommodation. He accordingly drew two in favor of the defen- dant, which defendant indorsed, and gave up to him. These bills the drawee then gave to A., and A. signed an agreement with defen- dant, that if one of the bills were paid, the defendant should be ex- onerated from the other. One of them the defendant accordingly did pay. The other was presented for acceptance and dishonored; it was, after this, indorsed by A. to the plaintiffs, with notice of the dishonor. On payment being refused, plaintiffs sued defendant. Held, that the plaintiffs, having taken the bill after notice of dishonor, took the title of their indorser, and that, as the agreement would have been a de- fence to an action at the suit of A., it was a defence also against the plaintiffs.(Z) But if the indorsee had no notice of the dishonor, he is not pre- judiced by it. Payee presented a bill for acceptance, which was re- fused. He neglected to advise the drawer, and thereby discharged the drawer as between the drawer and himself. He then indorsed the bill without informing his indorsee of the dishonor. Held, that the discharge to the drawer extended only to an action at the suit of the party guilty of the neglect, and that the indorsee having had no notice of the dishonor, the same defence was not available against him as against his indorser.(wi) *" After a bill or note is due,"(w) says Lord BUenborough, pj.^„Q-, " it comes disgraced to the indorsee, anS; it is his duty to make L J inquiries concerning it. If he takes it, though he gives a full consi- deration for it, he takes it on the credit of the indorser, and subject {Jc) But as to a bill payable to bearer, see G-oodman v. Harvey, 4 Ad. & El. 870, B. C. L. R. vol. 31; 6 N. & Man. 3V2, S. C. (Z) Crossley v. Ham, 13 East, 498. , (m) O'Keefe v. Dunn, 6 Taunt. 305, E. CH^. R. vol. 1 ; 1 Marsh. 613, B. C. L.R. vol. 4, S. C. ; afBrmed in the K. B. ; 5 M. & ^. .282 ; and see Whitehead v. Walker, 11 L. J. 168, Exch.; 9 Mees. & Wels. 506,* S. C, and Bartlett v. Benson, 14 M. & W. 733;* 3D. & L. 2Y4; 15 L.'J., Ex. 23, S. C. (n) It is apprehended that wherever a party alleges that a bill was indorsed when overdue, or under any other peculiar circumstances, it lies on the party averring the fact to prove it on the general principle, " Eiincumiit probaiio qui dicit." See post, p. 132. 232 BTLES ON BILLS OP EXCHANGE. to all the(o) equities with which it may be incumbered." Thus, where the defendant made a promissory note for the accommodation of the payee, and the payee indorsed it, overdue to A., and A. indorsed it to the plaintiff, it was formerly held that, as the absence of conside- ration would have been a good defence against the payee, it was also available both against A. and the plaintiff. (^)(1) It is now, however, clear that an original absence of consideration, such as arises in the case of accommodation acceptances, will not defeat the title of an indorsee for value of an overdue bill or note, although the indorsee had notice of the fact when he took the bill, unless there were an agreement, express or implied, restraining the negotiation of the bill or note, after it should become due.(5') But the assignee of an overdue bill or note is not affected 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 indorsed, after due to the plaintiff. Held, that as the indorser might have sustained an action against the acceptor, so could his indorsee. (}■) r*1 ^m *'^^ indorsee of an overdue bill or note is liable to such *- -" equities only as attach on the bill or note itself, and not to (0) In Sturtevant v. Ford, 4 M. & G. 101, B. C. L. R. vol. 43, Cresswell, J., says, " perhaps the better expression would be that he takes the bill subject to all its equities." (jp) Tinson v. Francis, 1 Camp. 19 ; Brown v. Davis, 3 T. R. 80 ; 7 T. R. 429 ; sed vide Charles v. Marsden, 1 Taunt. 224 ; Atwood v. Crowdie, 1 Stark. N. P. 483, E. C. L. R. vol. 2 ; Bayley, 6th ed. 161 ; Chitty, 9th ed. 218 ; Roscoe, 386. Quaere, supposing it to have been accepted after it became due. See Stein v. Yglesias, 1 C. M. & R. 565 ;* 3 Dowl. 252 ; 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 Bxch. in Stein v. Yglesias, have re- cently upheld the authority of Charles v. Marsden, and it should now seem that an original absence of consideration 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 notice of the fact. , See Carruthers v. West, 11 Q. B. Rep. 143, B. C. L. R. vol. 63. 4| (g) Sturtevant v. Ford, 4 M. & G. 101, E. C. L. R. vol. 43 ; Lazarus v. Cowie, 3 Q. B. Rep. 459, E. C. L. R. vol. 43 ; and see Stein v. Yglesias, 1 C. M. & R. 565.* (r) Chalmers v. Lanion, 1 Camp. 383. (1) The indorsement of a promissory note, after it is due, is equivalent to draw- ing a new bill payable at sight, and it must be proceeded with as such. Bishop T. Dexter, 2 Conn. 419 ; Bank v. Burriew, 1 Yeates, 360. TRANSFBR. 233 claims arising out of collateral matters. Therefore, the indorsee of an overdue note is not liable to a set-off due from the payee to the maker.(«)(l) Yet it should seem, that where a negotiable instrument is deposited as a security for the balance of accounts, and is after- wards indorsed overdue, in an action by the indorsee against the party originally liable, the state of the account may be gone into.(i) Where the bill is deposited as a security for the balance of a run- ning account, but at the time when the bill became due, the balance is in favor of the depositor, and the bill is not withdrawn by him, and afterwards the balance shifts in favor of the depositary, the deposi- tary is not to be considered as the transferee of an overdue bill.(M) This rule, also applies to banker's checks, transferred a long time after they are issued. The owner of a check on a banker for 501., having lost it, the check was paid five days after its date to a shop- keeper, who received the amount at the bank : held, that the shop- keeper 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 im- mediately, the holder of it keeps it at his peril, and a person taking it after it is due takes it also at his peril, "(v) But a distinction has been taken between the transfer of a bill 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 time in the case of a check. And, therefore, it has been held, that though the taking of a check six days old is a circumstance from which the Jutt/ may infer negligence or fraud, it is not conclusive evidence of either, so as to (s) Burrougli v. Moss, 10 B. & C. 558, E. C. L. B. vol. 21 ; 5 M. & E. 296, S. C. ; Stein V. Yglesias, 1 C. M. & E. 565 ;* 3 Dowl. 252 ; 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 takes the bill. Goodall v. Ray, 4 Dowl. V6. But it is now clear that notice makes no difference. Whitehead v. Walker, 11 L. J. Exch. 168 ; 9 M. & W. 506,* S. C. (0 Collenridge v. Farqnarson, 1 Stark 259, E. C. L. R. vol. 2. (m) Atwood v. Crowdie, 1 Stark. 483, B. C. L. R. vol. 21. Xv) Down V. Hailing, 4 B. & C. 330, B. C. L. R. vol. 10 ; 6 D. & R. 455 ; 2 C. & P. 11, E. C. L. R. vol. 12, S. C. (1) Hughes V. Large, 2 Barr, 103 ; Gullett v. Hoy, 15 Missouri, 399. 234 BTLES ON BILLS OF EXCHANGE. prevent the party taking the check from suing on it, or retaining it, or the money received upon it.(w)(l) r*1 ^1 n *"^ ^'^^^ 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 years old, and no interest has been paid on it. "A promissory note," says Mr. Baron Parke, "payable on demand, is intended to be a continuing security; it is quite unlike a check, which is intended to be presented speed- %-"(2/)(2) ■ The fact that a note is overdue, must distinctly appear in plead- ing.(s) Though the maker of a bill or note assigned when overdue may resist payment at law, equity has a concurrent jurisdiction, and will order the instrument to be delivered up to be cancelled, and restrain the holder from proceeding at law.(a) The law, in the absence of any evidence on the- subject, presumes a transfer to have been made before the bill was due.(J)(3) {w) Eothschild V. Corney, 9 B. & C. 388, B. C. L. R. vol. 17 ; 4 M. & E. 411 ; Dans. & L. 325, S. C. See the Chapter on Checks. (x) Barough v. White, 4 B. & C. 327, E. C. L. R. vol. 10 ; 6 D. & R. 379 ; 2 C. & P. 8, E. C. L. R. vol. 12, S. C. ; see Goodall v. Ray, 4 Dowl. 76. (y) Brooks v. Mitchell, 9 M. &>"W. 15 ;* Cripps v. Davis, 12 M. & W. 165;* see Bartrum v. Caddy, 9 Ad. & B. 275, E. C. L. R. vol. 36. (z) Crippa v. Davis, 12 M. & W. 159.* (a) Hodgson v. Murray, 2 Sim. 515 ; v. Adams, Younge, 117. (6) Parkin v. Moon, 7 C. & P. 408, E. C. L. R. vol. 32; Lewis v. Lady Parker, 4 Ad. & E. 838, E. C. L. R. vol. 31 ; 6 N. & M. 294, B. C. L. R. vol. 36 ; 2 Har. & W. 46, S. C. ; Cripps v. Davis, 12 M. & W. 165.* (1) The indorsee of a check, dated the day after he receives it, wUl not take it subject on that account to want of consideration between the drawer and indorser. Walker v. Geisse, 4 Whart. 252. (2) A promissory negotiable note payable on demand, unless transferred within a reasonable time, will be considered overdue and dishonored, the English rule being modified in this country. Carll v. Brown, 2 Michigan, 401. (3) It seems that in the absence of all proof as to the time when a note was in- dorsed, the court will presume that it was indorsed while current. Washburn v. Ramsdell^ 17 Vermont, 299 ; Burnham v. Webster, 1 App. 232 ; Burnham v. Wood, 8 N. Hamp. 334 ; Mobley v. Ryan, 14 Illinois, 51 ; Lelaud v. Farnham, 25 Vermont, 653 ; Andrews v. Chadbourne, 19 Barbour, S. 0. Rep. 147. The indorsement of a note, in presumption of law, is contemporaneous with the making of it, or at all events antecedent to its becoming due ; and if the defendant, TEANSFBB. 235 Where a banker, on •whom a check is drawn, is also the banker of the bearer, and the check is paid in, there are two characters 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 it as agent of the bearer,(c) and will discharge himself by giving timely notice of non-payment to the bearer ;(c?) 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 drawer.(e) Where a man, to whom a bill is transferred, sends it back *as useless, that is an abandonment of his right as transferee, and L -■ he cannot, by getting the bill again into his hands, acquire a right to sue without a new transfer.(/) After payment, at maturity, by the acceptor or maker, bills or notes are extinguished and cannot be transferred,(^) except promissory notes payable to bearer on demand, reissued by the original maker, having taken out a license for that purpose. (A) And an accommodation bill paid by the drawer at maturity cannot be reissued by him.(z) And a note payable on demand which has been paid cannot be reissued by the maker, although the indorsee have no notice that (c) Boyd V. Emerson, 2 Ad. & El. 184, B. C. L. R. vol. 29 ; 4 N. & M. 99, S. C. \d) Ibid. (e) Kilsby v. 'Wmiams, 5 B. & Aid. 815, E. C. L. R. vol. 1 ; 1 D. & R. 476, S. C. (/) Carthwright v. Williams, 2 Stark. 340, E. C. L. R. vol. 3. \g) 55 Geo. 3, c. 184, s. 19. {h) Sections 14 and 24. Until a bill or note has been paid by the maker or acceptor, or on their behalf, it has not discharged its fiinctions, and does not require a new stamp, though reissued after due, and after it has been paid by an indorser. Callow V. Lawrence, 3 M. & Sel. 95. (i) Lazarus v. Cowie, 3 Q. B. Rep. 464, B. 0. L. R. vol. 43. ' 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 indorsement 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. Walter v. Kirk, Ibid. 55. ' 236 BTLES ON BILLS OE EXCHANGE. the note has ever been paid, or that payment has ever been de- manded. (fc)(l) "But a bill of exchange," says Lord Ellenborough, "is negotiable' ad infinitum, until it has been 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, instead of suing the acceptor, he put it into circulation on his own indorsement only, it does not pre- judice any of the other parties who have indorsed the bill, that the holder should be at liberty to sue the acceptor."(Z) The drawer of a bill payable to Ms own order, indorsed it over, and, on the bill being {k) Bartrum v. Caddy, 9 Ad. & E. 2T5, E. C. L. E. vol. 36 ; 1 Per. & D. 207, S. C. [1] Callow V. Lawrence, 3 M. & Sel. 95 ; and see Eoberts v. Eden, 1 B. & Pul. 398, and the observations of Patteson, J., on that case in Bartrum v. Caddy, 9 Ad. & E. 275, E. C. L. R. vol. 36 ; 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 N. Hamp. 202. Where a bill of exchange, payable to A., is taken up by the drawer, and the indorsement of A. stricken out, it becomes dead to all intents and purposes as a negotiable instrument. Price v. Sharp, 2 Iredell, 417. A bill of exchange, promis- sory 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 performed its office and ceases to have a legal existence. 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. Ballard v. Greenbush, 24 Maine, 336. Eecovery of judgment against the maker of a note, destroys its negotiable quality, and it cannot be afterwards transferred so as to enable the holder to maintain an action in his name against an indorser. Brown v. Foster, 4 Alabama, 282 ; Sawyer V. Bradford, 6 Ibid. 572. An indorser paying the note has the same right to an assignment of a 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 indorser 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. Its negotiability is destroyed, and cannot be revived by the acceptor indorsing it to a third person. Beede v. Real Estate Bank, 4 Pike, 546. Where the payee of a note having indorsed it, afterwards comes fairly to the possession of it again, he will be regarded, at least prima facie, 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 y. Storrs, 13 Conn. 412. TUANSPEK. 237 dishonored, paid it to the holder, and afterwards indorsed it again. Held, that this last indorsee might recover against the acceptor, (m) But, where the bill is drawn payable to a third person, is indorsed by him, dishonored and taken up by the drawer, who (the payee's in- dorsement still remaining) indorsed it to- the plaintiff, it was held, that the plaintiff *could not recover against the acceptor ; for r*i qq-i in this case the drawer had no title to indorse, and the payee could not be rendered liable.(w) 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 Ellenborough, " that a bill paid at maturity can- not be reissued, and that no action can afterwards be maintained upon it by a subsequent indorsee. A payment before it becomes due, however, I think, does not extinguish it any more than if it 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 secu- rities cannot be affected by any payment made before they are due."(o) After a partial payment, at maturity, by the drawer, or any other party, the holder cannot recover of the acceptor more than the ba- lance. (p) For if that were not so, then if a drawer or indorser had paid the holder the whole amount of the bill, the holder might never- theless sue the acceptor for the whole sum, for which an action would lie at the suit of the party who had paid him. (m)/Ibicl. ; Hubbard v. Jackson, 3 C. & P. 134, E. C. L.«R. vol. 14; 4 Bing. 390, E. C. L. E. vol. 13 ; 1 M. & P. 11, S. C. In this last case, the holder had recovered at law against the drawer, and then the drawer, without consideration, indorsed the bill oyer to the plaintiff; but Best, C. J., held, and the Court of C. P. confirmed his judgment, that the plaintiff might recover. (ra) Beck v. Robley, 1 H. B. 89, n. (o) Burbidge v. Manners, 3 Camp. 193. (p) Bacon v. Searles, 1 Hen. Bla. 88, overruling Johnson v. Kennion, 2 Wils. 262 ; and see Pierson v. Dunlop, Cowp. 571. But see the observations of Eyre, C. J., in Walwyn v. St. Quintin, 1 B. & P. 654. However, the cases of Pierson v. Dun- lop, and Bacon v. Searles, do not appear to have been brought under the notice of that learned Judge; and see Reid y. Purniyal, 1 C. & M. 538;* 6 C. & P. 499, B. C. L. R. vol. 24, S. C. See the Chapter on Payment. 238 BYLBS ON BILLS OP EXCHANGE. A question sometimes arises -whether a bill have been paid or trans- ferred. 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.(g') A bill or note cannot be indorsed for part of the sum remaining due to the indorser upon it, if the limitation of the sum for which r*1 ^4-1 ^* ^^ indorsed appear on the indorsement itself. *Such an in- dorsement 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. (r) It is conceived, that the effect of such an indorsement, when attempted, is to give the in- dorsee a lien on the bill, but not to transfer a right of action, except in the indorser'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 in- strument, 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 transferer. (s)(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 acceptor,(^) the bill may be specially indorsed for the part remaining due.(M) 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 in- dorsee for value, before maturity of the bill and without notice.(«) (2) Graves v. Key, 3 B. & Ad. 313, E. C. L. E. vol. 23. See Hubbard v. Jack- son, 4 Bing. 390, B. C. L. R. vol. 13 ; 1 M. & P. 11, S. C. (»•) Hawkins v. Cardy, 1 Lord Eaym. 360. (s) Eeid V. Furnival, 1 C. & M. 538 ;* 5 C. & P. 499, E. C. L. E. vol. 24, S. C. (f) Bacon V. Searles, 1 Hen. Bla. 88. (m) Hawkins v. Cardy, 1 Lord Eaym. 360 ; Cartb. 466, S. C. ; and see Johnson V. Kenniou, 2 Wils. 362. (u) Dod V. Edwards, 2 C. & P. 602, B. C. L. E. vol. 12. (1) A moiety of a promissory note cannot be assigned so as to enable the as- signee to maintain an action in his own name for his portion of the note. Miller V. Bledsoe, 1 Scam. 530. TKANSFBR. 239 The holder cannot transfer after action brought, so as to give his transferee a right of action, provided the latter ivere aware that the action was commenced.(w) But if the transferee had no notice, the transfer is good.(a;) If the bill or note be under 51., no indorsement must be made after the bill is due ; each indorsement must be dated ; and the date must be at, or not before, the time of making, must specify the name and place of abode of the indorsee, and be attested by one subscribing witness at least. («/) 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, but the r*iqc-i remedy is to be moulded by the law of the country where it is sought.(«) A bill is to be considered as made in the country where it is to be paid. This subject will be considered more in detail in the subsequent Chapter on Foreign Bills and Foreign Law. After the death of the holder his personal representatives should transfer.(a) But where indorsement is necessary, and the testator has only written his name on the bill without delivery, the executor cannot complete the indorsement by delivery. (6) 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 possession of the bankrupt, unless he have therein a beneficial interest.(c) The husband of a married woman, who acquires a right to a bill («j) Marsh v. Newell, 1 Taunt. 109 ; Jones v. Lane, 3 Y. & C. 281.* (x) Colombier v. Slim, K. B., T. T., 12 Geo. 3 ; Chit. 9th ed. 217. (y) IT Geo. 3, c. 30, s. 1. (z) See the authorities collected in Trimby v. Vignier, 1 Bing. N. C. 152, E. C. L. B. vol. 27 ; 4 M. & Se. 695;" 6 C. & P. 25, B. C. L. E. vol. 25, S. C. ■ (a) See ante, Chapter V, Executors, and as to the question whether one of the several executors can indorse. (6) Bromage v. Lloyd, 1 Exch. Eep. 32.* (c) See the Chapter on Bankruptcy. 240 BYLES ON BILLS OF EXCHANGE. or note given to the wife, either before or during marriage, should in- dorse, (t^ Bankers have a general lien on all securities for money which are deposited with them, as bankers, in the way of their business. And therefore on bills and ijotes payable to bearer, or on Exchequer bills, although the customer who deposited them was not the real owner, and had no authority to give a lien ;(e) but not on Exchequer bills delivered to them merely for the purpose of receiving the interest and exchanging them for new one8.(/) The words goods and chattels, or either of them, in a testamentary instrument, will pass all the personal estate of the testator, including choses in action, such as bills and notes. But, where the bequest is of all goods and chattels in a particular 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.(^) r*i ^fil *■"■* ^'^y ^°^ ^® useless to subjoin a few words as to the ex- ^ tent to which bills or notes may be the subjects of a donatio mortis causa. The result of the cases seems to be, that though a bond(A) or a bank note are good donationes mortis causa,(i) and though the delivery of a bond and mortgage deeds will impose a trust upon the real and personal representatives in favor of the donee,(A) yet that the gift of a check drawn by the donor upon his banker, or of a promissory note, will not amount to a donatio mortis causa, and will have no greater effect in equity than at law.(Z) The general rule appears to be, that a chose in action cannot so pass ; but a bond, being a specialty, and having, in the eye of the law, a substantive existence and locality, independent of the value which it represents (being, for example, bona notabilia, in the place where the parchment lies), is an exception. And negotiable instruments, which are com- (d) See Chapter V, Married Women. (e) Barnett v. Brandao, 6 M. & G. 630, E. C. L. R. vol. 49. (/) Brandao v. Barnett, 3 C. B. Rep. 519, E. C. L. R. vol. 54, Dom. Proc. (g) Stewart v. Bute, 11 Ves. 662, S. C. in Dom. Proc. ; 1 Dow. 13; see Roper on Leg. 224, -Sd ed.; 2 Wms. on Exors. 648 and 942, ltd ed. (_h) Snellgrove v. Bailey, 3 Atk. 214. (i) Drury v. Smith, 1 P. W. 405 ; MiUer v. MiUer, 3 P. W. 356. Ik) Duffield V. Blwes, 1 Bligh, 499. (?) Tate V. Hilbert, 2 Ves. Jun. 111. TRANSFER. 241 monly treated as money for other purposes, may, like money, pass as a donatio mortis causa, while such bills or notes as are not com- monly used for money, as a check or common promissory note, though payable to bearer, will not be within the exception. Nor is it pro- bable that future decisions will hold notes or checks to be objects of a donatio mortis causa,(m) for the Courts lean against this sort of disposition. "Improvements in the law," says Lord Eldon, "or some things which have been considered improvements, 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."(n)(l) A donatio mortis causa may be made subject to a condition or trust, (o) Bills or notes could not at common law be taken in execution, at the suit of a subject ; nor, if taken, could the sheriff or his assignee acquire a title against the other parties to the instruments, they being only assignable by the custom of merchants, in the way of ordi- nary mercantile transfer. And such as more nearly resemble money than securities, as bank notes, were, like money, not subject to be taken in execution, (p) *But now, by the 1 & 2 Vict. c. 100, s. 12, money, bank ^ „ notes, checks, bills and promissory notes, with all other secu- ■- -" (m) But see Eauken v. "Wegueliu, Rolls, June, 1832 ; Chitty, 9tli ed. 2. (») DufEeld V. Elwes, 1 Bllgh, 533, A.D. 1827. There must be an actual transfer. Bunn V. Markham, 2 Marshall, 532. (0) Blount V. Burrow, 3 Bro. Ch. Ca. 72 ; Hills v. Hills, 10 L. J. Ex. 440 ; 8 Mees. & W. 401,* S. C. (p) Francis v. Nash, Rep. temp. Hardwicke, 53 ; Knight v. Griddle, 9 Bast, 48 ; Fieldhouse v. Croft, 4 East, 510. (1) See ante, p. 18, note 1, as to Checks. It is settled by a concurring train of decisions in the American Courts that a promissory note of a third person held by the donor, is a good subject of a gift causa mdrtis. Grover v. Grover, 24 Pick. 261 ; Brown v. Brown, 18 Conn. 410 ; McConnell v. McConnell, 11 Vermont, 290 ; Sessions V. Moseley, 4 Gushing, 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 administrators of the donor. Bowers v. Hurd, 10 Mass. 427 ; Parish v. Stone, 14 Pick. 198 ; HoUey v. Adams, 16 Vermont, 206 ; Smith v. Kittridge, 21 Ibid. 238 ; Bradley v. Hunt, 5 Gill. & Johns. 54 ; Parker v. Marston, 27 Maine, 1 96. 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 Comstoek, 93. 16 242 BYLES ON BILLS OF EXCHANGE. rities for money, may be seized under a writ of fieri facias. The sheriff is to deliver the money and bank notes to the execution cre- ditor, and is to receive payment, or to sue in his own name, being indemnified by the plaintiff, on the checks, bills, or notes. But if the creditor, before receiving payment, proceeds against the person of the defendant, he forfeits the benefit of the securities. (g') Bills and notes are liable to be seized under an extent.(r) Bills or notes are not the subjects of larceny at the common law ; for bills or notes are choses in action, and a chose in action cannot be stolen. But, by the 7 & 8 Greo. 4, c. 29, s. 5, 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 felony.(g) The embezzlement of bills or notes by agents, not being clerks or servants, or the selling, negotiating, or pledging them, in violation of the purpose for which, by a written direction, they were intrusted, and the disposing of them for the agents' own benefit, is a misde- meanor subjecting to transportation. (t) 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 the face of the instrument, he cannot sue. But the technical diflSculty may be removed by indorsement or transfer,(M) before the bill is due. Eighthly, as to the circumstances under which equity will restrain negotiation. A Court of equity will interpose to restrain the nego- tiation of a bill unduly obtained ; for the defence at law may not be available as against an innocent indorsee for value, or time may de- stroy the evidence ;(?;) and will, on equitable terms, decree a bill (g) Sec. 16. (r) West, 27, 28; 164-5. (s) 7 & 8 Geo. 4, c. 29, s. 47. (i) 7 & 8 Geo. 4, c. 29, s. 49. (m) See Steele v. Harmer, 15 L. J. 217, Exch. ; 14 M. & W. 831,* S. C. ; and 19 L. J. Exch. 34, in error, and ante, p. 31. (u) Bromley v. Holland, 7 Ves. 20, 413 ; Bishop of Winchester v. Fourmer, 2 Ves. Jun. 483 ; 3 Ves. 757 ; 9 Ves. 355. As to the parties to the suit, see Toley v. Carlou, 1 Younge, 373. But the Court will not order a biU to be delivered up unless the plaintiff has a right to the possession, and the defendant's detention of the bill is inequitable. Jones v. Lane, 3 Y. & C. 281.* In Thretfall v. Lunt, 7 PRESENTMENT BOB. ACCEPTANCE. 243 *void in its creation, or unduly obtained, to be delivered up to ^^^ „„-, be cancelled, (w) *OHAPTER XII. OP THE PRESENTMENT POR ACCEPTANCE. [*139] ADVISABLE IN AiLL OASES, 139 WHAT TIME MAT BE GITBN TO THE HEOESSABT WHERE BILL IS DRAWN DRAWEE, . . . . . 142 AT OR AFTER SIGHT, . 139 CONSEQUENCE OP NEGLIGENCE IN WHEN TO BE MADE, 139 PARTY PRESENTING, . 142 AT WHAT HOUR, .... 141 PROPER COURSE FOB HOLDER WHEN EXCUSED BY PUTTING BILL INTO CIR- DRAWEE CANNOT BE FOUND, OB IS CULATION, 141 DEAD, 142 OB BY OTHER REASONABLE CAUSE, . 141 PLEADING, 142 TO WHOM IT SHOULD BE MADE, 141 It is in all cases advisable for the holder of an unaccepted bill to present it for acceptance without delay ; for, in case of acceptance the holder obtains the additional security of the acceptor, and, if acceptance be refused, the antecedent parties become liable iramedi- ately. It is advisable, too, on account of the drawer, for, by receiving early advice of dishonor, he may be better able to get his effects out of the drawee's hands. But presentment for acceptance is not necessary in the case of a bill payable at a certain period after date.(l) It is said, however, Sim. 62?, 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. {w) 2 Ves. Jun. 488 ; 1 Ves. 413 ; 2 Ves. & Beam. 302 ; Mackworth v. Marshall, 3 Sim. 368. So where the name of the payee, as indorser, was forged, a bona fide holder was restrained from suing the acceptor, and the Court directed the biU to be delivered up to be cancelled. Esdaile v. La Nauze, 1 Y. & Col. 394 ;* Jones v. Lane, 3 Y. & C. 281.* (1) A bill payable at a given time after date need not be presented for acceptance; 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. A bill of exchange payable at a time certain, need not be presented for accept- ance until maturity ; but if it is and is dishonored, notice and protest is necessary. CarmichaeL v. Pennsylvania Bank, 4 Howard, Miss. 567 ; Bank of Bennington v. Raymond, 12 Vermont, 401 ; Glasgow v. Copeland, 8 Missouri, 268. 244 BYLES ON BILLS OF EXCHANGE. that it is incumbent on a holder who is a mere agent, and on the payee, when expressly 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 responsible, and the agent must answer to "his principal.(a) Presentment for acceptance is necessary, if the bill be drawn pay- able at sight, or at a certain period after sight. Till such present- ment there is no right of action against any party ; and unless it be made within a reasonable time, the holder loses his remedy against the antecedent parties. What is a reasonable time, depends on the circumstances of each particular case, and is a mixed question of law and fact ;(S) although reasonable time in general, and reasonable *time for giving L -' notice of dishonor in particular, is clearly a question of law. Plaintiff, on Friday, the 9th, at Windsor, twenty miles from London, received a bill on London, at one month after sight, for IQOl. 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. (c)(1) A bill drawn by bankers in the country on their correspondents ia London, payable after sight, was indorsed to the traveller of the plaintiffs. He transmitted it to the plaintiffs 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 bank- rupt; the drawees, consequently, refused to accept. Had the bill been sent by the traveller to the plaintiffs, his employers, as soon as (a) Chit. 9th ed. 273 ; Poth. 128 ; Marius, 46.. (6) Muilman v. D'Bguino, 2 H. Bl. 565 ; Pry v. Hill, 1 Taunt. 395, B. C. L. R. vol. 2 ; Shute v. Robins, 1 M. & M. 133, B. C. L. R. vol. 22 ; 3 C. & P. 80, E. C. L. R. vol. 14, S. C. ; Hellish v. Rawdon, 9 Ring. 416, B. C. L. R. vol. 23 ; 2 M. & Sc. 570, S. C. (c) Try V. Hill, 1 Taunt. 395, B. C. L. R. vol. 2. (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. Robin- sou V. Ames, 20 Johns. 146 ; Wallace v. Agry, 4 Mason, 336 ; S. C, 5 Mason, 118; Aymar V. Beers, 1 Cowen, 705 ; Bachellor v. Priest, 12 Pick. 399. A bill payable on demand must be presented within a reasonable time, or the drawer will be dis- charged. Etting V. Shook, 2 Hall, 459 ; see Dumout v. Pope, 7 Blackford, 367. PRESENTMENT FOE ACCEPTANCE. 245 he received it, they would have been able to get it accepted before the bankruptcy. " This is," says Lord Tenterden, " a mixed ques- tion of l&w 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 for the purpose of using them, within a moderate time (for indefinite delay, of course, cannot be allowed), as part of the circulating medium of the coun- try." The jury concurred with his Lordship, that the delay was not unreasonable. ((Z) Where the purchaser of a bill on Rio Janeiro, at sixty days' sight, the exchange being against him, kept it nearly five months, and the drawee failed before presentment, it was held that the delay was not unreasonable. "The bill," says Tindal, C. J., " must be forwarded within a reasonable time under all the circum- stances of the case, and there must be no unreasonable or improper , delay. Whether there has been, in any particular case, reasonable diligence used, or whether 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) But where a bill, payable after sight, was drawn in duplicate on the 12th of August, in Newfoundland, and not presented for acceptance in London till November 16, and no circumstances were proved to ex- cuse the delay, it was held *unreasonable,(/) the Court lay- ing some stress on the fact that the bill was drawn in sets. '- -■ Presentment should be made during the usual hours of busi- ness.(^)(l) The holder may, however, put the bill into circulation without pre- senting it. " If a bill, drawn at three days' sight," says Mr. Justice {d) Shute V. Robins, 1 M. & M. 133, B. C. L. E. vol. 22 ; 3 C. & P. 80, E; C. L. R. vol. U, S. C. (e) Mellish v. Rawdon, 9 Bing. 416, E. C. L. R. vol. 23 ; 2 M. & So. 510, S. C. (/) Straker v. Graham, 4 M. & W. 721.* (V) Mar. 112. (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, 2 HiU, 635 ; Nehon v. Fotteral, 7 Leigh, 179. 246 BYLKS ON BILLS OE EXCHANGE. 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 iip for any length of time, I should say that he would be guilty of laches."{h) " 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 never can 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 obligation 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. "(i) Two bills, one for 400L, the other for 500?., were drawn from Lisbon, on May 12, at thirty days after sight, indorsed to Gr. at Paris, and by Gr. to R. at Genoa, and by R. indorsed over. They were not presented for acceptance till 22d August. The jury found, and the court concurred, that the bills were, under the circumstances, presented within a reasonable time.(^) Illness or other reasonable cause, not attributable to the miscon- duct of the holder, will excuse. But the holder must present, though the drawer have desired the drawee not to accept. (Z) The presentment must be made either to the drawee himself, or to his authorized agent. 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 witness 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 Ellen- borough, " The evidence here offered proves no demand on the drawee, and is, therefore, insufficient."(TO) - *When the bill is presented, it is reasonable that the drawee L J should be -allowed some time to deliberate whether he will ac- cept 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 go out in the in- (Ji) Muilman v. D'Bguino, 2 H. Bl. 565. (i) Hellish v. Eawdon, 9 Bing. 416, E. C. L. R. vol. 23 ; 2 M. & Sc. 570, S. C. [h) Goupy V. Harden, 7 Taunt. 160, E. C. L. R. vol. 2 ; 2 Marsh. 454, B. C. L. R. vol. 4, S. C. (Z) HiU v. Heap, D. k R., N. P. C. 57. {m) Cheek v. Roper, 5 Bsp. 175. PRESENTMENT POK ACCEPTANCE. 247 terim,(w) or unless, in the interim, he either accepts or declares his resolution riot to accept.(o) If more than twenty-four hours be given, the holder ought to inform the antecedent parties of it.(p) If the owner of a bill who leaves it for acceptance, by his negli- gence enables a stranger to give such a description of it as to obtain it from the drawee, without negligence on his part, the owner cannot maintain trover for it against the drawee. (g') In case the bill is directed to the drawee at a particular place, it is to be considered as dishonored if the drawee has absconded.(r) 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.(s) If the drawee be dead, the holder should inquire after his personal representative, and, provided he live within a rea- sonable distance, present the bill to him.(*) In an action against the drawer on non-acceptance, it is not suffi- cient to allege mere non-acceptance, presentment for acceptance must be alleged, (m) (ra) Marius, 15 ; Com. Dig. Merch. F. 6 ; Bellasis v. Hester, 1 Ld. Raym. 281. (o) Bayley, 194, 6tli ed. (p) Ingram v. Foster, 2 Smith, 242. (g) Morrison v. Buchanan, 6 C. & P. 18, E. C. L. R. vol. 25. (r) Anon. 1 Ld. Raym. 743. (s) Collins V. Butler, 2 Stra. 1087 ; Batemau v. Joseph, 12 Bast, 433. (r!) Chitty, 9th ed. 357. (u) Mercer v. Southwell, 2 Show. 180. 248 BYLBS ON BILLS OP EXCHANGE. [*143] ^CHAPTER XIIL OF ACCEPTANCE. IS WHAT CASES THE DRAWEE IS LIA- BLE BEFORE ACCEPTANCE, . LIABILITY OF A PERSON APPOINTED BY THE ACCEPTOR TO PAT A BILL, BY WHOM II MAY BE GIVEN, . NOT BY A SERIES OF ACCEPTORS, . WHEN, BEFORE BILL FILLED UP, NOT BEFORE BILL IN EXISTENCE, . AFTER DUE, OR AFTER PRIOR REFU- SAL TO ACCEPT,^. ACCEPTANCE OF INLAND BILLS MUST BE IN WRITING ON THE BILL, WHAT WILL AMOUNT TO AN ACCEPT- ANCE IN WRITING ON THE BILL, . WHAT WILL AMOUNT TO AN ACCEPT- ANCE OF FOREIGN BILL, WHAT ENGAGEMENT THE HOLDER MAY REQUIRE OP THE ACCEPTOR, WHAT SHOULD BE HIS CONDUCT IN CASE OF QUALIFIED ACCEPTANCE, QUALIFIED ACCEPTANCE, . 149 143 CONDITIONAL ACCEPTANCE, . . 150 PARTIAL OR VARYING ACCEPTANCE, . 150 144 PAYABLE AT PARTICULAR PLACE, . 151 144 PRESENTMENT FOR PAYMENT THERE, 151 144 EFFECT OF TWO ACCEPTANCES ON 145 THE SAME BILL, . . 151 145 DELIVERY OR NOTICE NECESSARY TO 145 COMPLETE ACCEPTANCE, 151 CANCELLATION OP ACCEPTANCE BY 146 DRAWEE, .... 152 BY BANKER, .... 152 146 BY OTHER PARTIES, 152 LIABILITY OF ACCEPTOR, 152 U1 HOW DISCHARGED, . 153 BY WAITER, .... 153 147 CANCELLATION BY THE HOLDER, 154 PLEADING, .... 154 149 WHAT ACCEPTANCE ADMITS, . 154 WHERE DRAWEE PRECLUDED FROM 149 DISPUTING ACCEPTANCE, . 156 Acceptance, in its ordinary signification, is an engagement by the drawee to pay the bill when due,(a) in money.(6) An instrument drawn by A. upon B., requiring him to' pay to the order of 0. a certain sum at a certain time " without acceptance," is a bill of exchange, and may be so described in an indictment for for- gery.(c) We have already seen, that without acceptance a banker may be liable to his customers, if, having sufficient funds, he neglect to pay his checks. A banker, at whose house a customer accepting a bill makes it pay- [*144] able, *is liable to an action at the suit of that customer, if he refuse to pay it, having at the time of presentment funds suffi- (a) Clark v. Cock, 4 East, 12. lb) RusseU V. Phillips, 19 L. J. 297, Q. B. (c) Miller v. Thomson, 3 M. & G. 576, E. C. L. R. vol. 42 ; Beg. v. Kinnear, 2 M. & Rob. 117. ACCEPTANCE. 249 cient, and having had those funds a reasonable time, so that his clerks and servants might know it.{d) 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 holder in an action for money had and received, unless he have assented to hold the money for the purpose for -which it was remitted.(e) But where there is anything in the conduct or situation of the banker, which amounts to an assent to hold the remittance upon trust to discharge the bill, he is liable to the holder.(/) A bill can only be accepted by the drawee,(^) and not by a stranger, except for honor. (A) 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 payment.(«) But this decision goes to the very verge of the law. (A;) If the drawee be incompetent to contract, as, for example, by rea- son of infancy or coverture, (Z) the bill may be treated as dishonored. We have already seen(TO) that one partner may, by his acceptance, bind his copartner. But, if a bill be drawn upon several persons not in partnership, it should be accepted by all, and, if not, may be treated as dishonored. (w) Acceptance will, however, be binding upon such as do make it.(o) There cannot be two or more separate acceptors of the sajne bill (d) See Whitaker v. The Bank of England, 6 C. & P. 700, E. C. L. R. vol. 25, and 1 C. M. & R. 744;* 1 Gale, 54, S. 0. (e) "Williams v. Everett, 14 East, 582 ; Yates v. Bell, 3 B. & Aid. 643, E. C. L. R. vol. 5 ; Wedlake v. Hurley, 1 C, & J. 83.* (/) De Bernales v. Fuller, 14 Bast, 590, n. ; 2 Camp. 426 ; and see the observa- tions of Abbott, C. J., on this case, in Yates v. Bell, 3 B. & Aid. 643, E. C. L. R. vol. 5. {g) Unless he have recognized the acceptance as his. See Lindus v. Bradwell, 5 C. B. Rep. 583, E. C. L. R. vol. 57. (A) Polhill V. Walter, B. & Ad. 114; 1 L. J. 92, K. B.; Davis v. Clarke, 13 L. J., Q. B. 305 ; 6 Q. B. Rep. 16, E. 0. L. R. vol. 51, S. C. ; see Jenkins v. Hutchinson, 18 L. J. 274. (i) Gray v. Milner, 8 Taunt. 739, E. 0. L. R. vol. 4. {k) See the observations of Patteson, J., in Davis v. Clarke, supra. ll) Chit. 9th ed. 283. (m) Chapter II. (re) Mar. 16, Dupays v. Shepherd, Holt's Rep. 297; Marius, 64. (o) B. N. P. 270 ; Bayley, 58 ; Owen v. Von Uster, C. P., M. T. 1850. 250 BYLES ON BILLS OF BXCHAN9B. not jointly responsible. A. refused to supply B. with goods, unless C. would become his surety. C. agreed to do it. Goods to the value r*14f>1 °^ ^^'^^- 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 Bllenborough, " If you had de- clared that, in consequence of A. selling the goods to B., C. under- took that the bill should be paid, you might have fixed C. by this evidence. But I know of no custom or usage of merchants, accord- ing to which, if a bill be drawn upon one man, it may be accepted by two ; the acceptance of the defendant 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 honor of the drawer. There cannot be a series of acceptors. The defendant's undertaking is clearly collateral, and ought to have been declared upon as such."(^) But although there can be no other .acceptor after a general acceptance of the drawee, it is said that, when a bill has been accepted supra protest, for the honor of one party, it may, by another individual, be accepted supra protest for the honor of another, (g') We shall, here- after, consider the subject of acceptance supra protest in a distinct Chapter. A bill may, as we have seen,(r) be addressed to the drawer himself and accepted by him ; but it is then rather a promissory note than a hill. We have already seen that the signature of a drawer, maker, or indorser, of a negotiable instrument on a blank form, will bind them respectively ; so an acceptance, written on the paper before the bill is made, will also charge the acceptor to the extent warranted by the> stamp.(s)(l) (,p) Jackson v. Hudson, 2 Camp. 447. {q) Ibid., II., Beawes, 42. (r) Chapter VII. (s) It is not even necessary that the bill should be drawn by the same person to whom the acceptor handed the blank acceptance. Schnltz v. AstlBy, 2 Bing. N. C. 544, E. C. L. E. vol. 29 ; 2 Scott, 815 ; 1 Hodges, 525 ; T C. & P. 99, B. C. L. B. vol. 32, S. C. (1) 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 Monr. 25. 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, 142; Moody v. Threlkeld, 1.3 Georgia, 55. ACCEPTANCE. 251 It was formerly held (in cases where an acceptance in writing on the bill was not necessary), that a promise to accept, given hefore the nil 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 800Z., has been held an acceptance of such bill subsequently drawn. (<) 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 Gibbs, C. J., "not communi- cated to the person who takes the bill, does not amount *to an |-^^ .^-| acceptance ; but, if the person be thereby induced to take a ■- J bill, he gains a right, equivalent to an actual acceptance, against the party who has given the promise to accept."(M) But it is now set- tled that there cannot be a verbal acceptance of a non-existing bill,(v) although the bill be discounted by the drawer on the faith of a pro- mise to accept.(w) 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 state the drawing to have been first and the acceptance afterwards. (a;)(l) (i!) Pillans v. Van Mierop, 3 Burr. 1663 ; Pierson v. Dunlop, Cowp. 5Y1 ; Mason V. Hunt, Doug. 284, 287. (u) Milne v. Preat, 4 Camp. 393 ; Holt, N. P. 181, S. C, evidently an inaccurate report, in Holt, see 11 M. & W. 390 ;* Johnson v. CoUings, 1 Bast, 98. (u) Johnson v. Collings, 1 East, 98 ; Bank of Ireland v. Archer, 11 M. & W. 383.* (w) Ibid. (x) MoUoy v. Delves, Bing. 428 ; 5 M. & P. 2T5 ; 4 C. & P. 492, B. C. L. E. vol. 19, S. C. (1) A promise in writing made before a biU is drawn to accept the bill, will not be held to amount to an actual acceptance, unless the bill is clearly described and identified from other bills. Ulster County Bank v. McParlan, 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 re- ceive the bill. Eead v. Marsh, 5 Monroe, 8. A letter written within a reasonable time before or after the date of a bill, intelli- gibly describing it, and promising to accept it, is, if shown to one who takes it on the credit of the letter, a virtual acceptance, binding on the promisor. Payson v. Coolidge, 2 Gallison, 233 ; S. C, 2 Wheaton, 66 ; Goodrich v. Gordon, 15 Johns. 6 ; Schimmelpennick v. Bayard, 1 Peters, 265 ; Towsley v. Sumrall, 2 Peters, 181 ; Wilson V. Clements, 3 Mass. 1 ; Storer v. Logan, 9 Mass. 55 ; McKim v. Smith, 1 252 BYLBS ON BILLS OF EXCHANGE. A bill may be accepted after the period at which it is made pay- able has elapsed, sfnd the acceptor will then be liable to pay on de- Hall's Law Journal, 486 ; Parker v. Grule, 2 Wendell, 545; 5 "Wendell, 414; Boyce V. Edwards, 4 Peters, 111 ; Williams v. Winans, 2 Green, 339 ; Russel v. Wiggin, 2 Story, 213 ; Bayard v. Lathy, 2 McLean, 462 ; Kennedy v. Geddes, 8 Porter, 263; 3 Alabama, 581 ; Ulster Bank v. McParlan, 5 Hill, 433. 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. Agj-y, 4 Mason, 336. When an implied acceptance, based on an authority to draw, previously given, is relied on, a recovery cannot be had against a party as acceptor by virtue of such authority, unless it be proved that the party discounting 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 biU. Cun- ninghain v. Wardwell, 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 Pigeon Beet Sugar Company, 1 Douglas, 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 acceptance by the drawer in behalf of the firm, and an action may be maintained against the 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 writing. 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, 593; McEvers V. Mason, 10 Johns. 207 ; Goodrich v. Gordon, 15 Johns. 6. See Martin v. Baeon, 2 Rep. Const. Court, 132. A mere verbal promise to accept a bill of exchange not yet drawn, is not such an acceptaTice 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 an 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 Wheatou, 66 ; Wildes v. Savage, 1 Story, 22 ; Russell v. Wiggin, 2 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 that time the true result of the English authorities upon an important practical com- mercial question. I am not sorry to find that professional opinion has now settled ACCEPTANCE. 253 mand ; yet, if tlie declaration state the acceptance to be according to its tenor and effect, those words will be but surplusage. (2/)(l) It may also be accepted after a previous refusal to accept.(3)(2) (?/) Jackson v. Pigott, 1 Ld. Eaym. 364; Mutford v. "Walcot, 1 Ld. Raym. 574; 1 Salk. 129, S. C. ; Stein v. Yglesias, 5 Tyr. 172 ; 1 C. M. & E. 565 ;* 1 Gale, 98, S. C. Qujere, if there be an issue raised as to the time when an acceptance not dated was given, whether before or after the maturity of the bill, on whom will the burden of proof lie ? It is conceived on the party alleging the biH to have been accepted after it was due. (z) Wynne v. Raikes, 5 Bast, 514; 2 Smith, 89, S. C. down in England against the doctrine ; although there is no pretence 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 ever 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 are 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 bill, before the period for which it is to run, and at which it is to become 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 made ? At the date of the bill ? Certainly not : for that would be at war with the obvious intent of the parties, which plainly is, that the acceptance shall be on a future sight of the bill. If it is said that the acceptance is to be treated as made when the biU is actually presented for acceptance and it is dishonored by the drawee, it is as- plain that we set up a pribr intent or promise against the fact. Upon what ground can • a court say, when a party promises to do an act in futuro, 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 pro- mise 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 drawn, and to which the doctrine was applied, was a bill drawn pay- able at or after sight." A parol promise to accept a draft, founded on no new consideration, is not bind- ing, either as an acceptance or a binding promise to accept. Strohecker v. Cohen, 1 Speers, 349. (1) Acceptance after time of payment is binding. Williams v. Winans, 2 Green, 339. (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 liable, if .he had no notice of the non-acceptance. Mitchell v. De Grund, I Mason, 176. 254 BYLBS ON BILLS OF EXCHANGE. The statute 3 & 4 Anne, c. 9, s. 5, expressly enacts, that no ac- ceptance of any inland bill of exchange shall be sufficient to charge any person whatever, unless it be underwritten, or indorsed in writ- ing on the bill. This statute, however, seems to be very loosely and obscurely drawn. Two Chief Justices accordingly held, on consi- dering the whole of the act, that a verbal acceptance was binding, notwithstanding these words ; which decision was finally settled to be law by Lord Hardwicke.(a) It had often been lamented by the Judges, that anything short of a writing on the bill should have been considered as an acceptance ; and at length, in accordance with the opinions of the Bench, and perhaps, of the Legislature, in framing r*l dTT ^^^ last-mentioned act, the 1 & 2 Geo. 4, c. 78, s. 2, *en- acted, that no acceptance of any inlandih) 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. The usual and regular mode of making such an acceptance on the bill, is by writing the word " accepted," and subscribing the drawee'^ name. Signature is not essential to a written acceptance within this statute, but it is a question for the jury, whether the acceptance is complete. (c) ■ If the bill be payable after sight, the day when ac- cepted. should also be expressed. < But the drawee's name alone writ- ten on any part of the bill, is 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.{d) Where one banker held a check drawn on another banker, presented it after four o'clock, and it was not paid, but according to the practice of the London bankers, a mark was put on it to show the drawer had effects, and that it would be paid, this marking was held to amount to an acceptance payable the next day at the clearing-house. (e) It is still not necessary, in pleading the acceptance of an inland bill, to aver that the acceptance was in writing.(/) [a) Lumley v. Palmer, 2 Str. 1000 ; Eep. t. Hardwicke, T4, S. C. (6) As to what is an inland and what a foreign bill, see the Chapter on Foreign Bills. (cD ufaur v. Oxenden, 1 M. & R. 90. (d) Anon. Comb. 401 ; Powell v. Monnier, 1 Atk. 611 ; Moor v. Withy, B. N. P. 2?0 ; Dufaur v. Oxenden, 1 M. & E. 90. (e) Robson v. Bennett, 2 Taunt. 388. (/) Chalie v. Belshaw, 6 Bing. 529, E. C. L. R. vol. 19 ; 4 M. & P. 275, S. C. ACCEPTANCE. 255 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. It is necessary, therefore, to consider the state of the law previously to this enactment, in respect of acceptances not on the bill, as it still applies to acceptances of 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, written or verbal, to pay or accept an existing foreign bill, is of itself an accep- tance.(A)(l) And such an acceptance may be given to the drawer, or any other party to the bill, after it has been indorsed away, and *even after it has become due.(i) It may even be given to a person •- J by whose direction and on whose account the bill was drawn, though he be no party to the bill, and although the bill has been previously (g) Note («), p. 146. [h) Clarke v. Cook, 4 East, 57 ; Cox v. Coleman, Bayley, 6th ed. 176 ; Wynn v. Raikes, 5 East, 514; Mendiiabal v. Machado, 6 C. & P. 218, E. C. L. R. vol. 25 j 3 Moore & S. 841, S. C. (i) Powell V. Monnier, 1 Atk. 614; Wynne v. Raikes, 5 East, 514. (1}A parol acceptance will bind the acceptor. Leonard v. Mason, 1 "Wendell, 522 ; Williams v. Winans, 2 Green, 339 ; Walker v. Lide, 1 Richardson, 249 ; Ward ' V. Allen, 2 Metcalfe, 53. A drawer of a bill of exchange may charge himself as acceptor by writing his name over the face of the bill. Spear v. Pratt, 2 Hill, 582. 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 to for acceptance, he is enabled, by seeing the bill or otherwise, 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, 307. 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 accep- tance. Carniger v. Morrison, 2 Metcalfe, 381. A verbal promise to pay a bill accompanied by a refusal to accept it, is no acceptance, though the drawer have fiinds in his hands. Luff v. Pope, 5 Hill, 413. Where an order was presented for acceptance, and the drawee refused to accept, but promised 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 justice to have accepted. Pope V. Luflf, 7 Hill, 677. 256 BTLES ON BILLS OS EXCHANGE. indorsed. (^) Such a promise will enure to the benefit of the indorsee, and all other parties. It cannot, therefore, be revoked by the drawee, though the party to whom it was given consent to the revocation, and though neither the indorsee nor any other party to the bill had notice of the accept- ance. (Z) 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 acceptance ;(m) so, an answer by the drawee, "there is your bill, it is all right," is no accept- ance.(?i) The mere detention of a bill by the drawee will not, it seems, amount to an acceptance. " 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, how- ever, supported by the authority of any decided case ; for the cases have all been decided upon very special circumstances, "(o) Drawee kept a bill drawn on him, which he was requested to accept and for- ward, a considerable time after he had been told by the payee that he should consider his detention of the bill as tantamount to an ac- ceptance. He afterwards admitted that he had neglected to write an / acceptance upon it, thinking it of no consequence, as he meant to pay it. Held, that under the circumstance, the detention amounted to an acceptance. (^) Where a bill, being presented and left for an acceptance, was refused acceptance by the drawee, but remained afterwards for a considerable time in his hands, and was ultimately destroyed by him, held by three Judges [dissentiente Lord Ellen- borough, C. J.), that the drawee was not thereby liable as the acceptor of the bill.(g') But, if the drawee had previously refused acceptance, {Jc) Pairlee v. Herring, 3 Bing. 625, E. C. L. E. vol. 11; Grant v. Hunt, 14 L. J. 106, C. P., and 1 C. B. Rep. 44, B. C. L. R. vol. 50. (l) Grant v. Hunt, Ibid. (m) Rees v. Warwick, 2 B. & Aid. 113 ; 2 Stark. Ill, E. C. L. R. vol. 3, S. C, unless by the course of dealings it has been usually considered such. {n) Powell r. Jones, 1 Esp. 11. See Anderson v. Hick, 3 Camp. 179 ; Anderson V. Heath, 4 M. & Sel. 303. (o) Mason v. Barfif, 2 B. & Aid. 26. (p) Harvey v. Martin, 1 Camp. 425 ; Bayley, 6th ed. 193 ; and see Trimmer v. Oddie, there cited. {q) Jeune v. Ward, 1 B. & Al. 653 ; 2 Stark, 326, B. C. L. R. vol. 3, S. C. ACCEPTANCE. 257 then, it seems, destroying the bill would be such an act of *ovrnersliip as would amount to an acceptance.(r) On the L J whole, it should seem that any conduct of the drawee, by which he intended the holder should understand that he meant to accept or pay, will amount to an acceptance of any existing foreign bill.(s) A letter written by the drawee to the drawer may amount to an accept- ance, though the drawer be dead, and the drawee unacquainted with the fact.(^) The holder is entitled to require from the drawer an absolute en- gagement to pay in money according to the tenor and effect of the bill, unencumbered with any condition or qualifications. A general acceptance, without any express words to restrain it, will be such an absolute acceptance. If the drawee offer a qualified acceptance, the holder may either refuse or accept the offer. If he mean to refuse it, he may note the bill, and should give notice of the dishonor 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 ob- tain their consent,(M) or they will be discharged •,{v) but he must not protest or note the bill, or give a general notice of dishonor, for he (r) Jeune v. Ward, 1 B. & Al. 663 ; 2 Stark. 326, E. C. L. R. vol. 3, S. C. (s) BiUing V. Devaux, 11 L. J. 38, C. P. ; 3 M. & Q. 565, E. C. L. E. vol. 42, S. C. (i!) Ibid. (M).Perliaps it might not be necessary to obtain the consent to an acceptance 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 & 2 Geo. 4, c. 78. («),Chitty on Bills, 9th ed. 300; Marius, 68, 85; and see the observations of Bayley, J., in Sebag v. Abitbol, 4.M. & Sel. 462 ; 1 Stark. Y9, B. C. L. R. vol. 2, S. C. ; and the answers of the Judges to the third question put to them in Rowe v. Young, 2 B. & B. 244, B. C. L. R. vol. 6 ; 2 Bligh, R. 391, S. C. ; Outhwaite v. Luntley, 4 Camp. 179. Acquiescence in an acceptance at a longer date destroys the remedy against the prior parties according to the Scotch law. Glen. 2d ed. 116. So it did according to the old French law. Both. 49. The Code de Com- merce, Art. 124, avoids conditional acceptances, but allows acceptances for part of the sum and acceptances varying in the place of payment. Art. 123. A varying acceptance, though void as to other parties, would be binding between the contract- ing parties. Nouguier des Lettres de Change, vol. 1, p. 234. 17 258 BTLBS ON BILLS OF EXCHANGE. would thereby preclude himself from recovering against the acoep- tor.(w) Qualified acceptances are of two kinds : conditional and partial, or varying from the tenor of the bill. *Whether an acceptance be conditional or not, is a question L 1°"J of law.(2;) Acceptances, " to pay as remitted iov"{y) " to pay when in cash for the cargo of the ship Thetis,"(2!) " to pay when goods consigned to him (the drawee) were sold, "(a) an answer, "that a bill would not be accepted till a Navy bill was paid," have respectively been held to be conditional acceptances. So where on the present- ment of bills for acceptance, the drawee said he would have accepted them, if he had had certain funds which he had not been able to ob- tain from France, but that when he did obtain them he would pay the bill, this was held to amount to a conditional acceptance. (6) When the acceptance is in writing, and absolute, it may be suspended on a condition by another contemporaneous writing.(c) But a mere verbal 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."(ci)(l) And though the condition be written on distinct paper, it cannot be available against an indorsee ignorant of the existence of such a pa:per.(e) (w) Sproat V. Matthews, 1 T. E. 182 ; Bentinckv. Dorrien, 6 East, 200; 2 Smith, 336, S. C. ; Chit. 9th ed. 301. (a;) Sproat v. Matthews, 1 T. R. 182. (y) Banbury v. Lissett, 2 Stra. 1211. (z) Julian v. Shobrooke, 2 Wils. 9. (a) Smith v. Abbot, 2 Stra. 1152. (6) Mendizabal v. Machado, 6 C. & P. 218, E. C. L. R. vol. 25 ; 3 M. & Scott, 841, S. C. (c) Bowerbank v. Monteiro, 4 Taunt. 844; but see 1 & 2 Geo. 4, c. 18, s. 2; and see Spiller v. Westlake, 2 B. & Ad. 157, E. C. L. R. vol. 22; Gibbon v. Scott, 2 Stark. 286, E. C. L. E. vol. 3. (d) Hoare v. Graham, 3 Camp. 61 ; Adams v. Wordley, 1 M. & W. 374 ;* 2 Gale, 29, S. C. (e) Bowerbank v. Monteiro, 4 Taunt. 844. .See Chapter VII, on Irregular Insim- menu. (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. Haverin v. Donnell, 7 Smedes and Marshall, 244. ACCBPTANOB. 259 Though, when the condition is performed, a conditional acceptance becomes absolute, yet in pleading, it must be declared on as a con- ditional acceptance, with an averment that the condition has been fulfilled.(/)(l) 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 127Z. 18s. M., as far as 100?. part thereof: he was sued on the acceptance, and it was held good, pro tanto, within the custom of merchants.(^) Or, to pay at a different time from that at which the bill is made payable by the drawer.(A) A bill was accepted in this form, "Accepted *on the condition of its being renewed, rjic-|c-(-i till 28th Nov. 1844." This was held to be a varying accept- ance 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. (»') (/) Langston v. Corney, 4 Camp. 176 ; 1 Marsh. 176 ; D. & R. N. P. C. 33 ; Ralli V. Sarrell, 1 D. & E. N. P. C. 33, B. C. L. R. vol. 16 ; see a form. ' Swann y. Cox, 1 Marsh. 176. {g) Wegersloffe v. Keene,«l Stra. 214. {h) MoUoy, 283 ; Walker v. Atwood, 11 Mod. 190. In this case the acceptance was held good within the custom of merchants ; but the case is no authority to show that the prior parties would not be discharged if such an acceptance were taken without their consent. (i) Russell V. Phillips, 19 L. J. 297, Q. B. (1) If a biU is accepted "to be paid when in funds," and the payee does not ex- cept 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. 126; see Kno?: v. Reeside, 1 Miles, 294; Gallery v. Prindle, 14 Barbour, 186. Where one accepts an order payable out of a certain note, when collected, but dies before the money is collected, and it is afterwards received by his personal re- presentatives, they are liable in their representative character upon the contract of their testator. Swansey v. Breck, 10 Alabama, 533. The addition of the word "administrator" to the name of the acceptor of a bill of exchange, does nofqualify his liability or make his acceptance a conditional one. Tassey v. Church, 4 Watts & Sergeant, 346. When 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 fiinds over and above the amount of a debt due him by the planter at the time of the acceptance. Hunter v. Ingraham, 1 Strobhart, 271. 260 BYLES ON BILLS OF EXCHANGE. Before the 1 & 2 Geo. 4, c. 78, it was a point much disputed, whether, if a bill payable generally was accepted payable at a parti- cular place, such an acceptance was a qualified one. That statute, however, has now settled, that an acceptance, payable at a banker's, or other particular place, is as against the acceptor, a general accept- ance, unless the acceptor express, in his acceptance, that the bill is payable there only,(y) and not otherwise or elsewhere.(^)(l) If the customer of a banker accept a bill, and make it payable at his bankers, that is of itself a sufficient authority to the bankers to apply the customer's funds in paying the bill.(Z) As to the manner in which a bill drawn or accepted payable at a particular place, should be presented for payment, and as to the form of pleading, see the next Chapter on Presentment for Patment. Although as we have seen there cannot be two acceptances on the same bill, except for honor,(m) yet if such a second acceptance be on the bill, it may amount to a guarantee, (w) If the drawer of a foreign bill, drawn in sets, accept both sets, and they are afterwards in the hands of two different holders, he may be- come liable to each.(o) The liability of the acceptor, though irrevocable when complete,(^) r*i COT ^06S not attach by merely writing his name, but *upon the subsequent delivery of the bill, or upon communication to some (_/) An acceptance omitting the word only, and stating tte bill to be payable at a particular place, and not elsewhere, is a special acceptance. Siggers y. Nichols, Q. B., H. T. 1839 ; 3 Jurist, 34, S. C. {k) It wUl be observed, that this part of the statute applies to all bills, foreign as well as inland. Q) Keymer v. Laurie, 18 L. J. 218, Q. B. (m) As to which see Acceptance, supra, Protest. (n) Jackson v. Hudson, 2 Camp. 447. (0) See Holdsworth v. Hunter, 10 B. & C. 451, E. C. L. R. vol. 21 ; Perreira v. Jopp, Ibid. (p) Thornton v. Dick, 4 Esp. 270 ; Trimmer v. Oddie, Bayley, 6th ed. 204. (1) When the drawee of a bill accepts payable at a particular place, he is con- sidered 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. Goings, 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 y. Gordon, 3 Bichardson, 311. ACCEPTANCE. 261 person interested in the bill, that it has been so accepted. " La .raison est," says Pothier, " que le concours de volont^s, qui forme un contrat, est un concours de volont^s que les parties se sont recipro- quement d^clar^s ; sans cela la volenti d'une partie ne peut acqudrir de droit h, 1' autre partie, ni par consequent Stre irrevocable. Suivant ces principes pour que le contrat entre le propri^taire de la lettre, et celui sur qui elle est tir^e soit parfait, il ne suffit pas que celui-ci ait eu pendant quelque temps la volonte d'accepter la lettre, et qu'il ait ^crit au bas qu'il I'acceptait ; tant qui'il n'a pas d^clard cette volonte, le contrat n'est pas parfait ; il peut changer de volontd 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 accept- ance at any time before the bill is delivered, or at least before the fact of acceptance is communicated to the holder.(2') If a 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 liability. (?•) 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 can- cellation 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. («) And upon the same principle it has been held that a cancellation of the acceptance by mistake made by other parties does not destroy the bill.(f) The acceptor is now considered, in all cases, as the party primarily (q) Cox V. Troy, 5 B. & Aid. 474, B. C. L. E. vol. 7 ; 1 D. & E. 38, S. C. ; see Bentinck v. Dorrien, 6 Bast, 199 ; 2 Smith, 337, S. C. ; Marius, 20. (r) Novelli v. Eossi, 2 B. & Ad. 757, B. C. L. E. vol. 22; Warwick v. Eogers, 5 Man. & a. 340, B. C. L. E. vol. 44. («) See the observations of Abbott, C. J., in Wilkinson v. Johnson, 3 B. & C. 428, E. C. L. E. vol. 10. (t) Eaper v. Birkbeek, 15 East, 17 ; qusere, as to the effect of the decision in Davidson v. Cooper, 11 M. & W. 778,* on some cases of cancellation. 262 BYLES ON BILLS OF EXCHANGE. 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.(M) 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) [u) Fentum v. Pocock, 5 q:aunt. 192, B. C. L. R. vol. 1 ; 1 Marsh. 14, E. C. L. R. vol. 4, 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 by the drawers is sufficient to entitle them to recover the amount of the acceptor ; and it makes no difference that the drawers took up the bill by giving a new note. Byrne V. Sohwing, 6 B. Monroe, 199. An acceptance is an admission that the acceptor has funds of the drawer. Jordan V. Tarkingdon, 4 Devereux, 358 ; Raborg v. Peyton, 2 Wheat. 385 ; Kendall v. Galvin, 3 Shepley, 131; Kemble v. Lull, 3 McLean, 272; Byrd v. Bertrand, 2 English, 321. An acceptance of a bill is not a collateral engagement to pay another's debt, and is therefore not within the statute of frauds ; and when made without conditions, it is an absolute engagement to pay the money to the holder. Raborg v. Peyton, 2 Wheaton, 385 ; Storer v. Logan, 9 Mass. 60. The acceptor of a bill is the principal debtor ; he cannot assume the attitude of a surety, though only an accommodation acceptor, and the equitable doctrine re- specting sureties 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. Anderson, 4 Dana, 352. An accommodation acceptor of a bill of exchange is a surety as to the drawer, but a principal as to the holder, although the holder knew him to be an accommo- dation acceptor. In re Babcock, 3 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 biU 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 acceptance was without consideration (an accommodation acceptance), and so known to the payee. Grant v. EUicott, 1 "Wendell, 227; Towsley v. Snmrall, 2 Peters, 183; "Warder v. Tucker, 7 Mass. 452. 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 notice. Boggs v. Lancaster Bank, 7 "Watts & Sergeant, 331. But this case does not show that the bjirden of proving this is in the first instance on the holder, or that proof of the fact, that the defendant was an accommodation ac- ceptor, 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. Suydam v. Coombs, 3 Green, 133. "Where the drawer has paid the bill to the payees, after the acceptors have refused ACOBPTANCB. 263 The acceptor's liability can only be discharged by payment, or other satisfaction, by release, or by waiver. Payment, satisfaction, and release, we shall consider hereafter. It is a general rule of law, that a simple contract may, before Ireach, be waived or discharged, without a deed and without conside- ration ; but after breach, there can be no discharge, except by deed, or upon sufficient consideration.(«) To this rule, it is said, that con- tracts on bills, which are regulated by the custom of merchants, form an exception, and that the liability of the acceptor, though complete, may be discharged by an express renunciation of his claim, on the part of the holder. Joint indorsees against acceptors; — It was proved that the plaintiffs knew the acceptance was for the accommo- dation of the drawer, and that they had said, at a meeting of the defendants' creditors, " that they looked to the di/kwer, and should not come upon the acceptors." They had at this time goods of the drawer in their hands, which afterwards turned out of little value. Lord EUenborough directed the jury to consider, " whether the lan- guage employed by* the plaintiffs amounted to an absolute uncondi- tional renunciation by them, as holders of the bill, of all claims in respect of it upon the defendants, as acceptors. In that case, the acceptors were discharged from their liability : the holders had made their election, and could now only 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 they should not resort to them, if satis- faction 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."(w) Receiving interest from the drawer will not discharge the acceptor. Nothing short of (w) Com. Dig. Action on the Case in Assumpsit, Gr. ; Pitch v. Sutton, 5 East, 230. (w) Whatley Y. Tricker, 1 Camp. 35. to pay it, he has the right to sue the acceptors, in the name of the payee, for his own benefit; Davis v. McConnell, 3 McLean, 391. If the acceptor of a bill of exchange, after it has come to his hands, put it again in circulation, he admits it to be a subsisting bill, and cannot be allowed to allege in an action against him, that it was paid before that time. Hinton v. Bank of Columbus, 9 Porter, 463. 264 BTLBS ON BILLS OF EXCHANaS. an express discharge will do.(a;) If the renunciation *be not L -' express, and for the whole amount, there must be a considera- tion.(«/)(l) The cancellation of the acceptor's name by the holder is a waiver 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, (g) The liability of the acceptor, as such, will also be waived or extin- guished, by taking from him a coextensive security by specialty. But, if the new security recognize the bill or note as still existing, it is not extinguished, (a) Where one of three partners, after a (a:) Dingwall v. Dunster, Doug. 235 ; and Black v. Peel, and Walpole v. Pulteney, there cited; Anderson v. Cleveland, 13 East, 430, n. ; Parqioliar v. Southey, M. & M. 14; 2 C. & P. 49,r, E. C. L. R. vol. 12, S. C; Adams v. Gregg, 2 Stark. 531, E. C. L. R. vol. 3 ; Stevens v. Thacker, Peake, 187. So it has been held, that a right to sue the drawer may be waived. Delatorre v. Barclay, 1 Stark. 7, E. C. L. R. vol. 2 ; see Cartwright v. 'Williams, 2 Stark, 340, B. C. L. R. vol. 3 ; ante, Adams v. Gregg, 2 Stark. 531, E. C. L. R. vol. 3 ; see Story on Bills, s. 252 ; see also Steel V. Harmer, 15 L. J. 217, Ex. ; 14 M. & W. 831,* S. C, anft 19 L. J., Exch. 34, in error. As to pleading a waiver, see Steele v. Benham, 3 D. & L. 506. {y) Parker v. Leigh, 2 Stark. 228, B. G. L. R. vol. 3. (z) Sweeting v. Halse, 9 B. & C. 365, E. C. L. R. vol. 17 ; 4 M. & R. 287, S. C. (a) Twopenny v. Young, 3 B. & C. 208, B. C. L. R. vol. 10 ; 5 D. & R. 259, E. C. L. R. vol. 16, S. C. (1) Judge Story has not 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 unques- tionable, there, if there be a sufficient consideration, or an act done on the part of the acceptor, which might not otherwise have been done, which affects his interest, the acceptor will be discharged." Story on Bills, s. 266. There can be no hesita- tion in assenting to this statement of tlie 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 accurately expressed, to say that executory contracts may be dis- charged or varied by parol before breach, and then I am not aware of any principle or cases, which would confine it to simple contracts. If A. agrees to build a house for B., or to sell him certain materials, whether by articles under seal or not, A. and B. may before breach vary such agreement by parol. But if the consideration on either side is executed, or just so far as it is executed, it is no longer an executory but an executed contract, and an accord without satisfaction 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 performed, or the merchandize delivered, though a credit is given, are debita in presenti, solvenda in futuro, and cannot be released, unless by an instrument under seal, or an agreement founded upon suffi- cient consideration. % ACCEPTANCE. 265 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 fgr 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 unproduc- tive, he might 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.(6) 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, (c) A plea of waiver must state that the party waiving was the holder of the bill at the time of the waiver.(c?) By acceptance, the drawee admits the signature and capacity of *the drawer, and cannot, after thus giving the bill currency, f-^^i-r-, be admitted to prove that the drawer's signature was •- -■ forged- (e)(1) He moreover admits, and so does the maker of a pro- missory note, the then capacity of the payee, to whose order the bill ' or note is made payable, to indorse. Hence the acceptor is estopped from saying that payee being a bankrupt could not indorse,(/) and even from saying that a second bankruptcy before the aSceptance pre- cluded him from indorsing, 'though the effect of such second bank- ruptcy be(^) to vest, ipso facto, all the bankrupt's property in his (6) Bedford v. Deakin, 2 B. & Aid. 210 ; 2 Stark. ITS, E. C. L. R. vol. 3 ; S. C. (c) Evans v. Drummond, 4 Esp. 89 ; Reed v. WMte, 5 Bsp. 122 ; Thompaon v. Peroival, 5 B. & Ad. 925, B. C. L.R. vol. 21; 3 N. & M. 667, S. C. {d) Steele v. Harmer, 15 L. J. Ex. 217 ; 14 M. & W. 186,* S. C. As to this point, affirmed in error, 19 L. J. Ex. 34. (e) Price v. Neal, 3 Burr. 1354; 1 Bla. R. 390, S. C. ; Porthouse v. Parker, 1 Camp. 82 ; Prince v. Brunatte, 1 Bing. N. C. 435, E. C. L. R. vol. 27 ; 1 Scott, 342 ; 3 Dowl. 382, S. C. ; Wilkinson v. Lntwidge, 1 Stra. 648 ; Jenys v. Fowler, 2 Stra. 946 ; and see Bass v. Olive, 4 M. & Sel. 13 ; 4 Camp. 78, S. C. (/) Drayton v. Dale, 2 B. & C. 293, B. C. L. R. vol. 9; 3 D. & Ry. 534, S. C. ; Braithwaite v. Gardiner, 8 Q. B. Rep. 473, E. C. L. R. vol. 55. (ff) 6 Geo. 4, c. 16, s. 127. (1) An acceptor is bound to know tlie 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, 333 ; Levy v. Bank of the United States, 1 Bin- ney, 27 ; S. 0. 4 Dallas, 234. 266 BTLES ON BILLS OP EXCHANGE. assignees.(^) Neither can the acceptor be allowed to defeat the in- dorsement by setting up the infancy of the payee. (^') Nor can the acceptor plead that the drawer to whose order the bill was made paya- ble, being a corporation, had no authority to indorse •,{Jc) nor that the drawer was a married woman, although as the husband may sue or indorse, the consequence may be that the acceptor may possibly he compelled to pay the bill twice. (Z) But the acceptance of a bill drawn and indorsed in the name of a really existing person is no admission of the handwriting of the indorser,(m) unless at the time of the ac- ceptance the drawee knew of the forgery, and intended that the bill should be put into circulation by a forged indorsement.(w) And the acceptance of a bill purporting to be already indorsed by the payee, is no admission of the genuineness of the indorsement, (o) So where the drawing is by procuration, the authority of the agent to draw is admitted, but not his authority to indorse.(p) But where the bill is drawn in a fictitious name, the acceptor undertakes to pay to an in- dorsement by the same hand.(g') *If the drawee has once admitted that the acceptance is in L -• his own handwriting, and thereby given currency to the bill, he cannot afterwards exonerate himself by showing that it was forged.(r)(l) (A) Pitt V. Chappelow, 8 M. & W. 616.* (i) Taylor v. Croker, 4 Bsp. 187 ; Jones v. Darch, 4 Price, 300. \k) Halifax v. Lyle, 18 L. J. 197, Bxch. ; 3 Ex. Rep. 446,* S. C. [1) Smith V. Marsack, 18 L. J. 68, C. P. ; 6 C. B. Rep. 486, E. C. L. R. vol. 60. {m) Smith v. Chester, 1 T. R. 655 ; Carrick v. Vickery, Doug. 2d ed. 653, n. 134. (ra) Beeman v. Duck, 11 M. & W. 251.* (0) Tucker v. Robarts, 18 L. J. 169, Q. B. (p) Robinson v. Yarrow, 1 Taunt. 455, E. C. L. R. vol. 2 ; 1 Moore, 150, S. C. (2) Cooper V. Meyer, 10 B. & C. 468, E. C. L. R. vol. 21 ; 5 M. & R. 387, S. C. ; Beeman v. Duck, 11 M. & W. 251 ;* and see Taylor, 4 Esp. 187 ; Bass v. Clive, 4 M. & Sel. 13; 4 Camp. 78, S. C. It seems that a bill drawn and indorsed in a fic- titious or forged name, to the knowledge of the drawer, should be declared on as payable to bearer. See ante, p. 61, note, and Beeman v. Duck, 11 M & W. 251.* {r) Leech v. Buchanan, 4 Esp. 226. (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 bona fide holder against the maker, proof of the indorsement is unnecessary ; the maker will be es- topped from saying that it is not genuine. Meaoher v. Port, 3 HiU (South Carolina), 227. A party indorsing a promissory note impliedly affirms its genuineness, as well as that of all previous indorsements ; and though his indorsee in declaring against him. PRESENTMENT FOR PAYMENT. 26T *CHAPTEE XVI. ON PRESENTMENT FOR PAYMENT. [n57] HOW MADE, 157 OF A BANK NOTE, . 165 IN CASE OF BANKRUPTCY OR INSOL- OF OTHER bankers' PAPER, . 165 VENCY, .... 158 WHEN NO TIME OF PAYMENT IS SPECI tTNNECBSSABY TO CHARGE A GUARAN- FIED, .... 165 TEE, 158 AT WHAT HOUR, 166 IN CASE OP A drawee's DEATH, 159 WHERE, WHEN A BILL IS MADE PAY OF holder's death. 159 ABLE AT A PARTICULAR PLACE, 166 WHEN TO BE MADE, 159 PLEADING, .... 168 TIME, HOW COMPUTED, . 159 WHEN A NOTE IS MADE SO PAYABLE 169 MONTHS, .... 159 SUPPLEMENTARY MEMORANDUM, 169 DAYS, 159 CONSEQUENCE OF NOT DULY PRESENT BILLS AND NOTES AT SIGHT, . 160 ING, 169 USANCE, .... 160 PRESENTMENT NOT NECESSARY TO OLD AND NEW STYLE, 160 CHARGE ACCEPTOR, ito DAYS OF GRACE, 160 WHEN NEGLECT TO PRESENT EX WHAT IN DIFFERENT COUNTRIES! 160 CUSED, .... ITO HOW RECKONED, . 161 OF BILL SEIZED UNDER EXTENT, 170 SUNDAYS AND HOLIDAYS, HOW RECK BY CIRCULATING, . * . 170 ONED, .... 161 BY THE ABSCONDING OF THE DRAWEE 170 ON WHAT INSTRUMENTS DAYS 01 BY ABSENCE OF EFFECTS INDBAWEe's GRACE ALLOWED, 162 HANDS, .... 171 WHEN PRESENTMENT OF BILLS PAY NOT BY DECLARATION OF ACCEPTOR ABLE ON DEMAND IS TO BE MADE 162 THAT HE WILL NOT PAY, 171 OF A COMMON BILL OF EXCHANGE ADVANTAGE FROM NEGLECT, HOW PAYABLE ON DEMAND, 164 WAIVED, .... 171 OF A CHECK, .... 164 PLEADING, .... 171 OF A COMMON PROMISSORY NOTJE EVIDENCE OF PRESENTMENT, . 171 PAYABLE ON DEMAND, 164 A PERSONAL demand on the drawee or acceptor is not necessary. It is sufficient if payment be demanded at his usual residence or place may, in usual form, allege the making of the note audits indorsement to the defeu dant, yet he cannot be required to 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 cir- culation with the fictitious name written on it, or if he makes it payable to a real person and forges his indorsement or procures it to be done, and then puts it in cir- culation, he is estopped to say that it is not genuine. Fort v. Meacher, Eiley, 248. A note payable to the order of a real person, and indorsed in a handwriting re- sembling and intended to pass for his, cannot be considered as payable to a fictitious payee, and so negotiable without being indorsed. .Dana v. Underwood, 19 Pick. 99. A paper purporting to be a bill of exchange, having a blank for the payee's name, may be filled up at any time by a bona fide holder ; but until it is so filled up, a suit will not lie on it against the acceptor. Greenhow v. Boyle, 7 Blackford, 56. 268 BTLBS ON BILLS OF EXCHANGE. of business, of his wife or other agent ; for it is the duty of an ac- ceptor, if he is not himself present, to leave provision for the pay- ment.(a)(l) And it is sufficient if *payment be demanded of L -"an agent who has been authorized to pay, or has usually paid bills for the drawee. 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.(J) The bankruptcy or insolvency of the drawee is no excuse for a neglect to present for payment ; for many means may remain of ob- taining payment, by the assistance of friends or otherwise.(c) It has been held in the King's Bench, that the Shutting up of a bank, when any demand there made would have been inaudible, is substantially a {a) Matthews v. Haydon, 2 Esp. 509 ; Brown v. M'Dermot, 5 Bsp. 265. If the bill be payable at a particular place, see post. (6) Beeching v. Gower, Holt, N. P. C. 313. (c) Russell V. Langstaffe, Doug. 496 ; Warrington v. Furbor, 8 Bast, 245 ; Nichol- son V. Gouthit, 2 H. Bla. 609 ; Ex parte Johnstone, 1 Mont. & Ayr. 622 ; 3 Deac. & Chitty, 433, S. C. ; Esdaile v. Sowerby, 11 East, 114; Lafitte v. Slatter, 6 Bing. 623, E. C. L. R. vol. 19 ; 4 M. & P. 45T, S. C. ; Camidge v; Allenby, 6 B. & C. 373, E. C. L. R. vol. 13; 9 D. & E. 391. (1) A demand by a notary in the street, upon the acceptor of a bill payable gene- rally, is not a suflBcient demand. It should be made at his place of business. King V. Holmes, 11 Penna. State Rep. 465. The general rule is, that where a bill is ac- cepted by partners, the presentment for payment should be at their place of busi- ness, 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 presumed to be their place of business. The Otsego County Bank, v. Weaver, 18 Barbour, S. C. Rep. 290. When demand is made the bill itself must be exhibited. Freeman v. Boynton, 7 Mass. 483 ; M&sson v. Lake, 4 Howard, U. S. Rep. 262 ; Draper v. Clemens, 4 Mis- souri, 52. See Posey v. Decatur Bank, 12 Alabama, 802 ; Bank of Vergennes v. Cameron, 7 Barbour, Sup. Ct. 143 ; Whitwell v. Johnson, 17 Mass. 499 ; Smith v. Gibbs, 2 Smedes & Marshall, 479 ; Nailor v. Bowie, 3 Maryland, 251. A demand of payment of a lost note, or presentment of a copy is sufficient, and satisfies the usual averment of due presentment. Hinsdale v. Miles, 5 Conn. 331. It is sufficient to constitute 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 notice 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 office, where his residence is known, that his note is overdue and unpaid, is not a sufficient demand to charge the indorser. Stuckert v. Anderson, 3 Wharton, 116. PRESENTMENT FOR PAYMENT. 269 refusal by the bankers to pay their notes, to all the world, (c^) But it was decided in the same case, on error in the Exchequer Chamber, that an allegation in the declaration, that the makers became insol- vent, and ceased, and wholly declined, and refused, then and thence- forth to pay, at the place specified, any of their notes, is insufficient, not being equivalent to an allegation of presentment, (e) But it is conceived, notwithstanding the observations of the Court in the last 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 d6ors, and then carrying them home again.(/) A presentment for payment is now decided not to be necessary 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 has 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.(A) L J If the drawee has shut up his house, the holder must inquire after him, and attempt to find him out.(l) {d) Howe v. Bowes, 16 East, 112. (e) 6 Taunt. 30, B. C. L. R. vol. 1, S. C. in error. {/) Since the above observations were written, I observe that the point has been so ruled at Nisi Prius, and afterwards at Chambers. See Henderson v. Appleton, Chitty, 9th ed. .S56, and Eogers v. Langford, 1 C. & M. 63Y,* where Lord Lyndhurst says : "It is possible, if you had returned the notes in due time, that might have done instead of presentment." See also Tuhier v. Stones, 1 Dow. & L. 122 ; Sands v. Clarke, 19 L. J. 84, C. P. ; Main's case, 5 Eep. 21, a.; Eobson v. Oliver, 10 Q. B. Kep. 704, B. C. L. R. vol. 59. ig) Hitchcock v. Humfrey, 5 M. & G. 559, E. C. L. R. vol. 44 ; Walton v. Mascall, 13 M. & W. 453.* (h) "Warrington v. Furbor, 8 Bast, 242 ; 6 Bsp. 89, S. C. (1) Want of demand is excused when the drawee cannot be found. Stewart v. Eden, 2 Caines, 121 ; Galpin v. Hard, 3 McCord, 394 ; Porter v. Judson, 1 Gray, 175. Where the dweUiug-houee or place of business of the drawee of the bill is shut up, inquiry should be made in the neighborhood in order to excuse presentment, Ellis V. Commercial Bank, 7 Howard, Miss. 294. Where the maker of a promissory note has absconded from his usual place of residence before the time of payment, it is not necessary to prove an inquiry for 270 BYLBS ON BILLS OF EXCHANGE. If the drawee be dead, presentment must be made to his personal representatives ; and, if he have none, then at his house.(e)(l) * If the holder die, presentment should be made by his personal representatives. In treating of time when presentment is to be made, it will be necessary to consider, first, how, on the various sorts of bills, time is computed, and then on what bills, and to what extent, days of grace are allowed. In acts of Parliament, in deeds, in other contracts and written instruments, and in legal proceedings, the word month is taken to mean a lunar, and not a calendar month, unless there be something in the context to indicate the latter sense ;(A) but in matters eccle- (i) Chitty, 9th ed. 357. {k) Lang v. Gale, 1 M. & Sel. Ill ; Barksdale v. Morgan, 4 Mod. 185 ; Jocelyn V. Hawkins, 1 Stra. 446, which, however, seems overruled by Titns v. Lady Preston, 1 Stra. 652. In a contract for purchase of lands, months are said to be prima facie calendar months. Hipwell v. Knight, 1 Young & C. 401 ;* and see Webb v. Faiir- mauer, 3 Mees. & W. 474 ;* see 1 Sug. Vend. & 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 ; Reg. v. Chawton, 1 Q. B. Rep. 247, E. C. L. R. vol. 41 ; see the authorities fully collected in Simpson v. Margitson, 11 Q. B. Rep. 23, E. C. L. R. vol. 63, and 2 Ex. Rep. 116.* him there, and an effort to obtain payment, in order to charge the indorser. Leh- man V. Jones, 1 Watts&.Serg. 126. If the drawee of a bill remove from his usual place of residence to another in the same state or kingdom, the holder is bound, in order to charge the indorser, to use reasonable diligence in finding the latter, and if he succeed, present the bill for payment. Reid v. Morrison, 2 Watts & Serg. 401 ; See Gilmore v. Spies, 1 Barb. 158. Where the »iaker of a promissory note abandons his business and residence, and removes into another state, before the maturity of the note, the holder, if it be not proved that he received the note after the maker's removal, is not bound, in order to charge the indorser, to demand payment of the maker in the state to which he has removed ; but he is bound to demand payment at the maker's last residence or place of business within the state where he made the note, if he can find it by the use of due diligence. Wheeler v. Field, 6 Mete. 290. (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 indorser. Johnson v. North, 1 Bailey, 482 ; Juniata Bank v. Hale, 16 Serg. & Rawle, 159. But, where the maker of a negotiable note is dead at the tinje of indorsement, no demand is necessary to charge the indorser. Davis v. Francisco, 11 Missouri, 572. PEBSBNTMBNT FOE PAYMENT. 271 siastical, and by the custom of trade, in bills and notes, a month is deemed to be a calendar or solar month. (Z) 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.(m) 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 p^^ „^-. which the bill is drawn or accepted, and exclusively of the day '- -* on which it falls due.(w) 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 be presented before action brought against the maker.(ci) 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 days,(j?) notwithstanding the unequal length of the months. A usance between London, Aleppo, Altona, and Amsterdam, Antwerp, Brabant, Bruges, Flanders, Geneva, Germany, Hamburgh, Holland, and the Netherlands, Lisle, Middleburgh, Paris, or Amsterdam, Rotterdam, and Rouen, is one calendar month ; between London and the Spanish or Portuguese towns, two calander months, between London and Genoa, Venice, or places in Italy, it is three calendar month3.(5') It is said that all the countries with which the English are in the habit of negotiating bills, compute their time by the new style, with the single exception of Russia, (r) In the case of bills drawn in a place using one style, and payable in a place using another, if drawn payable at a certain period after date, they fall due as they would (I) Cockell V. Gray, 3 B. & B. 186, B. C. L. R. vol. 1. {m) Marius, 75 ; Kyd, 4. (n) So if a bill be drawn payable so many days after a certain event. Bayley on Bills, 6tli ed. 245 ; Coleman v. Sayer, 1 Barnard, 303. (o) Dixon V. Nuttall, 1 C. M. & E. 307 ;* 6 C. & P. 320, E. C. L. R. vol. 25, S. C. Ip) Marius, 93. Iq) Chitty, gth ed. 371 ; Bayley, 203. (r) Bayley, 201. 272 BYLBS ON BILLS OF EXCHANGE. have done in the country in which they were drawn. Thus, a bill drawn Feb. 1, in London, on St. Petersburgh, at one month, would be payable without the days of grace, an March 1, in our calendar ; and, as it was drawn on Jan. 21, old style, it would fall due on Feb. 21, in the Russian calendar. But, if the bill were drawn payable at a certain day, or at a certain period after sight, the time must then be reckoned according to the style of the place on which it is drawn. («) Days of grace are so called, because they were formerly allowed the drawee as a favor ; but the laws of commercial countries have long since recognized them as a right. The number of these days varies in different places. Mr. Kyd gives the following table, which, r*lfin I'^o'^^sver, has been altered in *many places since his day, by '- ^ the substitution of the French Code, and other circumstances : " Great Britain, Ireland, Bergamo, and Vienna, three days. " Frankfort,(<) out of the fair-time, four days. " Leipsic, Naumburg, and Augsburg, five days. " Venice,(i«) Amsterdam,(t)) E.otterdam,(?;) Middleburg, Antwerp,(r)) Cologne, Breslau, Nuremberg, and Portugal,(w) six days. " Dantzic, Koningsberg, and France,(t)) ten days. " Hamburg and Stockholm, twelve days. " Naples,(v) eight ; Spain, fourteen ;(a;) Rome, fifteen ; and Genoa, thirty days. "Leghorn,(y) Milan, and some other places in Italy, no fixed number. " Sundays and holidays are included in the respite days, at London, Naples,(i') Amsterdam,(w) Rotterdam,(v) Antwerp,(t)) Middleburg, Dantzic, Koningsberg, and France ;(i') 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, Berlin, and in Scotland.(3) («) Beawes, 444 ; Bayley, 202. [t) i. e. on the Maine. (m) Not including Sundays and holidays. («) Abolished by the French Code. " Les d61ais de gr&ce, de faveur, d'usage, ou d'habitude locale pour le paiement de lettres de change, sont abroges." Code de Commerce, liv. i, tit. 8, 135. (w) Now in Lisbon and Oporto fifteen days on domestic, and six on foreign bills. (k) But eight days of grace only are allowed on inland bUls. At Cadiz only six days are allowed. (y) Now none. («) See Ferguson v. Douglas, 6 Bro. P. C. 2T6. PRESENTMENT FOR PAYMENT. 273 At Rio de Janeiro, Bahia, and other parts of Brazil, fifteen days. At St. Petersburgh, 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.(a) The three days grace allowed in this country are reckoned exclu- sive 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 Sun- day, Christmas Day, Good Friday, public fast or thanksgiving day, or where the last of the three days of grace happens on such a day, the bill becomes payable on *the day preceding ; and if not r*i«on then paid, must be treated as dishonored.(6) A presentment for payment before the expiration of the days of grace is premature, and will not enable the holder to charge the ante- cedent parties.(c)(l) Days of grace are allowed on promissory notes, as well as on bills.((;^) They are allowed, whether the bill or note be made payable on a certain event, or at a certain day,(e) or at a certain number of years, months, .weeks, or days after date or after sight, or at usance, or by instalments. (/) But they are not allowed on bills or notes (a) See Freese's Camp. Com. part 2. (6) Tassell v. Lewis, 1 Ld. Raym. Y43 ; 39 & 40 Geo. 3, u. 42 ; 7 & 8 Geo. 4, o. 15. " Si rech^ance d'uue lettre de change est a un jour f^rie Wgal, elle est payable la veille." Code de Commerce, liv. 1, tit. 8, 134. (c) Wiffen v. Roberts, 1 Esp. 261. {d) Brown v. Harraden, 1 T. R. 148. (c) Ibid., and so held in America. Griffin v. Goff, 12 Johns. Rep. 423. (/) Oridge v. Sherborne, 11 M. & W. 374 ;* Carlon v. Kenealy, 12 M. & W. 139.* If the whole be payable on default of payment of any one instalment, are three more days of grace to be allowed ? • (1) 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, 82 ; Eldridge v. Rogers, Minor, 392 ; Bussard v. Levering, 6 Wheat. 102 ; Mitchell v. De Grand, 1 Mason, 176 ; Ontario Bank v. Petrie, 3 Wendell, 456. A demand may be made upon the acceptor on the third day of grace, and, upon refusal to pay, notice may be given to the indorser of the non-payment on the same day, and after such notice on the same day, suit may be immediately commenced against the indorser. Manchester Bank v. Fellows, 8 Foster, 302. 18 274 BYLES ON BILLS OP BXOHANSE. payable on demand. (^) Whether days of grace are allowed on bills payable at sight, seems yet undecided. (A) The weight of authority has been considered to incline in favor of such an allowance.(i) If days of grace are to be allowed on bills drawn payable at sight, the time when they should be presented has already been considered, in the Chapter on Presentment foe, Acceptance.' If not, then they stand on the same footing as bills payable indefinitely, and bills payable on demand. We have already seen that the time which bills payable after sight have to run is computed from the date of the acceptance ;(A) a note payable at a certain period after sight is payable at that period after presentment for sight. (Z) So, if some time after a refusal to accept, a bill, payable after sight, be accepted supra protest, the time is cal- culated, not from the date of the exfhibition of the bill to the drawee, but from the date of the acceptance, mpra protest.{m) ^,.„„^ *Bills and notes payable on demand, and checks, must be r 1631 . . . *- J presented within a reasonable time.(l) What is a reasonable time seems to be a question of law.(m)(2) And such a decision is con- formable with the principles of law. "Reasonable 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: [g) Bayley, 241 ; Chitty, 9th ed. 146. (A) Beawes, 256 ; Kyd, 10; Bayley, 198; Dehers v. Harriott, 1 Show. 16,3; Cole- man V. Sayer, Barn. Rep. 303 ; 2 Stra. 829, S. 0. ; Janson v. Thomas, Bayley, 6tli ed. 241 ; 3 Doug. 421, B. C. L. R. toI. 26, S. 0. ; Dixon v. Nuttall, 1 C. M. & E. 307 ;* 6 C. & P. 320, B. C. L. R. voL 25, S. C. (i) Selw. N. P. 7th ed. 344. [k) Campbell v. French, 6 T. R. 200 ; 2 H. Bla. 163, S. C. (I) Sturdy v. Henderson, 4 B. & Aid. 592, E. C. L. R. vol. 6. (m) Williams v. Germaine, 7 B. & C. 468, E. C. L. R. vol. 14; 1 M. & E. 394, S. C. (n) Tindal v. Brown, 1 T. R. 168 ; Darbyshire v. Parker, 6 East, 3; 2 Smith, 195, S. C. ; Parker v. Gordon, 7 East, 385 ; 3 Smith, 358, S. C. ; Haynes v. Birks, 3 Bos. & Pul. 599 ; Appleton v. Sweetapple, Bayley, 6th ed. 234 ; 3 Doug. 137, E. C. L. R. vol. 26, S. C. (1) Lookwood V. Crawford, 18 Conn. 361 ; Carleton v. Bailey, 7 Foster, 230. (2) See Lancaster Bank v. Woodward, 18 Penna. State. Rep. 362. PRESENTMENT FOB, PAYMENT. 275 for reasonableness in these cases belongeth to the knowledge of the law, and therefore to be decided by the justices. Quam longum esse debet non definitur in jure, sed pendet ex discretione justiciar iorum. And, this being said of time, the like may be said of things incer- taine, which ought to be reasonable : for nothing that is contrary to reason is consonant to law."(o) 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 seen, 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 been ruled as to the time of presentment for pay- ment of a note payable on demand.(^) A man taking a bill or note payable on demand, or 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.(g) And later cases have established, that the holder of a check has the whole of the banking hours of the next day within which to present it for payment.(r) Negotiable instruments, payable on demand, may be distributed into several classes, and the time within which they *ought to be presented for payment, and the consequences of a failure •- J to make due presentment, are not precisely the same in every class. Negotiable instruments payable on demand are comndon commercial bills of exchange, checks, common promissory notes, bank notes, and bankers' cash notes and bankers' bills. (o) Co. Litt. 56, b. {p) Manwaring v. Harrison, 1 Stra. 508 ; Hankey v. Trotman, 1 Bla. Eep. 1 ; see ante, p. 139, as to presentment for acceptance. (2) "Ward V. Evans, 2 Ld. Raym. 928; 6 Mod. 36, S. C. ; Moore v. Warren, 1 Stra. 415; Fletcher v. Sandys, 2 Stra. 1248; Turner v. Mead, 1 Stra. 416 ; Hoar v. Da Costa, 2 Stra. 910 ; Appleton v. Sweetapple, Bayley, 6th ed. 234, 3 Dough. 137, S. C. {r) Pocklington v. Sylvester, Chitty, 9th ed. 385 ; Robson v. Bennett, 2 Taunt. 388 ; Eickford v. Ridge, 2 Camp. 537 ; Moule v. Brown, 4 Bing. N. C. 266, E. C. L. R. vol. 33 ; 5 Sco. 694, S. C. As to checks, see ante, p. 14. 276 BYLES ON BILLS OF KXOHANGB. It is conceived that a common bill of exchange(s) payable on de- mand 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 next day after the day on which it was received, and then the person who receives it by post, that he may present it, should do so on the day next following the day on which he receives it. Such, also, are the general rules regulating the presentment of bankers' checks, which are really bills of exchange ; but, as checks on bankers are now extremely common, it has been thought conve- nient to discuss the presentment of checks more in detail in the Chap- ter relating to checks. (i) 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(M) payable on demand is very often originally intended as a continuing security, an(J afterwards inSorsed as such. Indeed, it is not uncommon for the payee, and afterwards the indorsee, to receive from the maker interest periodically for many years on such a note. And sometimes the note is expressly made payable with interest, which 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 L J *be a question for the jury, whether, under all the circum- stances, the delay of presentment was or was not unreasonable. Bank notes and bankers' cash notes differ again from other promis- (s) The rule may be otherwise in respect of paper intended for circulation and some deseriptiona of bankers' paper. Shute v. Robins, M. & M. 133 ; 3 C. &. P. 80, B. C. L. R. vol. 14, S. C. Or where peculiar difficulties interpose. See James v. Houlditch, 9 D. & R. 40, B. 0. L. R. vol. 22. [i) Ante, p. 10. (m) Brooks V. Mitchell, 9 M. & W. 15.* PRESENTMENT FOR PAYMENT. 277 sory 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 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,(v) or forward them for presentment, the day after he receives them, in order to enable him, in the event of the bank failing, to sue the per- sons from whom they were received on the consideration that was given for them.(w) 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 sufficient to exonerate the taker from the charge of laches, if he circulated them within the time within which he ought otherwise to have presented them. (a;) And without 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 set of halves on the next day, and one set the day after, or to send one set by coach and one by post.(2) And it may make a difference in the time allowed for presentment if the notes be received by a servant or agent. (a) The same rules which govern the presentment and circulation of bank notes also apply to such bankers' paper as may be fairly con- sidered part of the circulating medium of the country. Such are the bills of a country banker on his London correspondent.(6) A bill or note on which no time of payment is specified, is payable on demand. (c)(1) / (d) Vide the Chapter on Transfer. {w) Camidge v. AUenby, 6 B. & C. 373, E. C. L. R. vol. 13; 9 D. & R. 391, S. C. [x] Ibid. ; Robinson v. Hawksford, 15 L. J., Q. B. 377 ; 9 Q. B. 52, E. C. L. R. vol. 58, S. C. (y) See Shute v. Robins, M. & M. 133 ; 3 Car. & P. 70, B. C. L. R. vol. 14, S. C. («) WUIiams v. Smith, 2 B. & Aid. 496. (a) James v. Houlditch, 8 D. & R. 40, B. C. L. R. vol. 16. (6) Shute V. Robins, M. & M. 133; 3 C. & P. 80, E. C. L. R.vol. 14, S. C. (c) Bayley, 6th ed. 115 ; Whitlook v. Underwood, 2 B. & C. 157, B. C. L. R. vol. 9; 3 D. & R. 356, S. C. ; and see the Chapter on the Form of Bills. (1) Green v. Drebilbis, 1 G. Greene, 552. 278 BYLES ON BILLS OF EXCHANGE. r*1fin *Pi'esentment for payment should be made during the usual hours of business, and, if at a banker's, within banking hours, (c?) If the party who is to pay the bill be not a banker, pre- sentment may be made at any time of the day, when he may reason- ably be expected to be found at his place of residence or business, though it be six, seven, or eight o'clock in the evening.(e) And even though there be no person within to return an answer. (/) Lord Tenterden, C. J. : " As to bankers, it is established, with reference to a well-known rule of trade, that a presentment, out of hours of business, is not suflScient ; but, in other cases, the rule of law is, that the bill must be presented at a reasonable hour. A presentment at twelve o'clock at night, when a person had retired to rest, would be unreasonable ; but I cannot say that a presentment between seven and eight in the evening is not a presentment at a reasonable time."(^)(l) Where a bill or note was made or accepted, payable at a particular 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 acceptance, rendering it necessary in an action [d) Parker v. Gordon, 1 East, 385 ; 5 Smith, 358, S. C. ; Elford v. Teed, 1 M. & Sel. 28 ; Jameson v. Swinton, 2 Taunt. 224 ; Whitaker v. Bank of England, 1 C, M. & R. 744 ;* 6 C. & P. 700, E. C. L. E. vol. 25," S. C. In this case 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 hours, 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 presented the bill of the receipt of assets. (e) Barclay v. Bailey, 2 Camp. 527 ; Morgan v. Davidson, 1 Stark. 114, E. C. L. R. vol. 2. (/) Wilkins V. Jadis, 2 B. & Ad. 188, E. C. L. R. vol. 22 ; 1 M. & Ry. 41, S. C. (g) Ibid. ; and see Triggs v. Newnham, 10 Moore, 249 ; 1 C. & P. 631, E. C. L. R. vol. 12, S. C. (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, 2 Hill, 635 ; Nehan v. Potterall, 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 stating that no funds were deposited for the purpose, held that the demand was sufficient. Cohen V. Hunt, 2 Smedes & Marshall, 227 ; The Bank v. Earner, 7 Howard (Miss.), 448 ; Flint V. Rogers, Shepl. 67. PRESENTMENT FOR PAYMENT. 279 against the acceptor, to aver and prove presentment at such place.(A) This decision occasioned the passing of the 1 & 2 Geo. 4, c. 78, by which it is enacted, that an acceptance, payable at a particular place, is a general acceptance, unless expressed to be payable there only, and not otherwise or elsewhere. On this 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 acceptor. (i) A decla- ration 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.(A) " Since the statute," says the Court of Errors, " a bill drawn generally on a party may be accepted in three different forms, i. e. either first generally, or, secondly, pay- able at a particular banker's, or, thirdly, payable at a particular 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 for payment, either to himself or at the banker's. Here the bill was accepted according to the second of these three forms."(Z) It seems that in an action against the drawer, if the bill be accepted, and payable at a particular place named by the acceptor, it is still necessary to prove presentment there. (??i) At all events, if the" bill be drawn, payable at a particular place, presentment must be made there in order to charge the drawer. " The doubt," says Tindal, C. J., " which had been formed before the statute, as to the effect of an acceptance, payable at a particular place, was confined to the case where the question arose between the holder and the acceptor : in cases between the indorsee and the drawer, upon a special acceptance by the drawee, no doubt appears to have existed, but that a present- ment at a place specially designated in the acceptance was necessary, in order to make the drawer lisjble upon the dishonor of 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 (A) Eowe V. Young, 2 B. & B. 165, B. C. L. R. vol. 6 ; 1 Bligh, 391, S. C. (i) Selby v. Eden, 3 Bing. 611, E. C. L. R. vol. 11 ; 11 Moo. 511, S. C. ; Fayle T. Bird, 6 B. & C. 531, B. C. L. R. vol. 13 ; 9 Dowl. & R. 639, B. 0. L. R. vol. 22 ; 2 C. & P. 303, E. C. L. R. vol. 12, S. C. {k) Halstead v. Skelton, 5 Q. B. Rep. 92, E. C. L. R. vol. 48. (Z) Ibid. \m) Gibb v. Mather, 8 Bing. 214, E. C. L. R. vol. 21 ; 1 M. & Sc. 38Y ; 2 C. & J. 254,* S. C. . 280 BYLBS ON BILLS OF EXCHANGE. liability at the time , the statute was passed, it must still remain the same, unless that statute has made an alteration therein. But it ap- pears 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. "(m) If the bill be made payable at a banker's, a presentment there will sufiice.(o) 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.(p) L J If a bill be made payable in a particular town, a presentment at all the banking houses there will suffice ;(g') if at one of two towns, a presentment at either ;(r) if a particular house be pointed out by the bill as the acceptor's residence, a presentment to any inmate ;(s) or if the house be shut up, at the door, will suffice. (^) But where a bill is accepted, payable at a particular place,(M) it is not necessary in an action against the drawer(«) to state the accept- ance in the declaration, and, therefore, not necessary to state it to be at a particular place, nor to allege presentment at that place. Such a presentment as the acceptance requires is merely matter of evi- dence, (w) 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 alle- gation may suffice after verdict. (a;) If a bill be made payable at a (n) Gibb v. Mather, ubi supra. See Parks v. Edge, 1 C. & Mees. 429 ;* 3 Tyr. 364, S. C. ; Harris v. Parker, 3 Tyrw. 370 ; Walter v. Oubley, 2 C. & Mees. 151 ;* 4 Tyr. 81, S. C. ; Boydell v. Harkness, 3 0. B. Eep. 168, B. C. L. JR. vol. 54. (o) Saunderson v. Judge, 2 H. B. 509 ; Harris v. Parker, 3 Tyrh. 3T0. Ip) Bailey v. Porter, 14 M. & "W". 44.* (q) Hardy v. Woodroofe, 2 Stark. 319, E. C. L. E. vol. 3. (r) Beeching v. Gower, Holt, N. P. C, 313. («) Buxton V. Jones, 1 M. & G. 83, E. C. L. R. vol. 39. 1, It) Hine V. AUely, 4 B. & Ad. 624, E. C. L. R. vol. 24 ; 1 N. & M. 433, S. C. (m) 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. Beaumont, 4 M. & G. 1, E. C. L. R. vol. 43. (v) See further as to the pleadings in an action against the acceptor, p. 166 ; and the Chapter on Pleading. [w) Parks v. Edge, 1 0. & Mees. 429;* 3 Tyr. 364, S. C; Harris v. Packer, 3 Tyrw. 370 ; Hine v. AUely, 4 B. & Ad. 624, B. C. L. R. vol. 24 ; 1 N. & M. 433, S. C. ; and see Hawkey v. Borwick, 4 Bing. 135, E. C. L. E. vol. 13 ; Hardy v. Wood- roofe, 2 Stark. 319, E. 0. L. R. vol. 3. {x) Lyon V. Holt, 5 M. & W. 250.* The sufficiency, however, of such a general allegation, even after verdict, does not seem to be perfectly clear, at all events where no issue is taken on the presentment. In a recent action against the drawer, PEESENTMBNT FOR PAYMENT. 281 particular place, it is not necessary to state a presentment to the ac- ceptor there, it is sufficient to state a presentment at that place.(y) An averment that a bill was presented to the acceptor will be satisfied by proof that it was presented at the place where it was made payable, though no person were there *in attendance, (2) and though the r+icg-i acceptor did not live there. (a) The statute 1 & 2 Geo. 4, c. 78,(6) does not extend to promissory notes. If, therefore, a note be, in the body of it, made payable at a particular place, it is still necessary to aver and to prove presentment there ;(c) though the mention of the place be in a distinct sentence preceded by a full stop.(c^) where the bill was drawn and accepted payahle 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. Wilmot v. Wil- liams, 14 L. J. 33, C. P. ; 7 M. & Gr. 1017, B. C. L. R. vol. 49, S. C. ; and see Boy- dell V. Harlmess, 3 C. B. Rep. 168, E. C. L. R. vol. 54. [y] Shelton v. Braithwaite, 8 M. & W. 252;* Hawkey v. Berwick, 1 T. & J. 376 ;* 4 Bing. 135, E. C. L. R. vol. 13 ; 12 Moore, 478, S. C; Philpot v. Bryant, 3 C. & P. 244, E. C. L. B. vol. 14 ; 4 Bing. 717, B. C. L. R. vol. 13 ; 1 M. & P. 754, S. C, and seeJBush v. Kinnear, 6 M. & Sel. 210 ; Huffam v. Ellis, 3 Taunt. 415 ; Ambrose V. Hopwood, 2 Taunt. 61 ; De Bergareche v. Pillin, 3 Bing. 476, E. C. L. R. vol. 11 11 Moore, 350, S. C. (2) Hine V. AUely, 4 B. & Ad. 624, E. C. L. R. vol. 24 ; 1 N. & M. 433, S. C. and see Hardy v. Woodroofe, 2 Stark. 319, E. C. L. R. vol. 3. So where a bill was drawn on an acceptor at 38 Minto Street, accepted generally, and when due the acceptor having changed his residence was presented to a lodger at No. 38 ; the presentment was held sufficient. Buxton v. Jones, 1 Man. & Gran. 83, E. C. L. R. vol. 39; 1 Scott, N. R. 19, S. C. [a) Hardy v. Woodroofe, 2 StarE. 319, E. C. L. R. vol. 3. (6) But notwithstanding this act, and independently of th^ decision in Gibb v. Mather, 8 Bing. 214, E. C. L. R. vol. 21 ; 2 Moo. & Scott, 387, S. C, if a bill be accepted, payable at a particular place (though not expressed to be payable 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. Mackintosh v. Haydon, Ryan & Moody, 362, B. C. L. R. vol. 21 ; Hawkey v. Berwick, 4 Bing. 135, E. C. L. R. vol. 13 ; 12 Moo. 478, S. C; Harris v. Packer, 3 Tyrhw. 370; Smith v. Bellamy, 2 Stark. 223, E. C. L. R. vol. 3. 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. (c) Saundersou v. Bowes, 14 East, 500 ; Howe v. Bowes, 16 East, 112; Rowe v. Young, 2 B. & B. 165; Williams v. Waring, 10 B. & C. 2, E. C. L. R. vol. 21; Emblin v. Dartnell, 12 M. & W. 830 ;* Spindler v. Grellett, 17 L. J. 6, Exch. ; 1 Exch. Rep. 384,* S. C. ; but see Nichols v. Bowes, 2 Camp. 498. (d) Vanderdonckt v. Thelluson, 19 L. J. 13, C. P. 282 BYLES ON BILLS OF EXCHANGE. But, if the place of payment be merely mentioned in a memoran- dum, that is held to be only a direction, and not to qualify the con- tract; and, consequently, a presentment there is not essential.(e) And an averment in the declaration, that the note was made payable there, has even been held a fatal misdescription.(/)(l) The consequence of not duly presenting a bill or note is, that all (e) Price v. Mitchell, 4 Camp. 200 ; Williams v. Warning,' 10 B. & C. 2, B. C. L. E. vol. 21 ; 5 M. &■ R. 9, S. C. But in a case wKere the body of the note was printed, except the sum, the names of the parties, and the date, and the memo- randum of the place at which the note was payable, was also printed. Lord Ellen- borough held a special presentment there necessary. Trecothick v. Edwin, 1 Stark. 468, B. C. L. R. vol. 2 ; sed quaere. The memorandum is no part of the note, though it be preceded by the words " payable at." Masters v. Barretto, 19 L. J. 50, C. P. (/) Bxon V. Russell, 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 must demand payment at such place in order to charge the drawer. Tuckerman v. Hartwell, 3 Grreeuleaf, 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. Wherg; a note is payable at a given time and place, no demand of payment at such tim%. and place are 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. 4.B3 ; Brabston v. Gibson, 9 Howard, U. S. 263 ; Lyon V. Williamson, 27 Maine,' 149 ; Bradford v. Cooper, 1 Louis. Annual Rep. 325; New Hope Delaware Bridge Co. v. Perry, 11 Illinois, 467. 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. Polger v. Chase, 18 Pick. 63 ; Jenks V. Doylestown Bank, 4 Watts & Serg. 505; State Bank v. Napier, 6 Humph. 270 ; Goodloe v. Godley, 13 Smedes & Marshall, 233 ; Roberts v. Mason, 1 Ala. 373. In such a ease m an action against the indorsers, it is not necessary for 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. Brittain v. The Doylestown Bank, 5 Watts & Serg. 87. It is sufficient evidence of demand of payment and of refusal to pay a note pay- able at a' particular 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. 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. Barrett 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 indorser is excused. Roberts v. Mason, 1 Alabama, 373 ; Central Bank v. Allen, Shepl. 41. PRESENTMENT EOK PAYMENT. 283 the antecedent parties are discharged from their liability, ^whether on it was given. [*170] ^whether on the instrument, or on the consideration for which 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.(A) So must a note payable at a particular place, as we have just seen.(^) But, though the ab- sence 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 consideration. (A;) There are circumstances, however, which will excuse the neglect to present for payment. (1) [g] Eumball v. Ball, 10 Mod. 38 ; Frampton v. Coulson, 1 Wils. 33 ; Norton v. EUam, 2 Mees. & W. 461.* {h) Dixon V. Nuttall, 1 0. M. & E. SOT ;* 6 C. & P. 320, E. C. L. R. vol. 25, S. C. (i) Rhodes v. Gent, 5 B. & Al. 244, E. 0. L. R. vol. 7. Quaere as to the effect of non-presentment of a bill at a particular place, if the drawee had lodged money there and lost it by the holder's delay. (A;) Mcintosh v. Haydon, 1 R. & M. 362. (1) An impossibility to present a bill for payment on the day it falls due, where the holder is in no fault, may render a subsequent presentment sufficient to charge the drawer ; aliter of oversight or negligence in the post-office, by which a bill mis- carries so that it cannot be presented till after it is due. Sohofield v. Bayard, 3 "Wendell, 488. A bill of exchange was deposited by the holder in the post-office, in season to reach the place where it was payable before it fell due by the regular course of the ' next mail ; and there was no reason to believe that it would not be there duly de- livered. It was actually sent by that mail ; but by mistake of the postmaster when it was mailed, the package containing it was misdirected, and in consequence thereof, was carried beyond its place of destination. The mistake being discovered, 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-office 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. Windhanj Bank v. Norton, 22 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. 284 BYLES ON BILLS OF EXCHANGE. Where a bill is seized under an extent, the indorsers are not discharged by non-presentment, for laches is not imputable to the Crown.(Z) Neglect 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 circulation, if the holder, within the period at which he should have presented it, puts it into circulation, (m) If the acceptor or maker abscond, and his house be shut up, the bill or note may be treated as dishonored ; but not if he have merely removed.(w)(l) If the drawee cannot be found, it will be sufficient to plead that fact, without averring that due search was made for r*-! 7-1-1 him.(o) Under an allegation that the *biU was presented, evi- dence that the drawee could not be found is inadmissible.(p) Absence of effects in the drawee's hands will,, as against the drawer, dispense with the necessity of presenting for payment.(g') A declaration by the acceptor, before a bill is due, that he will not pay, though made in the drawer's presence, does not dispense with presentment to the acceptor and notice to the drawer. (r)(2) (I) West on Extents, 29, 30. , [m) Camidge v. AUenby, 6 B. & C. 373, E. C. L. E. vol. IS ; 9 Dowl. & U. 391, S. C. (n) Anon. 1 Ld. Raym. M3 ; Hardy v. Woodroofe, 2 Stark. 319, E. C. L. R. vol. 3; Hine v. AUely, 4 B. & Ad. 624, B. C. L. R. vol. 24; 1 N. & M. 433, S. C.5 Collins V. Butler, 2 Stra. 1087. See ante, p. 159, and Sands v. Clarke, 19 L. J. 84, C. P. (0) Starke v. Cheesman, Carthew, 509 ; 1 Ld. Raym. 538, S. C. {p) Leeson v. Pigott, T. 1788 ; Bayley, 6th ed. 409 ; and see Smith v. Bellamy, 2 Stark. 223, E. C. L. R. vol. 3. (9) Terry v. Parker, 1 Nev. & Perry, 752 ; 6 Ad. & B. 502, E. C. L. R. vol. 33, •S. G. See Prideaux v. ColUer, 2 Stark, 57, E. C. L. E. vol. 3 ; Hill v. Heap, D. & B., N. P. C. 67 ; De Berdt v. Atkinson, 2 Hen. Bla. 336. But see the observations on this last case in Sauds v. Clarke, 19 L. J. 87, C. P. Ex parte Bignold, 1 Deacon, 728 ; 2 Mont. & Ayr. 633, S. 0. (r) Ex parte Bignold, 1 Deac. 728 ; 2 Mont. & Ayr. 633, S. C. (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. Coflield, 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 de- mand of payment so as to charge an indorser. Dennie v. Walker, 7 N. Hamp. 1 99. (2) 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 PRESENTMENT FOR PAYMENT. 285 ■ It has been held, that neglect to present bankers' cash notes, the banker having failed, will be excused by returning them in due time.(8) > Advantage from such neglect is waived by any antecedent party who subsequently, with notice of the laches, promises to pay the bill, or make, or promise to make, a partial payment on account of it.(?) As to the proper mode of pleading, where the plaintiff relies on any dispensation with presentment, see the Chapter on Pleading. The defendant's part-payment, or promise to pay, made after the bill or note is due, is prima facie evidence of presentment.(M) (s) Henderson v. Appletou, Chit. 9th ed. 356 ; Rogers v. Langford, 1 C. & M. 63Y :* Robson v. Oliver, 10 Q. B. 704, B. C. L. R. vol. 59. See ante, p. 158, note (/). (/) Vaughan v. Fuller, 2 Stra. 1246 ; Hopley v.Dufresne, 15 East, 275 ; Haddock V. Bury, 7 East, 236 ; Hodge v. Fillis, 3 Camp. 463. See Goodall v. Dolly, 1 T. R. 712; Anson v. Bailey, B. N. P. 276. (m) Croxon v. "Worthen, 5 M. & W. 5 ;* Lundie v. Robertson, 7 East, 332 ; Camp- bell V. "Webster, 15 L. J., 4 C. P.; 2 Q. B. Rep. 258, E. C. L. R. vol. 42, S. C; Greenway v. Hindley, 4 Camp. 52. by giving him reasonable notice of non-payment, although 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. 308 ; Lang v. Young, 8 English, 401. The holder of a note need not demand payment and give notice, when the indor- ser, a few days before the maturity 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 promissory note, inserting over his signature a waiver of de- mand and notice, is not entitled to any demand and notice. "Woodman v. Thurston, 8 Cushing, 157. So an oral waiver at that time. Barclay v. Weaver, 19 Penna. State Rep. 396. An agreement with the maker by the payee, after he had nego- tiated 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, 221. Receiving 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 copartners 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 indorsement unless he be duly notified of the dishonor of the note. Poland v. Boyd, 22 Penna. State Rep. 476. 286 BTLBS ON BILLS OF EXCHANGE. [*172] ^CHAPTER XV. OP PAYMENT. TO WHOM IT SHOULD BE MADE, 1Y2 LEGACY, 177 OF OKOSSED CHECKS, 1Y3 APPROPRIATION OF PAYMENTS, 178 TO A WBOKOFUL HOLDER, 1Y3 RATABLE APPROPRIATION, 179 EFFECT OF PAYMENT BY ACCEPTOR, IH PART PAYMENT, 179 BY DRAWER, .... 174 WHEN PAYMENT WILL BE PRESUMED 180 BY A STRAUGBB, . . . . 175 EVIDENCE OF PAYMENT, . 180 WHEN TO BE MADE, 175 OP DELIVERING UP THE BILL, . 180 AT WHAT TIME OP DAY, . 176 OF GIVING A RECEIPT, . 180 SUBSEQUENT TENDER, 176 EFFECT OF RECEIPT, 181 PREMATURE PAYMENT, . . 176 TENDER OF PART PAYMENT, . 181 AFTER ACTION BROUGHT, 177 PLEA OF PAYMENT, 181 PAYMENT BY NOTES OR CHECKS, . 177 RETRACTION OF PAYMENT, . 181 WHAT AMOUNTS TO PAYMENT, . . 177 Payment should be made to the holder and the real proprietor of the bill ; for payment to any other party is no discharge to the ac- ceptor ; 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 plaintiff's account, and, at maturity, presented it to the de- fendant for payment, and it was dislionored. The plaintiffs then debited A. with the amount, but did not return him the bill. A few days afterwards, defendant paid the amount to A., A. still continued his banking account with the plaintiffs, and, at different times, paid in more money than was sufiScient 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 than the amount of the bill. A. failed, and the plaintiffs proved for the whole of their balance under his commission. They then brought this action on the bill against the defendant, the acceptor. Best, 0. J., " The payment to A. would not of itself have discharged the defendant, the plain- tiffs 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, PAYMENT. 287 thiit the plaintiffs not only entered the bill to the credit of A., but treated it as having been paid. "(a) *It is a common practice in the city of London, to '^^'^^^ r-.-ir,o-, across the face of a check the name of a banker. The effect '- -* of this crossing is to direct the drawees to pay the check only to the banker -whose name is written across, and the object of the precaution is to invalidate the payment to a wrongful holder in case of loss. It seems, however, that the holder may erase the name of the banker and substitute that of another banker.(6) 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, so as to insure the presentment by some banker or other, (c) 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 a private account with the banker, paid the check into that account ; it was held, that the bankers were justified in applying it to that account, the drawer's writing the name of the bankers of the payee of the check across it, not being, according to the custom of trade,* information to the bankers that the money was the money of the payees. (cZ) There are some cases in which payment to a wrongful holder is protected, and others in which it is not.(e) If a bill or note pay- able to bearer, either originally made so, or become so by an indorse- ment in blank, be lost or stolen, we have seen that a bona fide holder may compel payment. Not only is the payment to a bona fide holder protected, but payment to the thief or finder himself, will discharge the maker or acceptor,(/) provided such payment were not made with knowledge or suspicion of the infirmity of the holder's title, or under circumstances which might reasonably awaken the suspicions of (a) Field v. Carr, 5 Bing. 13, B. C. L. B. vol. 15 ; 2 Moo. & P. 46, S. 0. Where money is paid into a bank on the joint account of persons not partners in trade, the bankers are not discharged by payment of the check of one of those persons, drawn ■without the authority of the others : Innes v. Stephenson, 1 Moo. & Bob. 145 ; Stone V. Marsh, E. & M. 369 ; unless one alone afterwards become entitled to receive it. Stewart v. Lee, Mood. & M. 160 ; see ante, p. 18. (6) Stewart v. Lee, 1 M. & M. 158, B. C. L. R. vol. 22 ; and see Boddington v. Schlenker, 4 B. & Ad. 752, B. C. L. R. vol. 24; 1 N. & M. 540,' S. C. (c) Ibid. (d) Ibid. (e) As to payment of a forged bill, see post, the Chapter on Forgery of Bills. (/) Smith v. Sheppard, Sel. Ca. 243, MS. of Mr. Serjeant Bond, Chitty, 9th ed. 261. 288 BYLES ON BILLS OF EXCHANGE. a prudent man. " 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 such a payment be made under *suspicious circumstances, or without reasonable L J caution, or out of the usual course of business, it will not dis- charge the payer.(A) If payment be made before the bill or note is due, or long after it is due, or, in case of a check, long after it is drawn, that is a 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 instrument was cancelled, and carried with it reasonable notice that it had been cancelled.(2) If the bill or note be not payable to bearer, but transferable by indorsement only, and be paid to a wrong party, the payer is not discharged, (/c) 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) (g) Lickbarrow v. Mason, 2 T. Rep. 10. ' (h) There is at present no authority for saying that a party honestly paying, is in as good a situation as a party honestly discounting. See p. 126. (i) Scholey v. Eamsbottom, 2 Camp. 485. (k) It has been contended, that each indorsement is a warranty of the vahdity of the prior indorsements, and that an iudorser, 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. 280, E. C. L. B. vol. 10; 5 Dowl & R. 214, S. C ; Smith v. Mercer, 6 Taunt. 76, E. C. L. R. vol. 1 ; 1 Marsh. 453, E. C. L. R. vol. 4, S. C. L'endosseur est garant solidaire avec les autres signataires de la verite de la Itettre ainsi que du paiement a I'echeance. Pardessus, 316. Tons ceux qui ont signe, accepte, ou endossj une lettre de change, sont tenus a la garantie solidaire envers le porteur. Code de Commerce, 140 ; Lovell v. Martin, 4 Taunt. T99. (1) A payment made by a joint promisor on a note due cannot, by an arrange- ment with the payee, be revoked so as to revive the debt against the other parties. Frost V. Martin, 6 Poster, 422. PAYMENT, 289 It -was long an unsettled question, whether payment in part or in full by the drawer to the holder will discharge the acceptor 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 drawer's use.(Z) It has been thought that the holder can only recover of the acceptor the amount of the bill *minus the sum paid by the rHtiyc-i drawer.(m) The acceptor being the principal, and the drawer the security, it might seem that a payment by the drawer discharges the acceptor's liability to the holder pro 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 damages only can be recovered by the holder of the acceptor.(w) The better opinion, however, seems to be, that in an action against the acceptor, payment by the drawer is no plea, but only converts the holder into a trustee for the drawer. (o) But, payment by the drawer of an accommodation bill, is a complete discharge of the bill.(p) Payment by a stranger of the amount of a bill to the bankers, at whose house the bill is made payable by the acceptor, the party pay- (l) In Johnson v. Kennion, 2 Wils. 262, recognized in Walwyn v. St. Quintin, 1 B. & P. 6p8, it was held that the holder was entitled to recover the whole amount ; but in Bacon v. Searles, 1 H. Bla. 88, it was considered that he could recover only tl^e difference, and the report of the case of Johnson v. Kennion was reflected on. See Pierson v. Dunlop, Cowp. S^l ; Reid v. Furnival, 1 C. & Mees. 538 ;* 5 C. & P. 499, E. C. L. R. vol. 24, S. C. ; Browne v. Rivers, Doug. 455. To the doctrine that a payment by a subsequent party 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 hill 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 till. See Callow v. Lawrence, 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 posi- tion of a party, to whom a negotiable instrument is assigned a second time. (m) Lord Abinger appears to have so ruled at nisi prius. Hemming v. Brook, 1 Car. & M. 57, E. C. L. R. vol. 41. (n) Mais comme ces diflferents debiteurs sont Sebiteurs envers lui de la meme chose, le paiement qui lui est fait par Pun d'edx libere d'autant envers lui les au- tres. Poth. 106 ; see Hemming v. Brook, 1 Car. & M. 57, E. C. L. R. vol. 41. (o) So held, it is believed, in the C. P. Sittings after T. T. 1850 ; Jones v. Broad- hurst. ^ - (p) Lazarus v. Cowie, 3 Q. B. Rep. 459, E. C. L. R. vol. 43. 19 290 BYLES ON BILLS OP EXCHANGE. ing obtaining possession of the bill, is not a payment by the aocep- tor.(^)(l) The acceptor of a bill, TThether inland or foreign, or the maker of a note, should pay(r) it on a demand made, at any time within busi- ness hours, .on the day it falls due. And, if it be not paid on such demand, the holder may instantly treat it as dishonored. («) *But the acceptor has the whole of that day within which L J to make payment ; and though he should, in the course of that day, refuse payment, which refusal entitles the holder to give notice of dishonor, yet if he subsequently, on the same day, makes pay- ment, the payment is good, and the notice of dishonor becomes of no avail. (««) A plea of tender,(^) by the acceptor after the day of payment, is insufficient, (m) (q) Deacon v. Stodhart, 2 Man. & Gr. 317, E. C. L. R. vol. 40. As to payment by a stranger, see Jones v. Broadhurst, supra. (r) If a banker who has funds in his hands refuse to pay a check, he thereby sub- jects himself to an action at the suit of his customer, the drawer. Marzetti v. Wil- liams, 1 B. & Ad. 415, B. C. L. R. vol. 20 ; 1 Tyr. 77, S. C. 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. Bank of England, 1 C. M. & R. 744;* 6 C. & P. 700, E. C. L. R. vol. 25 ; 1 Gale, 54, S. C. See the Chapter on Presentment Jhr Payment. (s) Ex parte Moline, 1 Rose, 303 ; Burbridge v. Manners, 3 Camp. 193 ; Leftley V. Mills, 4 T. R. 170 ; Haynes v. Birks, 3 B. & P. 599. (ss) Hartley v. Case, 1 C. & P. 555, E. C. L. R. vol. 12 ; 4 B. & C. 339, B. C. L. R. vol. 10 ; 6 D. & R. 505, B. C. L. R. vol. 16; S. C. {i) As to payment where there are nominal damages, see Beaumont v. Greathead, 2 C. B. Rep. 494, B. C. L. R. vol. 52. (u) Hume V. Peploe, 8 Bast, 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, might be good, if pleaded by a drawer and indorser. And, as a drawer or indorser has a reasonable time to pay, he might, it should seem, plead a tender even after request, and of principal only, without interest. Walker v. Barnes, 5 Taunt. 240, E. C. L. R. vol. 1 ; 1 Marsh. 36, B. vC. L. R. vol. 4, S. C. ; Soward v. Palmer, 8 (1) Where the holder of a bill of exchange accepted for the accommodation of the drawer sends it to the bank 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 bills against the acceptor. Pacific Bank v. Mitchell, 9 Metcalf, 297. PAYMENT. 291 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," sajs Lord EUenborough, "that a bill paid at maturity cannot ■ be reissued, and that no action can be afterwards maintained upon it, by a subsequent indorsee. A payment before it becomes due, how- ever, I think, does not extinguish it, any more than if it were merely discounted. A contrary doctrine would add a new clog to the circu- lation of bills and notes ; for it would be impossible to know whether there had not been an anticipated payment of ihem."[v) If the holder constitutes any one of the parties liable to him his executor, and die, the appointment is equivalent to payment and a release.(w) A premature release will not, any more than a prema- ture payment, protect the releasee from liability to a subsequent holder without notice.(a;) But the payment of a note payable on demand will be a defence, even against an indorsee, for value without notice ;(?/) *for the ^ ^„„ statute, which imperatively prohibits the reissuing of such a '- ^ note, dispenses with notice.(2) A payment after action brought will not prevent the holder from proceeding for his oosts.{zz) If the bill be paid, the payer has a right to insist on its being de- livered up to him ; but, if it be not pa\d, the holder should keep it. Yet it has been held, that an agent is justified, by the usage of trade, in delivering it up on receiving a check, though that check is after- wards dishonored. (a) But the drawers or indorsers, in such a case, would-be discharged, for they have a right to insist on the produc- tion of the bill, and to have it delivered up on payment by them.(i) Taunt. 211, E. C. L. E. vol. 4 ; 2 Moo. 274 ; but see Siggers v. Lewis,, 1 C. M. & R. 370 I* 4 Tyrw. 847 ; 2 Dowl. 681, S. C. ; where a plea that the action was com- menced before a reasonable time for the defendant, the indorser, to pay the biU, was held ill. (v) Burbridge v. Manners, S Camp. 193 ; Morley v. Culverwell, 7 M. & W. 174.* («)) Freakley v. Fox, 9 B. & C. 13t), B. C. L. R. vol. 17 ; 4 M. & Ry. 18, S. C. See the law on this point more fuUy'discussed in Chapter V, tit. Executors. (x) Dod V. Edwards, 2 C. & P. 602, B. C. L. R. vol. 12. (y) Bartrum v. Caddy, 9 Ad. & E. 275, E. C. L. R. vol. 36 ; 1 Per. & Dav. 207, s. c. (z) Thompson v. Brown, 1 M. & M. 40, E. C. L. K. vol. 22. (zz) Toms V. Powell, 6 Esp. 40 ; 7 Bast, 536, S. C. (a) Russell v. Hankey, 6 T. R. 12. (b) Powell V. Rpche, 6 Esp. 76, vide ante, p. 16. 292 BYLES ON BILLS OF EXCHANGE. If the holder of a check receive bank notes instead of cash, and the banker fail, the drawer is discharged.(e) A set-off does not amount to payment, unless it be mutually agreed that one demand shall be set-off against the other. Such an agree- ment amourits to payment, (ci) And an agreement, 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.(e) Credit given to the holder of a bill by the party ultimately liable, is tantamount to payment. (/) 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. (^) 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. 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 r*1 781 *3'Ssignable nature of the debt, the testator could not tell whether or no the legatee was at the time of the bequest his creditor. (A) Where a man is indebted to another in several items, and makes a partial payment, it often becomes a question, important, not only to parties themselves, but third persons, to which of the items the pay- ment shall be imputed. The rule of the Roman law, and therefore in general of Continental law is, that a payment shall be appro- priated, first, according to the intention of the debtor at the time of (c) Vernon v. Boverie, 2 Show. 296. (d) Callander v. Howard, 19 L. J. 312, C. P. (e) Wallace v. Kelsall, 7 M. & W. 264 ;* see Gordon v. Ellis, 7 M. & G. 607, E. C. L. R. vol. 49 ; 2 C. B. Rep. 821, B. C. L. R. vol. 52, S. C. (/) Atkins V. Owen, 4 Ney. & Man. 123 ; 2 Ad. & El. 35, E. C. L. R. vol. 29, S. C. {g) Pease v. Hirst, 10 B. & C. 122, E. C. L. R. vol. 21 ; 5 M. & Ry. 88, S. C; see p. 96. [h] Carr v. Eastabrook, 3 Ves. 561. PAYMENT. 293 making it ;(»') but, if that be unknown, then secondly, at the election of the creditor,(A) signified to the debtor at the time of receiving it.(Z) If the intention of neither be known, payment must then be appropriated according to the presumed intention of the debtor, and ■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 bank- rupt, rather than one which will not subject him to such a liability. If all the debts are equal in degree, the payment must then be imputed to them according to their respective priority in the order of time.(m) Such is the rule of the civil law, from which, in some particulars, the common law differs. Wherever the transactions be- tween the two parties form one general account current, or are treated by them as such, payments are to be imputed to debts in the order of time, and the balance is to be struck at the foot of the aecount.(w) 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 any time before action,(o) as he pleases, (^) *provided a P^or appropriation have not been communicated to the debtor. L J (i) Quotiens quia debitor ex pluribus causis unum deMtum solvit, est in arbitrio solventis dicere quod potius debitum voluerit solutiim, et quod dixerit, id erit solutum. D. 46, 3, 1. Vide etiam Cod. 8, 43, 1. [k) Quotiens vero non dioimus ad quod solutum sit, in arbitrio est acoipientis cni potius debito acceptum ferat. D. 46, 3, 1. Cod. 8, 43, 1. (I) Dum in re agenda (in re praesenti, hoe est statim atque solutum est) hoc fiat; ut vel creditori liberum sit non accipere vel debitori non dare, si alio nomine exso- lutum quis eorum yelit : cseterum postea non permititur. D. 46, 3, 1 2, 3. (m) D. 46, 3. If all the debts were equal and alike in every respect, the sum paid was applied to a, ratablg reduction of them all. See Faveuo v. Bennett, 11 East, 36. (n) Clayton's case, Meriv. 604. (o) Simson v. Ingham, 2 B. & C. 65, B. C. L. R. vol. 9 ; 3 D. & Ry. 249 ; MiUs V. Fowkes, 5 Bing. N. C. 455, E. C. L. R. vol. 35 ; 1 Scott, 444, S. C. ( p) Clayton's case, 1 Meriv. 604 ; Bodenham v. Purchas, 2 B. & Aid. 39 ; Stoveld V. Bade, 4 Bing. 154, B. C. L. R. vol. 13 ; 12 Moo. 3T0 ; Field v. Carr, 2 Moo. & P. 46 ; 5 Bing. 13, E. C. L. R. vol. 15 ; Goddard v. 'Cox, 2 Stra. 1194 ; Bosanquet ' y. Wray, 6 Taunt. 597, E. C. L. R. vol. 1 ; 2 Marsh. 319, E. C. L. R. vol. 4, S. C. ; Kirbyv. Duke of Marlborough, 2 M. & Sel. 18; Plomer v. Hayne, 1 Stark. 153, E. C. L. R. vol. 2 ; Woodroffe v. Hayne, 1 C. & P. 600, B. C. L. R. vol. 12 ; Shaw V. Picton, 4 B. & C. 715, E. C. L. R. vol. 10 ; 7 Dowl. & R. 201, S. C. ; Marsh v. 294 BTLES ON BILLS OF EXCHANGE. An appropriation which would have the effect of paying one man's debt with another man's money, will not be allowed.(g') Nor can there be an appropriation which would deprive a debtor of a benefit, ■ such as the taxation of costs, (r) A payment may be imputed to a demand for which the creditor could not recover at law.(s) But the law will ascribe a payment to a legal debt, rather than to an illegal one.(^) A party receiving money for the use of another from a third person, which is not properly a payment, but a set-off, cannot appropriate the money without the knowledge or consent of him for whom it has been received.(M) It has been held, that a payment may be appropriated to a disputed debt, if it be really a good debt.(t)) There are cases where a payment is appropriated by law to several debts proportionally. Thus, where a principal debtor has assigned his effects to a trustee for his creditors, a creditor who has a guarantee for part of his debt will be forced, even at law, to apply in discharge thereof a rateable part of any payment that he may receive from the trustee.(w)(l) Houlditch, Chitty, 9th ed. 404 ; Hammersley v. Knowlys, 2 Bsp. 666 ; Birch v. Tebbutt, 2 Stark. 74, E. C. L. R. vol. 3 ; Marryatts v. White, 2 Stark. 101, B. C. L. B. vol. 3 ; Meggott v. Mills, 1 Ld. Raym. 286 ; Dawe v. Holdsworth, Peake, 64; Peters v. Anderson, 5 Taunt. 596, B. 0. L. R. vol. 1 ; "Wright v. Laing, 3 B. & C. 165, B. C. L. R. vol. 10 ; 4 Dowl. & R. Y83 ; Gough v. Davis, 4 Price, 200 ; Strange V. Lee, 3 Bast, 484 ; Simson v. Ingham, 2 B. & C. 65, B. C. L. R. vol. 9; 3 Dowl. & R. 249 ; Mills v. Powkes, 5 Bing. N. C. 455, B. C. L. R. vol. 35 ; 7 Scott, 444, S. C. (g) Thompson v. Brown, 1 M. & M. 40, E. C. L. R. vol. 22. [r) James v. Child, 1 Tyrw. 1Z5 ; 2 C. & J. 252,* S. C. (s) Crookshanks v. Rose, 1 M. & R. 100 ; 5 G. & P. 19, B. C. L. R. vol. 24, S. C. {t) Wright V. Laing, 3 B. & C. 165, B. C. L. R. vol. 10 ; 4 Dowl. & R. T83. (m) Waller v. Lacy, 1 M. & Gr. 64, B. C. L. R. vol. 39 ; 1 Scott, N. R. 186, S. C. (») Williams v. Griffith, 5 M. & W. 300.* (w) Baidwell v. Lydall, 1 Bing 489, B. C. L. R. vol. 20; see Raikes v. Todd, 1 P. & D. 138 ; 8 Ad. & B. 846, B. C. L. R. vol. 35, S. C. ; Paley v. Field, 12 Ves. jun. 435. See another instance of ratable appropriation in Favenc v. Bennett, 11 East, 36. (1) The debtor has the first right to direct the application of any payment he may make. Taylor v. Sandiford, 7 Wheaton 13 ; Reed v. Boardman, 20 Pick. 441 ; Martin v. Draher, 5 Watts, 544; McDonald v. Pickett, 2 Bailey, 617; Mitchell v.' Dull, 4 Gill & Johns. 361 ; Seliridge v. Northampton Bank, 8 Watts & Serg. 320 ; Bunyon v. Latham, 5 Iredell, 551 ; Howland v. Bench, 7 Blackford, 236 ; Backley V. Pearce, 1 Kelly, 241 ; Randall v. Parramore, 1 Branch, 409 ; TJ. States v. Brad- bury, Daveis, 146. PAYMENT. ' 295 Part payment of the debt by the party liable is no discharge of the The rule that a debtor may apply payment as he pleases, applies only to voluntary payments, and no? to those made by process of law. Blackstone Bank v. Hill, 10 Pick. 129. If no appropriation be made by him, it then devolves upon the creditor to make it. Mitchell v. Dull, 2 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. HiU, 10 Ibid. 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. 413 ; Jones v. U. States, 1 Howard, U. S. 681 ; Van Rensselaer v. Roberts, 5 Denio, 470 ; Sawyer v. Tappan, 14 N. Hamp. 352. 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 ; Cow- perthwait v. Sheffield, 1 Sandf. S. C. Rep. 416 ; Parchman v. McKinney, 12 Smedes & Marshall, 631 ; Bancroft v. Dumas, 21 Vermont, 456 ; Caldwell v. Wentworth, 14 N. Hamp. 431. A debtor or creditor cannot appropriate a payment in such manner as to affect the relative liabilities or rights of sureties without their consent. Postmaster-Gene- ral V. Norvell, Gilpin, 106 ; Bank v. Brown, 12 N. Hamp. 320 ; Myers v. U. States, 1 M'Lean, 493. When a debtor makes payments without specifying the application, the creditor cannot apply them to debts not due if there are other debts which are due. Bacon V. Brown, 1 Bibb, 334; McDowell v. Canal Co., 5 Mason, 11 ; Seymour v. Sexton, 10 Watts, 255. If application be directed by neither, then the law will make the application ac- cording to equity. Postmaster-General v. Norvell, Gilpin, 106 ; Harker v. Conrad, 12 Serg. & Rawle, 301 ; U. States v. Kirkpatrick, 9 Wheaton, 720 ; Cremer v. Hig- ginson, 1 Mason, 323 ; Gwinn,v. Whitaker, 1 Har. & Johns. 754; Briggs v. WilUams, 2 Vermont, 283 ; Robinson v. Doolittle, 12 Vermont, 256 ; RandaU v. Parramore, 1 Branch, 409 ; Bayley v. Wynkoop, 5 Gilman, 449. 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, 2 Har. & Johns. 402 ; Dedham Bank v. Chickering, 4 Pick. 314 ; U. States v. Bradbury, Daveis, 146. The law will make the application first to interest and then to principal. Gwinn V. Whitaker, 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, 426 ; Bond v. Jones, 8 Smedes & Marshall, 368 ; Righter v. Stall, 3 Sand. Ch. Rep. 608 ; Jencks v. Alexander, 11 Paige, 619 ; Hart v. Dorman, 2 Florida, 445. To the debt which is prior in date. AUston v. Contee, 4 Har. & Johns. 351 ; U. States V. Kirkpatrick, 9 Wheat. 720 ; Pairchild v. Holly, 10 Conn. 175 ; Postmaster General v; Purber, 4 Mason, 332 ; McKenzie v. Nevins, 9 Shep. 138 ; Berghaus v. Alter, 9 Watts, 386 ; Boody v. U. States, 1 Woodbury & Minot, 150 ; Upham v. Le- favour, 11 Metcalfe, 174; U. States v. Bradbury, Daveis, 146 ; Caldwell v, Went- worth, 14 N. Hamp. 431. To that debt which is less secured. Moss v. Adams, 4 Ired. Eq. 42 ; Jones v. Kilgore, 2 Richardson Eq. 63; Baim v. Williams, 10 Smedes & Marshall, 113. 296 BYLBS ON BILLS OF EXCHANGE. •whole debt,(a;)(l) but part payment by a stranger may *be.(a;a;) 1_ loOJ j^^^ j^ j^^g l^gg^ j^g-jj^ ^j^^^ -ffhere a promissory note is due and unpaid, so that not only the principal, but interest (at least to a nomi- nal amount) is due also, the principal may be taken in satisfaction of the debt and damage, (y) As the lapse of twenty years(2) is sufficient to raise presumption 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.(a) 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. (6) The production of a check drawn by the defendant on his banker, and indorsed by the plaintiff, is evidence of payment ;(c) but not if there have been several transactions between the parties, without evi- dence to connect the delivery of the check with the payment in ques- tion.(cZ) A bill or note once in circulation over due, 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, cMrographum apud debiiorem reper- tum 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 pf its having been once in circulation after it had been accepted, (e)(2) (at) Pitcli V. Sutton, 5 East, 230. When a bill or note may be satisfaction. See post, Chapter XVI. {xx) Welby v. Drake, 1 C. & P. 557, B. C. L. R. vol. 12. Post, p. 181. (V) Beaumont v. Greathead, 15 L. J. 131, C. P.; 3 D. & L. 631; 2 C. B. Rep. 494, E. C. L. R. vol. 52, S. C. (z) See now 3 & 4 Wm. 4, c. 42, s. 3. (0) Duffield V. Creed, 5 Bsp. 52. (6) Du Belloix v. Lord Waterpark, 1 D. & R. 16, B. C. L. R. vol. 16 (c) Egg V. Barnett, 3 Bsp. 196. See ante, p. 16. \d) Aubert v. "Walsh, 4 Taunt. 293. (e) Pfiel V. Vanbatenbery, 2 Camp. 439. To make an application of a payment the person paying must give directions be- fore or at the time of payment. Reynolds v. M'Parlane, 1 Overton, 488 ; Moss v. Adams, 4 Ired. Eq. 42. (1) A part payment of what a person is bound in law to pay, forms no considera- tion for postponing the residue ; neither can the verbal promise of the plaintiff to postpone the payment of the balance be enforced. Price v. Cannon, 3 Missoun, 453 i Wheeler v. Wheeler, 11 Vermont, 60. (2) If a bill be sent to the drawee, and he be directed to pass it to the credit of PAYMENT. 297 The party paying a bill or note has a right to insist on its being delivered up to him.(/) But, where a bill or note is not negotiable, he cannot refuse to pay it till it is delivered up.(5r) It -was formerly held,(A) that a party paying a debt could not in general demand a receipt for the money, and therefore that a tender, on condition of having a receipt, was insufficient.(i) It has since, however, been enacted, by 43 Geo. 3, *c. 126, s. 6, that a per- r*i oii son to whom money has been paid is bound to give a receipt, and that if he refuses 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.(k) It is usual to write a receipt on the back of bills, and it has been said that it is the duty of bankers to make some memorandum on bills or notes which have been paid.(Z) A receipt on a bill or note, duly stamped, does not require an additional stamp. (»i) 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 witness who has signed it, to refresh his memory, and enable him to speak to the ' fact of payment. (w) Letters by the general post, acknowledging the safe arrival of any bills of exchange, promissory notes, or any other securities for money, are exempted from stamp duty.(o) (/) Harsard t. Robinson, 1 B. & C. 90, E. C. L. R. vol. 14 ; 9 Dowl. & R. 860 ; Powell v. Roach, 6 Bsp. 76 ; Alexander v. Strong, 9 M. & W. 733* (gr) Wain V. Bailey, 10 Ad. & E. 616 ; B. C. L. R. vol. .S7 ; 2 Per. & Dav. 507, S. 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 commission. Bro. Ab. tit. Paits, PI. 8 ; 1 Via. Ab. 192 ; Portesc. Rep. 145. "(i) Green v. Croft, 2 H. Bla. 30 ; Cole v. Blalie, Peaks, N. P. C. 179. {k) See 5 & 6 Vict. c. 82, same duty for Ireland. (l) Per Ld. EUenborough, Burbridge v. Manners, 3 Camp. 195. (m) 55 Geo. 4, c. 184, sched. Receipts. A receipt may be explained. Graves v. Key, 3 B. & Ad. 313, E. C. L. R., vol. 23. (ra) Maugham v. Hubbard, 8 B. & C. 14, B. C. L. R. vol. 15 ; 2 Man. & R. 5. (o) 55 Geo. 3, c. 184. the holder, and do so credit it, the bill is functus officio, and cannot be further nego- tiated. 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 facie evidence of pay- ment by him, and he is 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 prima facie evidence of payment. Hill v. Gayle, 1 Alabama, 275 ; Fellows v. Kress, 5 Blackford, 536. 298 BYLES ON BILLS OF EXCHANGE. A receipt on the back of a bill imports, prima facie, that it has been paid by the acceptor.(p) A tender of part of the amount of an entire sum due on a bill or note, seems not to be good even pro tanto.{q) A defendant, where there is a plea of payment (but not other- wise) is allowed to reduce the damages by the amount of payment established, though he be unable to prove the plea.(r) But if he plead that a note was given for a part only of the apparent considera- tion, 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.(s) If the drawer discover, after payment, that the bill or check is a forgery, he may in general, by giving notice on the same day, re- cover back the money. {t) And if he have paid the bill with the under- standing that he was to receive it back, and do not, he may bring an ' action to retract the payment.(M) [*182] *CHAPTEE XVI. OF SATISFACTION, BXTINaUISHMENT, AND SUSPENSION OF THE RIGHT OF ACTION ON A BILL. SATISFACTION, .... 182 HOT NECESSAET BEFOEE BBEAOH, . 182 ITS REQUISITES, .... 182 PAYMENT OF A SMALL SnM BY THIRD PARTY, 183 ENGAGEMENT BY THIRD PARTY, . 183 RELINQUISHING SUIT, . . . 183 WHEN A BILL OPERATES AS SATISFAC- TION, 184 EXTINGUISHMENT, . . . .184 EFFECT OP WARRANT OP ATTORNEY, 184 OF JUDGMENT, . . . .184 OF EXECUTION, .... 184 OF DISCHARGE FROM EXECUTION, . 185 OF WAITING A FIERI FACIAS, . . 185 OP TAKING A DEED, . . . 185 SUSPENSION, 185 EFFECT OF RENEWAL, . . .186 OP DEBTOR BECOMING ADMINISTRA- TOR, 185 OF COVENANT NOT TO SUE WITHIN A LIMITED TIME 186 (^) Pfiel V. Vanbatenberg, 2 Camp. 439 ; Scholey v. Walsby, Peake, 25 ; Graves V. Key, supra. iq) CotWn V. Godwin, ? M. & W. 14T ;* Hesketh v. Fawcitt, 11 M. & W. 356.* [r) It is said to have been doubted whether, in an action on a bill or note, a plea of part payment be good even pro lanto. Lord '^Ferrand, 13 L. J., Ex. 111. Sed quaere, ante, p. 179. (*) Robins V. Lord Maidstone, 4 Q. B. Rep. 811, E. C. L. R. vol. 45. [t) See Chapter on Forged Bills. (m) Alexander v. Strong, 9 M. & W. 733.* See also the Chapter on Pleading. SATISFACTION, EXTINGUISHMENT, ETC. 299 The nature and effect of payment, in the ordinary sense of that word, has already been consid^ed in the Chapter on Payment. The nature and effect of such dealings with the acceptor, 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 Suretyship. In the present Chapter, the reader's atten- tion is requested to such observations only on satisfaction, extinguish- ment, and suspension, as do not properly fall within either of those two divisions. A simple contract may be discharged before breach without a re- lease and without satisfaction. (a)(1) But after hreacJi, unless there be a release, there must be satisfaction. (S) (a) Langden v. Stokes, Cro. Car. 383 ; Com. Dig. on tie case in Assumpsit G., Conier and Holland's ease, 2 Leo. 214 ; King v. Gillett, 7 M. & W. 55.* (6) As to the waiver of an acceptance, see Chapter on Acceptance. (1) This position is perhaps too broad. There are, it appears to me, two qualifi- cations of it. First. The contract must be mutually executory, that is, the con- sideration executory on both sides. If the consideration on either side is executed, then the party cannot be bound by a mere nude agreement to release 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 execution of the stipulations of the other party. . Nudi consensus ohligatio contrario consensu dissolvitur, is the language of the Roman law. The cases cited as authority 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 cases cited in Com. Digest is Triswaller v. Keyne, Cro. 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 doctpne, 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 pro- mises — mutual agreement to dispense is an equally good consideration for the re- scission. 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 performance by the other of that of which the acts waived formed the sole consideration. 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 300 BtLBS ON BILLS OF EXCHANGE. A satisfaction must be beneficial to the plaintiff.(c) It must come from the defendant or some one wl]p represents him.((^ r*18^n *P*iyment by the debtor himself of a sum smaller than the '- -" debt, is no satisfaction.(e) But payment 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 181. 3s. lid., and the plaintiff had taken from the defendant's father 91. in satisfaction of the whole debt. The plaintiff, notwithstanding, afterwards sued the defendant for the balance. But Abbott, C. J., said, " If the father did pay the smaller sum in satisfaction of this debt, it is a bar to the plaintiff's (c) Cumber v. Wane, 1 Stra. 426 ; Heatheote v. Crooksliaiiljs, 2 T. R. 24. (d) Grymea v. Blofield, Cro. Bliz. 541 ; Edgecombe v. Rodd, 5 East, 294; Jones V. Broadhurst, C. P., T. T. 1850; and it must be fully executed. James v. David, 5 T. R. 141 ; Bac. A-b. 3 ; Walker v. Seaborne, 1 Taunt. 526. Mutual promises, with, an immediate remedy on them, have, however, been considered a good accord and satisfaction. See Com. Dig. Accord, B. 4 ; Cartwright v. Cooke, 3 B. & Ad, YOl, E. C. L. R. vol. 23 ; Good v. Cheesman, 2 B. & Ad. 328, B. C. L. R. vol. 22 but see Bayley v. Homan, 3 Biug. N. C. 915, E. C. L. R. vol. 32 ; 5 Scott, 94, S. C, Is not the distinction this 7 If the mere agreement were intended to be the satis- faction, it need not be executed ; if its performance were intended as the satisfac- tion, it must be executed. See Reeves v. Hearn, 1 Mees. & Wels. 323 ;* Sard v, Rhodes, 1 Mees. & Wels. 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 N"ovatio. It exists at this day in the French law. (Code Civil, 1271.) Novation might be either without change of persons sine delegatione, or with a change of persons cwm delegaiione. There might be a change of the debtor's person ex promissio, or of the creditor's cessio. (e) Fitch V. Sutton, 5 East, 230 ; unless the demand be unliquidated. Wilkinson V. Byers, 1 Ad. & El. 106, E. C. L. R. vol. 28 ; 3 N. & M. 853, S. C. ; Watters v. Smith, 2 B. & Ad. 889, E. C. L. R. vol. 22 ; Beaumont v. Greathead, 2 C. B. Rep. 494, E. C. L. R. vol. 52. promissory note. As between the original parties, if there 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 bona fide holder for value without notice, when it is in all respects as if there was a consideration, to hold that the vested and abso- lute 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 contract might be rescinded, but that would be satisfaction. The contract by biU of ex- change and promissory note, creates a debiium in presenti solvendum infuiuro. 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 Ameri(^n editors to the case of Poster v. Dawber, 6 Welsby, Hurlstone & Gordon (Exchequer) Reports, 838. (See ante, p. 154, note 1.) SATISFACTION, BXTINQ UISHMBNT, ETC. 301 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 liability.'X/) So although a contract by the defendant himself to pay a smaller sum can be no satisfaction, unless it be negotiable •,[g) yet a contract by a third person to do so may be. Thus the taking a bill from one of two partners may operate as a satisfaction of the joint debt; for the sole liability of one person may, in many instances, be more advantageous than his liability jointly with another.(A) Relinquishing a suit, involving a doubtful point of law, may be a good satisfaction. («') *The acceptance of a negotiable security from the holder ^^ „ .^ alone, may be a satisfaction even of a debt of larger *- amount.(A) Where a bill or note, on which some person other than the debtor is liable, is expressly given and accepted,{l) in full- satisfaction and discharge, the liability of the debtor for the original debt will not revive, on the dishonor of the substituted instrument.(TO) But if it be taken generally on account, or in renewal, the original liability of the debtor revives on its dishonor. (w) 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. (o)(l) (/) Welby y. Drake, 1 Car. & Payne, SST, E. C. L. E. vol. 12. \g) Sibree v. Tripp, 15 M. & W. 23* {h) Thompson v. Percival, 5 B. & Ad. 925, E. C. L. R. vol. 27 ; 3 N. & M. 667, S. C. (i) Longridge v. D'Orville, 5 B. & Aid. 117, E. C. L. E. vol. 7. See Edwards v. Baugh, 11 M. & W. 641 ;* Llewellyn v. Llewellyn, 15 L. J. 4, Q. B. [k) Sibree v. Tripp, 15 M. & W. 23.* [I) Hardman v. Bellhouae, 9 M. & W. 596.* {m) Sard v. Ehodes, 1 Meea. & Wels. 153 ;* 1 Tyrw. & Gr. 298 ; 4 Dowl. 743 ; 1 Gale, 376, S. G. (n) See post, Stedman v. Gooch, 1 Bsp. 3 ; Kearslake v. Morgan, 5 T. R. 513. (0) David v. Preeoe, 5 Q. B. Eep. 440, B. C. L. E. vol. 48. (1) A bill of exchange or promissory note either of a debtor or any other person, is not payment of a precedent debt, unless it be so expressly agreed. Tobey v. 302 BYLBS ON BILLS 01' EXCHANGE. A warrant of attorney is not an extinguishment of the debt, as between the parties. "Till judgment is entered up," says Lord Barber, 5 Johns. 68 ; McGinn 7. Holmes, 2 Watts, 121 ; "Weakly y. Bell, 9 Watts, 280 ; Johnson V. Weed, 9 Johns. 310 ; Higgins v. Packarli, 2 Hall, 547 ; Coxe v. Hunkinson, Coxe, 85 ; Bill v. Porter, 9 Conn. 23 ; Sheehy v. Mandeville,[6 Cranch, 253 ; Chastain v. Johnson, 2 Bailey, 674; Porter v. Taleott, 1 Cowen, 359; Ayres T. Vanlieu, 2 Southard, 765 ; Sneed v. Wiester, 2 A. K. Marshall, 277 ; Davidson v. Bridgeport, 8 Conn. 472 ; Gardner v. Gorham, 1 Dougl. 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 ; Blwood v. Deifendorf, 5 Barb. S. C. 398. In some states, however, 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 ; Hutchins v. Olcutt, 4 Vermont, 555 ; Trotter v. Crockett, 2 Porter, 401 ; Hnse 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 ; Bullen v. McGillcuddy, 2 Dana, 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 subsequently by the plaintiffs for the same purpose, was dis- counted at the instance of the drawee, and not being paid by Mm, was taken up by the plaintiffs, dfte nofice being given to the defendants as first indorser. Subse- quently, 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 pro- ceeds remitted to the plaintiffs, and the amount was credited by their clerk on their books to the bill, on the account of the drawer of it. The noieyrsta taken up by the drawer. The act of the clerk was disaffirmed by the plaintiffs on discovering 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 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, 643. 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 hp,ve been accepted by the vendor in fall payment and satis- faction, unless the contrary be expressly proved. Whitbeck v. Van Nees, 11 Johns. 409. If a promissory note be given for goods sold, the seller cannot recover on the original cause of action without producing the note or accounting for its loss. Hays V. MeClurg, 4 Watts, 452. Giving the creditor a bank check is not payment. Dennie v. Hart, 2 Pick. 204 ; SATISFACTION, EXTINGUISHMENT, ETC. 303 Ellenborough, "the warrant of attorney is merely a collateral secu- rity, and cannot merge the original debt."(^) A bill indorsed in blank to one of several acceptors, and in his hands when due, cannot be afterwards transferred,(g') so as to confer on the transferee a remedy against any of the acceptors ; for there has been that which is an equivalent to the performance of the con- tract. Obtaining judgment on a bill or note is an extinguishment of the original debt, as between the plaintiif and defendant. But it alone, without actual satisfaction, is no extinguishment, as between the plaintiff and other parties, whether prior or subsequent to the defen- dant.(r) Nor is it an extinguishment, as between a party prior to the plaintiff, to whom the plaintiff after the judgment returns the bill, and the defendant. («) Nor does the issuing of execution against the person or goods *of one party to the bill, extinguish the plaintiff's remedy against other parties. L -I Nay, even the discharging of one party from execution under a ca. sa., though it is a satisfaction as to him, and a discharge of those {p) Norris v. Aylett, 2 Camp. 329. Iq) Steele v. Harmer, 15 L. J. 211, Exch. ; 14 M. & W. 831.* As to this, see the judgment of the Court of Error ; 19 L. J. 37, Exch. (r) Bayley, 335 ; Claxtou v. Swift, 2 Show. 441, 494 ; Lutwyche, 882 j Skin. 255, S. C. (*) Tarleton v. Allhusen, 2 Ad. & E. 32, E. C. L. E. yol. 29. People V. Howell, 4 Johns. 296 ; Patton v. Ash, 7 Serg. & Rawle, 116 ; Cromwell V. Lovett, 1 Hall, 56 ; Franklin v. Vanderpoel, Ibid. 78 ; The People v. Baker, 20 Wendell, 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, 2 Johns. 455 ; Thomas v. Todd, 6 Hill, 340; Anderson v. Hawkins 3 Hawks. 568 ; Ramsdale v. Horton, 3 Barr, 330. Payment in the bills of an insolvent bank is not a satisfaction of a debt, although at 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, 2 Porter, 280 ; Bayard v. Shunk, 1 Watts & Sero'. 92 ; Scruggs v. Gass, 8 Yerger, 175. 304 BYLES ON BILLS OF EXCHANGE. parties to the bill who are his sureties thereon,(i) is no extinguish- ment of the liability of other parties. (m) Waiving z. fieri facias against the goods of a party, does not dis- charge any other party, (d) Taking a security of a higher nature, as a'deed, though it extinguish the simple contract debt on the bill, as between the parties to the substitution, has no effect on the liability of the other distinct parties to the bill.(M') Indeed, if the specialty were given and accepted as a collateral security only, even the liability on the bill, of the party giving it, may remain unaffected, (a;) Where a bill is renewed, holding the original bill, and taking the substituted one, operates as a suspension of the debt till the substi- tuted bill is at maturity.(jr) And although the second bill for the principal sum should be paid, the plaintiff may recover interest due on the original bill at the time when the second was given, by bring- ing an action on the original bill, unless it appear that the second bill was intended to operate as a renewal, or satisfaction of the whole of the former bill.(2) If the second bill be discharged, by an altera- tion, an action may be brought on the first, (a) If, as jre have seen, a debtor on a bill takes out administration to his deceased creditor, that is a suspension of the right of action. (i) r*1 8fi1 *^ covenant not to sue for a limited time will not suspend the right of action, (c) but will only create a right to sue for the breach of covenant. No more will a subsequent, or even a con- temporaneous, ^Dut collateral, agreement on good consideration not to sue for a limited time on a bill or note.(<^) {t) See Chapter on Indulgence, post, p. 189. (m) Hayling v. Mulhall, 2 Bla. 1235 ; English v. Darley, 2 Bos. & Pul. 61 ; 3 Esp. 49, S. C. ; Clark v. Clement, 6 T. R. 525 ; Mayhew v. Crickett, 2 Swanst. 190. (v) Pole V. Ford, 2 Chitty, Rep. 125. ' (lo) Bayley 6tli ed. 334, Bae. Ab. Extinguishment, D. [x) Bedford v. Deakin, 2 B. & Aid. 210 ; 2 Stark. 178, E. C. L. R. vol. 3, S. C. (y) Kendrick v. Lomax, 2 Cromp. & Jer. 405 ;* 2 Tyr. 438, S. C. See Ex parte Barclay, T Ves. 597 ; Bishop v. Rowe, 3 M. & Sel. 362 ; Dillon v. Rimmer,! Bing. 100, E. C. L. R. vol. 8 ; 1 Moore, 427, S. C. ' (z) Lumley v. Musgrave, 4 Bing. N. Ca. 9, E. C. L. R. vol. 33 ; 5 Scott, 230, S. C. ; Lumley v. Hudson, 4 Bing. N. Oa. 15, E. C. L. R. vol. 33 ; 5 Scott, 238, S. C. (a) Sloman v. Cox, 1 C. M. & R. 471 ;* 5 Tyrw. 174, S. C. (6) Ante, p. 42. (c) Thimhleby v. Barron, 3 Mees. & W. 210.* (i) Ford V. Beech, 11 Q. B. 842, E. C. L. R. vol. 63 ; Webb v. Spicer, 19 L. J., Q. B. no 35, error. OP RELEASE. ^CHAPTER XVII. OF RELEASE. [*187] WHAT IT IS, . RELEASE AT MATUKITY, . PREMATURE RELEASE, . BY A PARTY WHO IS NOT HOLDER, TO DRAWEE BEFORE ACCEPTANCE, TOONE OF SEVERAL JOINTLY LIABLE, 187 187 187 187 187 187 COVENANT NOT TO SUE, , . . 188 COVENANT NOT TO SUE WITHIN A LIMITED TIME, . . . .188 APPOINTMENT OF DEBTOR EXECUTOR, 188 RIGHT TO HOLD SECURITIES FOR RE- LEASED DEBT, .... 188 An express release, relaxatio, is an acquittance under the seal of the releasor. Being a deed, no consideration is essential to its valid- ity.(a) A release hy the holder after the maturity of the bill, is a complete 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 releasee 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) But a release of a drawee before acceptance is inoperative. (cZ) A release J«/ one of several joint creditors is a release by all. (a) As to the discharge of contract before breach, see the preceding Chapter. (6) Dod V. Edwards, 2 C. & P. 602, E. C. L. R. vol. 12. (c) Scott* V. Lifford, 1 Camp. 246; 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. Freestun, 2 M. & G. 1, E. C. L. R. vol. 40 ; 2 Scott, N. R. 273, S. C. {d) Drage v. Netter, 1 Ld. Ray. 65; Hartley v. Manton, 5 Q. B. Rep. 247, E. C. L. R. vol. 48 ; and see Ashton v. Freestun, supra. 20 306 BTLES ON BILLS OF EXCHANGE. ^ - „„-, *And a release to one of several ioint contractors is in law a L -I release of all.(e) Therefore, a release of one of two joint ac- ceptors or joint indorsers, is a release to both. A release of one of several joint debtors, who are severally, as well as jointly, liable, is equally a release to all, for judgment and execu- tion against one would have been a discharge to all.(/) But it has been held, that the legal operation of a release as to parties jointly liable, may in some cases be restrained by the terms of the instrument.(^) But it cannot be defeated by a mere parol agreement.(A) A covenant not to sue, amounts in law to a release. But though it may be pleaded as a release by the party to whom it is given, it does not so far operate as to discharge another person jointly liable.(i) Nor will a covenant not to sue given by one of two joint creditors operate as a release, (y) A covenant not to sue for a limited time, though (as we shall here- after see) it discharges sureties, does not, as between the parties, effect a release, or even a suspension of the action.(^) We have already seen(Z) that the creditor's appointment of his debtor as executor, aijiounts in law to a release. And that the same consequence follows if one or several debtors is appointed exe- cutor. (e) Co. Litt. 232, a. ; Nicholson v. I^evill, 4 Ad. & Ell. 675, E. C. L. E. vol. 31 ; 6 N. & M. 192 ; 1 Har. & W. 753, S. C. So a release of one of several joint tres- passers is a release of all, Lit. s. 376. (/) Solly V. Forbes, 2 B. & B. 38, B. C. L. R. vol. 6 ; Ex parte Gifford, 6 Ves. 808 ; but see Nicholson v. Eevill, 4 Ad. & E. 675, B. C. L. R. vol. 31 ; 6 N. & M. 192 ; 1 Har. & W. 753, S. C. {g) Brooks v. Stuart, 1 Per. & D. 615; 9 Ad. & B. 854, E. C. L. R. vol. 36, S. C. ; Cocks V. NasH, 9 Bing. 341, B. C. L. R. vol. 25. {h) 2 Rol. Ab. 412 ; Lacy v. Kynaston, 2 Salk. 575 ; 2 Saund. 47, t. ; Cheetham V. Ward, 1 B. & P. 630 ; Nicholson v. Revill, nbi supra, n, (e) ; Brooks v. Stuart, 9 Ad. & B. 854, E. C. L. R. vol. 36 ; 1 Per. & D. 615, S. C. (i) Dean v. Newhall, 8 T. R. 168 ; Hutton v. Byre, 6 Taunt. 289, B-. C. L. R. vol. 1. / [j) Walmealey v. Cooper, 1 1 Ad. & Ellis, 216, E. C. L. R. vol. 39 ; 3 Per. & Dav. 149, S. C. (/c) Thimbleby v. Barron, 3 M. & W. 210.* (Z) Ajte, p. 41. PRINCIPAL AND SUKBTT. 307 The release of a debt is a release of the right to hold any securi- ties that may have been given for the debt.(m) *CHAPTEE, XVIII. [*189] OF THE LAW OF PRINCIPAL AND SURETY IN ITS APPLICATION TO BILLS AND NOTES. OENERAL PRINCIPLES OF THE LAW, 189 JUDGMENT, 195 WHAT PARTIES TO a BILL ARE PRIN- BANKRUPTCY, .... 195 CIPALS, AND WHAT PARTIES ARE INSOLVENCY, .... 195 SURETIES, 190 COMPOUNDING, .... 196 ON ACCOMMODATION BILLS, . - 191 COLLATERAL SECURITY, 19S ON PROMISSORY NOTES, . 191 AGREEMENT WITH a STRANGER, 197 ON A JOINT AND SEVERAL NOTE, 192 DISCHARGE OF PRIOR PARTIES BY WHAT CONDUCT OF THE CREDITOR GIVING TIME TO DRAWEE WHO HAS TOWARDS THE PRINCIPAL, DOES OR NOT ACCEPTED, .... 197 DOES NOT DISCHARGE THE SURETY 192 WARRANT OP ATTORNEY, 197 RECEIPT OF PAYMENT, . 193 HOW THE DISCHARGE OF THE SURETY RELEASE, .... 193 MAY BE PREVENTED, . 197 COVENANT NOT TO SUE, . 193 HOW IT IS WAIVED, 198 RELEASE IN LAW, . 194 WHAT CONDUCT OF THE CREDITOR AGREEMENT NOT TO SUE, 194 TOWARDS THE SURETY WILL DIS- RENEWING A BILL, 194 CHARGE THE PRINCIPAL, . 198 DISCHARGE PROM EXECUTION, 194 surety's right to INDEMNITY, 199 PART PAYMENT, . 195 OF CONTRIBUTION BETWEEN CO-SURE- OFFER TO GIVE TIME, . 195 TIES, 199 COGNOVIT, OR WARRANT OF ATTOBNET r, 195 A PARTY liable on a bill sometimes bears to the holder the relation of principal debtor, sometimes of surety only. It is a general rule of law, that a discharge of the principal is a discharge to the surety. For the engagement of the surety, being but an accessory to the principal's agreement, terminates with it. If, notwithstanding this release of the principal debtor, the creditor could sue the surety, he would evade the effect of his discharge to the prin- cipal, and regain a *debt which he may have relinquished for p^., q^-. a valuable consideration, or by his deliberate act and deed. {m) Cowper v. Green, 7 M. & W. 633.* 308 BYL.BS ON BILLS OF EXCHANGE. Besides, were the surety obliged to pay the creditor, he 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. Fur- ther, it is a doctrine of equity that the surety is entitled to all the remedies which the creditor has against the principal. It is evident, from these considerations, that the only rational and equitable rule is, that which is well established both in law and equity, namely, that a discharge to the principal is a discharge to the surety. In inquiring into the eflfect of a discharge or indulgence by the holder, to parties liable on a negotiable instrument, let us consider, — 1st. What parties to a bill or note are principals, and what parties are sureties ; 2dly. What arrangements between the holder and the principal debtor will discharge the surety ; 3dly. How the discharge of the surety may be prevented ; 4thly. How it may be waived ; and Sthly. What conduct of the creditor to the surety will discharge the principal debtor. First. What parties to a bill are principals, and what parties are sureties. Suppose the bift to have been accepted and indorsed for value. The acceptor is the principal debtor, and all the other parties are sureties for him, liable only on his default. But though the other parties are, in respect to 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. , For example, suppose a bill to have been accepted, and afterwards in- dorsed 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 be- tween the holder and the drawer, the drawer is the principal debtor, and the indorsers are his sureties. As between the holder and the second indorser, the second indorser is the principal, and the subse- quent 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 discharge to the subsequent parties, the sureties, is not a discharge to the prior parties, the principals. (1) (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, adding the word " surety" to PRINCIPAL AND SURETY.* 309 « 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 pjgj^-] of a bill drawn payable to the indorser's order.(a) It follows^ therefore, that a discharge to the acceptor is a discharge of all the parties to the bill ; for, if they were still liable, they could either sue the acceptor or they could not. If they could, the dis- charge to the acceptor would be frustrated ; 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 discharged indorser ; 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 indorser, his dis- charge would be frustrated ; if they could not, they must pay the bill without a remedy over. (6) It was formerly held, that where a bill was accepted without con- sideration for the accommodation of the drawer, the drawer was to be considered the principal debtor, and the acceptor as his surety ; and, therefore, that the time given to the drawer would discharge the acceptor,(c) but time given to the acceptor would not discharge the drawer.(^ But this distinction has since been overruled ;(e) and in Courts of Law 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. (/)(1) (a) Claridge v. Dalton, 4 M. & Sel. 226. (6) Smith V. Knox, 3 Bsp. 36 ; Claridge v. Dalton, 4 M. & Sel. 232 ;' Hall v. Cole, 6 Nev. & M. 124, E. C. L. B. vol. 36 ; 4 Ad. & El. 577 ; 1 Har. & W. 722, S. C. (c) Laxton v. Peat, 2 Camp. 185; see Yallop v. Ebers, 1 B. & Ad. 698, E. C. L. E. vol. 20. (d) Collott v. Haigh, 4 Camp. 281. (e) Pentum v. Pocock, 5 Taunt. 192, E. C. L. E. vol. 1 ; 1 Marsh. 14, S. C. ; Carstairs v. EoUeston, 5 Taunt. 551, E. C. L. E. vol. 1 ; 1 Marsh. 207, S. C. {f) "1 think," says Parke, J. "that the decision in Fentumv. Pocock, was good 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. (1) Walker v. Bank of Montgoi^ry, 12 Serg. & Eawle, 382 ; Lewis v. Hanch- man, 2 Barr, 416; Hansborough v. Gray, 3 Grattan, 356; Stiles v. Eastman, 1 Kelly, 205. 310 BYLES ON BILLS OF BXCHANSB. . * 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 *consideration,(^) L J and the holder take it with notice of absence of considerar tion.(A) The indorsers of a note severally stand, as principals or sureties, in the same situation as the indorsers of a bill. When of a joint and several note one maker is in reality principal and the other surety, it is doubtful whether, in any case, evidence is admissible at law to show that one is principal and the other is surety ; and, consequently, that the surety is discharged by time given to the principal.(i) But such evidence is admissible in equity. sense and good law." Price v. Edmunds, 10 B. & C. 578, B. C. L. R. vol. 21 ; Harrison v. Courtauld, 2 B. & Ad. 36, E. C. L. R. vol. 22 ; Nichols v. Norris, 3 B. & Ad. 41, B. C. L. B. vol. 23. The doctrine laid down in Fentum v. Pocock, has, however, been doubted in equity by Lord Bldon. Ex parte Gleudiuning, Buck. 517 ; Bank of Ireland v. Beresford, 6 Dow. 233 ; and by the late Master of the Rolls, Sir John Leach. An accommodation acceptor who pays the creditor is, it seems, entitled to all instruments and securities given by the principal debtor. Dowbiggin v. Bourne, You. Rep. 115. {g) Carstairs v. RoUeston, 5 Taunt. 551, B. C. L. R. vol. 1 ; 1 Marsh. 207, S. C. (h) Nichols V. Norris, 3 B. & Ad. 41, B. C. L. R. vol. 23. (i) Price v. Edmunds, 10 B. & C. 578, E. C. L. R. vol. 21 ; Perfect v. Musgrave, 6 Price, 111. But evidence to that effect has been admitted. Garratt v. Jull, 1 S. N. P. 9th ed. 387 ; Hall v. Wilcox, 1 M. & Rob. 58. In Clarke v. Wilson, 3 M. & W. 208,* it was intended to have raised the question, but on demurrer to defendant's plea judgment was given for the plaintiff. The question, therefore, whether one of two makers of a joint and several promissory note can show by parol that he is liable as surety only, was not decided. In Rees v. Berrington, 2 Ves. jun. 540, Lord Loughborough says, that "where two are bound jointly and severally, the surety cannot aver by pleading that he is bound as surety." See Ashbee v. Pidduck, 1 M. & W. 564,* and ^fhompson v. Clubley, 1 M. & W. 212.* 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, it should seem that, at law at least, such evidence is inadmissible as against the Creditor ; for it is parol evidence to make a written contract conditional, which, on the face of it, is absolute. The evidence does not show absence of consideration, 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 it should further seem, that when the question arises not between the creditor and his debtors, but between those debtors themselves, which was principal and which was surety, parol evidence is admissible atlaw,.asinsuch case it clearly is in equity. Craythorne v. Swinden, 14 Vesey, 170 ; see p. 6. PRINCIPAL AND SURETY. 311 Secondly. As to what transactions between the creditor and the principal debtor will discharge the surety. The creditor must not conceal from the surety any stipulation in the original contract, disadvantageous to the principal debtor. Such concealment is a fraud, and releases the surety.(y) The holder is not obliged to use active diligence in order to r*i 93-1 *recover against the acceptor. (^) He may defer suing him as long as he pleases ; he may even promise not to press him, or not to sue him. Thus, where the executrix of an acceptor verbally promised to pay the holder out of her own estate, provided he would forbear to sue, and he forbore accordingly, it was held that, the agreement being invalid under the Statute of Frauds, the drawer was not dis- charged.(Z) But, if the holder once destroy or suspend, or contract to destroy or suspend, his right of action against the acceptor, the drawer and indorsers are at once discharged, unless the agreement giving time contain a stipulation that the holder shall, in case of default, have judgment at a period as early as he could have obtained judgment if hostile proceedings had continued.(m) But if the agreement contain no stipulation that a judgment shall be given, it is not necessary to aver in a plea disclosing such an agreement, that the time within which the plaintiff might have obtained judgment was postponed.(w) That it was not must either be specially replied, or may possibly (if the form of the averment in the plea admits of it) be proved under a traverse of an actual forbearance.(l) [j] Pidcook V. Bishop, 3 B. & C. 605, E. C. L. E. vol. 10 ; 5 D. & E. 505, S. C. ; Mayhew v. Crickett, 2 Swan. 193 ; Stone v. Compton, 5 Bing. N. Ca. 142, E. C. L. E. vol. 35 ; 6 Scott, 816, S. C; Jackson v. Duchaire, 3 T. E. 551 ; Cecil v. Plais- tow, 1 Ans. 202 ; Middleton v. Lord Onslow, 1 P. Wms. 768 ; Brown v. Wilkinson, 13 M. & W. 14.* (&) Orme v. Young, Holt, N. P. 84; Eyre v. Everest, 2 Euss. 381 ; 3 Mer. 278 ; Trent Navigation v. Harley, 10 East. 34. {I) Philpot V. Briant, 4 Bing. 717, E. C. L. R. vol. 13; 1 M. & P. 754; 3 C. & P. 214, S. C. (to) Kennard v. Knott, 4 M. & Gr. 474, E. C. L. E. vol. 43 ; Michael v. Myers, 6 M. & Gr. 702, B. C. L. R. vol. 46. (n) Kennard v. Knott, 4 M. & Gr. 474, E. 0. L. E. vol. 43 ; Isaac v. Daniel, 15 L. J. 149, Q. B. ; 8 Q. B. Eep. 500, E. 0. L. E. vol. 55. (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 parties to indemnity from those still before them, he cannot resort to the parties thus affected by his conduct. Couch v. Waring, 9 Conn. 261 ; Wood v. Jefferson County Bank, 9 Cowen, 194 ; Okie v. Spencer, 2 312 BYLBS ON BILLS OF EXCHANGE. Payment by the principal of course discharges the surety. The acceptor is bound to pay on the day the bill or note falls due, and therefore he cannot plead in his own discharge a subsequent ten- der.(o) 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, with- in a reasonable time, and before writ issued, perhaps he discharges himself.(p) And, therefore, payment by the acceptor or maker, though after the note has been dishonored, if within a reasonable time, or with interest, and before action brought against the indorser, or a tender of such payment, though it would not discharge himself, would, it should seem, discharge the indorser. A release to the acceptor or maker discharges the indorsers. (o) Hume v. Peploe, 8 East, 168. Ip) Walker v. Barnes, 5 Taunt. 240, E. C. L. R. vol. 1 ; 1 Marsh. .36, S. C. ; Soward v. Palmer, 2 Moo. 294 ; 8 Taunt. 211, E. C. L. R. vol. 4 ; but see Siggers v. Lewis, 1 C. M. & E. 370 ;* 4 Tyr. 847 ; 2 Dowl. 681, S. C. ; ante, p. 176. Wharton, 253; Bank v. Hanrick, 2 Story, 416; Newcomb v. Rayner, 21 Wend. 108; Hawkins v. Thompson, 2 McLean, 111 ; Woodman v. Eastman, 10 N. Hamp. 359. Mere indulgence or delay, however, will not have that effect. There is no obliga- tion to use due diligence, as is generally the case against a principal in order to hold a surety liable, at least where the surety 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. 327 ; Sterling v. Marietta Co., 11 Serg. and Rawle, 179 ; State Bank v. Wilson, 1 Devereux, 484 ; Foreman's Bank v. Rol- lins, 1 Shepley, 202 ; 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 applied as between principal and surety in ordinary cases. Lee v. Love, 1 Call, 497; Bronaugh v. Scott, 5 Call, 78 ; Smallwood v. Woods, 1 Bibb, 542 ; Perrin v. Broad- well, 3 Dana, 596 ; Horton v. Frink, 5 Day, 530 ; Huntington v. Harvey, 4 Conn. 124; Tread way v. Drybread, 4 Blackford, 20; Bishop v. Yeazle, 6 Ibid. 127; Pil- lard V. Darst, 6 Missouri, 358 ; Kilpatrick v. Heaton, 3 Brevard, 92 ; Richetson v. Wood, 10 Missouri, 547 ; Bostor v. Walker, 4 Gilman, 3 ; Hopper v. Sisk, 1 Smith, 102. If the holder of a promissory note be called upon by the indorser, after the note has become due, to prosecute the maker, of whom the amount might then be col- lected, but who afterwards becomes insolvent, and he neglects so to do, this will not discharge the indorser. Trimble v. Thome, 16 Johns. 152 ; Beebe v. West Branch Bank, 7 Watts & Serg. 375. The acceptance by the holder of a judgment against the maker, and time given thereon, will not discharge the indorser if the time so given be not greater than would have elapsed, had a suit been brought and pursued with diligence. Sizer v. Heacock, 23 Wend. 81. PRINCIPAL AND SURETY. 313 So will a general covenant not to sue, for that will enure as *a release ;(§') so a covenant not to sue within a particular time,(r) though it do not in law amount to a release or suspend L the action, (s) So also will a release in law. If the holder makes the acceptor his executor, the indorsers are discharged. (t) A written or verbal agreement, on good consideration, not to sue the acceptor at all, or not to sue him within a specified time, dis- charges the indorsers ; hut if such agreement be without consideration, or otherwise void in law, the indorsers are not discharged.(M)(l) The taking of a new bill from the acceptor, payable at a future day, discharges the indorser8.(ii) (g) Com. Dig. Release. (r) At law, a parol agreement by tlie creditor not to sue the principal is no dis- charge to the surety of a liability he has contracted by deed : Davey v. Pendergrass, 5 B. & Al. 187, B. C. L. E. vol. 1, recognized in Price t. Edmunds, 10 B. & C. 582, E. C. L. R. vol. 21 ; Bulteel v. Jarrold, 8 Price, 467 ;. Cocks v. Nash, 9 Bing. 346, E. C. L. R. vol. 23 ; 2 M. & Sc. 434, S. C. ; sed vide Archer v. Hale, 4 Bing. 464, B. C. L. R. vol. 13 ; 1 M. & P. 285, S. C. ; but, in equity the creditor's giving time to the principal, although by a parol agreement, is a discharge to the surety of a liability created by deed. Eees v. Berrington, 2 Ves. Jun. 540 ; Bulteel v. Jarrold, 8 Price, 467 ; et vide Combe v. Woolf, 8 Bing. 161, E. C. L. R. vol. 21 ; 1 M. & Sc. 241, S. C. ; Bowmaker v. Moore, 3 Price, 214; 7 Price, 228. As to cir- cumstances under which a Court of equity will interfere, see Heath v. Key, 1 Y. 6 J. 434.* But a covenant not to sue upon a simple contract for a limited time, this is not pleadable in bar to an action on the contract against the principal debtor. Thimbleby v. Barron, 3 Mees. & W. 210.* («) Quaere, as to the effect of indulgence as to part of the sum due. See Mayhew V. Cricket, 2 Swanst. 189. {t) Ante, pp. 41, 42. («) Arundel Bank v. Goble, K. B. 1817 ; Chitty, 9th ed. 413 ; 2 Chitty's Rep. 335, S. C. i Wilson v. Whitaker, 2 Marsh. 383, B. C. L. R. vol. 4 ; 7 Taunt. 53, S. C; Brickwood v. Annis, 5 Taunt. 614, E. C. L. R. vol. 1, 1 Marsh. 250, S. C. ; Philpot V. Briant, 4 Bing. 717, B. C. L. R. vol. 13 ; 1 Moo. & P. 754 ; 3 C. & P. 244, S. C. (u) Gould V. Robson, 8 East, 576 ; English v. Darley, 2 B. & P. 62 ; 3 Bsp. 49, S. C. (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 protest is made and notice given. De Witt v. Bigelow, 11 Alabama, 480. An agreement to give time must be legally binding on the holder in order to discharge the indorsers. Bagley v. Buzzell, 1 App. 88 ; Low v. Underhill, 3 McLean, 376 ; Lockwood v. Crawford, 18 Conn. 361 ; Chute v. Patlee, 37 Maine, 102. 314 BYLES ON BILLS OF EXCHANGE. Discharging the acceptor or a prior indorser from execution, dis- X charges the other indorsers ;(w) but discharging a *subsequent ^ -I indorser from execution aifords no defence to a prior indor- ser.(a;) A second execution against 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.(«/) Part payment by the principal or by the surety will not discharge the surety.(2)(l) A mere offer to give time to the acceptor not acted upon, will not discharge the drawer. (a) The taking a cognovit or warrant of attorney from the acceptor, though payable by instalments, will not discharge the indorsers, pro- vided the last instalment be not postponed beyond the period when, (w) " It is," says Lord Eldon, " a question fit to be tried at law, whetlier, if a party takes out execution on a bill of exchange, and afterwards waives that execu- tion, he has not discharged those who were sureties for the due payment of the bill. The principle is, that he is a trustee of his execution for all parties interested in the bill." Mayhew v. Crickett, 2 Swanst. 190. But it has been decided, that the withdrawing of an execution against the goods of an acceptor will not discharge such drawer, and that the rule, that giving indul- gence to an acceptor without the consent of the drawer discharges such drawer, does not apply after judgment. Pole v. Ford, 2 Chitty, 126 ; Bray y. Manson, 8 M, & "W. 668;* but see English v. Darley, 2 B. & P. 62 ; 3 Esp. 49, S. C. It is con' ceived that when the obligation of a surety is pursued to judgment, he is, at law, no longer surety, but an absolute debtor, yet that equity, regarding the substance and not the form of his obligation, may consider him still a surety, entitled to all the securities which the creditor holds, and perhaps discharged by indulgences to the principal. Vide Bray v. Manson, ubi supra. [x) Hayling v. Mulhall, 2 Bl. 1235. In the marginal note of this case, the words " prior'' and " subsequent" are transposed. See English v. Darley, 2 B. & P. 62 ; 3 Esp. 49, S. C. (y) Atkinson v. Bayntun, 1 Bing. N. C. 444, E. C. L. R. vol. 27 ; 1 Scott, 404, S. C. (z) Walwyn v. St. Quentin, 1 B. & P. 652 ; 2 Esp. 515, S. C. , (a) Hewet v. Goodrick, 2 C. & P. 468, E. C. L. E. vol. 12 ; BadnallV. Samuel, 3 Price, 521. (1) The holder is not obliged to receive part payment from the maker. ^Jennings V. Shrive, 5 Blackford, 37. Contra ; Hightowu v. Joy, 2 Porter, 308. PRINCIPAL aWd surety. , 315 in the ordinary course of the action, judgment and execution might have been had.(J) The obtaining of a judgment against any one party, without satis- faction, is no discharge of any other party.(c) If the acceptor is a bankrupt, the holder may prove and receive a dividend under the commission, for the acceptor is, in case of bank- ruptcy, discharged, not by the act of the holder, but by act of law. Upon the same principle, if the acceptor, being charged in execu- tion at the suit of the indorsee, is discharged under the Insolvent Act, the indorsee has his remedy against the drawer.(c?) *But if the holder voluntarily accepts a composition, the r*jQg-| indorsers are discharged. (e) Though the taking of a fresh bill from the acceptor in lieu of the dishonored bill, discharges the other parties, it will not have the effect, if the second bill or second security, whatever it be, were given as a collateral security. (1) Where a bill having been dishonored, the acceptor transmitted a new bill for a larger amount to the payee, (b) Jay V. "Warren, 1 C. & P. 532, B. C. L. R. toI. 12; and see Lee v. Levy, 6 Bowl. & R. 475, E. C. L. E. vol. 16 ; 4 B. & C. 390 ; 1 C. & P. 553, S. C. ; Hulme V. Coles, 2 Simon, 12; Stevenson v. Roche, 9 B. & C. 707, E. C. L. R. vol. 17 i Price V. Edmunds, 10 B. & C. 578, B. C. L. E. vol. 21. (c) Claxton v. Swift, 2 Show. 441-494; 1 Lutw. 878. (d) See the Chapter on Discharge under the Acts for the Relief of Insolvent Debtors; Nadin v. Battie, 5 East, 147; 1 Smith, 362, S. C. ; and see English v. Darley, 2 B. & P. 62 ; 3 Esp. 49, S. C. If a creditor execute a deed of composi- tion, having indorsed away bills on the debtor, the deed is no defence to an action on the bills when they are returned to the creditor. Margetson v. Aitken, 3 C. & P. 338, 'B. C. L. R. vol. 14; 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 C: & M. 30 ;* 3 Tyr. 226, S. C. * (e)Ex parte Wilson, 11 Vea. 412; Ex parte Smith, Co. B. L. 189; Ellison v. Dezell, 1 S. N. P. 9th ed. 365. (1) If the holder of a note receives a bond and warrant of attorney from the maker, for the purpose of entering judgment thereon and increasing his security, the bond and warrant will be considered only as collateral security, and the in- dorser will not be thereby discharged. Mohawk Bank v. Van Home, 7 Wendell, 117. 316 BYLES ON BILLS OF EXCHANQB. but had not any communication with him respecting the first, and the payee discounted the second bill and indorsed the first to the plaintifi"; it was held, that the second bill was merely a collateral security, and that the receipt of it by the payee did not amount 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 acceptor, the other parties to the bill are discharged ; but in no case has it been said, that taking g, collateral security from the acceptor shall have that effect. Here the second bill was nothing more than a collateral security. "(/) B., being indebted to A., procured C. to join with him in giving a joint and several promissory note for the amount, and afterwards, having become further indebted, and being pressed by A. for further security, by deed reciting the debt, and that for a part a note had been given by him and C, and that A. having demanded payment for the debt, B. had requested him to accept a further security, assigned to A. all his household goods, &c., as a further security, it was held, that this did not affect the remedy on the note against C.(^) So, where one of the three partners, after a dissolution of partnership, under- took by deed made between the partners to pay a particular partner- ship 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 reserving his right against all three, and re- tained possession of the original bills, the separate notes having p^^ 0^-1 proved unproductive, it was held, that he might *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, did not amount to satisfaction of the joint debt.(A) Where a contract is entered into by the holder with a stranger, which, if made with the acceptor, would have discharged the indorser, it has been suggOTted, that the acceptor's assent to a contract for his benefit may be presumed.(«) ' (/) Pring V. Clarkson, 1 B. & C. U, E. C. L. R. vol. 8 ; 2 Dowl. & R. 78. See the observations on this case, Bayley, 6th ed. 3i1. {g) Twopenny v. Young, 3 B. & C. .308, B. C. L. R. vol. 10 ; 5 Dowl. & R. 259, S. C. (A) Bedford v. Dealdn, 2 B. & Al. 210 ; 2 Stark. 178, S. 0. (i) See Lyon v. Holt, 5 M. & W. 250, sed quEere. PRINCIPAL AND SURETY. 317 Though the drawee should not have accepted the hill, yet it is con- ceived that the holder, by giving up the bill to him and taking from him a substituted bill at a longer date, would discharge the prior parties, though he have given due notice of dishonor. 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 debtor's debtor for payment, and instead of taking cash elects to take a bill, he discharges his former debtor. (/<;) If, however, the holder being unable to obtain cash, takes a bill from the drawee as a collateral security, and keeps the original bill, it is conceived that his remedies on the original bill would not be aifected, and that, as be- tween himself and the drawer, there would be a good consideration for the new bill.(Z) A warrant of attorney is only a collateral security.(m) Thirdly, as to the means by which the discharge of the principal may be prevented from operating as a discharge to the surety. It has been repeatedly held, and is now well established, that a discharge by the creditor to the principal debtor will not discharge the surety, if there be an agreement between the creditor and the principal that the surety shall not be thereby discharged. (?i) Albeit the surety himself is no party to the stipulation ; and the surety's remedy over against the principal *is intact whether the surety r-^^.-. qq-, be or be not a party,(o) unless the instrument amount to a release of one of several joint or joint and several debtors. (p) But this stipulation must appear on the face of the instrument giving time, and cannot if the indulgence be in writing, be proved by parol. (^) No indulgence to an acceptor or other prior party will discharge {k) Strong v. Hart, 9 D. & R. 189, E. C. L. R. vol. 22 ; 6 B. & C. 160 ; Smitli v. Fen-and, 1 B. & C. 19, B. C. L. R. vol. 14; 9 D. & R. 803; but see Robinson v. Read, 9 B. & C. 449, E. C. L. R. vol. 17 ; 4 M. & E. .349, S. G. {I) Vide thp Chapter on Consideration, Debt of a Third Person, p. 96. (to) Norris v. Aylett, 2 Camp. 329. i («) Burke's cVse, 6 Ves. 809 ; Boultbee v. Stubbs, 18 Ves. * ; Ex parte Glen- dinning, Buck, 517 ; Ex parte Carstairs, Ibid. 560 ; Harrison v. Courtauld, 3 B. & Ad. 36, E. C. L. R. vol. 23 ; Nichols v. Norris, Ibid. 41, n. ; Cowper v. Smith, 4 M. & W. 519 ;* Smith v. Winter, 4 M. & W. 454.* (o) Kearsley v. Cole, 16 M. & W. 128.* (p) Ibid. It is not unusual to insert in the original contract of suretyship a stipulation, that a composition with the. principal shall not release the surety. See Cowper V. Smith, 4 M. & W. 519.* (q) Ubi supra. I 318 BYLBS ON BILLS OF BXCHANSB. an indorser, if he previously consent to it. Thus, where the acceptor, having been arrested by the holder, offered 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. (r) Lastly, 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 subsequent assent will be a waiver of his discharge without any new considera- tion.(s) 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 the acceptor does not pay it I will," the drawer was held to have waived his discharge.(^) But where a bill was renewed, and an indorsee said, "It was the best thing that could be done," it was held, that this was no recognition of his liability, (m) 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 creditor releasing him, or making him executor, or taking from him p, compo- sition and erasing his name from the note, will be a discharge of the p;^-|QQ-| co-surety, and also of the principal debtor ;(«) *but the dis- -* charge, in this case, does not proceed on the law of princi- pal and surety. If on6 who is surety on a joint and several note, signed by the principal, pay the amount, though without any request or compulsion by the creditor, he may recover it of the principal.(w) Where the sureties are not, as between themselves, principal and pi [r] Clark v. Devlin, 3 B. & P. 363. [s] Mayhew v. Crickett, 2 Swanst. 185 ; Smith v. Winter, 4 M. & "W. 46?.* \i) Stevens v. Lynch, 12 East, 38 ; 2 Camp. 332, S. C; Smith v. Winter, 4 M. & W. 454.* {«) Withall V. Masterman, 2 Camp. 179 ; Clark v. Devlin, 3 B. & P. 363 jTindal v. Brown, 1 T. R. 167 ; English v. Darley, 2 B. & P. 61. (v) Nicholson v. Revill, 4 Ad. &,B. 675, E. C. L. R. vol. 31; 6 N. & M. 192; 1 Har. & W. 753, S. C. (w) Pitt V. Purssord, 8 M. & W. 538.* PROTEST AND NOTING. 319 surety, as a prior and subsequent indorser of a bill or note are, but merely co-sureties, as two or more joint, or joint and several, makers of a note, if one be called on to pay the whole debt, the other shall severally contribute in equal proportions. And though the same debt be secured by different instruments, 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 contribution, (a;) A surety has a right of action against his co-surety as soon as he has paid his proportion of the debt ;(«/) but he has a fresh right of action against the principal for every sum that he pays. 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.(s) The right of a surety to contribution fronj his co-surety, is 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. (a) If a surety pay money to the creditor under a mistake as to the facts supposed to constitute his liability, he may recover it back.(6) *CHAPTEK XIX. OF PROTEST AND NOTING. PROTEST NECBSSAKT ON FOREIGN BILLS, AND WHY, . . . 200 BY WHOM TO BE MADE, . . . 200 OFFICE OF A NOTARY, . . .201 WHEN TO BE MADE, . . . 201 WHERE TO BE MADE, . . .201 FORM OF PROTEST, . . .201 STAMP ON PROTEST, . . . 202 FOR BETTER SECURITY, . NOTING, WHAT, NOTICE or PROTEST, COPY OF PROTEST, WHEN PROTEST EXCUSED, PROTEST OF INLAND BILLS, PLEADING, . EVIDENCE, . [*200] . 202 . 202 . 203 . 203 . 203 . . 204 . 204 . 205 it was and charge the V. Crickett, 2 When a foreign bill is refused acceptance or pajiment, still is necessary, by the custom of merchants, in order to (!c)Deermg v. Earl of Winchelsea, 2 Bos. & P. 270; Ma;yliew Swanst. 184. (y) Davies v. Humphreys, 6 M. & W. 153 ;* Cowell v. Edwards, 2 B. & P. 268 ; Browne v. Lee, 6 B. & C. 689, E. C. L. R. vol. 13. ^ , («) Kemp V. Finden, 12 M. & W. 421.* (a) Done v. Whalley, IT L. J. 225, Bxeh. ; 2 Exch. Rep. 198,* S. C. (6) Mills V. Alderbury Union, 3 Exch. 690.* 320 BYLBS ON BILLS OF EXCHANGE. drawer, that the dishonor should be attested by a protest. (a) For, by the law of most foreign nations,(J) a protest is, or was, essential in case of dishonor 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 of international transactions, a foreign bill must be pro- tested. (c)(1) Besides, a protest affords satisfactory evidence of dis- honor 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 in- dorsee with the best evidence to charge an antecedent party abroad ; for foreign Courts give credit to the acts of a public functionary, in ' (a) Gale v. Walsh, 5 T. R. 239 ; Rogers v. Stephens, 2 T. R. 713 ; Orr v. Maginnis, 1 East, 359 ; 3 Smith, 328, S. C. (b) Poth. 217. (c) See Brough v. Perkins, 1 Salk. 131 ; 2 Ld. Raym. 993 ; 6 Mod. 80, S. C. ; and the argument in Trimby v. Vignier, 1 Bing. N. Ca. 151, B. C. L. R. vol. 27 ; 4 M. & Sc. 955 ; 6 C. & P. 25, 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. 548 ; "Grafton Bank v. Moore, 14 N. Hamp. 142. Where the drawee 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 acceptance 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, 2 Bay. 376; Union Bank v. Hyde, 6 Wheaton, 572; Duncan v. Course, 1 Rep. Const. Ct. 100 ; Read v. The Bank of Kentucky, 1 Mon- roe, 91 ; Carter v. Burleigh, 9 N. Hamp. 658 ; 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, 572; Millerv. Hackley, 5 Johns.375; Payne v. Winn, 2 Bay, 376; 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, 102; Murry v. Clay- born, 2 Ibid. 300; McMarchey v. Robinson, 10 Ohio, 496; Hubbard v. Troy, 2 Iredell, 134; Bailey v. 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 promissory note. Payne v. Winn, 2 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 Harri- son, 487 ; Evans v. Gordon, 8 Porter, 142 ; Smith v. Gibbs, 2 Smedes & Marshall, 479; Piatt v. Drake, 1 Doug. 296. PROTEST. 321 the same manner as a protest under the seal of a fcreign notary is evidence in our Courts of the dishonor of a bill payable abroad.(d) But a protest is not necessary on a foreign promissory note.(e) The protest should be made by a notary public ; but, if there be no such notary in or near the place where the bill is *payable, p^o^.,-, it may be made by an inhabitant, in the presence of two wit- '- J nesses.(/)(l) A notary, registrarius, actuarius, scrinarius, 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 Archbishop of Canterbury, who, in the instrument of appointment, decrees, " that full faith be given, as well in as out of judgment, to the instruments by him to be made."(g') This appointment is also registered and sub- scribed 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 11th section of this statute, any person acting for reward as a notary, without being duly admitted, forfeits 501. to him that will sue for the same. By the 6 Geo. 4, c. 87, s. 20, her Majesty's consuls at foreign ports or places are empowered to do all notarial acts. And, by 3 & 4 Wm. 4, c. 70, attorneys residing more than ten miles from the Royal Exchange may be admitted to practise as notaries. The protest of a foreign bill should be begun, at least (and such an incipient protest is called noting), on the day on which acceptance or payment is refused ;(i) but it may be drawn up and completed at any (d) Anon.; 12 Mod. 345; Rep. temp. Holt, 29T. (e) See Bonar v. Mitchell, 19 L. J. Bxch. 302. (/) Bayley, 210. {g) Ayliffe's Parergon, 385 ; 3 Burn's Eccl. Law, 1. (h) And see 6 & 7 Vict. c. 90. (i) B. N. P. 272. (1) A demand of payment of a note may be made by a clerk of the notary. Sussex Bank v. Baldwin, 2 Harrison, 487. The notary who fills np and certifies the protest must present the bill himself; it cannot be done by an agent. Carmichael v. Pennsylvania Bank, 4 Howard, Mias. 567 ; Sacrider v. Brown, 3 M'Lean, 481 ; Chenowith v. Chamberlin, 6 B. Monroe, 60 ; Bank of Kentucky v. Garey, Ibid. 626 ; Carter v. Union Bank, 7 Humph. 548. 21 322 BYLES ON BILLS OF BXCHANSB. time before the commencement of the suit,(A;) or even before the trial,(Z) and antedated accordingly. An inland bill cannot be pro- tested for non-payment till the day after it is due.(m)(l) A protest is usually made where the dishonor occurred. (n) The 2 & 3 Wm. 4, c. 98, enacts that a bill made payable 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, pro- tested for non-payment in the place where it has been made pay- able.(o) r*2fl21 ^ protest is, in form, a solemn declaration, written by the *notary under a fair copy of the bill, stating that payment or acceptance has been demanded and refused, the reason, if any, as- signed, 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 himself of the qualified ac- eeptance.(p)(2) A protest is subject to stamp duty according to the following scale •.{q) — On a bill or note not amounting to 201., . Amounting to 20?., and not amounting to 1001., Amounting to lOOL, and not amounting to 5001., Amounting to 5001., or upwards., . . . . 10 (h) Chaters v. Bell, 4 Esp. 48 ; Selw. 9th ed. 360, S. C. ; but see Vandewell v, Tyrrell, M. & M. 87, where there is payment for- honor. (I) Bui. N. P. 272 ; Orr v. Magennis, 1 East, 361 ; Thompson on Bills, p. 147. (m) 9 & 10 Wm. 3, c. 17. '^ {n) See Mitchell v. Baring, 10 B. & C. 4, B. C. L. R. vol. 21 ; M. & M. 381 ; 4 C. & P. 35, S. C. (o) See the Statute in the' Appendix. {p) Bentinck v. Dorrien, 6 East, 199 ; 2 Smith, R. 337, S. C. ; Sproat v- Matthews, 1 T. R. 182. (q) 55 Geo. 3, c. 184, Sohed. Protest. (1) A protest is properly made on the last day of grace. Battertons v. Porter, 2 Litt. 388 ; Mills v. Rouse, Ibid. 207 ; Ontario Bank v. Petrie, 3 Wend. 456. If the last day of grace be Sunday, protest should be made on Saturday. Ofiutt T. Stout, 4 J. J. Marsh. 332. (2) 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. B. 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 the protest from being read in evidence to the jury. Dennistown v. Stewart, 17 Howard, 606. £ s.d. 2 3 5 PKOTEST. 323 Besides the protest for non-acceptance and for non-payment, the holder may protest the bill for better security. Protest for better security 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 circumstances ;(r) except that, after such protest, there may be a second acceptance for honor.(«) Whereas, without the in- tervention of a protest, there cannot be two acceptances on the same bill.(f) Noting is a minute made on the bill by the oflScer 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 ;(m) and is considered as the preparatory step to protest. " Noting," says Mr. J. Buller, " is unknown in the law, as distinguished from the protest : it is merely a preliminary step to the protest, and has grown into practice within these few years."(t') A bill, however, is often noted, where no protest is either meant or contemplated, as in the case of many inland bills. The oise of it seems to be, that a notary being a person conversant in such transactions, is qualified to *direct rncoo^l the holder to pursue the proper conduct in presenting a bill, and may, upon a trial, be a convenient witness of the presentment and dishonor. In the meantime, the minute of the notary, accom- panying the returned bill, is satisfactory assurance of non-payment or non-acceptance, to the various parties by whom 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 pro- testing are thereby fixed at 6c?., it has been said, that no more can be charged for noting,(w) though it is usual to charge more.(a;) The Court will not allow the expense of noting to be recovered (?•) Anon. 1 Ld. Baym. 743 ; Chitty, 9th ed. 343 ; Mar. 110. (s) Ex parte Wackerbath, 5 Ves. 574. (i) Jackson v. Hudson, 2 Camp. 447. (u) Kyd, 87. (u) Leftley v. Mills, 4 T. R. 170. (w) Ibid. ; Chitty, 9th ed. 465. (a;) Vide Appendix. 324 BYLBS ON BILLS OF EXCHANGE. against the acceptor,(«/) unless it be laid as special damage in 'the declaration. (1) If the drawer reside abroad, a copy, or some memorial of the pro- test, ought to accompany the notice of dishonor, (s) But notice of the protest certainly is not necessary, if the drawer resides within this country, though, at the time of non-acceptance, he may happen to be abroad ;(a) nor if, at the time of dishonor, he have returned home to this country. "If," says Lord Ellenborough, "the party is abroad, he cannot know of the fact of the bill having been protested, except by having notice of the protest itself ; but, if he be at home, it is easy for him, by making inquiry, to ascertain that fact."(6) And it is now decided that a eopy of the protest need not in any case be sent.(c)(2) Proof of a protest of a foreign bill is excused, if the drawer had no effects in the hands of the drawee, and no reasonable expectation that the bill would be honored ;(<;?) or if the drawer has admitted his lia- bility, by promising to pay. "By the drawer's promise to pay," ob- serves Lord Ellenborough, " he admits the existence of everything which is necessary to render him liable. When called upon for pay- ment of the bill, he ought to have objected that there was no protest. Instead of that, he promises to pay it. I must, therefore, presume r*904n ^® *^^^ ^^^ notice, and that a protest was regularly drawn up by a notary, "(e) [y) Hobbs v. Christmas, Sittings after Mms. T. 1831 ; Kendrick v. Lomax, 2 C. & J. 405;* 2 Tyr. 438, S. C. ; see post. (z) Bayley ; Poth. 148 ; Robins v. Gibson, 1 M. & S. 288, vide supra, Chap, on Notice.of Dishonor. (a) Cromwell v. Hynson, 2 Bap. 511. (6) Robins v. Gibson, 1 M. & Sel. 288 ; 3 Camp. 334, S. C. (c) Goodman v. Harvey, 4 Ad. & B. 870, E. C. L. R. vol. 31 ; 6 N. & M. 372, S. C. Id) Legge v. Thorpe, 12 East, 171; 2 Camp. 310, S. C. (e) Gibbon v. Coggon, 2 Camp. 188 ; Patterson v. Beecher, 6 Moore, 319 ; Green- way V. Hindley, 4 Camp. 52. (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 Alabama, 135. (2) It is unnecessary that a copy of the protest of a foreign bill should be included in the notice. Dennistown v. Stewart; 17 Howard, 606. PROTEST. 325 And it is said, that where the drawer adds a request or direction, that in the event of the bill not being honored by the drawee, it shall be returned without protest, by writing the words, "retour sans protit," or "sansfrais," a protest as against the drawer, and perhaps as against the indorsers,(/) is unnecessary. Inland bills may be protested for non-payment under the 9 & 10 Wm. 3, c. 17, and for non-acceptance under the 3 & 4 Anne, c. 9. But it has been held, that a protest is unnecessary, except to enable the holder to recover interest ;{g) and subsequent and uniform prac- tice, confirmed by a late decision,(A) has settled that it is superfluous even for this purpose. (1) Foreign bills are very frequently protested, both for non-accep- tance and non-payment : but a protest is hardly ever made for non- acceptance of an inland bill, though it is sometimes protested for non- payment.(^■)(2) It is conceived, that a protest of an inland bill is unknown to the common law, and must, therefore, derive its eflScacy from the above enactments ; from which it will follow, that it is ap- plicable only to such instruments as are therein described, and that the steps therein required must be taken. As the 3 & 4 Anne, c. 9, puts promissory notes on the same footing as bills, it should seem to authorize a protest : and such protest is accordingly sometimes made. (A) It would, therefore, be no practical benefit further to discuss the pro- visions of these two loosely drawn and obscure statutes, with respect to the protest of inland bills. The loss of a bill is no excuse for the absence of protest. (Z) In an action against the drawer of a foreign bill, protest must be (/) 1 Pardessus, 540 ; Chitty, 9th ed. 165. (gr) Harris v. Benson, 2 Stra. 910. Ih) Windle V. Andrews, 2 B. & Al. 696 ; 2 Stark. 425, S. C. (i) Kyd, 95; 2 & 3 Wm. 4, c. 98. {k) Kyd, 97. (I) Pothier, 145. (1) Protest for non-payment is not necessary to charge the acceptor with the principal sum ; but if no other evidence of a demand is given, a protest is necessary to charge him with interest. Lang v. Brailsford, 1 Bay. 222. (2) When a protest for non-acceptance as well as non-payment is necessary, see Brown v. Barry, 3 Dall. 368 ; Clarke v. Russell, Ibid. 424 ; Read v. Adams, 6 Serg. & Rawle, 356 ; Lenox v. Leverett, 10 Mass. 5 ; Duncan v. Course, 1 Rep. Const. Ct. 103 ; Phillips v. McCurdy, 1 Har. & Johns. 187 ;• Thompson v. Gumming, 2 Leigh, 321 ; Martin v. Ingersoll, 8 Pick. 1 ; Chase v. Taylor, 4 Har. & J. 54 ; Fleming v. McClure, 1 Brevard, 428. 326 BYLBS ON BILLS OF EXCHANGE. averred(?w) as well as proved ; and it has been held, that, if protesi of an inland bill be set forth in pleading, it *must be proved.(w) L -■ 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 since been decided, that such a claim may be made without protest.(o) In an action on a foreign bill, presented abroad, the dishonor 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 inhabitant, in the presence of two witnesses.(p) But a protest made in England is not evidence of the presentment here.(2')(l) A promise to pay is good prima facie evidence of protest,(r) and of notice thereof.(s) * [*206] *piAPTEP. XX. OP ACCEPTANCE SUPRA PROTEST, OR FOR HONOR.(a) MODE OF SUCH ACOEPTAISrCE WHO MAT SO ACCEPT, COUDUOT WHICH HOLD! 206 206 207 LIABILITY OF ACCEPTOR SUPRA PRO- TEST, 208 BIGHTS OF ACCEPTOR SUPRA PRO- TEST, 209 When acceptance is refused, and the bill is protested for non-ac- ceptance, or where it is protested for better security, any person may [m) But the absence of the allegation of protest is a defect of form only. Salo- mons V. Stavely, 3 Doug. 298 ; Gale v. Walsh, 5 T. Rep. 239; Armani v. Castrique, 13 M. & "W. 443.* (n) Boulager v. Talleyrand, 2 Esp. 550. (0) Windle v. Andrews, 2 B. & Al. 696 ; 2 Stark. 425, E. C. L. R. vol. 3, S. G. (p) Anon. 12 Mod. 345 ; Rep. Temp. Holt, 297, S. C. (g) Chesmer v. Noyes, 4 Camp. 129. (r) Patterson v. Beecher, 6 Moore, 319 ; Gibbon v. Coggon, 2 Camp. 188; Camp- beU V. Webster, 15 L. J. 4, C. P. ; 2 C. B. Rep. 258, E. C. L. R. vol. 52, S. C; Greenway v. Hindley, 4 Camp. 52. [s) Ibid. (as) Called in French, "Acceptation par Intervention," Code de Commerce, 126. (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 Blackford, 367. The notarial certificate is sufficient proof of the dishonor of a foreign bill. Brydon T. Taylor, 2 Harr. & John^. 399 ; NichoUs v. Webb, 8 Wheat. 333 ; Townsley v. Sumrall, 2 Peters, 179 ; Lonsdale v. Brown, Ibid. 688 ; Chanvine v. Fowler, 3 Wendell, 173 ; Bank v. Pursley, 3 Monroe, 238 ; Chase v. Taylor, 4 Ear. & Johns. 54. ACCEPTANCE SUPRA PROTEST. 327 accept it, supra protest,(6) for the honor of the drawer, 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 ap- pear before a notary public, with witnesses, and declare that he ac- cepts such protested bill in honor 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 — " Ac- cepted, supra protest, in honor of A. B.," &c. ;(c) or, as is more usual "Accepts, S. P." And a general acceptance, supra protest, which does not express for whose honor it is made, is considered as made for the honor of the drawer, (c?) Any person may accept a bill supra protest : and the drawee him- self, though he may refuse to accept the bill generally, *may poOTl yet accept it supra protest, for the honor of the drawer or of an indorser. (e) And, though we have s n that, after one general acceptance, there cannot be another aci nce,(/) yet, when a bill has been accepted, supra prqJSst, for the nor of one party, it may by another individual, be Accepted, supra protest, for the honor of another.(^) In no one case is the holder obliged to take an accept- ance for honor.(A)(l) (6) I am not aware of any authority to show that there nay be an acceptance for honor without a protest, and the statute 6 & 7 "Wm. 4, c. ! ^, seems to assume that bills accepted for honor are always protested ; and see Vandewall v. Tyrrell, M. & M. 87 ; Bayley, 6th ed. 181. Unless, indeed, there be a direction to another person in case of need. Chitty, 165, 236. "Where the direction, in case of need, is appended by the drawer, 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 honor. As to a direction " in case of need" on an indorsement, see Leonard v. Wilson, 2 C. & M. 589.* There seems from that case no obligation to present an inland bill (where the direction in case of need is given by an indorser) to the party to whom in case of need it may be presented. (c) Beawes, pi. 38. id) Chitty, 9th ed. 344 ; Beawes, 39. (e) Beawes, 33. (f) Jackson v. Hadson, 2 Camp. 447. {g) Beawes, pi. 42. (A)Mutford V. Walcott, 12 Mod. 410; 1 Ld. Raym. 675, S. C; Beawes, 37; Gregory v. Walcup, Comb. 67 ; Pillans v. Van Mierop, 3 Bur. 1663. (1) A stranger to the drawer and^ndorser of a bill may intervene supra protest, and accept. And it is no objection to such intervention (and does not 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. 328 BYLBS ON BILLS OF EXCHANGE. The holder of a dishonored bill, who is offered an acceptance for the honor of some 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 refused, the bill should be protested a second time for non- payment :(«') and then presented for payment to the acceptor for honor.(A) Doubts having arisen as to the day when the bill should be again presented to the acceptor for honor, or referee, in case of need for payment, the 6 & 7 Wm. 4, c. 58, enacts, that it shall not be necessary to present, or in case the acceptor for honor or referee live at a distance, to forward for presentment, till the day following that on which the bill becomes due.(Z) In a late case, which has attracted much attention, it was proved, r*9flS1 *^^^^ where a foreign bill, drawn upon a merchant residing in Liverpool, payable in London, is refused acceptance, 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 Royal 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 (i) Hoare v. Cazenove, 16 East, 391. Ik) WiUiams v. Germaine, 7 B. & C. 477, E. C. L. R. vol. 14; 1 M. & E. 394, S. C. (I) According to the French law the acceptor for honor is bound to give notice to the person for whose honor he accepts. " L'intekvenakt est ten0 de notifier SANS delai son iKTEBVENTioir A CELui pouK QUI iL EST iNTERTENU," Code de Com- merce, 127: "Parceqne autrement," says Rogron, "le tireur, ignorant ce qui est arrive, pourrait envoyer la provision au tire: I'observation de cette disposition donne lieu i des dommages-interets contre I'accepteur par intervention si le tireur en eproave quelqne prejudice." But according to Beawes, pi. 47, any one accept- ing a bill, supra protest, for the honor of the drawers or indorsers, though without their order or knowledge, has his remedy against the person for whose honor he accepted. It seems, that according to the Scotch law, a holder, may take an ac- ceptance supra protest, and yet sue the drawer or indorsers. Thompson, 489. Such is certainly the French law : " Le porteur de la lettre de change conserve torn ses droits contre le tireur et les endosseurs d raison du defaut d: acceptation par celui sur qui la lettre etait iiree, nonohstant toutes acceptations par intervention.'' Code de Commerce, 128. ACCEPTANCE SUPKA PROTEST. 329 in London, be, in ordinary case^, sufficient. But they were all agreed that it would not have been sufficient in the principal case to charge the acceptor supra protest, because the acceptance was in these words — ^^ If regularly protested and refused when due;" and they said the drawees could not be said to refuse, unless they were asked. The Court also appear to have been clear, that though there might be cases in which an exhibition of the bill to a notary in London is sufficient, yet that in all cases a bill may be sent to the drawee, dnd indeed that such is the more regular course. (m)(l) By the 2 & 3 Wm. 4, c. 98, it is enacted, that all bills made paya- ble by the drawee in any place other than his residence, are, on non- acceptance, to be protested without further presentment for non-pay- ment in the place where they are made payable. The undertaking of the acceptor supra protest, is not an absolute engagement to pay at all events, but only a collateral conditional engagement to pay, if the drawee do not. "It is," says Lord Ellen- borough, "an undertaking to pay, if the original drawee, upon a presentment to him for payment, should persist in dishonoring the bill, and such dishonor by him be notified, by protest, to the person who has accepted for honor, "(w) The learned Judge proceeds to lay down the doctrine that a second protest, is necessary ; observing : " The use and convenience, and, indeed, the necessity of a protest upon foreign bills of exchange, in order to prove, in many cases, the regularity of the proceedings thereupon, is too obvious 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 *second protest, for non-payment !-.„„„-, by the drawee, is, after acceptance supra protest, equally ne- '- -* cessary, in order that either the holders may charge the acceptor (m) Mitchell V. Baring, 10 B. & C. 4, B. C. L. R. vol. 21 ; M. & M. 381 ; 4 C. & P. 35, S. C. (n) Hoare v. Cazenove, 16 East, 391. See Vandewall v. Tyrrel, M. & M. 87. (0) Ibid. (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 protest. 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. 330 BYLBS ON BILLS OF EXCHANGE, supra protest, or the acceptor supra protest may charge the party for whose honor the acceptance was given. The object of an acceptance for honor 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 enabling the latter to sue the party for whose honor he has accepted. And the time which the bill has to return is computed, not fropi the date of the exhibition to drawee, but from the date of the acceptance supra protest.(^) Pre- sentment to the drawee, and protest, must be averred in the declara- tion. (g') The acceptor supra protest, becomes liable to all parties on the bill subsequent to him for whose honor the acceptance was made.(r) By acceptance supra protest, the party for whose honor it was made, and all parties antecedent to him, become liable to the accep- tor supra protest, for all damages which he may incur by reason of his acceptance. (s) The acceptor supra protest, where the bill has been protested for better security, has his remedy also against the acceptor ;{t) but, in case of bankruptcy of both drawer and acceptor, if the acceptance were for the accommodation of the drawer, the acceptor supra protest must first resort to the drawer's estate.(M) But(w) it has been since held that, in such a case, a party paying for the honor of the drawer supra protest, has no claim on the assignees of the acceptor, because the drawer himself had none.(l) [p) Williams V. Germaine, ? B. & C. 468, E. C. L. B. vol. 14 ; 1 Man. & E. 394, 403, S. C. (2) Ibid. {r) Hoare v. Cazenove, 16 Bast, 391 ; Bayley, 6tli ed. 178 ; Beawes, 33 ; Marius, 21 ; Ex parte Waekerbath, 5 Ves. 574. (s) Beawes, 47. {t) Ex parte Waekerbath, 5 Ves. 574. (u) Ibid. (v) Ex parte Lambert, 13 Ves. 179. (1) If a third party takes up a bill at its maturity for the honor of the drawer, and at his request, he thereby releases the accommodation acceptor of such bill, whether he intended it or not. McCowell v. Cook, 6 Smedes & Marshall, 420. PAYMENT SUPRA PROTEST. 331 *CHAPTEE XXI. OF PAYMENT SUPBA PROTEST, OR FOR HONOR. [*210] WHAT AND HOW MADE, . . .210 BIGHT OF PARTY PAYING SUPRA PRO- TEST, ..... 210 NOTICE OF DISHONOR BY, . .211 CANNOT REVIVE LIABILITY, . .211 PAYMENT WITHOUT PROTEST, . .211 211 BE ACCOMMODATION BILLS, WHEN THE PROTEST SHOULD MADE, 211 NO PAYMENT SUPRA PROTEST OP PROMISSORY NOTES, . . . 211 Payment supra protest, is where a bill of exchange, having been protested for non-payment, is paid by another person, for the honor of some one of the parties. Any party to a bill of exchange, whether drawer, drawee, payee, or indorser, may pay for honor. So may a mere stranger without 'any previous request or authority from the party for whose honor he pays. This right is not founded on the English common law, but is a provision of the general law merchant introduced to aid the credit and circulation of bills of exchange. It extends to no other instrument. It is said that such payment should be preceded, on the part of the payer, in the presence of a notary public, by a declaration for whose honor the bill is paid, which should be recorded by the notary, either in the protest or in a separate instru- ment.(a) It is clear that there can be no payment for honor till the bill is dishonored by non-payment ;(J) and a protest was held by Lord Tenterden to be essential. (c) A party paying a bill 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 resorted for reimburse- ment.(d) But he thereby discharges all the intervening parties. (e)(1) (a) Beawes, pi. 53 ; Marius, 128. L'intervention et le paiement seront constates dans I'acte de protet ou fi, la suite de I'aete. Code de Commerce, Art. 158. (&) Deacon v. Stodhart, 2 Man. & Gr. 317, B. C. L. R. vol. 40. (c) Vandewall v. Tyrrell, 1 M. & M. 87, B. C. L. R. vol. 22. As it is by the French law, Code de Commerce, Art. 158, and by the law of Scotland, Bell's Comm. b. 3, part 1, c. 4, s. 367. {d) Bayley, 6th ed. 318. (e) Celui qui paie une lettre de change par intervention est suhroge aux droits du porteur * * * Si le paiement par intervention est fait pour le compte du tireur tons les endosseurs sont liberes. S'il est fait pour un endosseur, les endosseurs subsequents sont liberes. Code de Commerce, Art. 159. (1) An acceptor supra protest for the honor of the first indorser, may require as a condition of payment that the holder shall indorse the bill to him. Freeman v. Perot, 2 Wash. C. C. 485. 332 BYLBS ON BILLS OP EXCHANGE. *A man paying for honor of an indorser may, if he choose, L -■ 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 party for whose honor he pays, and subsequent regular notice given by that pai'ty,(/) 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 a bill generally for honor, without a pro- test, he, as an indorsee, may sue any party on the bill.(^) The party paying supra protest, has also his remedy against the acceptor,(A) but not if it were an accommodation acceptance; at least, if the acceptance supra protest were for the honor of the drawer. («■) It is necessary that the protest should be made before payment.(i) The law merchant as to payment supra protest, does not extend 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 without authority, express or implied, does so at his peril. (Z) In ordinary cases, however, he would become a transferee of the note. (/) Goodall V. Polhill, 14 L. J. 146, C. P. ; 1 C. B. Rep. 233, B. C. L. B. vol. * (g) Mertens v. Winnington, 1 Bsp. 113. {h) Ex parte Wackerbath, 5 Ves. 514. (i) Bx parte Lambert, 13 Ves. 1Y9. {k) Vandewall v. Tyrrell, M. & M. 87. Quaere, whether it need be drawn out in full, or extended, as it is called. ' (I) Story on Promissory Notes, s. 433. NOTICE OF DISHONOE. 333 *CHAPTER XXII. [*212] OP NOTICE OF DISHONOE. DIVISION OP THE SUBJECT, . . 213 rORM OF THE KOTICE, . . . 213 DESCKIPTIOIf OF THE INSTRUMENT, . 216 MODE OP TRANSMITTING IT, . . 218 BY POST, 218 DIKEOTION OP THE LETTER, . .218 EVIDENCE OF NOTICE BY POST, . 219 TWOPENNY POST, . . . .219 SPECIAL MESSENGER, . . . 220 HOW TO BE SENT IN CASE OF FOREIGN BILL, 220 AT WHAT PLACE, . . . .220 WHEN TO BE GIVEN, . . . 221 IP THE PARTIES LIVE IN DIFFERENT PLACES, 221 IN THE SAME PLACE, . . .222 WHEN A PERSON RECEIVING NOTICE SHOULD TRANSMIT IT, . . 223 MAY BE GIVEN ON THE DAY OP DIS- HONOR, 223 WHEN, IF THE BILL IS DEPOSITED WITH BANKER, ATTORNEY, OR AGENT, 224 NOTICE THROUGH BRANCH BANKS, . 224 SUNDAYS AND HOLIDAYS, HOW RECK- ONED, 224 BURDEN OP PROOF, . . . 224 BY WHOM NOTICE SHOULD BE GIVEN, 225 BY AN AGENT, .... 226 TO WHOM, TO AN AGENT OK^ATTORNEY, . TO A BANKRUPT, .... WHERE THE PARTY IS DEAD, . NEED NOT BE GIVEN TO ACCEPTOR, . TO PARTIES JOINTLY LIABLE, TO A TRANSFERER NOT INDORSING, WHEN TO A GUARANTOR, TO AN INDORSER GIVING A BOND, . CONSEQUENCES OP NEGLECT, . WHAT EXCUSES NOTICE, . AGREEMENT OP THE PARTIES, COUNTERMAND OF PAYMENT, . NO EFFECTS, .... WHERE THERE IS REASONABLE EX- PECTATION THAT THE BILL WILL BE HONORED, .... IGNORANCE OP PARTY's RESIDENCE, ACCIDENT, WHERE A BILL ISDRAWN BY SEVERAL ON ONE OP THEMSELVES, . DEATH, BANKRUPTCY, OR INSOL- VENCY WILL NOT EXCUSE, . INSUFFICIENT STAMP, . NOTE NOT NEGOTIABLE, . CONSEQUENCES OF NEGLECT, HOW WAIVED, EVIDENCE OF NOTICE, . 226 228 228 ^28 228 229 229 230 230 230 231 231 231 231 234 234 235 236 236 236 236 236 238 In general, it is incumbent on the holder of a bill or note ^^^^ . dishonored, whether by non-acceptance,(a)(l) or by *non-pay- "- -" (a) Blesard v. Hirst, 5 Bur. 2672 ; Goodall v. DoUey, 1 T. R. 112. And the parties who are entitled to notice of non-acceptance, are discharged for want of it, and are not liable for subsequent non-payment, Roscow v. Hardy, 12 East, 434, unless the bill come into the hands of a subsequent indorsee for value who was not aware of the dishonor. O'Keefe v. Dunn, 6 Taunt. 305, E. C. L. E. vol. 1 ; 1 Marsh. 613, S. C. ; Dunn v. O'Keefe, 5 M. & Sel. 282 ; Whitehead v. Walker, 9 Mee. & W. (1) The drawer and indorsers are liable to an action by the holder immediately after the bill is refused acceptance, and before it is payable, on giving due notice of 334 BYLES ON BILLS OF EXCHANGE. ment, to give notice of that fact to the antecedent 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 Dishonor, will be considered notice of non-acceptance and notice of non-pay- ment. 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 ; fifthly, by whom it must be given ; sixthly, to whom ; seventhly, what are the consequences of neglect ; and, 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 man who can be clearly 506,* S. C. See Goodman v. Harvey, 4 Ad. & fll. 8f 0, E. C. L. E. vol. 31 ; 6 N. & M. 272. Where a bill was reindorsed to a prior iudorser, and in the interval had been dishonored by a refusal to accept, of 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., 23 Bxch. ; 14 M. & W. 733 ;* 3 D. & L. 274, S. C. ; and if notice of non-acceptance be given, the right to recover of the prior parties the full amount of the bill immediately, however distant its maturity, is complete. Whitehead v. Walker, 9 Mees. & W. 506.* non-acceptance. Wallace v. Agry, 4 Mason, 336 ; Watson v. Loring, 3 Mass. 557 ; Lenox v. Cook, 8 Mass. 460; Sterry v. iSobinson, 1 Day, 11 ; Taan v. Le Gaux, 1 Yeates, 204 ; Weldon v. Buck, 4 Johns. 144 ; Winthrop v. Pepoon, 1 Bay, 468 ; Mason v. Franklin, 3 Johnson, 202 ; Corser v. Craig, 1 Washington C. G. 424 ; Miller v. Haekley,*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. Eoach, 7 B. Monroe, 17. The holder of a bill of exchange may commence a suit immediately upon the protest for non-acceptance. Eoosevelt 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 infornis 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 discharged, though no notice is given to him of the drawee's declarations. Fall Eiver Bank v. Willard, 5 Metcalf, 216. NOTICE OB DISHONOR. 335 shown to have known beforehand that the bill would be dishonored is nevertheless entitled to notice.(J) No particular form of notice is required. It may be either written or verbal.(c)(l) All that is necessary is, to apprise the party liable of the dishonor((i) of the bill in question, and to intimate that he is expected to pay it. And an announcement of the dishonor will (at least, if it come from the holder), amount to a suflScient intimation to the indorser, that he is held liable.(e) But where a mere demand of payment was *made, the Court observed, " There is no precise r*2i4-| form of words necessary to be used in giving notice of the dishonor 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 refuged 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 insuffi- (6) See Burgh v. Leggee, 5 M. &-W. 418 ;* Cannt v. Thompson, 18 L. J. 127 ; 1 C. B. Eep. 400, B. C. L. E. vol. 62, S. C. (c) See Phillips v. Gould, 8 C. & P. 355, B. C. L. R. vol. 34. (d) i. e. (in the case of dishonor by non-payment), of presentment and non-pay- ment. Bast V. Smith, 16 L. J. 292, Q. B.; 4 D. & Low. 744. (e) It was held in Pufze v. Sharwood, 11 L. J. 19, Q. B. ; 2 Gale & D. 116 ; 2 Q. B. Rep. 416, E. G. L. R. vol. 42, S. C., that a notice of the dishonor 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 payjnent, but that if the notice do not come immediately from the holder, such an intimation may perhaps be neces- sary. See also Bast v. Smith, 16 L. J. 292, Q. B. ; 4 D. & Low. 744. The formal protest itself, for which the notice is substituted, icontains no such announcement. And see Miers v. Brown, 11 M. & "W. 372,* where Mr. Baron Alderson says, "knowledge of dishonor obtained by communication from the holder of the bill amounts to notice ;" and the observations of Cresswell, J., in Gaunt v. Thompson, 18 L. J. 128, C. P. ; 7 C. B. Rep. 400, B. C. L. R. vol. 62, S. C. In King v. Bick- ley, 2 Q. B. Rep. 419, B. C. L. R. vol. 42, it was held not necessary to state in a notice of dishonor, that the holder looks to the other party for payment, and that the mere sending of notice of dishonor is itself a sufficient intimation for that pur- pose. The following was the form of notice : — "Sir, I hereby give you notice that a bill for 50Z. at three months after date, drawn by J. L. upon and accepted by J. B. of Blenheim Street, Chelsea, and indorsed by you, lies at No. 6 Ely Place, dishonored. Yours, &c., (signed) Wm. King." (1) Notice of non-payment need not be in writing: a verbal notice is sufficient. Cuyla V. Stevens, 4 Wend. 566 ; Glasgow v. Pratte, 8 Missouri, 336. Demand and refusal by the maker or acceptor, are both facts which in all cases must in some form or other be communicated to the indorser in the notice of protest. Boehme v. Garr, 3 Maryland, 202. 336 BYLES ON BILLS OF EXCHANGE. cient."(/) Where the attorney for the indorsee wrote a letter to the indorser to the following effect : " A bill for 683Z., drawn by K. on J. & Co., and bearing your indorsement, has been put into our hands by A., with directions to take legal measures for the recovery there- of, unless immediately paid to us;" it was held, that this letter was not a sufficient notice of dishonor. " The notice of dishonor," says Tindal, 0. J., delivering 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 esssential in other countries to enable the plaintiff to recover), most certainly does not require all the precision and formality which accompanied the regu- lar protest, for which it has been substituted. But it should at least inform the party to whom it is addressed, either in express terms or by necessary impUcation,{g) that the bill has been dishonored, 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 necessarily to be inferred from its contents." The Court further ob- r*21 'M ^^^'^^^i ^^^^ i* ^^s consistent *with the notice that the bill had never been presented, but that the plaintiff intended to rely 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 dishonor, but might have presupposed it.(A)(l) (/) Hartley v. Case, 4 B. & 0. 339, E. C. L. R. vol. 10 ; 6 Dowl. & E. 505. (§') Perhaps "reasonable intendment" would be a more correct expression 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 Dow. 771, S. C. ; Lewis v. Gompertz, 6 M. & W. 402.* (Ji) Solarte v. Palmer, 7 Bing. 530, E. C. L. R. vol. 20 ; 5 Moo. & P. 475; 1 C. & J. 417 ;* 1 Tyr. 371, S. C. ; affirmed in the House of Lords, 1834, 1 Bing. N. C. 194, E. C. L. R. vol. 27, where Park, J., declared the unanimous opinion of the Judges present, that the letter of the plaintiff's attorney did not amount to notice of the dishonor of the biU, as such a notice ought, in express terms or by necessary implication, to convey full information that the bill had been dishonored. And Lord Brougham, C, on the ground that after Hartley's case, the judgment of the Ex- chequer 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 of dismissing the appeal, with costs, as a case too clear for argument, was the subject of considerable discussion among the Profession at the time. The decisions 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 dishonor without professional aid. (1) Notice of the 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. NOTICE OF DISHONOR. 337 *The notice must not misdescribe the instrument so that r*2161 the defendant may, perhaps, be led to confound it with The following notices have accordingly been since held insufficient: " The note for 200Z., drawn by H. H., dated 18th July last, payable three months after date aniJ indorsed by you, became due yesterday, and is returiTed 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. C. 688, B. C. L. R. vol. 32 ; 4 Scott, 425, S. C. " Sir, A bill for 30Z., dated the 18th August, 1837, at three months, drawn and indorsed by R. Everett upon, and accepted by W. Tuck, and indorsed by you, lies at my office due and unpaid. I am, &c., 8. J. Sydney." Phillips v. Gould, 8 C. & P. 355, E. C. L. R. vol. 34. " Messrs. Strange and Co., inform Mr. James Price that Mr. John Betterton's ac- ceptance, 87^. 5s., is not paid. As indorser, Mr. Price is called upon to pay the money, which will be expected immediately. Swindon, Dec. 1836." Strange v. Price, 10 Ad. & Ell. 125, E. C. L. R. vol. 37 ; 2 Per. & Dav. 278, S. C. " Sir, This is to inform you that the bill I took of you. 111. 2s. &d., is not took up, and is. &d. expenses ; and the money I must pay immediately. My son will be in London on Friday morning. Wm. Messenger." Messenger v. Southey, 1 Man4 & Gr. 76, B. C. L. R. vol. 39 ; 1 Scott, N. R. 180, S. C. The following notices of non-payment of six bills of exchange, were held insuf- ficient : 1. "Sir, A bill for 29Z. 17s. 3d., drawn by Ward on Hunt, due yesterday, is un- paid, and I am sorry to say the person at whose house it was made payable don't speak very favorably of the acceptor's punctuality. I should like to see you upon it to-day." , 2. " Mr. Maine : Sir, This is to give you notice that a bill drawn by you and ac- cepted by Josias Bateman, for All. 16s. 9c?., due July 19, 1835, is unpaid and Kea due at Mr. J. Furze's, 65 Fleet ,Street." 3. "Sir, Mr. Howard's acceptance for 211. 4s. 4t?., due on Saturday, is unpaid; he has promised 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 1161. 15s. 6d. drawn by Samuel Maine, accepted G. Clisby, dated May 7th, 1836, at four months, lies due and un- paid at my house." 5. "P. Johnson, Esq. . Sir, This is to give you notice that a, bill, 201. 17s. Id., drawn by Samuel Maine, accepted by Richard Jones, dated May 21st, 1835, at four months, lies due and unpaid at my house.'' , Harts, 3 Conn. 517 ; Shrieve v. Duckham, 1 Litt. 194 ; Bank of Cape Fear v. Sea- well, 2 Hawks. 560 ; Warren v. Gilman, 5 Shepl. 360. Nor need it state who the holder is. Bradley v. Davis, 26 Maine, 45. Notice that a bill has been protested for non-payment is a suflScient notice of a demand and refusal. Spies v. Newberry, 2 Doug. 425 ; Smith v. Little, ION. Hamp. 526 ; Pinkham v. Macy, 9 Mete. 174. See Piatt v. Drake, 1 Doug. 296 ; Nailor v. Bowie, 3 Maryland, 251 ; Farmer's Bank of Maryland v. Bowie, 4 Ibid. 290 ; Sasscer v. The Farmers' Bank, 4 Ibid. 409. 22 338 BYLBS ON BILLS OF EXCHANGE. *soine Other. Thus, a notice in the following terms : " I give L ^^'i you notice, that a bill for, &c., at, &c., drawn by you upon, &c., 6. "P. Johnson, Esq. : Sir, This is to give you notice that a bill for 148Z. 10s. drawn by Samuel Maine, and accepted by G. Parker, dated May 22d, 1835, lies due, and unpaid at my house." Furze v. Sharwood and others, 11 L. J., Q. B. p. 19 j 2 Q. B. Rep. 388, E. C. L. R. vol. 42, S. C. But the following have been held to be sufficient notices of dishonor. " Sir, A bill drawn by yon upon, and accepted by Mr. Joshua Watson for 31Z. ?,s., due yesterday, is dishonored and unpaid ; and I am desired to give you notice thereof to request that the same may be immediately paid. I am, &c., H. J). Bush- hurry." Woodthorpe v. Lawes, 2 M. & W. 109.* " Sir, the bill for £ , drawn by you, is this day returned wUTi charges, to which your immediate attention is requested." (Signed by indorsee.). Grugeon v. Smith, 6 Ad. & Ell. 499, B. C. L. E. vol. 33 ; 2 Nev. & P. 303, S. C. " Sir, I am desired by Mr. Hedger to give you notice that a promissory note for 99Z. 18s. payable to your order two mouths after the date thereof, became due yes- terday, 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 Spyer." Hedger v. Steavenson, 2 M. & W. 799 ;* 5 Dowl. 11\, S. C. " Your bill is unpaid, noting 5s." Armstrong v. Christiani, 5 C. B. Rep. 687, E. C. L. R. vol. 57. " Your note has been returned dishonored," is sufficient, without the words, " your note has been presented for payment." Edmonds v. Gates, 2 Jurist, 183. " Messrs. Houlditch are surprised that Mr. Cauty has not taken up Chaplin's bill, according to his promise : are also surprised to hear that Mrs. Gib's bill was re- turned to the holder unpaid." This notice was followed by a visit from the indorser to the holder on the same day, in which he promised to write to the other parties, by whom, or by himself, the bill should be paid. Houlditch v. Cauty, 4 Bing. N. C. 411, E. C. L. R. vol. 33 ; 3 Scott, 209, S. C. "Mr. Gompertz, — Sir, The bill of exchange for 250Z., drawn by S. Eendall, and accepted by Charles Stretton, and bearing your indorsement, has been presented for payment to the acceptor thereof, and returned dishonored, and now lies overdue and unpaid, with me, as above, of which I hereby give you notice. I am, &c. C. Lewis" Lewis V. Gompertz, 6 M. & W. 400.* " I beg to inform you that Mr. D.'s acceptance for 200Z., drawn and indorsed by you, due 31^t July, has been presented for payment and returned, and now remains unpaid." Cooke v. French, 10 Ad. & El. 131, E. C. L. R. vol. 37; 3 Per. & D. 596, S. C. " Dear Sir : To my surprise, I have received an intimation from, the Birmingham and Midland Counties Bank, that your draft on A. B. is dishonored, and I have re- quested "them to proceed on the same." Shelton v. Braithwaite, 7 M. & W. 436.* "Sir, I am instructed by Mr. Molineaux to give you notice that a bill (describing it) has been dishonored, &c." Stocken v. Collin, 9 C. & P. 653, E. C. L. R. vol. 38 ; 7 Mee. & W. 515,* S. G. A party sent by the holder of a dishonored 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 NOTICE OF DISHONOE. 339 lies at, &c., dishonored," is not sufficient to sustain an action against the indorser, who is not also the drawer. (i) But it has been held that if there be more than one bill to which the notice may apply, it lies on the defendant to prove that fact.(^) And if a note be improperly called a bill it is no objection,(Z) nor if a bill be improperly called a note.(wi) A misdescription which does not mislead is immaterial.(w)(l) It has been held that notice of dishonor need not state on whose brought back the bill that had been dishonored. She said that she knew nothing about it, but would tell her husband of it when he canae home. The party then went away not leaving any written notice : held sufficient notice of dishonor. Housego V. Cowne, M. & W. 348.* " James Court's acceptance, due this day, is unpaid, and I request your immediate attention to it," was held sufficient. Bailey v. Porter, 14. M. & W. 44.* See the observations on this case in Allen v. Edmunson, 17 L. J. 293, Bxoh. ; 2 Bxch. 719,* S. C. " Your draft upon C. for 601., due 3d March, is returned to us unpaid ; and if not taken up this day, proceedings will be taken against you for the recovery thereof," was held sufficient. Bobson v. Carlewis, 2 Q. B. Rep. 421. " A bill, &c. is unpaid, noting 5s.," is sufficient, the expression noting/ indicating a dishonor. Armstrong v. Christiani, 17 L. J. 181, C. P. ; 5 C. B. Eep. 687, S. C. Where the holder, when the bill became due, said to the executor of the acceptor, who was also an indorser, " I have brought a bill from the plaintiffs, you know what it is ;" and the defendant said, " I am executor of the drawee, you must persuade the plaintiff to let the bill stand over a few days, because the acceptor has been dead gnly a few days. I shall see the bill paid." Notice of dishonor was held to be proved. Gaunt v. Thompson, 18 L. J. 125, C. P. ; 7 C. B. 400, S. C. It is conceived that the following form of notice to be given by the holder to an indorser would be good. It may be easily altered and adapted to circumstances. "No. 1, Fleet Street, London, %Wh Sept. 1842: — Sir, I hereby give notice that the hill of exchange, dated 21d ult., drawn by A. B. of , ore 0. D. of ,for 1001., payable one month after date to A. B. or his order, and indorsed by you, has been duly presented for payment, butwas dishonored, and is unpaid. Irequestyou to pay me the amount thereof. lam, Sir, your obedient servant, G. S. — To Mr. E. F. of , [Merchant)." The construction of all written instruments is for the Court, but the meaning of peculiar expressions, which in particular places or trades have a known meaning, is for the jury. Hutchison v. Bowker, 5 M. & W. 542.* (i) Beauohamp v. Cash, 1 D. & R., N. P. C. 3, B. C. L. E. vol. 16. Though every indorser is in the nature of a new drawer, ante, p. 113. [h] Shelton v. Braithwaite, 7 M. & W. 436.* [l] Messenger v. Southey, 1 Man. & Gr. 76, E. C. L. R. vol. 39 ; 1 Scott, N. R. 180, S. C. (m) Stockman v. Parr, 11 M. & W. 809.* (re) Bromage v. Vaughan, 9 Q. B. Rep. 608, B. C. L. R. vol. 58. (1) If in 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 holders look to the indorser for payment, it is a question for the jury whether the indorser was misled. 340 BYLES ON BILLS OF EXCHANGE. behalf payment is applied for, nor where the bill is lying,(o) and a misdescription of the place where the bill is *lying is imma- L J terial,(^) unless, perhaps, a tender were made there. If the notice, by mistake, misdescribe the party giving it, by repre- senting that it is given by or on behalf 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. has been dis- charged by laches, or had no right of action on the bill.(g') It is not necessary that a copy of the protest should accompany notice of the dishonor of a foreign bill.(r) But information of the protest should be sent,(s) if the party to whom notice is transmitted reside abroad.(i) (o) Woodthorpe v. Lawes, 2 Mees. & W. 109 ;* Housego v. Cowne, 2 Mees. & W. 348;*- Harrison v. Ruscoe, 15 L. J. 110, Excli. ; 15 M. & W. 231,* S. C. [p) Rowlands v. Sprinjett, 14 L. J. 227, Exch. ; 14 M. & W. 1* S. 0. (2) Harrison v. Euseoe, 15 L. J. 110, Exch. ; 15 M. & W. 231,* S. C. (r) Goodman v. Harvey, 4 Ad. & El. 8T0, E. C. L. R. vol. 31; 6 N. & M. 372, S. C. {s) Rogers v. Stephens, 2 T. R. 713 ; Gale v. Walsh, 5 T. E. 239 ; Brough 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. (i) See the Chapter on Protest. Ontario Bank vTPetrie, 3 Wend. 456 ; Ross v. Planters' Bank, 5 Humphrey, 335 ; Moorman v. Bank of Alabama, 3 Porter, 353 ; Rowan v. Odenheimer, 5 Smedes & Marshall, 44; Mills v. U. S. Bank, 11 Wheat. 431 ; Bank of Rochester v. Gould, 9 Wendell, 279 ; M'Knight v. Lewis, 5 Barb. S. C. 681. Any form of notice to an indorser is sufficient to fix his liability, if the instru- ment 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 Corn- stock, 413 ; Dennistown v. Stewart, 17 Howard, S. C. Rep. 606 ; Young 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. Remer v. Downer, 21 Wend. 10 ; 23 Wend! 620 ; 25 Wend. 277 ; Thompson v. The State, 3 Hill, S. C. 77 ; Fleming v. Pulton, 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. The notice of non-payment of a note to charge an indorser must show that the presentment wa^ 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 notice was without date, it was held, that it was defective. Wynn v. Alden, 4 Denio, 163. NOTICE OF DISHONOR. 341 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 notiee.(M)(l) It has been tuled that, in London, delivery of a letter to a bellman in the street is not sufficient, and that it should be posted either at the General Post-office, or at an authorized receiving- house.(v) It is not sufficient that the letter be directed, generally, |;o a person at a large town ; as,' for example, to " Mr. Haynes, Bristol,"(M') 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 *manner.(a;) But if he haS|-^„^Q-. done so, then the sending of a letter, with an address as gene- ^ ral as the drawer's description, will at least be evidence from which the jury may infer due notice.(«/)(2) If the notice to the drawer [u) Saunderson v. Judge, 2 H. Bla. 509 ; Kuft v. Weston, 3 Esp. 54 ; Parker v. Gordon, 1 East, 385 ; 3 Smith, 358, S. C; Langdon v. Hulls, 5 Esp. 157 ; Dobree V. Eastwood, 3 C. & P. 250, E. C. L. R. vol. 14 ; Stocken r. Collin, T M. & W. 515 ;* 9 C. & P. 653, E. C. L. R. vol. 38, S. C. ; Woodcock v. Houldswortli, 16 L. J. Exch. 49 ; 16 M. & W. 126,* S. C. ', (v) Hawkins v. Rutt, Peake's N. P. C. 186 ; but see Pack v. Alexander, 3 M. & Seo. Y89, E. C. L. R. vol. 30, and Skilbeck v. Garbett, 14 L. J. 339, Q. B. ; 1 Q.B. 846, E. C. L. R. vol. 53, S. C. "A bellman," says Lord Denman, "is an ambulatory post-office." («j) Walter v. Haynes, R. & M. 149. {x) Mann v. Moors, 1 R. & M. 249 ; Clarke v. Sharpe, 3 M. & W. 166 ;* 1 Hor. & H. 35, S. C; Siggers v. Browne, 1 Moo. & Rob. 520. (y)Ibid. (1) In order to charge an indorsee, where it is proper to send notice of protest by mail, which was not received in due course, the onus is upon the plaintiff to show that the notice was properly mailed. Friend v. Wilkinson, 9 Grattan, 31. (2) Where the indorser of a promissory note resides in a town in which there are two post-ofSoes, a notice of the dishonor of the note, addressed to him art the town generally, is sufficient prima facie ; though liable to be rebutted by proof that he was accustomed to receive his letters at one of the offices only, and that the holder of the note might have ascertained that fact by reasonable inquiry. Morton V. Westeott, 8 Cushing, 425. Where an indorser resided in a village where was a post-office, at which he received letters, and had an office in a neighboring village, where he received^ most of his letters, it was held that notice of non-payment ad- dressed to him at the latter village was sufficient. Montgomery Bank v. Marsh, 3 Selden, 481. 342 BTLES ON BILLS OF EXCHANGE. arrives too late, through misdirection, it is for the jury to say, whether the holder used due diligence to discover the drawer's address, (a) If the notice miscarry from the indistinctness of the drawer's handwriting on the bill, he will not be discharged.(a) Where a witness said that the letter, containing notice of dis- honor was put on a table to be carried to the post-office, and that by the course of business, all letters deposited on this table were carried to the post-office by a porter. Lord Ellenborough 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-office. Had you called the porter, and he had said that, although he had no re- collection of the letter in question, he invariably carried to the post- office all the letters found upon the table, this might have done,(5) but I cannot hold this general evidence of the course of business, in the plaintiff's counting-house, to be sufficient."(c) 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 marks,(c?) But they are not conclusive evidence. (e) A duplicate original, or an examined copy, or verbal evidence of a written notice of dishonor, are admissible without notice to produce the original. (/) Notice of dishonor may be sent by the two-penny post.( '- -* is, *a debt actually due and payable at the commencement of the action.(M) Therefore, a bill or note cannot be set off unless due, and in the defendant's hands before the issuing of the writ.(o) And it must be a debt still due at the time of trial. Therefore it may be replied that since the plea the plaintiff has paid the debt.(^)(2) (7i) Bui. N. P. 180. (i) Jacques v. Withy, 1 T. R. 55Y. (j) Baskerville v. Brown, 2 Bur. 1229. Ik) Peacock v. Jeffery, 1 Taunt., 426. ll) Harrison v. Turner, 16 L. J. 295, Q. B.; 10 Q. B. Sep. 482, E. C. L. R. Tol. 59, S. C. (ot) Dendy v. Powell, 3 Mees. & W. 442.* (ra) Richards v. James, 2 Exch. Rep. 4Y1.* (0) Evans v. Prosser, 3 Term R. 186 ; and see Braithwaite v. Coleman, 4 Nev. & Man. 654, B. C. L. R. vol. 30. (^) Eyton V. Littledale, 18 L. J. 369, Exch.; 4 Exch. Rep. 159,* S. C; Briscoe V. Hill, 10 M. & "W". 735.* 2 Bailey, 135 ; Bell v. Horton, 1 Alabama, 413 ; Carew v. Northrup, 5 Ibid. 367 ; Smith V. Taylor, 9 Ibid. 633 ; Bowen v. Snell, 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. Williamson, 3 Binney, 135 ; Morgan v. Bank of North America, ,8 Serg. & Rawle, 88 ; Beesley v. Crawford, 19 Ohio, 126. (1) Gilchrist v. Williams, 3 Marshall, 235 ; Williams v. Gilchrist, 3 Bibb, 49; Turnbull v. Strohecker, 4 McCord, 210 ; Crist v. Garner, 2 Penna. Rep. 251; Mad- den V. Madden, 2 Rep. Const. Court, 350 ; Jacks v. Moore, 1 Yeates, 391. (2) The debt must be existing between the parties at the commencement of plaintiff's suit. Jefferson County Bank v. Chapman, 19 Johns. 322 ; Carpenter v. Butterfield, 3 Johns. Cas. 145 ; Huhng v. Hugg, 1 Watts & Serg. 418 ; Cox v. SET-OFF AND MUTUAL CREDIT. 435 The debts must be mutual ; for the statutes only authorize the set- • ting off 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-off. So, if the firm be sued, they cannot set off a debt due to one or more of the partners, but not to all.(g') But one partner may settle a debt due to the firm, by setting off against it a debt due from himself,(r) and though, as it seems, he should in so' doing be acting in fraud of his copartners. {q) But the Roman law was otherwise ; one partner might claim a set-off due to his partner, "ex causa societatis." Dig. 45, 2, 10 ; Cujaous in Cod. 4, 31, 9. (r) Wallace v. Kelsall, 7 M. & W. 264.* Cooper, 3 Alabama, 256 ; Carfrew v. Canavan, 4 Howard, Miss. 370 ; Kelly v. Gar- rett, 1 Oilman, 649; Johnson v. Comstock, 6 Hill, 10; Whitaker v. TurnbuU, 3 Harrison, 172; Varney v. Brewster, 14 N. Hamp. 49 ; Edwards v. Temple, 2 Har- rington, 322. A permission to the defendants to use a bill as a set-off, and to be liable to the owner only in the event 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. MoGrew, 2 Alabama, 675; McDonald v. Harrison, 12 Missouri, 447. Where a note, not negotiable, was assigned for a valuable consideration, and an action was brought for the benefit of the assignee in the name of the payee, it was held that the maker might setoff a debt due to him at the time of the assignment. Sanborn v. Little, 3 N. Hamp. 539. The defendant 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 intestate. Root v. Taylor, 20 Johns. 137. A debt due from an intestate in his lifetime, cannot be set off against one which has accrued to the administrator since the death of the intestate. Wolfersberger v. Buoher, 10 Serg. & Rawie, 10 ; Colby v. Colby, 2 N. Hamp. 419 ; Fry v. Evans, 8 WendeU, 530 ; Mills v. Lumpkin, 1 Kelly, 511. In suits by or against executors or administrators, 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 commencement 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 Rawson v. Copland, 3 Barbour, Ch. Rep. 166 ; Ray v. Dennis, 5 Georgia, 357. There cannot be a set-off' against a set-op'. Ulrich v. Berger, 4 Watts &'Serg. 19 • Hudnall v. Scott, 2 Alabama, 569 ; Gable v. Parry, 13 Penua. State Rep. 181. 436 BYLES ON BILLS OF EXOHANOE. . The debts and credits of a firm survive at law to the surviving part- ner, and a Court of law will not 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, "therefore, be set oif against one another. Thus, when a surviving partner sues for a partnership debt, a separate debt due from him may be set off. So, when he sues for his separate debt, a debt due from the former partnership may be set off. When he is sued for a partnership debt,-he may set off a debt due to him individu- ally. And when he is sued for a separate debt, may set off a debt due to the firm.(s) 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.(i)(l) The indorsee of an overdue note is not liable to the set-off of a debt due from his indorser to the maker. (m)(2) («) Slipper V. Stidatone, 1 Esp. 47 ; 5 T. E. 493, S. C. \i) Stackwood v. Dunn, 3 Q. B. Rep. 822, B. C. L. R. vol. 43. [u) Burrougi. v. Moss, 10 B. & C. 558, E. C. L. R. vol. 21. (1) A joint debt cannot be set off against a separate debt, nor a separate debt against a joint debt. McDowell v. Tyson, 14 Serg. & Rawle, 300 ; Porter v. Neker- vis, 4 Randolph, 359; Howe v. Sheppard, 2 Sumner, 409 ; Wood v. Carlisle, 6 N. Hamp. 27 ; Henderson v. Lewis, 9 Serg. & Rawle, 379 ; State Bank v. Armstrong, 4 Devereux, 519 ; Vose v. Philbrook, 3 Story, 335 ; Bullard v. Dorsey, 7 Smedes & Marshall, 9 ; Albright v. Aldrich, 2 Texas, 166 ; Burgwin v. Babcock, 11 Illi- nois, 28. One of several defendants who are sued upon a joint note may set off a demand due to himself from the plaintiff, 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 partnership property, and passed to a creditor of the firm, to whose use a suit was brought in which set-off 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 is some superior equity in a third person. Stewart v. Coulter, 12 Serg. & Rawle, 252 ; 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 it appears that the set-off is made with the express assent of the other partners and the plaintiff'is insolvent. Wrenshall v. Cook, 7 Watts, 464. See Craig v. Hender- son, 2 Barr, 261. (2) In what cases set-off is allowed against the indorsee of claims against the maker of a note indorsed after maturity. Collins v. Allen, 12 Wendell, 356; Sar- gent V. Southgate, 5 Pick. 312 ; Driggs v. Rockwell, 11 Wendell, 504. SET-OFF AND MUTUAL CREDIT. 437 *To examine minutely what are mutual debts, as between r*291"l principal and agent, as between executors and administrators, and the debtors and creditors of themselves, or of the estate of their testator or intestate,(^>) and as between husband and wife and their debtors and creditors, would be, perhaps, deviating from our main subject.(l) If a note be given to a married woman, the husband may, as we have seen, either sue alone or join his wife. If he sue in his own name, he is not liable to a set-off, due from his wife dum sola, but he is to a set-off due from himself.(w) If he join her, it should seem, he is liable to a set-off due from his wife, but he is not to one due from himself.(a;)(2) (») See Blakesley v. Smallwood, 8 Q. B. Rep. 538, B. C. L. R. vol. 55. (w) Burrougli v. Moss, 10 B. & C. 55 8, E. C. L. R. vol. 21. [x) Ibid. (1) Hurlbut v. Insurance Co., 2 Sumner, 471 ; McKinney v. Bellows, 3 Blackford, 31 ; Scott V. Rivers, 1 Ste.wart & Porter, 19 ; Durrock v. Hay, 2 Yeates, 208 ; Mor- rison V. Furnham, 1 Marshall, 41 ; Wain v. Wilkins, 4 Yeates, 461 ; Gordon v. Bowne, 2 Johns. 150 ; Warner v. Barker, 3 Wendell, 400 ; Pitkin v. Pitkin, 8 Conn. 325 ; BuUard v. Dorsey, 1 Smedes & Marshall, 9 ; Minifee v. Ball, 2 English, 520 ; 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. Burditt, 9 Pick. 265 ; Snow v. Gonant, 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, cannot be set off against a debt due the principal. Wilson v. Codman, 3 Cranch, 193 ; Gordon v. Church, 2 Caines, 299 ; Browne v. Robinson, 2 Caines' Cas. 341 ; Foster v. Hoyt, 2 Johns. Cas. 321; Carman v. Garrison, 13 Penna. State Rep. 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 Serg. & Rawle, 48 ; Meader v. Scott, 4 Vermont, 26 ; Cow- der 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. Mahurin 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. (2) 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, 11. 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 cannot 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. 438 BTLES ON BILLS OF BXCHAKGB. The general statutes of set-off are permissive, not imperative. Therefore, if a defendant have a cross demand, he may either set it off, or bring a cross action for it, at his option. (2/)(l) And he may (supposing his demand to be greatei; than the demand against which he sets it off) 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 defendant.(2) A discharge under the Insolvent Debtors' Act must be replied specially, (a) Under the informal replication that the plaintiff never was in- debted, he cannot prove payment, as he might under the common replication that he was not, nor is, indebted.(6) If a defendant does not deliver particulars of set-off in compliance with a Judge's order, he is precluded from giving evidence of it at the trial, (c) Secondly, Set-off under the Bankrupt Act. 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 r*2Q91 '^'^^'^^^ 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, (cil) The 46 Geo. 3, c. (j/) Baskerville v. Browne, 2 Bur. 1229. [z) Ibid. (a) Ford V. Dornford, 8 Q. B. Rep. 583, E. C. L. E. vol. 55. (6) Stockbridge v. Sussams, 3 Q. B. Rep. 239, E. C. L. R. vol. 43. (c) Ibbett V. Leaver, 16 M. & W. 770 ;* Youag v. Geiger, 18 L. J. C. P. 43 ; 6 0. B. Rep. 552, B. C. L. R. vol. 60, S. C. (a!) Marsh v. Chambers, 2 Stra. 1234; Dickson v. Evans, 6 T. R. 57; Oughter- lony v. Easterby, 4 Taunt. 88 ; Moore v. Wright, 6 Taunt. 517, E. C. L. R. vol. 1 J 2 Marsh. 209, S. C. ('1) The law does not apply mutual debts in extinguishment of each other. Car- malt v. Post, 8 Watts, 410 ; Post v. Carmalt, 2 Watts & Serg. 70 ; Ulrioh 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 nonsuit, where the evidence is found to be too weak to support it ; but like a nonsuit, the withdrawal of it ought to be explicit. Muirhead v. Fitzpatrick, 5 Watts & Serg. 506. SET-OFF AND MUTUAL CREDIT. 439 135, s. 8, enacted, that one debt or demand might be set off against another, notwithstanding a prior act of bankruptcy, 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 bankruptcy, or that the bankrupt was insolvent, or had stopped payment. The 6 Geo. 4, o. 16, s. 50 (repealed, but re- enacted by the 12 & 13 Vict. c. 106, s. 171), 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 can be brought home to the debtor. In case, therefore, of a country banking-house stopping payment, there does not now seem any ne- cessary legal objection to the set-off by the debtors of the firm, of notes bought up by them in the interval between the stopping pay- ment and issuing of the commission. If, indeed, 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 Teeeping , house or absenting themselves, with intent to defeat their creditors. (e) But if on stopping payment and closing the bank, they are, from illness, unable to be seen, or the creditors are referred to them at their banking-house, or at their private houses, the mere circumstance 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 set off.(/-) Notice of acts of bankruptcy by some members of a banking firm, without notice of an act of bankruptcy by another member, will take away the right to set-off.(^) 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. (A) A debtor to the bankrupt's estate cannot set off a bill or note trans- ferred to him by the real owner, even before the bankruptcy, for the mere purpose of being set off against a demand by the bankrupt's estate, so that the real owner might *receive 208. in the pound.(«) For in such a case the debtor is a mere t/ustee for *- J (e) Gumming v. Bailey, 6 Bing. 363, E. C. L. R. vol. 19 ; 4 Moo. k P. 36, S. C. (/) Hawkins v. Whitten, 10 B. & C. 217, E. C. L. R. vol. 21 ; 5 Man. & R. 219, S. C. ; Dickson v. Cass, 1 B. & Ad. 343, B. C. L. R. vol. 20. {g) Dickson v. Cass, 1 B. & Ad. 343, E. C. L. R. vol. 20 ; and see Craven v. Ed- mondson, 6 Bing. 734 ; 4 Moo. & P. 622, S. C. (A) Ex parte Stone, 1 G. & J. 191. (i) Pair v. Molver, 16 East, 130 ; Laekington v. Combes, 6 Bing. N. Ca. 71, E. C. L. R. vol. 37 ; 8 Scott, 312, S. C. 440 BTLES ON BILLS OF EXCHANGE. Others, and having no real cross-demand of his own against the estate, cannot be allowed to set off another man's.(y) 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 off.(A) Mere legal debts, without any beneficial 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 debt is really due from the bankrupt to the debtor to his estate. "(?) Nor can the assignees of the bankrupt deprive a man of a set-off, once existing. (m) We have seen, that the general statutes of set-off only authorize a set-off of mutual debts; but the bankrupt act authorizes the set-off of a mutual credit, as well as of a mutual debt. It has been decided that the term mutual credit is more comprehen- sive than the expression mutual debts. In the first place, it has been held, that credit need not necessarily be of money. Therefore, where a trader, being indebted to a packer on a note of hand, sent him certain goods to pack, the trader having become bankrupt. Lord Hardwicke thought that 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.(w) This decision, how- ever, goes further than any other, and was qualified very soon after by the same learned person.(o) The law is now taken to be, that, in order to set off goods, the property must have been deposited with an authority to turn it into money ; in other words, the mutual credit must be such as was intended to terminate in a debt.(p) Therefore, it has been held, that where, in consideration of the bankrupt's ac- ceptance, defendant promised to indorse a bill to the- bankrupt, such (y)Forsterv. Wilson, 12 M.&W. 191* (ifc) Ibid. (Z) Ibid. (to) Bdmeads v. l/ewmaii, 1 B. & C. 418, E. C. L. R. vol. 8 ; BoUand v. Nash, 8 B. & C. 105, E. 0. L. R. vol. 15. (n) Ex parte Deeze, 1 Atk. 228. (o) Ex parte Ockenden, 1 Atk. 235. Ip) Glenuie v. Edmunds, 4 Taunt. 775 ; Rose v. Hart, 8 Taunt. 499, E. C. L. R. vol. 4 ; 2 Moo. 547, S. C. ; Easura v. Cato, 5 B. & Aid. 861, E. C. L. R. vol. 7 ; 1 Dowl. & R. 530 ; Russell v. Bell, 8 M. & W. 277.* A mere liability is insufficient, 5 Bing. N. Ca. 578, B. C. L. R. vol. 35. SET-OFF AND MUTUAL CREDIT. 441 promise Tvas not a' subject of mutual *credit.(g') And the mutual credit must have actually exi rupt himself and the other party.(r) r*2941 mutual credit must have actually existed between the bank- •- ■' There may be mutual credit, though one of the debts constituting it be not due ; as if it be a bond, bill, or note payable at a future day.(s) An acceptance of the bankrupt's may be set off as 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. (<) 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, the indorsement may be an ingredient in mutual credit.(M) A bill accepted' for the accommodation of the bankrupt is within the mutual credit clause,(v) 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, (w) It is not necessary to constitute mutual credit, that the parties both intend there should be mutual credit ; it is suflBcient though one take, by indorseraent from a third party, the note or acceptance of another without his knowledge.(a;) 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 can- not claim the benefit of a set-off under this section.(«/) (2) Rose V. Sims, 1 B. & Ad. 521, E. C. L. R. vol. 20 ; but see Gibson v. Bell, 1 Bing. N. C. U3, E. C. L. R. vol. 27 ; 1 Scott, V12, S. C. (»■) Young V. Bank of Bengal, 1 Moore's Priv. Co. Ca. 150. (s) Ex parte Prescot, 1 Atk. 230 ; Atkinson v. Elliott, 1 T. R. 378. (i!) Collins y. Jones, 10 B. & C^ 777, E. C. L. R. vol. 21 ; Bolland v. Nash, 8 B, & C. 105, E. C, L. R. vol. 15 ; 2 Man. & R. 189, S. C. ; Russell v. Bell, 8 M. & W, 277.* (m) Alsager v. Currie, 12 M. & W. 755 ;* and see Starey v. Burns, 7 East, 435 see Young v. Bank of Bengal, 1 Moore's Priv. Council Cases, 150. {v) Smith v. Hodson, 4 T. Rep. 211 ; Ex parte Bayle, Cooke's Bkt. Law, 542 Ex parte Wagstaff, 13 Vesey, 65 ; Bittleston v. Timmis, 14 L. J. 117, C. P. ; 1 C, B. Rep. 389, E. C. L. E. vol. 50, S. C. («|) Bittleston v. Timmis, and see Hulme v. Muggleston, 3 Mees. & W. 30.* The mistake in the marginal note of that case is corrected in Bittleston v. Timmis, ubi supra- {x) Hankey v. Smith, 3 T. R. 507. {y) Key v. Flint, 8 Taunt. 21, E. C. L. R. vol. 4; 1 Moo. 451, S. C. ; Ex parte Flint, 1 Swanst. 30 ; Buchanan v. Findlay, 9 B. & C. 738, E. C. L. E. vol. 17 • 4 M. & Ry. 53, S. C. ' 442 BYLES ON BILLS OF EXCHANGE. But mutual credit will not destroy a lien created by express con- tract. *C. held M.'s acceptance for 24Z., and sent M. an article L ^-' 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. became bankrupt. Held, that C. could not, by virtue of his cross-demand on the acceptance, sue M.'s assignees in trover for the article before paying the amount of the repairs.(a) 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 neces- sary, though it was usual to plead or give notice as under the general statutes. But now by R. H. 4 Wm. 4, mutual credit must be pleaded. Where the assignees af&rm the bankrupt's dealings, they let in his set-off.(a) An assignment under the old Insolvent Debtors' Act had no relation back to the commencement of the imprisonment, and therefore the assignees having declared on a sale by the insolvent, - after the imprisonment, and before the assignment, not on a sale by themselves, were subject to the defendant's set-off against the insol- vent. (6) To an action for a debt due to the assignees in their official cha- racter, the defendant cannot plead a set-off due from the bankrupt before his bankruptcy. (c) But such a set-off may be the subject of mutual credit, (d) 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 sub- ject ; and has, since the statutes, been exercised in cases .which they will not reach. 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. (z) Clarke v. Pell, 4 B. & Ad. 404, B. C. L. R. vol. 24 ; 1 Ner. & Man. 244, S. C. {a) Smith v. Hodson, 4 T. B. 211. (6) Sims V. Simpson, I Bing. N. C. 306, E. C. L. E. vol. 27. (c) Groom V. Mealey, 2 Bing. N. C. 138, E. 0. L. R. vol. 29 ; 2 Scott, 171, S. C. ; Wood V. Smith, 4 M. & W. 522.* {d) See Bittleston v. Timmis, supra. SET-OFF AND MUTUAL CREDIT. 443 S., in a joint and several note to the bankers for money advanced by them to J. S., and the bankers failing, Lord Bldon directed the sum due to A. S. to be set off(e) 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, perhaps, if the set-off were *a mere equitable r*296'] demand, not available at law, equity would assist.(^) There are cases in which a stipulation between the parties, though not the subject of a set-off, is a bar to the action. A release is, as we 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 con- dition, or a general covenant not to sue upon condition, are each of them, after condition performed, a good defence. But a covenant not to sue for a certain time,(A) is neither an absolute discharge of the action, for that was not the intention of the parties, nor a suspension of it ; because it is a rule of law, that a personal action, once sus- pended 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. But, in favor of commerce, this rule has been relaxed in the case of bills. 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 abso- lute or conditional 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. (i) (e) Ex parte Stephens, 11 Ves. 24; and see Ex parte Hansom, 12 Ves. 346. (/) Ex parte Ross, Buck. 127. (g) Townrow v. Benson, 3 Mad. 203. (A) Aylifif V. Scrimsieir, 1 Show. 46 ; ante, 186. (i) Carr v. Stephens, 9 B. & C. 758, B. C. L. E. vol. 17 ; 4 Man. & R. 590, S. C. 444 BYLBS ON BILLS OF EXCHANGE. [*297] *CHAPTER XXVIII. OP A LOST BILL OR NOTE. 297 WILL NOT LIE ON A LOST BILL, 299 NOK ON A LOST CHECK, . 299 297 UNLESS NOT NEGOTIABLE, 300 298 PLEADING, 300 LOSS AFTER ACTION BBOUGHT, 301 299 LOSS OP HALF-NOTE, 301 TROVER FOR LOST BILL, 301 299 REMEDY FOR LOSER IN EQUITY, ON WHOM THE LOSS OP A BILL TRANS- 301 299 MITTED BY POST, ETC., WILL FALL, 302 TITLE OP THE FINDER, . PROPER COURSE FOR THE LOSER TO TAKE, NOTICE OP LOSS, .... PRESENTMENT AND NOTICE OP DIS- HONOR OF A LOST BILL, BILL IN THE HAND OF ADTERSB PARTY, WHETHER AN ACTION LIES ON A DE- STROYED BILL, .... Though tlie finder of a lost bill or note acquires no property in it, so as, on the one hand, to enable him to defend an action of trover brought by the rightful owner, or on the other, to sue the acceptor or maker, yet we have already seen, that if the finder transfer a lost bill or note, which may pass by delivery, his transferee, provided he took it without fraud, 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 of stolen out of letters put into the post-office, no action lies against the Postmaster- Greneral. "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 Audi- tors of the Exchequer, &c. ; who were never thought liable for any negligence or misconduct of the inferior officers, in their several departments. "(a) But a deputy postmaster is liable for neglect in not duly delivering letters. (J)(l) (a) Whitfield v. Lord Le Despencer, Cowp. 754 ; Lane v. 'Cotton, 1 Salk. 17. (6) Eowning v. Child, 3 Wils. 443 ; 2 Bla. Rep. 906 ; 5 Burr. 2716 ; Hordern v. Dalton, 1 C. & C. 181, B. C. L. R. vol. 12. (1) Maxwell v. Mcllroy, 2 Bibb. 211 ; Franklin v. Low, 1 Johns. 396 ; Dunlop v.Munroe, 7 Cranch, 242 ; Bolan v. Williamson, 2 Bay, 551 ; S.C.I Brevard, 181; Bishop V. Williamson, 2 Fairfield, 495 ; Schroyer v. Lynch, 8 Watts, 453 ; Teall V. Felton, 3 Barbour, S. C. 512; S. C. 1 Comstock, 537. LOST BILL OK NOTE. 445 *lt is advisable that the loser should immediately give no- j-*298] tice of the loss to the parties liable on the bill ; for they vill thereby be prevented from taking it up without due inquiry.(l) Pub- lic advertisement of the loss should also be given ; for, if any person whosoever discounts it with notice of the loss, that will be such strong evidence of fraud that he can acquire no property in it.(c) (c) A public notification of the loss is not only advisable to prevent lie 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 observations of Best, C. J., in Snow V. Peacock, 3 Bing. 411, E. C. L. R. vol. 11 ; 11 Moo. 286, S. C. The law formerly was, that if a man took a lost bill or note negligently, he acquired no title against the rightful owner ; but if the loser had neglected to publish his loss, and the receiver took the note, not dishonestly, but negligently, then the negligence of the loser equalled the negligence of the receiver, and potior erat conditio possi- dentis. Snow V. Peacock, 3 Bing. 411, E. C. L. R. vol. 11 ; 11 Moo. 284; Strange v. Wigney, 6 Bing. 611, E. C. L. R. vol. 19 ; 4 M. & P. ilQ, S. C. Thus, where the plaintiff was robbed of his podket-book, containing an indorsed bill, and then adver- tised 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 to recover against a negli- gent receiver ; for that his 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. Beckwitk v. Corral, 3 Bing. 444, E. C. L. R. vol. 11. 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. 466, E. C. L. R. vol. 10 ; 5 Dowl. & R. 324 ; Strange v. Wigney, 6 Bing. 677, E. C. L. R. vol. 19 ; 4 Moo. & P. 470, S. C. But .the law on this subject is now entirely changed. See the Chapter on Transfer, and the observations of Lord Denman in Bartrum v. Caddy, 9 Ad. & E. 286, E. C. L. R. vol. 36 ; 1 Per. & Dev. 207, S. C. The plaintiff went to a public meeting in London with more than 500^ in his pocket, and enter- taining some apprehension of the company in which he found himself, kept his hand on his pocket, but notwithstanding that precaution, was robbed, and among other property lost a Bank of England note for 200Z., payable to bearer. He advertised his loss in the newspapers. Nearly two years afterwards, 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 (1) 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 is proper for the loser to give immediate notice to the parties, and to publish 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 show- ing by other proof that the buyer took the note mala jide. Matthews v. Poythress, 4 Georgia, 287. 446 BTLES ON BILLS OF EXCHANQB. We have already seen that, if the bill be transferable only by in- r*oQQ-| dorsement, 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 ; and give notice of dishonor, for the bill might still have been paid with or with- out an indemnity, and the prior parties, by not having been advised of the dishonor, may have been prevented from pressing their respec- tive remedies against parties liable to them.(cZ)(l) There are three cases in which a plaintiff cannot produce a bill : it may be in the defendant's hands ; it may be destroyed ; or it may be lost. If it be in the defendant's hands, the plaintiff may giv§ him notice to produce ; and, if the defendant will not do so, the plaintiff may give secondary evidence of its contents, (e) "So, if it can be proved that the instrument has been destroyed, secondary evidence of its contents has been held admissible. " If a bill be proved to be destroyed," 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 destruction of the instrument charged by the indictment to be forged, is no bar to the proceedings. I remember a case before Mr. J. Buller, where the prisoner had destroyed a bank note he was accused of trover, and the Court held the negligence of the plaintifiF not 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, E. C. L. R. vol. 25; S M. & Scott, TOO, S. C; see Snow v. Saddler, 3 Bing. 610, E. C. L. E. vol. 11 ; 11 Moo. 506, S. C. The caution required of a person discounting was held to increase with the amount. See ante. Chapter on T>-ansfer. (d) Thackray v. Blackett, 3 Camp. 164. (e) Smith V. M'Clure, 5 East, 477 ; 2 Smith, 443, S. C. (1) Hinsdale v. Miles, 5 Conn. 331. The fact that a bill is lost i.s an excuse' for delay in making a demand upon the drawee, but for no more than reasonable delay. Aborn v. Bosworth, 1 Rhode Island, 401. In order to charge the indorser of a lost promissory note, the owner must tender an indemnity to him and the maker at the time of demand and notice. Smith v. Rockwell, 2 Hill, 482. LOST BILL OE NOTE. 44T having forged, by swallowing it; and the learned Judge who presided held, that he might have been convicted without the produetion of the bank note ; and this doctrine was approved of by the whole pro- fes8ion."(/) But it should seem, from the judgment of the Court of King's Bench, in a recent case, that this doctrine is now overruled, and that the owner of a destroyed bill or note, if negotiable, cannot, at law, recover against the other parties.((/)(l) And it seems now clear that, if a bill, note, or check, negotiable either by indorsement or by delivery only,(A) be lost, no action will lie for the loser against any one of the *parties to the instru- r*3Qoi ment, either on the bill or note itself, or on the consideration. " Upon the question," says Lord Tenterden,i " 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 recon- ciled to each other. Amid conflicting opinions, the proper course is to revert to the principle of these actions on bills of exchange. The custom of merchants is, that the holder of a bill shall present the instrument 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 discharge pro tanto, in his account with the drawer. As far as regards his (/) Pierson v. Hutchinson, 2 Camp. 211 ; 6 Bsp. 126, S. C. [g] Hansard v. Robinson, 7 B. & C. 90, B. C. L. R. vol. 14; 9 Dowl. & R. 860, S. C. But see "Woodford v. WHteley, Moo. & M. 517, and Wain v. Bailey, 10 Ad. & E. 616, E. C. L. R. vol. 37 ; 2 Per. & Dav. 507, S. C. ; see Price v. Price, 16 M. & W. 243 ;* Ramuz v. Crowe, 1 Exch. Rep. 172.* [h) Bevau v. Hill, 2 Camp. 381. (1) A recovery cannot be liad on a, note merely lost and not destroyed, if it tad been indorsed before it was lost. Pintard v. Tackingtou, 10 Johns. 104 ; Baker v. Dumbolton, Ibid. 240 ; Rogers v. Miller, 4 Scam. 333. Contra : If the payee had not indorsed it. Depew v. Wheelan, 6 Blackford, 485 ; Whitesides ¥. Wallace, 2 Speers, 194; Dean v. Speakman, 7 Blackford, 317; Branch Bank v. Tillman, 12 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, although such note is overdue. It is sufficient if he give such proof as shows that the defendant cannot afterwards be compelled to pay the amount to a bona fide holder. Swift v. Stephens, 8 Conn. 431. That an action at law may be maintained upon a negotiable bill or note proved to be destroyed, see Rowley v. Ball, 3 Cowen, 303. 448 BYLBS ON BILLS OF EXCnANGB. voucher and discharge towards the drawer, it will he the same thing whether the instrument has been destroyed or mislaid. With respect to his own security against a demand by another holder, there may be a diiFerence. 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 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." But, if a bill or note, not negotiable, be lost, it is conceived that an action will lie, either on the bill or on the consideration, (i) Where a bill made or became payable to bearer is lost, the acceptor, or other parties, are not liable, though the bill was lost after it was >due, or after a promise to pay by the acceptor. " If," says Lord Tenterden, " upon an offer of payment, the holder should refuse to deliver up the bill, can it be doubted that the acceptor might retract his offer, and retain his money ?"(^)(1) (i) Wain V. Bailey, 10 Ad. & B. 16, E. C. L. R. vol. 37 ; Price v. Price, 16 M. & W. 243 ;* Eamuz v. Crowe, 1 Exch. Rep. 174 ;* Hansard v. Robinson, 7 B. & C. 90, E. C. L. R. vol. 14 ; 9 Dowl. & R. 860, S. C. ; but see Woodford v. Whiteley, Moo. k M. 517 ; Bevan v. Hill, 2 Camp. 381 ; see, however, Ramuz v. Crowe, 1 Exch. Rep. 172 ;* Long v. Bailie, 2 Camp. 214, u. ; Champion v. Terry, 3 B. & B. 295, E. C. L. R. vol. 7 ; 7 Moo. 130, S. C. ; Rolt v. Watson, 4 Bing. 273, B. C. L. R. vol. 13 ; 12 Moore, 510, S. C. [h] Hansard v. Robinson, 7 B. & C. 95, B. C. L. R. vol. 14; Davis v. Dodd, 4 Taunt. 602. (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. Tuckington, 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 indemnify the maker. Thayer v. King, 15 Ohio. 242. 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 Yerger, 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 destruction. Blade v. Noland, 12 Wendell, 173. If a negotiable note, indorsed in blank by the payee, be lost by the indorser, and LOST BILL OE NOTE. 449 The defence that the bill is lost must, in the superior Courts, r-^^Qy, *be raised bj plea, otherwise the plaintiflFs may recover by L producing the ordinary secondary evidence.(Z) If a bill is lost after action brought, and defendant suffer judgment by default, the Court will, on a copy verified by affidavit, refer it to the Master to see what is due.(OT) But if, in such a case, the defen- dant resist the action, and puts the plaintiff to prove the bill, the loss may be no excuse for the non-production of it.(M)(l) A man who takes half a note takes it necessarily under suspicious circumstances,(o) and cannot recover to the injury of the maker. But, where the holder sued on the half of a 6Z. note, the other half having been stolen from the Leeds Mail, Lord Ellenborough 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 suit upon that as the plaintiff has upon this. But the maker of a promissory note cannot be liable, in respect of it, to two parties at the same time."(^) It is doubtful how far the argument, from the liability of the maker on the second half, would be held valid at this day. 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 possession of the finder, or of a transferee, who has taken it from him under circum- (l) Blackie v. Pidding, 6 C. B. Rep. 196, B. C. L. B,. vol. 60. (m) 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. (re) Poole v. Smith, Holt, N. P. Bep. 144. (0) Bayley, 6th ed. 379. (p) Mayor v. Johnson, 3 Camp. 324 ; Mossop v. Eaden, 16 Ves. 436. he afterwards assigns to another his right thereto, the assignee cannot maintain an action at law in his own name upon such lost note. Willis v. Crescy, 5 Shepley, 9. The payee of a promissory note, not under seal, which is lost, may maintain as- sumpsit for the amount, but must aver a consideration. Stephens v. Crostwait, 3 Bibb, 222. (1) In an action on a note which is lost, it is not neces'sary 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 ; Vanawken v. Hornbeck, 2 Green, 178 ; Eastou v. Friday, 2 Richardson, 427. 29 450 BTLES.ON BILLS OF EXCHANGE. stances amounting to fraud, the true owner may bring an action of trover ; or, if it have been paid by the acceptor, or maker to such wrongful holder, the amount is recoverable in action for money had and received. (5') And we have seen that, if the maker or acceptor pay it improperly, it will not be allowed him in account with the payee or drawer. 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 action can be brought against the wrongful holder, *either in trover L -I or assumpsit, the loser is not absolutely without remedy ; he may then resort to a Court of equity for relief. The 9 & 10 Wm. 3, c. 17, s. 3, enacts, that " in case any such in- land bill shall happen to be lost or miscarried within the time before limited for the payment of the same, then the drawer of the said bill is and shall be obliged to give another bill of the same tenor with that first given ; the person to whom they are delivered giving security, if demanded, to the drawer to indemnify him against .all persons whatsoever, in case the said bills, so alleged to be lost or miscarried, shall be found again, "(r) This provision is not peculiar to the law of Eagland, but agreeable to the mercantile law of other countries. (s) Notwithstanding some authorities to the contrary,(i) it is now clearly settled that a Court of common law has no jurisdiction under this statute ; a Court of law not being able to enforce the giving of a new bill, or qualified to judge of the sufficiency of an indemnity.(M) On the other hand, the relief administered by Courts of equity is not confined within the letter of the statute. It will be afforded 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 against the drawer, but against the indorser, or the accep- (g) Down v. Hailing, 4 B. & C. 330, E. 0. L. R. vol. 10 ; 6 D. & Ry. 455 ; 2 C. & P. 11, S. C. ; Lovell V. Martin, 4 Taunt. "799. (»•) The 3 & 4 Anne, c. 9, extends, as it seems, this enactment to promissory notes. [s) Code de Commerce, Liv. 1, tit. 9, art. 151, 152 ; Ordonnance de Commerce de Louis XIV, tit. 5, art. 19. (i!) Walmsley v. Child, 1 Yes. sen. 346 ; Hart v. King, 12 Mod. 309 ; Holt, 118 S. C. (u) Kx parte Greenway, 6 Ves. 812 ; Davies v. Dodd, 4 Price, 176 ; Toulmin v. Price, 5 Ves. 238 ; Bromley v. Holland, Y Ves. 19, 20, 249. BILL OR NOTE CONSIDERED AS PAYMENT. 451 tor; not only may a new bill be required, but payment.(t;) But the Court will not call on a party to renew or pay a lost bill, without pro- viding him with a satisfactory indemnity. To a suit in equity by the last indorsee of a lost bill against the acceptor, the prior indorsers need not be made parties.(w)(l) Where a debtor remits his creditor a bill or note, by a conveyance which the creditor directs, or by post, if that be the ordinary vehicle of transmission, and the bill or note be lost or stolen, the loss will fall on the party to whom the bill was intended to be remitted.(a;) *CHAPTEE XXIX. [*303] HOW FAR A BILL OR NOTE IS CONSIDEEED AS PAYMENT. SnaPENDS THE REMEDY ON A SIMPLE PAID A DISHONORED BILL MUST CONTKAOT, .... 303 PROVE, 306 FORM OF PLEADING, 304 WHERE THE TRANSFERER KNEW THE BUT NOT ON A CONTRACT 0NDER INSTRUMENT TO BE OP NO VALUE, 306 SEAL, 304 A LOST OR DESTROYED BILL, WHEN DOES NOT SUSPEND DISTRESS, . 304 PAYMENT, 306 PAYMENT OF ATTORNEY, 305 PAYMENT BY BANK NOTES OR BILLS CONSEQUENCE OF A CREDITOR TAKING OR NOTES, PAYABLE TO BEARER, 307 BILLS OF A THIRD PERSON, 305 WHERE A BILL IS RENEWED, . 307 OF THE CBEDITOB^S A.GENT TAKING TAKING A BILL DETERMINES A LIEN, 307 THE debtor's bill, . 305 BUT NOT ON LAND, 307 WHAT A CREDITOR WHO HAS EFJEN IS EARNEST, 308 Though it be a general rule of law, that one simple contract cannot be extinguished by another similar executory contract,(a) for (») Walmsley v. Child, 1 Ves. sen. 346 ; Powell v. Monnier, 1 Atk. 611 ; Toulmin V. Price, 5 Ves. 238 ; Ex parte Greenway, 6 Ves. 812; Mossop v. Eaden, 16 Ves. 430 ; Hansard v. Robinson, 7 B. & C.s 90, E. C. L. R. vol. 14 ; 9 Dowl. & R. 860, S. C. ; Davis v. Dodd, 4 Taunt. 602. («o) Macartney v. Grahaii, 2 Sim. 285. (x) Warwick v. Noakes, Peake, 67. (a) But see Com. Dig. Accord. B. ; Good v. Cheesman, 2 B. & Ad. 328, E. C. L. R. vol. 22 ; 4 C. & P. 513, S. C. ; Cartwright v. Cook, 3 B. & Ad. 701, E. C. L. R. vol. 23 ; Garrard v. Woolner, 8 Bing. 268, E. C. L. R. vol. 21 ; 1 M. & So. 327, S. C. ; Carter v. Wormald, 1 Exch. Rep. 81.* ( 1 ) In a suit in equity to recover on u, lost promissory note, the complainant may he 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 com- pliance therewith and on payment of costs. Burrows v. Goodhue, 1 Iowa, 48. 452 BYLES ON BILLS OF BXCHANaE. 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) " 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 payable, and default is made in the pay- ment ; but, if a bill or note is of no value, as if, for example, drawn on a person who has no effects of the drawer's in his hands, and who, therefore, refuses it, in such case he may consider it as waste paper, r*^041 ^^^ resort to the original demand, and sue the *debtor on it. "(c) The taking a bill or note amounts to an agreement to give the debtor credit for the time it has to run.(l) (6) 3 & 4 Anne, c. 9, s. 7 ; Sibree v. Tripp, 15 L. J., Exch. 318 ; 15 M. & W. 23,* S. C. (c) Stedmand v. Gooch, 1 Esp. 3 ; Kearslake v. Morgan, 5 T. R. 513. An un- satisfied judgment on the bill alone will not destroy the original debt. Tarletou v. Allhusen, 2 Ad.& EU. 32, B. C. L. E. vol. 29. (1) Okie V. Spencer, 2 Wharton, 253; Contra, "Weakley 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. 224 ; Woodcock v. Bennet, 1 Cowen, 711 ; Denniston v. Imbrie, 3 Wash. C. C. 396 ; Dougal v. Cowles, 5 Day, 511 ; Hart v. Boiler, 15 Serg. & Rawle, 162 ; McGinn V. Holmes, 2 Watts, 121 ; Ghartain v. Cox, 2 Bailey, 574; Bill v. Porter, 9 Conn. 28 ; Gardner v. Gorham, 1 Douglass, 507 ; Weed v. Snow, 3 McLean, 265; Hay V. Stone, 7 Hill, 128 ; Kelsey v. Rosborough, 2 Richardson, 241 ; McConnell v. Stettinius, 2 Gilman, 707; Steamboat v. Hammond, 9 Missouri, 69; Morgan v. Bitzenberger, 3 Gill, 350; Elwood v. Deifeudorf, 5 Barbour, S. 0. 398 ; Gordon v. Price, 10 Iredell, 385 ; Smith v. Smith, 7 Poster, 244 ; Thompson v. Briggs, 8 Poster, 40. Aliter, if it is accepted as payment. Abercrombie v. Manly, 9 Porter, 145 ; Slocumb v. Holmes, 1 Howard (Miss.), 139 ; Cave v. Hall, 5 Missouri, 59; Watson V. Owens, 1 Richardson, 111 ; Mims v. McDowell, 3 Georgia, 182. And not then, if it was the party's own note, and not the note of a third person. Cole V. Lachett, 1 Hill, 516; Waydell v. Law, 6 Hill, 448; Elwood v. Deifendorf, 5 Barbour, S. C. 398. In Maine and Massachusetts, it is presumed to have been intended as payment. Descadillas v. Harris, 8 Greenl. 298 ; Wallace v. Agry, 4 Mason, 343 ; Cornwall v. Gould, 4 Pick. 444. See Hutchins v. Olcutt, 4 Vermont, 555 ; Costar v. Davies, 3 English, 213. 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. Kean v. Dufresne, 3 Serg. & Rawle, 233. BILL OE NOTE CONSIDERED AS PAYMENT. 453 It is not essential to plead tlie taking of a negotiable instrument, either as payment, or as satisfaction. In answer tp 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 Ane,{d) and that the bill or note has been or is running, or that it is in the hands of a third person. («) But a plea is not double, which alleges both that the bill was taken for and on account, and also in payment.(/) But the liberty of pleading that a bill or note was given or taken on account is confined to the case of negotiable 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. (^) The taking a bill or note from a party bound by a contract under seal, does not extinguish or suspend the remedy on the specialty, unless the bill or note is actiially paid. Thus, where one of three joint covenantors gave a bill of exchange for a part of a debt secured by the covenant, it was held that the bill only operated as a collateral security, not affecting 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 itself, would not operate as an extinguishment of the original one, cannot operate as such by being pursued to judginent, unless it produce the fruit of a judg- ment. "(A) Where a tenant gave a note of hand for arrears of rent, it was (d) Kearslake v. Morgan, 5 T. R. 513 ; see Griffiths v. Owen, 13 M. & W. 58.* (e) Price v. Price, 16 M. & W. 232;* but see Mercer y. Clieese, 12 L. J. 56, C. P. ; 4 M. & G. 804, B. C. L. R. vol. 43, S, C. ; Crisp v. Griffiths, 2 C. M. & R. 159.* (/) Maillard v. Duke of Argyle, 6 M. & G. 40, E. C. L. R. vol. 46. And an allegation that a bill was given " on account of and in payment and discharge," is not equivalent to an allegation that it was given in satisfaction. MoDowall v. Boyd, 17 L. J., Q. B, 295. (g) James y. "Williams, 13 M. & W. 828.* (/i) Drake v. Mitchell, 3 Bast, 251 ; and see Curtis v. Rush, 2 Ves. cSe B. 416. If the 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 precedent debt, then that 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 acconnts bet.ween the parties, but this is a presumption which may be rebutted by other presumptions, or by other facts and circumstances. Butts v. Dean, 2 Metcalf, 76 ; Ilsley v. Jewett, Ibid. 168 ; Maynard v. Johnson, 4 Alabama, 116. 454 BYLES ON BILLS OP BXCHANaE. held, that the landlord might nevertheless distrain, for the note was no alteration of the debt till after payment.(«)(l) r*30')1 *'^^^ Attorneys' and Solicitors' Act, 6 & 7 Vict. c. 73, s. 21, enacts, that an application to tax an attorneys' or solici- tor's bill must be made within twelve months after payment. Where a promissory note is given for an attorney's bill, payable 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.(y) If the debtor, jnstead of paying the creditor, directs him to take a bill of a third person, which the creditor does, and the bill is dis- honored, the liability of' the original debtor revives ;{k) and it is not necessary to give the original debtor notice of the dishonor.(Z) But if the debtor refer his creditor to a third person for payment gene- rally, and the creditor having the option of taking cash, elects to take a bill, which is dishonored, the original debtor is discharged. (?») . The consequence of giving a bill to an auctioneer, or other agent who has no authority to receive anything but cash, is, that the party giving the bill is not discharged from the demand of the principal, although the bill fell due at the period when the debt ought to have been discharged, and is regularly paid to the holder.(w) (t) Harris v. Shipway, 1744; Ewer v. Lady Clifton, C. B., Trin. T. 1735 ; S. C, Bui. N. P. 182 ; Palfrey v. Baker, 3 Price,'5Y2 ; Davis v. Gyde, 2 Ad. & Ell. 623, . E. C. L. R. vol. 29 ; 4 N. & M. 462, S. C. Even a bond given for rent does not extinguish it. Rent, though due on a parol lease, is of as high a nature as an obliga- tion. 11 Vin.Ab. 289. {j ) Sayer v. Wagstaff, 5 Beav. 415 ; in re Harries, 13 M. & W. 3,* S. C. ; In re "Wilton, Q. B. [k) Marsh v. Pedder, 4 Camp. 257 ; Holt, N, P. C. 72, S. C. ; Ex parte Dickson, cited 6 T. R. 142 ; Taylor v. Briggs, M. & M. 28 ; and see Robinson v. Read, 9 B. & C. 449, E. C. L. R. vol. 17 ; 4 M. & Ry. 349, S. C. (I) Swiny^rd v. Bowes, 5 M. & Sel. 62. (m) Strong v. Hart, 6 B. & C. 160, E. C. L. R. vol. 13 ; 9 Dowl. & R. 189 ; 2 C. & P. 55, S. C. ; Smith v. Ferrand, 7 B. & C. 19, E. C. L. R. vol. 14; 9 Dowl. & B. 803, S. C. ; and see Baillie v. Moore, 15 L. J. 169, Q. B. ; 8 Q. B. Rep. 489, E. C. L. R. vol. 55, S. C. (ra) Sykes v. Giles, 5 M. & W. 645.* (1) Wolyamest v. Bruner, 4 Har. & McHenry, 89 ; Snyder v. Kunkleman, 3 Penna. Rep. 487. BILL OR NOTE CONSIDERED AS PAYMENT. 455 The taking of his separate bill from one of several partners for a joint debt, will, as we have seen, discharge the others. Such trans- action ipiports 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 other ; that is, an accord — and the separate bill is a satisfaction. For the separate liability of one partner may, in many cases, be more advantageous than his joint liability with others. It is not extinguished, at law, by his pre-decease ; in the event of a separate adjudication of bankruptcy against him, it would be satis- fied before joint *debts ;(o) and it avoids difficulties which r*ono-i might arise in suing him with another defendant.(jp) Where the creditor's rights against an original debtor are reserved, whether by express agreement,(g') or by the 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 dishonor.(r) But where he does not indorse it, it seems sufficient for the creditor, when suing for the original debt, to show that the bill still remains in his hands, without proving presentment(«) or notice of dishonor,(«) for that is presumptive evidence of dishonor, sufficient to throw it on the defendant to show that the bill has been If the party who gave the bill knew at the time that it was of no value, the holder, on discovering the fraud, may immediately sue such party on his 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, when a vendee, under terms to pay for goods on delivery, obtained possession of them by giving a check which was afterwards dishonored. Lord Tenterden said, " If the vendee had reasonable ground to expect that the check would be paid, the trans- (o) 6 Geo. 4, 0. 16, s. 62. [p) Evans v. Drummond, 4 Esp. 89 ; Reed v. White, 5 Esp. 122 ; Thompson t Percival, 5 B. & Ad. 926, E. C. L. R. vol. 27 ; 3 N. & M. 667, S. C. (q) Bedford v. Deakin, 2 Stark. 178, E. C. L. R. vol. 3 ; 2 B. & Aid. 210 S C (r) Kearslake v. Morgan, 5 T. R. 513 ; Bridges v. Berry, 3 Taunt. 130. ' [s) Goodwin v. Coates, 1 M. & Rob. 221. [t] Bishop v. Rowe, 3 M. & Sel. 362. 456 BYLBS ON BILLS OP EXCHANGE. action was not fraudulent, and the property would pass to him ; if he had not reasonable ground for so expecting, the transaction was fraudu- lent, and the vendors are entitled to recover their property in q^ action of trover, "(m)(1) A bill given in discha^rge of a debt, and then lost, is payment ;[v) but not if proved to be destroyed. ^We have already seen{w) that it has been held that, where <- J a bill or note is delivered without indorsement, not in payment of a pre-existing debt, but in payment or exchange for goods or other securities sbld 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 transferer.(a;)(2) If, in payment of dishonored bills, other bills are given for the sum due, and. the first remains in the hands of the holder, if the latter bills are not paid, the liability of parties on the former revives.(2/) (m) Hawes v. Crowe, 1 E. & M. 414 ; Puokford v. Maxwell, 6 T. R. 52 ; Owenson V. Morse, 1 T. B. 64; Bishop v. Shillito, 2 B. & Aid. 329, n.; Taylor v. Plumer, 3 M. & Sel. 562 ; Brown v. Kewley, 2 B. & P. 518 ; Gladstone v. Hadwen, 1 M. & Sel. 517 ; Noble v. Adams, 1 Taunt. 59, E. C. L. R. vol. 2; Earl of Bristol v. Wilsmore, 1 B. & C. 514, E. C. L. R. vol. 8; 2 D. & R. T55, S. C; Kilby v. Wilson, 1 R. & M. 178. (u) Woodford v. Whiteley, M. & M. 517. N.B. In this Chapter the vovi payment is not always used in its strict legal sense. (w) Chapter on Transfer; and see p. 229. (x) Camidge v. Allenby, 6 B. & C. 373, E. C. L. R. vol. 13 ; 9 D. & R. 391, S. C. ; Ward v. Evans, 2 Ld. Raym. 928 ; Brown v. Kewly, 2 B. & P. 518. See the Chapter on Transfer. {y) Ex parte Barclay, 7 Ves. 597 ; Bishop v. Rowe, 3 M. & S. 362 ; Dillon v. Rimmer, 1 Ring. 100, B. C. L. R. vol. 8 ; 6 Moo. 427, S. C. (1) Markle v. Hatfield, 2 Johns. 455 ; Ontario Bank v. Lightbody, 13 Wendell, 101 ; Lowrey v. Murrell, 2 Porter, 280 ; Bayard v. Shunli, 1 Watts & Serg. 94. (2) Patten v. Ash, 7 Serg. & Rawle, 116 ; People v. Howell, 4 Johns. 296 ; Dennis V. Hart, 2 Pick. 204 ; Bayard v. Shunk, 1 Watts & Serg. 94. Where the vendor of goods is induced to take the note of a third person as pay- ment, 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 him 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. Simms v. Clark, 11 Illinois, 137 ; Ramsdale v. Horton, 3 Barr, 330 ; Raymond v. Baur, 13 Serg. & Rawle, 318. BILL OR NOTE CONSIDERED AS PAYMENT. 457 And even if the new bill be duly paid, the holder may recover on the old bill, if the amount of principal and interest due thereon, is not covered by the amount of the new hi\\.{z) 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. (a) The taking of a bill or note in payment will, in general, determine a lien. Thus, where the owner of a ship having a lien on the goods, until the delivery of good 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 negotiation amounted to an approval of the bill by him, and to a relinquishment of his lien on the goods.(6) So, where, for goods sold, the vendor took the vendee's promissory note, and negotiated it with his banker, and it was subse- quently dishonored, but continued outstanding in the banker's hands, it was held that the vendor had, by taking the note and negotiating it, relinquished his lien, and that the lien did not revive on the dis- honor of the note, the note continuing in the banker's hands. (c) But if a bill or note is taken, and, remaining in the vendor's hands is dishonored, the goods not being delivered, it should seem that the lien revives, ((i) On the sale of real property the taking and negotiating a r;)!qnQT *note or bill, does not amount to a relinquishment of the lien(e) on the land.(/) A bill, check, or promissory note is earnest, or part payment, within the seventeenth section of the Statute of Frauds, so as to ob- viate the necessity of a written contract. (^) (z) Lumley v. Musgrave, 4 Bing. N. C. 9, E. C. L. R. vol. 33 ; 5 Scott, 230, S. C. (a) Kendrick v. Lomax, 2 C. & J. 405 ;* 2 Tyr. 538, S. C. (b) Horncastle v. Farran, 3 B. & Aid. 497, E. C. L, E. vol. 5 ; 2 Stark. 590, S. C. (c) Bunney v. Poyntz, 4 B. & Ad. 568, E. C. L. R. vol. 24 ; 1 N. & M. 229, S. C. (d) New V. Swain, 1 Dans. & LI. 193. (e) Ex parte Loriug, 1 Rose, 19 ; Grant v. Mills, 2 V. & B. 306. See as to the effect of taking a void check. Bond v. Warden, 14 L. J. 154, Chan. (/) As to the circumstances under which the transfer of a bill is payment in bankruptcy, see the Chapter on Bankruptcy, {g) Chitty on Bills, 8th ed., 80, note b, p. 84. 158 BYLES ON BILLS OF BXCHANSB. [*309] *CHAPTER XXX. OP SETS AND COPIES OF BILLS. WHAT A BILL DRAWN IN SETS IS, . 309 TO WHOM THE BILL BELONGS WHEN THE PARTS ARE IN DIFFERENT HANDS, . - . . . . 310 HOW MANY PARTS MAY BE REQUIRED, 310 EFFECT OP OMITTING TO REFER TO THE OTHER PARTS, . . . 310 LIABILITY OF DRAWEE, . . .310 LIABILITY OF INDORSEE, . . 311 COPIES OF BILLS, . . . .311 Foreign bills((7) are often drawn in sets : that is, exemplars or parts of the bill are made on separate pieces of paper, each part being num- bered, and referring to the other parts. Each part contains a condi- tion, that it shall continup payable only so long as the others remain unpaid. These parts should circulate together ; or one may be for- warded for acceptance while the other is delivered to the indorsee, thus relieving him from the necessity of forwarding his part for ac- ceptance, but giving him the indorser's security immediately, and diminishing the chances of losing the bill.(J)(l) A firm, who were both payees and acceptors of a foreign bill in r;^o-|Q-] three parts, indorsed one part to a creditor to remain in his *hands till some other security were given for it, and then in- (a) II existe daus la negotiation des lettres de change un usage qui la facilite et assure leur paiement rapide ; c'est la faculte de tirer par premiere, seconde, et troi- sieme, &o., &c., c'est i dire de souserire plusieurs exemplaires. Get usage remonte a des temps deja recules ; il ^tait en vigueur sous I'ancienne legislation, et Cleirac en cite des exempjes qui se rapporte au milieu du seizieme sieole. II n'est pas sans inter^t de reproduire ses obse^^^ations fort sensees : " Et de autant que les lettres de change sont des papiers volans, des petits poulets, ou billets, Polizza di Cambio, qui se peuvent faoilement esdirer et perdre. Comme aussi le banquier correspondant a Paris pent manquer au paiement, c'est pourquoi, tant le bourgeois qui a tire, que son commissionnaire residant a Paris, out chacun besoin d'une copie pour faire leurs diligences. A cette cause le banquier doit ecrire, et fournir par precaution deux ou trois copies de la meme lettre de semblable teneur." Nouguier des Lettres de Change, 1, 104. (6) The facility which drawing a bill in sets affords for its presentment, has been held to accelerate the time within which a bill, payable after sight, ought to be pre- sented for acceptance. Straker v. Graham, 4 M. & W. 12\.* (1) The whole of a set of exchange constitutes' but one bill, and payment or can- celling of either of the set extinguishes all. Durkin v. Cranston, 1 Johns. 442 ; Ingraham v. Gibbs, 2 Dall. 134 ; Miller v. Haokley, Anthon, 68. As to the different sets of bills, see Kenworthy v. Hopkins, 1 Johns. Cas. 107. SETS AND COPIES OF BILLS. 459 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 recovering against thfe 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 acceptance and indorsement of the second part.(c) 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 entitled to the other parts,((i) and may, it has been said, maintain trover for them, even against a subsequent bona fide holder.(e) 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.(/) 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 part.(^) The drawee should accept only one part. For if two accepted parts should come into the hands of different holders, and the accep- tor should pay one, it is possible that he may be obliged to pay the other part also. (A) And he should not pay without taking back the part which he has ,accepted,(2) for, having paid the unaccepted part, he may be obliged afterwards to pay the accepted part also. (c) Holdsworth v. Hunter, 10 B. & C. 449, E. C. L. R. vol. 21. (d) Ibid. ; Perreba v. Jopp, 10 B. & C. 450, n., E. C. L. R. vol. 21. (e) For it is the duty of a person taking one of several parts to inquire after the others : Lang v. Smyth, 1 Bing. 284, 294, E. C. L. R. vol. 20 ; 5 M. & P. 78, S. C. ; and he is advertised by the part which he does take, that he takes it without the "others at his peril. (/) 1 Pard.'334. But since each part is now subject to a stamp, it may b6 doubtful whether he is so bound, unless the party applying will furnish the extra stamps. [g) Davison v. Robertson, 3 Dow. 218, 288 ; Beawes, 430 ; Poth. Ill ; 2 Pard. 367. But not an inaccurate reference or an omission to name one part obviously by mistake. Bayley, 6th ed. 30. (h) See Holdsworth v. Hunter, supra. (i) " Celui qui paie une lettre de change sur une deuxieme, troisieme, quatrieme, &c., sans retirer celle sur laquelle se trouve son acceptation n'opere point sa libe- ration a regard du tiers porteur de son acceptation." Gode de Commerce, Art. 148. 460 BYLES ON BILLS OF EXCHANGE. / *And if an indorser improperly circulate two parts to dis- L -• tinct holders, lie may be liable on each.(y) The forgery of the payee's indorsement on one of the parts will of course pass no interest even to a bona fide holder.(A;) It is conceived, that an indorser is not bound to pay any one part, unless every part bearing his indorsement is delivered up to him.(Z) Copies of bills are not, it is believed, much used in this country. A protest may be made on the copy of a bill in some cases. (ot) 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 trans- scribe the body of the bill, and all the indorsements, including 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 oi^ an original.(w) (j) See Holdsworth v. Hunter, supra. [k] Cheap v. Harley, 2 T. R. 127 ; see Smith v. Mercer, 6 Taunt. 80, E. C. L. R. vol. 1 ; 1 Marsh. 453,' S. C. ; Puller v. Smith 1 C. & P. 197, E. C. L. R. vol. 12; Ry. & M. 49, S. C. (Z) Lorsqu'une deuxieme porte qu'elle ne sera payee qu'autant que la premiere ne I'aura pas ete, I'endosseur qui endosse les deux exemplaires n'est point respona- able envers le porteur de la seconde qui a regu ce titre, tandis que la premiere etait egalement en circulation. Dans ce cas le porteur de la seconde est averti par les enonciations qu'elle con- tient. Pour se mettre a I'abri des fraudes de son cfidant, il doit se faire remettre la premiere. Cour de Cassation, 4 Avril, 1832 ; Sirey, 1. 32, 1. 29. (to) Dehers v. Harriot, 1 Show. 163. (n) L'usage des copies quoiqu'il ne soit pas consacre par la loi n'en est pas moins valable. L'endosseur qui cree une copie, apr^s avoir negocie I'original, est tenu de mentionner dans la copie I'endossement qu'il a ecrit sur le titre me me. Si, au contraire, apres ces mots pour copie, il appose un endos, il fait supposer que I'origi- nal n'est pas endosse, et il est responsable vis-a-vis du porteur de bonne foi de la copie. Cour Royale de Paris, 14 Janvier, 1830; Sirey, t. 30, 1. 172. OF FOREIGN BILLS AND FOREIGN LAW. 461 *CHAPTER XXXI. [*312] OP FOREIGN BILLS AND NOTES, AND OP POREIGN LAW RELATING TO BILLS AND NOTES. WHAT ARE FOKEIGN AND WHAT IN- LAND BILLS, .... .312 SETS OF BILLS, . . . .313 PKESENTMENT OF FOREIGN BILLS, . 313 ACCEPTANCE OP FOBEIGN*BILLS, . 313 PROTEST, 313 OF THE CONFLICT OF THE LAWS OF DIFFERENT CODNTRIES RELATING TO BILLS, 313 GENERAL PRINCIPLES OF THE EN- GLISH LAW, .... 314 CASES WHERE THE LEX LOCI CON- TRACTUS GOVERNS, . . . 315 LEX LOCI SOLUTIONIS, . . .315 LEX FORI, ...... 315 FOREIGN ACCEPTANCE, . . .316 FOREIGN INDORSEMENT TO FOREIGN NOTE, 316 FOREIGN DISCHARGE, . . . 316 CASES IN WHICH THE LEX LOCI SOLU- TIONIS GOVERNS, . . . 316 FOREIGN INDORSEMENT OF ENGLISH NOTE, .316 TIME OF PAYMENT, PROTEST AND NOTICE OP DISHONOR, GENERAL ACCEPTANCE, . IMMORAL, ILLEGAL, AND INJURIOUS CONTRACTS, . . . . REVENUE LAWS OF OTHER COUNTRIES DISREGARDED, .... STAMPS ON FOREIGN BILLS, . ON IRISH OR COLONIAL BILLS, RAISING OBJECTION TO STAMP, WHAT IS SUCH A MAKING WITHIN THE KINGDOM AS TO SUBJECT TO A STAMP, ... PRESUMPTION THAT BILL WAS DRAWN ABROAD, APPLICATION OF THE LEX FORI TO FOREIGN BILLS, .... STATUTES OF LIMITATION, PROTEST AND NOTICE OF DISHONOR, PLEADING, BURDEN OF PROOF, 3ir 317 317 317 318 318 318 318 318 319 319 319 320 320 320 Bills of exchange are either foreign or inland.((x) Inland bills of exchange are such as are both drawn and payable in England, Wales, or Berwick-on-Tweed, or drawn and payable in Ireland, or drawn and payable in Scotland.(J) *Foreign bills as distinguished from inland bills, are such as p^„^ „, are drawn or payable, or both, abroad, or drawn in one realm '" -■ of the United Kingdom, and payable in another. (a) Holt, C. J., " I remeiiiber when actions upon inland bills of exchange did first begin, and there they 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. 29 ; 1 Salk. 130 ; Holt, 119, S. C. (6) A bill drawn in England on a person residing abroad, but drawn and ac- cepted payable in England, has been held an inland bill within the Stamp Act. Amner v. Clarke, 2 C. M. & R. 468.* / 462 BYLES ON BILLS OF EXCHANGE. Bills drawn in England, and payable in Scotland, or Ireland, or vice versa, are foreign bills, for they were so before the union be- tween the countries, and the union does not make them inland bills.((;) But bills drawn and payable in Scotland, or drawn and payable in Ireland, are inland bills within 1 & 2 Geo. 4, c. 78, to which an acceptance in writing is necessary. (c?) 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 decla- ration 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 declaration. (e) The acceptor of a bill, purporting to be a foreign bill, but really made in England, and known by the acceptor to-be so, is not pre- cluded from objecting, in an action by an innocent indorsee, that it is really an inland bill and therefore void for want of a stamp. (/) Foreign bills are frequently drawn in sets : that is, exemplars or parts of the bill are made on separate pieces of paper, each part referring to the other parts, and containing a condition 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 preceding Chapter on Sets and Copies of Bills. As to the presentment of foreign bills for acceptance or payment, see the Chapters on Presentment for Acceptance, and Present- ment EOR Payment. As to the English law regulating the acceptance of foreign bills in this country, see the Chapter on Acceptance. As to the protest of foreign bills, see the Chapter on Protest. r*^14.n Sometimes bills drawn in England are payable in a foreign L *country, and bills drawn in 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 nego- (c) Mahoney v. Ashling, 2 B. & Ad. 4V8, B. C. L. R. vol. 22. (d) Ibid. (e) Armani v. Castrique, 13 M. & W. 443.* (/) Steadman v. Duhamel, 1 C. B. Rep. 888, E. C. L. R. vol. 50. - OF FOKEIGN BILLS AND FOBBIGN LAW. 463 tiated abroad, are brought in English Courts of justice. The laws of foreign countries, as t'o 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 reference to which they were made, other- wise the rights and liabilities of parties would entirely depend on the law of the country where the remedy might happen to be sought. Such a state of 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 laws of foreign nations. In determining how far foreign laws are to regulate foreign con- tracts in English Courts, a great variety of circumstances are often necessary to be considered. It may be essential to regard the domi- cil, 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 de- termine), the place where the contract is to be performed, the place where the subject-matter of the contract is 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 international law of contracts have not been very numerous, blit nothing can exceed the discrepancy and irreconcilable contrariety of the doctrines and opi- nions of foreign writers, not only on the application of the principles of international law to foreign contracts, but on the very principles themselves.(^) 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 admissible here to govern the contracts arising on bills or notes made or negotiated abroad, it may not *be altogether useless, with a view as well to the right understanding ofL -1 such decisions as have already been pronounced, as to the solution of {g) See the very learned work on the Conflict of Laws, for which not only hia own country, but the United Kingdom is deeply indebted to the late Mr. Justice Story. > 464 BYLES ON BILLS OF EXCHANGE. such undecided questions on the same subject as may hereafter arise, 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 foreign contracts. The following appear to rank among established principles in the law of this country. 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 proprio vigore on aliens as well as on natural born subjects,(A) and the parties to the contract may generally be taken to have contemplated the legal consequences which those laws deduce from their stipulations. 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 per- formed 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 law. " Contraxisse unusquisque in eo loco intelUgiter, in quo ut solveret se obligavit." Some learned civilians have, indeed, entertained a different opinion, but such is unquestiona- bly 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 entered into with the express view of the law of another country, as the rule by which it is to be governed."(i)(2) {h) According to some foreign writers, the domicil of persons entering into a contract, wliile in a foreign country, is to be considered in those contracts. Di£S- culties 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. But quEere, how far the domicil of parties to bills of exchange regulates their personal capacity or incapacity to contract. (i) Robinson v. Bland, 2 Bur. Rep. 1077; 1 Bla. R. 256, S. C; and see Rothschild V. Currie, 1 Q. B. Rep. 43, E. C. L. R. vol. 41 ; see Story's Conflict of Laws, 280 to 281. (1) Cox V. U. States, 6 Peters, 172; Carnegie v. Morrison, 2 Mete. 381, 397; Bulger V. Roche, 11 Pick. 36 ; Bruchett v. Norton, 4 Conn. 517; Sherrill v. Hop- kins, 1 Cowen, 103 ; Allen v. Watson, 2 Hill, S. C. 319 ; Loan Co. v. Towner, 13 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 V. Yarrington, 1 Ohio State Rep. 253. (2) Smith V. Mead, 3 Conn. 253 ; Thompson v. Ketcham, 4 Johns. 285 ; 8 Ibid. OF FOKBIGN BILLS AND FOREIGN LAW. 465 Thirdly, contracts immoral or contrary to the law of nations, or injurious to British public interests, though valid where made, will not be enforced on behalf of a guilty party in our Ooul-ts.(l) *But, fourthly, one country will not regard the revenue laws p^^q-ic-i of another country. Fifthly, the remedy is to be governed by the law of the country where that remedy is sought.(2) The following are instances of the supremacy of the lex loci con- tractus 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, the drawer then fail, and the acceptor had not sufficient effects of the drawer in his hands at the tJme of acceptance, the ac- ceptance 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 189 ; Warren v. Lynch, 5 Ibid. 239 ; Pope v. Nickerson, 3 Story, 465 ; Goddin v. Shipley, 7 B. Monroe, 575 ; Broadhead v. Noyes, 9 Missouri, 56 ; Dorsey v. Har- desty, Ibid. 157 ; Sherman v. Gasset, 4 Gilman, 521 ; Tyler v. Trabur, 8 B. Monroe, 306. (1) The laws of foreign countries ^are not admitted, ex propria vigore, but only ex comitate; and the judicial power will exercise a discretion with respect to the laws they may be called upon to sanction. If they are manifestly unjust or calculated to injure our own citizens, they ought to be rejected. Tappan 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 there 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 our laws, unless this state or its citizens would be injured by giving legal effect to it, or it would be a pernicious and detestable example to them. Greenwood v. Curtis, 6 Mass. 358, 377. (2) Titus V. Hobart, 5 Mason, 378 ; Robinson v. Campbell, 3 Wheaton, 212 ; Blanchard V. Russel, 13 Mass. 15; Smith v. Spinolla, 2 Johns. 198; Andrews v! Herriot, 4 Cowen, 508 ; Wood v. Malin, 5 Halsted, 208 ; Ayres v. Auderbon, 2 Hill, S. C. 601 ; Watson v. Brewster, 1 Barr, 381 ; Givins v. Western Bank, 2 Alabama, 397 ; Smith v. Atwood, 3 McLean, 545 ; McKissick v. McKissick, 6 Humph. 75 ; Wood v. Watkinson, 17 Conn. 500 ; Broadhead v. Noyes, 9 Missouri 56 ; Dorsey v. Hardesty, Ibid. 157. ' 30 466 BYLES ON BILLS OF EXCHANGE. King granted a perpetual injunction, enjoining the plaintiff at law from suing on the bill.(y)(l) (j) Burrows v. Jemino, 2 Stra. 733 ; Sel. Ca. 144 ; 2 Bqu. Abr. 526 ; see Wynne V. Calendar, 1 Bus. 295. ( 1 ) Where a note is made payable generally, the law of the place where it is made must determine the construction to be given to it, and the obligation and duty it imposes. Bank of Orange Co. v. Colby, 12 N. Hamp. 520 ; Stacey v. Baker, 1 Scam. 41Y ; Rowell v. Buck, 14 Verm. 147 ; Bliss v. Houghton, 13 New Hamp. 126; Eeddiok v. Jones, 6-Iredell, 107. The liability of the drawer of a bill is governed by the law of the place where it is drawn. Crawford v. Branch Bank, 6 Alabd,ma, 12. A. domiciled here, accepts in Manchester, England, a bill drawn by B. an English merchant, resident there, payable to B. or order in London. 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 contract. Lizardi v. Cohen, 3 Gill, 430. ' A promissory note made between parties resident in New York, and there nego- tiated while still current, but paid by the maker before maturity, was afterwards sued in Vermont, in the name 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 Vermont, 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 all defences against the indorser which he had against the payee before notice of the indorsement, applies to a suit brought in another state, on a note payable in Mississippi, and indorsed in Mississippi. Brubston v. Gibson, 9 Howard, U. S. 263. Notes were given in New York for a usurious loan, both parties being there at the time. When the 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 were delivered to the lender in the State of Con- necticut, 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 York for materials there furnished, held, that it was governed by the lex loci, by which the note was only conditional payment. Bark Chusan, 2 Story, 55. The law of a place where a note is payable, determines what is a default by the maker. But the contract of the indorser is regulated by that of the country where the indorsement is made. Hatcher v. McMorine, 4 Devereux, 122 ; Dow v. Eassell, 12 N. Hamp. 49 ; Holt v. Salmon, 1 Rice, 91 ; Dunn v. Adams, 1 Alabama, 527; Yeatman v. CuUen, 5 Blackford, 240 ; Dowry's adm. v. Western Bank, 7 Alabama, 120 ; Holbrook v. Vibbard, 2 Seam. 465 ; Musson v. Lake, 4 Howard, U. S. 262 ; OF FOREIGN BILLS AND FOREIGN LAW. 467 A bill of exchange was drawn in France, and indorsed in blank in France without following the formalities prescribed 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.(/fc)(l) Where the defendant gave the plaintiff, in a foreign country, where both were resident, a bill of exchange drawn by the defendant on a person in England, which bill was afterwards protested here for non- acceptance, and the defendant, afterwards, while still resident abroad, became bankrupt there, and obtained a certificate of discharge by the law of that' state, it was held, that such certificate was a bar to an action here, upon an implied assumpsit to pay the amount of the bill, because the implied contract was made abroad.(Z) The following are cases in which the lex loci solutionis has been held to govern. An I. 0. U. given for money lent in Germany, to *play at pgii^-i games of chance, not illegal in Germany, is valid here.(m) A promissory note 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.(w) The time of payment is to be calculated according, to the law of the {h) Trimby v. Vignier, 1 Bing. Ca. 151 ; 4 M. & Seott, 695; G C. & P. 25, E. C. L. E. vol. 25 ; S. C; but see Wynne v. Jackson, 2 Russ. 51. [l) Potter V. Brown, 5 East, 124 ; 1 Smith, 351, S. C. (m) Quarrier v. Colston, 12 L. J. 51, Chanc. (n) De la Chanmette v. Bank of England, 2 B. & Ad. 385, E. C. L. R. vol. 22 ; and 9 B. & C. 208. , Cox V. Adams, 2 Kelly, 158 ; Dundas v. Bowler, 3 McLean, 397 ; Bank of Illinois V. Brady, Ibid. 268 ; Snow v. Perkins, 2 Michigan, 238 ; Bernard v. Barry, 1 G. Greene, 388. (1) The payee of a promissory note, which was executed and made payable in New York, having indorsed it in Indiana, was sued in Indiana, on his indorsement; 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 indorser 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. 468 BYLES ON BILLS OF EXCHANGE. country where the bill is made payable.(o) For example, the days of grace. The protest and notice of dishonor must be regulated by the law of the country where the bill is payable.(l) A bill was drawn in Eng- land in favor of the defendant a payee in England on a house in Paris, and accepted in Paris, payable there, and indorsed to the plaintiff in England. The bill being dishonored by non-payment, notice was given to the 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 plaintiff 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 England, be regulated by the English law. But the Court of Queen's Bench 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 notice of dishonor, must therefore so far prevail.(^)(2) But a general acceptance being a contract to pay everywhere, is governed by the law of the place where it is given, for it is payable there as well as in every other place. (g')(3) (0) Beawes, 151 ; Marius, Y5, 89 to 92, 101 to 103 ; Bayley, 6th ed. 249. See ante, p. 163, 164 (p) Eothschild v. Currie, 1 Q. B. Rep. 43, E. C. L. R. vol. 41. (2) Don V. Lipman, 5 Clark & Pin. 1, 12, 15 ; Sprowle v. Legge, 1 B. & C. 16, E. C. L. R. vol. 8 ; 2 D. & R. 15 ; 3 Stark. 156, S. C. ; Kearney v. King, 2 B. & Aid. 301. (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 evidence by the law of the place where Bie note is payable, is not therefore admissible elsewhere. Kitland v. Wanzer, 2 Duer, 277. (2) Ellis V. The Commercial Bank, 7 Howard, Miss. 294. (3) The liability of acceptors of a bill of exchange is to be ascertained by the law of the place where the bill is made payable. Frazier v. Warfield, 9 Smedes & Marshall, 220. Where a bill is made payable generally and accepted 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, although the acceptors reside in a different place. Frazier v. Warfield, 9 Smedes & Marshall, 220. Where bills are accepted, payable in Loudon, on a promise to provide funds to OP FOREIGN BILLS AND FOKEIGN LAW. 463 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. *The following are instances of the fourth rule that the r^gjg-i English Courts will not regard the revenue laws of other countries, (r) Bills or notes drawn or made in a foreign independent state, or at sea (except those payable to bearer on demand), do not require, in order to their validity in this country, an English stamp, nor a stamp of the country where they are made or drawn.(s) " In the time of Lord Mansfield," observes Abbott, C. J.,{t) " 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^ations 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 give effect to ours. It would be productive of prodigious inconve- nience, 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 {r) See Pelleeat v. Angell, 2 C. M. & R. 311.* (s) Botch V. Edie, 6 T. R. 425 ; Boucher v. Lawaon, Rep. Temp. Hardwicke, 198 ; Holman v. Johnson, Cowp. 343 ; Clugas v. Penaluna, 4 T. R. 467. {t) James r. Catherwood, 3 D. & R. 190, E. C. L. R. vol. 16 ; Wynne v. Jackson, 2 Russ. 351 ; but see the note to Dr. Story's Conflict of Laws, 2d ed. p. 341. meet them, the contract -is governed by the law of England. Bainbridge v. Wil- cocks, 1 Baldwin, 536. A letter of credit from persons in New Orleans addressed to one in Cincinnati, agreeing to accept 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-accept- ance is unnecessary. Allen v. Merchants Bank, 22 Wendell, 215. Where a bill is drawn in New York payable in Alabama, which does not contem- plate the payment of interest on its face, and interest accrues only in default of pay- ment 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. Hanrich v. Andrews, 9 Porter, 9. 470 BYLES ON BILLS OP EXCHANGE. country was, in order to ascertain whether the instrument was or was not valid." But bills drawn in England and payable abroad are, as we have seen, subject to an English stamp. If a bill be drawn in Eng- land, on a person abroad, and made payable in England, by both drawer and acceptor, it requires to be stamped as an inland bill.(M) 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 pK,ce.(f) If an unstamped bill tendered in evidence as a foreign bill be really drawn in England, the proper course is for the defendant to object to the admissibility of the bill, and at once to give his evidence on the point, and for the Judge to decide whether it be a foreign or an inland bill.(w) A question sometimes arises as to what shall be such a making *within this country as to subject to the English Stamp Laws. L -I The firm of B. and C, in Ireland, had one partner A., resident in this country, where he slscf carried on a separate trade. They sent him over four signatures, made by them, on copperplate impres- sions, as drawers and indorsers, with blanks for dates, sums, and drawees' names. He filled them up and used them. It was held, that as the bills were signed in Ireland, they must be considered as made there, and, consequently that they only require an Irish stamp. (a;) So, where a bill was drawn in Jamaica," on a stamp of that island only, and a blank was left for the payee's name, it was held that an English stamp was not necessary to the validity of the insertion of the bearer's name in England.(y) So, a bill sketched out and accepted here, but afterwards signed by the drawer abroad, is to be considered as made abroad. The presumption is, that a bill, purporting to be drawn abroad, was really so drawn. But evidence is admissible to show that a bill, purporting to have been drawn abroad, was in fact drawn in England, (m) Amner v. Clark, 2 C. M. & R. 468.* (v) Alves V. Hodgson, Y 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. Ruoher, 1 Camp. 63 ; Le Cheminant v. Pearson, 4 Taunt. 367 ; Miller v. Heinrick, 4 Camp. 155. [w] Bartlett v. Smith, 11 M. & W. 483.* No party is estopped from objecting to the stamp, because the bill is an inland bill, ante, p. 313, n. [f). [x) Snaith v. Mingay, 1 M. & Sel. 87. [y) Crutchley v. Mann, 5 Taunt. 529, E. C. L. R. vol. 1 ; 1 Marsh. 29, S. C. OS FOREIGN BILLS AND FOREIGN LAW. •171 and is therefore void for want of a stamp. If a bill purport to be drawn abroad, and the defence is that it was drawn here, and there- fore should have a stamp, the proof should be most distinct and posi- tive. Action on a bill dated Paris, 1st March ; defence that it was drawn in London, and proof that the drawer was in London, the 3d March, at eleven in the forenoon. Lord EUenborough— " It is not very probable this bill was drawn in Paris, on the 1st March ; but if it were prove'd ever so distinctly that it was not drawn in Paris on the 1st March, it would not follow that it was not drawn there at some other time, or that it was drawn in England. Drawing here with a foreign date, to evade the stamp duties, is a very serious offence, and the fact must be made out by distinct evidence."(2!) A party to the fraud is not precluded from showing that a bill, purporting to be a foreign bill, is really an inland one.(a) The following are instances of the application to bills of exchange of the last rule, viz. : — that though the lex loci contractus must in- terpret the contract, yet that the lex fori must govern the remedy. *Statutes of Limitation affect the remedy only, and not the p^nn^-, substance of the contract. (6)(1) L -^ (z) Abraham v. Dubois, 4 Camp. 269 ; Eire v.Moreau, 2 C.'& P. 376, E. C. L. R. vol. 12. (a) Ante, p. 313, n. (/). (6) QuEere, 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, 211, B. C. L. R. vol. 29 ; 2 Scott, 304 ; 1 Hodges, 206, S. C. ; Donn v. Lipman, 1 Clark & Finnelly, 1, 16, 17 ; Story, 2d ed. 840. In such a case it should seem that the statute is equivalent to a release. (1) Hankins v. Barney, 5 Peters, 457 ; McElmoyle v. Cohen, 13 Peters, 312 Richards v. Bickley, 13 Serg. & Rawle, 395; Jones v. Hook, 2 Randolph, 303 Lincoln v. Battele, 6 Wendell, 475; Williams v. Preston, 3 J. J. Marshall, 600 Cartierv. Page, 8 Vermont, 150; Chenot v. Lefevre, 3 Gilman, 637 ; Estes v. Kyle. 1 Meigs, 34 ; King v. Lane, 7 Missouri, 241 ; Watson v. Brewster, 1 Bai-r, 381 Townsend v. Jemjson, 9 Howard, U. S. 407. Where a cause of action is barred ly the statute of limitations of the state in which the subject-matter is situated, an action cannot be maintained in another state. Cargile v. Harrison, 9 B. Monroe, 518. If the maker of a note remain in the state in which it was made -until an action upon it in that state is barred by the statute of limitations, that may be pleaded in bar to an action on the note in any other state to which he may remove. Goodman v. Munks, 8 Porter, 84. A., who had become a resident of Texas, made a note in South Carolina on which 472 ^ BYLBS ON BILLS OF EXCHANGE. Therefore, where, by the law of the country where the contract was made, the plaintiff would have had forty years to bring his action, yet, as he sued in England, it was held that he must bring his action within six years. (c) So, on the other hand, though the payee of a French promissory note must, if he had sued in France, have brought his action there within five years, it was held that he might here bring his action at any time within six years. (cZ) So, though a defendant may not be subject to arrest in the country where the contract is made, yet he is subject to arrest where the law of this country gives the creditor the right to arrest, if the remedy is sought here.(e) The protest and notice of dishonor are parcel of the contract, and not incidents of the remedy for the breach of it. They must, there- fore, be regulated by the law of the country where the bill is pay- able.(/)(l) When foreign law is relied on in pleading, it is necessary first to state what the foreign law is, and then to allege the facts, bringing the case within that foreign law.(^) It will be assumed, that the law of a foreign country is the same as the law of this country in respect of negotiable instruments till (c) British Linen Company v. Drummond, 10 B. & C. 903, E. C. L. R. toI. 21. (d) Huber v. Steiner, 2 Bing. N. Ca. 202, B. C. L. R. vol. 29 ; 2 Scott, 304; 1 Hodges, 206, S. C. See Donn v. Lipman, 1 Clark & Finelly, pp. 1, 1^, 16. (e) De la Vega v. Vianna, 1 B. & Ad. 284, B. C. L. R. vol. 20 ; and see Shaw v. Harvey, M. & M. 526. (/) Rothschild v. Currie, 1 Q. B. Rep. 43, B. C. L. R. vol. 41. See Rothschild V. Barnes, Q. B. 1842. (g) Benham v. Lord Mornington, 3 C. B. 133, B. C. L. R. vol. 54. he was sued iu Texas. He pleaded the statute of limitations of both states. Held, that the plea of the statute of South Carolina was not good, as the claim was not barred at the time of his immigration to Texas, but that the plea of the statute of Texas was good. Smith v. Crosby, 2 Texas, 414. Assumpsit cannot be maintained in Maryland upon a single bill made in Virginia, which according to the laws of Virginia is not a specialty, but is according to the laws of Maryland. Trasher v. Byerhart, 3 Gill & Johns. 234. Contra, Watson v. Brewster, 1 Barr, 381 ; Dorsey v. Hardesty, 9 Missouri, 157. In an action of assumpsit upon a note, what is matter of set-off must be deter- mined by the laws of the state where the action is brought, and not by the laws of the state where the note is made. Gibbs v. Howard, 2 N. Hamp. 296. (1) Ellis V. Commercial Bank, 1 Howard, Miss. 294. REMEDY BY ACTION ON A BILL. 473 the contrary be proved. Therefore, if a promissory note made in Scotland be sued upon in this country, and there be any difference m the law of the two countries as to the liability of the defendant, it lies upon the defendant to prove that difference.(A)(l) *CHAPTEE XXXII. OP THE REMEDY BY ACTION ON A BILL. [*321] WHO MAT SUB ON A BILL, iif another's name, JOINING COUNT ON CONSIDERATION, AGAINST WHAT PARTIES ACTIONS MAT BE BROUGHT, JUDGMENT AGAINST TWO PARTIES, . , WHERE DEFENDANT IS LIABLE IN TWO CAPACITIES ON THE SAME BILL, PROCEEDINGS EOR COSTS, COSTS or ACTIONS THAT HAVE BEEN BROUGHT AGAINST THE PARTY SUING, TROTER OR DETINUE FOR A BILL, . AITIDAVIT TO HOLD TO BAIL, , ARREST FOR INTEREST, . STATEMENT OF THE SUM, . THAT THE BILL IS DUE, . STATEMENT OF INDORSEMENTS, CHARACTER OF DEFENDANT, . CHARACTER OF PLAINTIFF, DESCRIPTION OF DEFENDANT BT HIS INITIALS, STATEMENT OF CONSIDERATION, 321 322 322 322 322 322 322 322 323 324 324 324 324 325 325 325 325 326 VENUE, 326 INSPECTION OF THE BILL, . . 326 PARTICULARS OF DEMAND, . . 326 TENDER, 326 CONSOLIDATING ACTIONS, . . 32? STATING PROCEEDINGS, . . . 327 INANAOTIONAGAINSTTHEACOEPTOE, 327 WHEN WITHOUT THE COSTS IN OTHER ACTIONS, 328 SUMMART INTERPOSITION OF THE COURT, 328 SETTING ASIDE PLEAS, . . . 328 REFERENCE TO MASTER TO COMPUTE, 328 RE-EXCHANGE, . . . .329 OTHER DAMAGES, .... 330 ADVANTAGES OP SUING ON THE BILL RATHER THAN ON THE CONSIDERA- TION, 330 INTERPOSITION OF EQUITY, . . 330 WHEN EQUITY WILL RESTRAIN AN ACTION, 330 BILL OF DISCOVERT IN AID OF ACTION OR DEFENCE, .... 331 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 (li) Brown v. Gracey, D. & E., N. P. Ca. 41, n., per Abbott, C. J.; but see De la Chaumette v. Bank of England, supra. (1) Martin v. Martin, 1 Smedes & Marsh. 176. Where a suit was brought in Iowa against an indorser, upon a negotiable pro- missory note made in Missouri and indorsed in Maryland, it was held, in the ab- sence 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. 474 BYLES ON BILLS OF EXCHANGE. person who can then sue on it. It is a good defence, that at the time of action commenced the bill was outstanding in the hands of an indorsee. But if such indorsee held the bill as agent or trustee for the plaintiif, the plaintiff may sue, though not in actual possession of the bill.(a)(l) *An indorser who pays an indorsee has no right to 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 objection.(&) Where there is a count on the bill, and a count on the considera- tion, the plaintiff may be entitled to enter his verdict on both counts, (c) 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 discharge all the others. 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 plaintiff who should take out execution on both judgments, (c^) If a party be liable on a bill in two or more capacities, he may be (a) Stone v. Butt, 2 C. & M. 416 ; 2 Dow. P. C. 335 ; Dabbs v. Humphries, 10 Bing. 446, E. C. L. R. vol. 25 ; Moore & Sco. 285, S. C. ; Dabbs v. Humphries, 1 Scott,' 325. (6) Coleman v. Bredman, 1 C. B. Eep. 871, B. C. L. R. vol. 62 ; but see Doe dem. Vine V. Figgins, 3 Taunt. 440. (c) Ryder v. Ellis, 8 C. & P. 357, E. C. L. R. vol. 34. (d) Windham v. Wither, 1 Stra. 515]; Ex parte Wildman, 2 Ves. Sen. 115. (1) After due demand and refusal of payment of a bill and notice thereof to the indorser deposited in the post-office, an action may be commenced against the indorser on the same day, although, by regular coarse of the mails, the notice would not reach him until the next 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 the last day of grace, although there is no demand of payment before the writ is made. Butler v. Kimball, 5 Mete. 94. REMEDY BY ACTION ON A BILL. 475 the Object of several actions on the same bill, at tbe suit of tbe same plaintiiF. Thus, where a party was sued jointly with others, as a drawer, and separately as the acceptor, of a bill, the Court, consider- ing 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 proceedings in either, as vexatious.(e) Though, after the principal sum due on a bill has been once paid by any one of the parties, or levied upon the goods of any one, the holder cannot recover it again from any other of the parties, yet, if other actions were pending at the time of payment, he may proceed in them for costs, without reserving any part of the principal sum.(/) Indorsers, who have to pay costs of action against them, j-*323-| *cannot sustain an action for those costs against the accep- tor,(^) 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 strictness,(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 ;s 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 hill, cannot charge the drawer with the costs of defending the action ;(i) whereas, the accep- tor of an accommodation bill, properly so called, who is compelled by an action to pay it, has a claim upon the drawer for all the expenses of the action.(^)(l) (e) Wise v. Prowse, 9 Price, 393. (/) Toms V. Powell, 7 East, 536 ; 3 Smitl, 554 ; 6 Esp. 40, S. C. ; Page v. Wiple, 3 East, 314 ; Godard v. Benjamin, 3 Camp. 33 ; Holland v. Jourdine, Holt's N. P. C. 6. {g) Dawson v. Morgan, 9 B. & C. 618, E. C. L. R. vol. 17. {h) See ante, p. 100. (i) Bagnall v. Andrews, 1 Bing. 217, E. C. L. R. vol. 20 ; 4 Moo. & P. 839, S. C. (fc) Ex parte Marshall, 1 Atk. 262 ; Jones v. Brooke, 4 Taunt. 464 ; Stratton v. Mathews, 18 L. J. 5, Ex. ; 3 Exch. Rep. 48,* S. C. ; Garrard v. Cottrell, 10 Q. B. Rep. 679, E. C. L. R. vol. 59. (1) A person who makes or indorses an accommodation note, for the aocommo- 476 BTLES ON BILLS OF EXCHANGE. But an accommodation acceptor has no right to charge the party accommodated with the costs of an action, to which the accommoda- tion acceptor had evidently no defence.(Z) An action not only lies on a bill, but for a bill. Trover or detinue may be brought. ' Trover will lie at the suit of one who is no party to the bill,(TO) or at the suit of the payee or acceptor, against a defendant to whom the plaintiff's agent has wrongfully assigned it, though the defendant has a right of action on the bill against the agent, (w) In an action of trover, a verdict may in all cases be given for the full amount' of the bill; but if the defendant deliver up the bill, nominal damages may be entered on the record. (o) r^ 004-1 *-^ recovery in an action of trover, and payment of the ' damaiges, divests the property out of the plaintiff, and vests it in the defendant,(p) as against the plaintiff. And that from the pe- riod of the conversion. (§') If a plaintiff fail on an action of trover, he may nevertheless apply to a Court of equity to have the bill delivered up.(r) A defendant cannot now be arrested on a bill of exchange, unless the cause of action amounts to 201., and there be probable cause for believing that he is about to quit England.(s) (I) Roach V. Thompson, M. & M. 487 ; Beech y. Jones, 5 C. B. Rep. 696, E. C. L. R. vol. 57. (to) Treuttel v. Barandon, 8 Taunt. 100, E. C. L. R. vol. 4 ; 1 Moore, 543, S. C. (n) Goggerley v. Cuthbert, 2 N. R. 170 ; Evans v. Kymer, 1 B. & Ad. 528, B. C. L. R. vol. 20 ; see Cranoh v. White, 1 Bing. N. C. 414, E. C. L. R. vol. 27 ; 1 Scott, 314; 6 C. & P. 767, S. 0. (0) Ibid. As to the interest recoverable in trover, see the Chapter on Interest. (p) See Holmes v. Wilson, 10 Ad. & E. 511, E.G. L. R. vol. 37 ; Cooper v. Wil- lomatt, 1 C. B. 672, B. C. L. R. vol. 50. (q) Cooper v. Shepherd, 3 C. B. 266, E. C. L. R. vol. 54. (r) Lisle v. Liddle, 3 Anstr. 649. f (s) 1 & 2 Vict. c. 110, s. 3. dation of a party thereto, is regarded as a surety, and can charge such a party with the coats of a suit for the collection of the note, which he has been compelled to pay. Baker v. Martin, 3 Barb. Sup, Ct. Rep. 634. REMEDY BY ACXI^ON ON A B'lLL. 477 Under the old la.w, where a party was to be arrested on a bill or note, some material points were to be attended to in the affidavit to hold to bail. " The strictness required in these affidavits," says Lord Ellenborough, "is not only to guard defendants against perjury, but also against any misconception of the law by those who make affida- vits ; and the leaning of my mind is always to great strictness of construction, where one party is to be deprived of his liberty by the act of another."(«) And these precautions are still necessary where the plaintiff arrests under the late statute. A man could not have been arrested for interest on a bill unless made payable on the face of the bill.(w) The affidavit must, therefore, have stated the sum for which the bill was drawn.(w) It was necessary in all cases, even in an action against an indorser or drawer, though they could not otherwise have become indebted, to state that the bill was due,(w) or, at least, to show the date,., and when it was payable, (a;) *The affidavit need not have stated all the intervening in- dorsements mentioned in the declaration,(?/) but it must have L ^ {i) Taylor v. Forbes, 11 Bast, 315. (M)Latraille V. Hoepfner, 10 Bing. 334, E.C.L.R.voI. 25; 3 M. & Sc. 800, S.C; Hutchinson v. Hargrave, 1 Bing. N. C. 369, E. C. L. R. vol. 21. (w) Brooli v. Coleman, 2 D. P. C. T ; 1 C. M. 622, B. C. L. R. vol. 41 ; Westmacott V. Cook, 2 Dow. 519, overruling Hanley v. Morgan, 2 C. & J. 331 ;* 1 Dowl. 322, S. C. ; Lewis V. Gompertz, 2 C. & J. 352 ;* 1 Dowl. 319, S. C. It need not state notice of dishonor. Banting v. Jadis, 1 Dowl. P. C. 445 ; Cross v. Morgan, Ibid. 122 ; Buckworth v. Levy, 1 Bing. 251, B. C. L. R. vol. 20 ; 5 M. & P. 23, S. C. ; 1 D. P. 0. 211, S. C. (w) Edwards v. Dick, 3 B. & Aid. 495, B. C. L. R. vol. 5, overruling Davison v. March, 1 N. R. 157 ; Kirk v. Almond, 2 C. & J. 354;* 1 Dowl. 318, S. C. ; and see Holcombe v. Lambkin, 2 M. & Sel. 475, and Machu v. Eraser, 1 Taunt. 171, B. 0. L. R. vol. 2 ; Jackson v. Yate, 2 M. & Sel. 148. (a) Shirley v. Jacobs, 3 Dowl. 101 ; Phillips v. Turner, 1 C. M. & R. 597 ;* 3 Dowl. 163, S. C. It has been held insufficient to allege in an affidavit against the drawer, that the acceptor made default. Cannce v. Rigby, 3 Mees. & W. 67-* but see "Witham v. Gompertz, 2 C. M. & R. 736 ;* and see Crosby v. Clarke, 1 M. & W. 296.* The presentment and default should be especially alleged. Buckworth v. Levy, 7 Bing. 251, E. C. L. R. vol. 20 ; 5 M. & P. 23 ; 1 Dowl. 211, S. C. ; Simpson V. Dick, 3 Dowl. 731 ; Banting v. Jadis, 1 Dowl. 445. iy) Luce v. Irwin, 3 M. & W. 27.* 478 BYLBS ON BILLS OF EXCHANGE. / stated by whom the bill was indorsed, and it was not sufficient to state that it was duly indorsed, (s) The affidavit must also have shown in what character the defen- dant became a party to the bill or note, whether as drawer, indorser, or acceptor, (a) Thus, where, in a recent case, the affidavit to hold to bail stated the defendant to be duly indebted to the plaintiff upon a promissory note for 10,000Z., drawn in favor of A. B., and duly indorsed to the plaintiif, though it was urged that an indorsement by the defendant was implied by the word duly, the Court held the affi- davit insufficient, and set aside the bail bond. (6) But it is not clear that it peed have specified in what character the plaintiff sued.(c) It was, formerly, not sufficient to state merely the initials of the Christian name of the defendant, though the initials only appeared on the bill, and though due inquiry had been made to ascertain his name without effect, (c?) But now it is enacted by 3 & 4 Wm. 4, c. 42, s. 12, that in all actions upon bills of exchange or promissory notes, or other written instruments, 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 L J same initial letter or letters, or contraction of th« Christian or first name or names, instead of stating the Christian or first name or names in full.(e) (z) Lewis V. Gompertz, 2 C. & J. 352 ;* 1 Dowl. 319, S. C. ; M'Taggart v. Ellice, 4 Bing. 114, B. C. L. E. vol. 13 ; 12 Moore, 326, S. C. (a) Humphries v. Winslow, 2 Marsh. 231 ; 6 Taunt. 531, E. C L. E. vol. 1, S. C; (6) M'Taggart v. Bllice, 4 Bing. 114, E. C. L. E. vol. 13 ; 12 Moore, 326, S. C. ; Lewis V. Gompertz, 2 C. & J. 352 ; 1 Dowl. 319, S. C. See Han-ison v. Eigby, 3 Mees. & W. 66 ;* 6 Dowl. -93, S. C. (c) Bradshaw v. Saddington, 7 East, 94; 3 Smith, 117, S. C. ; Balbi v. Batley, 1 Marsh. 424; 6 Taunt. 25, E. C. L. E. vol. 1, S. 0. ; Machu v. Eraser, 1 Taunt. 171, E. C. L. E. vol. 2 ; Lamb v. Newcomb, 5 Moore, 14 ; 2 B. & B. 343, E. C. L. E. vol. 6, S. C; Warmsley v. Macey, 2 B. & B. 338, E. C. L. E. vol. 6; 5 Moore, 52, S. 0. See Mammatt v. Mathew, 10 Bing. 506, B. C. L. E. vol. 25. (d) Eeyuolds v. Hankin, 4 B. & Aid. 537, E. C. L. E. vol. 6 ; overruling Howell V. Coleman, 2 B. & P. 466 ; and see Coles v. Gum, 1 Bing. 424, E. C. L. E. vol. 8 ; 8 Moo. 526, S. C. (e) Esdaile v. McLean, l6 M. & W. 277.* Before this statute it had been pro- KEMEDt BY ACTION ON A BILL. 479 The affidavit need not state whether, the bill be foreign or inland.(/) Where the action is between immediate parties, so that the plain- tiff can recover on the consideration, it should be stated in the affidavit ; for, otherwise, should the plaintiff fail on the count of the bill, and recover on a count on the consideration, the bail will be discharged. (^) An accommodation acceptor may hold the drawer to bail for costs of an action brought against the acceptor.(A) The affidavit may be good in part and bad in part.(«) The plaintiff may lay the venue in any county, and the Court will not change it at the instance of the defendant, except upon very spe- cial ground.(fc) This rule applies to actions on specialties, bills, and notes, and not to actions on other written contracts.(Z) A banker's check is a bill of exchange within the rule.(»i) Where a special ground is laid for inspection, the Courts will oblige the plaintiff to allow the defendant to inspect the bill or note on which the action is brought.(re) It has been held, that where particulars of the plaintiff's demand are given, and they do not state the consideration paid for the in- strument, such particulars will preclude the plaintiff from giving *the consideration in evidence, should he fail on the special r^onn-i count. (o) ^ -' vided by R. Hil. 2 Wm. 4, R. .S2, that a description of the defendant in the process or affidavit by his initials or a lorong name, or without a Christian name, should not entitle him to a discharge, provided due diligence had been used to obtain a knowledge of his true name. (/) Phillips v. Don, 18 L. J. Q. B. 104.' {g) Wheelwright v. Jutting, 7 Taunt. 304, E. C. L. R. vol. 2 ; 1 Moore, 51, S. C ; Levy V. Webb, 9 Q. B. 427, E. C. L. R. vol. 58 ; and see CasweU v. Coare, 2 Taunt. 107; and Wilka v. Adock, 8 T. R. 27 ; Edge v. Frost, 4 D. & R.-245, E. C. L. R. vol. 16. {h) Stratton v. Mathews, 18 L. J. 5, Exch. 48,* S. C. (i) Cunlifife v. Maltass, 18 L. J. 2,33, C. P. ; 7 C. B. Rep. 795, E. C. L. R. vol. 62. (k) Tidd's Practice, 604. (l) Mondel v. Steele, 8 M. & W. 640.* (to) Webb V. Inwards, 17 L. J. 157, C. P. ; 5 C. B. Rep. 483, E. C. L. R. vol 57, S. C. {») Threlfal v. Webster, 1 Ring. 161, E. C. L. R. vol. 8 ; 7 Moo. 559, S. C. ; Tidd, 591 ; Blogg V. Kent, 6 Bing^ 614, B. C. L. R. vol. 19 ; 4 Moo. & P. 433, S. C. See the Chapter on Forgery; and Thomas v. Dunn, 6 M. & G. 274, B. C. L. R. vol. 46. (o) Wade v. Beasley, 4 Esp. 7. 480 BYLES ON BILLS OF EXCHANGE. Plaintiff may recover on a bill set out in the declaration, thougli not mentioned in the particulars, (p) unless the form of the particulars preclude him. Particulars, which state the amount of the common counts to he 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.(g') Particulars are not evidence ; they are only an explanation of the declaration or plea.(r) A tender, after the bill became due, is no defence by the accep- tor.(s) But a drawer or indorser may, perhaps, tender within a reasonable time after request.(i) A tender should be unconditional; the party making it cannot require a receipt as a condition precedent, without invalidating the tender. But if the tender be objected to on other grounds, the requisition of a receipt becomes immaterial.(M) The Courts will sometimes consolidate actions on bills where the parties and the question to be tried in each action are the same.(v) If the holder bring concurrent actions against the 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 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 orignal defaulter.(w) For, though no action lies against the acceptor for these costs,(a;) yet, when he came to ask a favor as a stay of proceedings, the Court r*3281 ^^S^^ '^'^^^ propriety have *put him under terms. Now, how- ever, by a late rule of all the Courts, it is ordered that in any (p) Cooper V. Amos, 2 Car. & Pa. 267, E. C. L. R. vol. 12. (q) Roberts v. Ellsworth, 10 M. & "W. 653.* (r) Burkett v. Baneliard, 3 Exch. Rep. 89.* (s) Hume v. Peploe, 8 East, 168. [t) Walker v. Barnes, 5 Taunt. 240, E. C. L. R. vol. 1 ; 1 Marsh. 36, S. C. See ante, 176 ; but see Siggers v. Lewis, 1 C. M. & R. 370 ; 2 Dowl. 681, S. C. (u) Cole V. Blake, Peake, N. P. C. 179 ; Richardson v. Jackson, 8 M. & W. 298.* [v) Booth V. Payne, 11 L. J., Exch. 256 ; and see Sharp v. Lethridge, 4 M. & Gr. 37, E. C. L. R. vol. 43. {w) Smith V. Woodcock, 4 T. R. 691 ; Windham v. Wither, 1 Str. 515 ; Gelding V. Grace, 2 Bla. 749. See Lewis v. Dabymple, 3 Dowl. P. C. 433. (x) Dawson v. Morgan, 9 B. & C. 618, E. C. L. R. vol. 17. BEMEDT BY ACTION ON A BILL. 481 action against the acceptor of a bill or maker of a note, the defen- dant may stay proceedings, on payment of debt and costs in that action only.(«/) And where, in an action against the acceptor, an attachment has been obtained against the sheriff for not bringing in the body, the sheriff may be relieved on the payment of the costs of that action only.(2) And before the late rule, if the actions commenced against the other parties were merely collusive, in order to charge the ac- ceptor with a heavier sum for costs, proceedings against him might have been stayed without payment of those costs.(a) If the bill or note were obtained by the plaintiff from the defen- dant without consideration, on affidavit to that effect by the defendant the Court will stay the proceedings ; but, where there are contradic- tory affidavits, the Court will not interfere in this summary way, but put the defendant to insist on it as a defence on the trial.(J) Where an indorsement was made on a promissory note by the plaintiff, the payee, that if the interest were paid on stipulated days during her life, the note should be given up, the Court refused to stay proceed- ings on payment of interest and costs.(c) A plea clearly frivolous on the face of it, or tricky and false, will be set aside. (i) In ordinary cases, if the plaintiff proceed in assumpsit, and the defendant suffer judgment to go by default, the Court may assess the damages.(e) But, in order to inform the conscience of the Court, a writ of inquiry is commonly issued.(/) (y) R. T. T. 1 Vict. (z) Rex v. Sheriffs of London, 2 B. & Aid. 192 ; Vaughan v. Hams, 3 Meea & W. 542.* (a) Hodson v. Gunner, 2 D. & R. 67, E. C. L. R. vol. 16. (6) Turner v. Taylor, Tidd's Pr. 9th ed. 530. (c) Steel V. Bradfield, 4 Taunt. 227. (d) Horner v. Keppel, 10 Ad. & E. 17, E. C. L. R. vol. 37 ; 3 P. & D. 234, S. C; Mitford V. Finden, 8 M. & W. 511 ;* Knowles v. Burward, 10 A. & E. 19, E. C. L R. vol. 37 ; 2 Per. & Dav. 235, S. C. (e) 1 Tidd, 9th ed. 570. (/) It was formerly held that, unless upon a writ of inquiry, the plaintiff pro- duced the bill, he could recover only nominal damages. Marshall v. Griffin, R. & Moo. 41. But now upon a writ of inquiry, it is not necessary to produce the hill. Lane v. MuUins, 1 Gale & Dav. 712 ; 2 Q. B. 254,_E. C. L. R. vol. 42, S. C; Davis V. Barker, 3 G. B. Rep. 606. See post, Chapter on Evidence. 31 482 BYLES ON BILLS OF EXCHANGE, In actions on bills or notes, howeyer, it is the practice of the plain- |-^ogn-i tiff, instead of executing a writ of inquiry, to apply *to the Court, in Term, or to a Judge in Vacation, on an affidavit of the nature of the action, for a rule or summons to show cause why it should not be referred to the Master, to see what is due for prin- cipal and interest, and why final judgment should not be signed for that sum, without executing a writ of inquiry, upon which the Court or Judge will make the rule absolute, on an affidavit of service, unless good cause be shown to the contrary. Upon service of a copy of this rule, it is not necessary to show the original, unless sight of it be demanded. (_^) Where there are three joint makers of a note, service on two is sufficient.(^) , The defendant cannot show for cause against this rule an irregu- larity in the proceedings ;(h) but he may bring forward, before the Master, facts which go to reduce the sum recoverable ; and, therefore, due notice should be given him of the Master's appointment.(») A rule to compute may be obtained, though the bill or note have been destroyed or lost, so that a copy only can be produced.(A;) Re-exchange is the expense incurred by the bill being dishonored in a foreign country, in which it was payable, and returned to the country in which it was made or indorsed, and there taken up ; the amount of it depends on the course of excTiange between the two countries. The nature of the transaction is this: a merchant in London draws on his debtor in Lisbon a bill in favor of A., for so much in the currency of Portugal, for which he receives of A- its corresponding value at the time, in English currency. Sometimes a bill for that amount, in Portuguese currency, can be purchased in London for less, sometimes it will fetch more English money, accord- ing to the course of exchange. Suppose the rate of exchange to fall when the' bill becomes due; that is, suppose it requires in London (#) R. Hil. T. Wm. 4, r. 51. [g) Figgius V. Ward, 2 C. & M. 424 ;* Carter v. Southall, 3 Mees. & W. 128 ;* Amlot V. Evans, T M. & W. 462.* (A) Pell V. Brown, 1 B. & P. 369 ; Marryat v. Winkfield, 2 CUtty, E. 119. (i) But it seems that such notice is not essential in Q. B. or Exchequer. See Huckfield v. Kendall, 1 Chit. R. 693. This rule may be obtained, although the bill be destroyed or lost. Clarke v. Quince, 3 DowL- 26 ; Brown v. Messiter, 3 M. i Sel. 281 ; Allen v. Miller, 1 Dowl. 420. [h) Brown v. Messiter, 3 M. & S. 281 ; Clarke v. Quince, 3 Dowl. 26 ; Allen v Miller, 1 Dowl. 420 ; Flight v. Browne, Tyr. 312 ; Warren v. Woods, C. P., Hil. T 1850. KBMBDT BY ACTION ON A BILL. 483 more English money to purchase a bill on Lisbon for the same sum, and that, in Lisbon, to replace it, a larger bill must be drawn on London. A:, the holder, has a right to the payment of that sum in *Poftuguese currency at Lisbon. The bill is dishonored ; he, p^ggQ-, the holder, is, therefore, entitled to recover of the drawer, not ■- only the value which he formerly gave for the bill, but as much as he must draw a bill for in Lisbon, on London, in order to replace, at the time and on the spot, when and where the bill should have been paid, the sum that he was entitled to receive.(Z) The drawer of a bill is liable to the re-exchange, though the bill be returned through never so many hands.(m) But the acceptor is not liable to the re-ex- change, (n) Other damages not necessarily arising from the dishonor, as noting, postages, &c., are not recoverable, unless specially stated in the de- claration.(o) But it has been held that postage is recoverable under the count for money paid.(p) When a bill is dishonored, 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 action on the bill, proof of pay- ment of the bill lies on the defendant ; but in an action on the consi- deration only, if defendant show that a bill was given, plaintiff must prove that that bill was not paid.(g') Of course it is best, where possible, to join a count on the bill with a count on the consideration ;(?•) and the plaintifi" may take a verdict on both counts. (3) [l] De Tastet v. Baring, 11 Bast, 265 ; 2 Camp. 65, S. C. (m) Mellisli v. Simeon, 2 H. Bla. 378. («) Napier v. Schneider, 12 East, 420; Woolsey v. Crawford, 2 Camp. 445. (0) Keudrick v. Lomax, 2 C. & J. 405;* 2 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 doubt- ful whether the expense of noting an inland bill not protested can in any case be recovered. Ibid. [p) Dickinson v. Hatfield, 1 M. & Bob. 141 ; 5 Carr. & P. 46. The defendant, in this case, directed the plaintiff to charge him with it. See the Chapter on Pro- test. As to nominal damages, see Beaumont v. Greathead, 2 C, B. Rep. 495, E. C. L. E. vol. 52. (3) Hebden v. Hartsink, 4 Esp.'46 ; Bishop v. Rowe, 3 M. & Sel. 362. [r] A count on the consideration may still be joined, R. Hil. 4 W. 4, R. 5. And a count on an account stated in all cases. [s] Vide ante, p. 322. 1 484 BYLES ON BILLS OP EXCHANGE. It ■would be foreign to the object of this little work to discuss, a1 length, the jurisdiction and proceedings of Courts of Equity in rela. tion to actions on bills. The following general observations maj nevertheless be made. A Court of Equity will, under certain circumstances, restrain an action on a bill.(i) r*q5?l 1 *-^ plaintiff may, where it is necessary, file a bill of discoverj in aid of an action on a bill, or of an action relating to the proceeds of bills, (m) If the defendant in equity be interrogated as to the consideration 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.(t)) No bill can be filed for discovery, if it charge the defendant with a crime, (w) But the former Gaming Act, 9 Anne, c. 14, s. 3,(a;) and the Stock Jobbing Act, 7 Geo. 2, c. 8, s. 2, deprive defendants of this protec- tion in matters to which those Acts relate.(?/) [*332] *CHAPTEE XXXIII. OF THE PLEADINGS IN ACTIONS ON BILLS AND NOTES. POEMS OF ACTION, . . . 332 DEBT, 333 ASSUMPSIT, . . . . . 334 DECLARATION, .... 335 STATEMENT OF THE PARTIES TO THE INSTRUMENT, . . . .335 DESCRIPTION OF THE INSTRUMENT, . 336 STATEMENT OF ACCEPTANCE, . . 336 (i) See Queen of Portugal v. Glynn, 1 West, 258 ; Glynn v. Scares, 3 M. & K. 450; Hodgson v. Murray, 2 Sim. 515; Hood v. Ashton, 1 Russ. 412; Kidson v. Delworth, 5 Price, 564. (u) See Thomas v. Taylor, 3 Y. & C. 255;* Wilkinson' v. Leaugier, 2 You. & C. 366,* or of a defence to an action. (b) Glendall v. Edwards, 2 You. & Ool. 125 ;* and see Culverhouse v. Alexander, 2 You. & Col. 218.* [w) Fleming v. St. 'John, 2 Sim. 181 ; Whitmore v. Francis, 8 Price, 616; 2 Sim. 182. [x) No,w repealed by 8 & 9 Vict. c. 109. (y) See Wilkinson v. Leaugier, 2 Y. & C.366;* Bullock v. Richardson, 14 Vesey, 378 ; Rawlings v. HaU, 1 C. & P. 11, E. C. L. R. vol. 12 ; Thomas v. Newton, 2 C. & P. 606, B. C. L. R. vol. 12. PLEADING. 485 OF PRESENTMENT POK PAYMENT, . 336 OP NOTICE OF DISHONOR, . ■ 336 OF EXCUSE FOB OMITTING TO PRESENT FOR PAYMENT, .... 337 OF NOTICE OP INDORSEMENT, . . 337 OP PROTEST, 337 OF MATURITY OF INSTRUMENT, . 337 ALLEGATION OF A PROMISE TO PAY, 338 DECLARATION OP A BILL DRAWN IN SETS, 339 ASSIGNMENT OF A BREACH, . .339 DAMAGES, 339 PLEAS, 339 GENERAL EFFECT OF NEW RULE, . 339 NON-ASSUMPSIT, .... 339 NIL DEBET, 340 GENERAL ISSUE BY STATUTE, . TRAVERSE OF ACCEPTANCE, . TRAVERSE OF INDORSEMENT, . ABSENCE OF CONSIDERATION, . THAT PLAINTIFF IS NOT THE HOLDER, PLEA OF PAYMENT, EFFECT OF PLEADING OVER, . FRAUD, PAYMENT, SATISFACTION, . . . . DUPLICITY OF PLEAS, SHAM PLEAS, REPLICATION DB INJURIA, TO PLEA DENYING COHSIDBKATION, PLEADING AN ESTOPPEL, DISTRIBUTIVE REPLICATION, . 340 340 340 341 341 342 342 342 342 343 343 344 344 345 346 346 To enter on the subject of pleading and evidence in detail ■would be foreign to the object of this little work. Many points, both of plead- ing and evidence, have already been discussed in the foregoing Chap- ters. And the decisions, on the law of pleading in actions on bills of exchange, since the New Rules, have not been sufficiently numerous to remove every obscurity from that branch of the law. These con- siderations may, perhaps, bespeak the candor of the reader for the deficiencies of the present and the next Chapter. Two forms of action in the superior Courts may be brought on a bill or note, debt and assumpsit. *But debt is of a limited application, and will only lie where r^qoo-i there is a privity of contract between the parties.(a) It will, therefore, lie at the suit of the drawer against the acceptor :(5) by the payee against the drawer of a bill or check,(c) or maker of a note:{d) by first indorsee against the drawer of a bill payable to his own order :(e) and in all cases by indorsee against his immediate in- dorser.(/) It has been doubted whether an action of debt may not be maihtained by the payee against the acceptor, though the payee (a) Lewin v. Edwards, 9 M. & W. 720.* (b) Priddy v. Henbrey, 1 B. & C. 674, B. C. L. R. vol. 8 ; 3 Dowl. & R. 165. (c) Simpkins v. Potecary, 19 L. J. 242, Ex. (d) Bishop V. Young, 2 B. & P. 78 ; Hodges v. Stewart, Skin. 346 ; 12 Mod 36 • 1 Salk. 125, S. C. ' ' (e) Stratton v. Hill, 3 Price, 253. (/) Watkias V. Wake, 7 M. & W. 490 ;* see Hodges v. Steward, Skin. 346. 486 BTLBS ON BILLS OF EXCHANGE. be not the drawer -.[g) but it is conceiyed that no one but the drawei of a bill payable to his own order can sue the acceptor in debt.(A) On a promissory note payable by instalments, debt will not lie til the last day of payment be past ;(«') because the different instalment! are considered to constitute but one debt, and for one debt the plain tiff can bring but one action of debt, and cannot split his demand, and vex the debtor with a multitude of suits. (A;) To compensate for these disadvantages, the action of debt has some recommendations : and, in the first place, the judgment in the firs1 instance is not interlocutory, but final, so that, after judgment bj r;^ 004-1 default, the plaintiff need not execute a writ of *inquiry, or refer to the Master, to compute principal and interest, Secondly, the Court cannot, in any case, dispense with bail, if a wril of error be brought. At common law, no bail in error was necessary; but the 3 Jac. 1, c. 8, required it before any execution could be stayed on error on any judgment in debt for a specific gum of money. Then the 13 Car. 2, c. 2, and the 16 & 17 Car. 2, c. 8, required it on any judgment after verdict in any personal action. Till the late statute, therefore, bail in error was necessary on all judgments in an action of debt for a specific sum of money, but not on judgments, except after verdict — that is, not on judgment hy default, on de- murrer, or on nul tiel record, in an action of assumpsit. The defendant {g) See a learned note to Chitty on Bills, 9tli ed. p. 690. Qi) Bishop V. Young, 2 B. & P. 78 ; Cloves v. Williams, 3 Bing. N. C. 868, E. C. L. E. vol. 32 ; 5 Scott, 68, S. C; Powell v. Ancell, 3 M. & a. ITl, E. C. L. R. vol. 42. And it was once supposed tliaf it would not lie unless the words "value re- ceived," or some expression of the consideration, appeared on the face of the inst.ni- ment. Bishop v. Young, 2 B. & P. 78; Priddey v. Henbrey, 1 B. & 0. 674, B. C. L. E. vol. 8 ; 3 Dowl. & E. 165, S. 0. ; Cresswell v. Crisp, 2 Dowl. P. C. 635 ; 2 C. & Mees. 634,* S. C. But it is now clear that debt will lie, though the words "value received" be not on the bill. Hatch v. Trayes, and Watson v. Kightley, 11 Ad. & B, 702, B. C. L. R. vol. 39 ; 3 Per. & D. 408, S. C. (i) Rudder v. Price, 1 H. Bl. 547. [k) Baylye v. Hughes, Cro. Car. 137 ; Pemberton v. Sheltou, Cro. Jac. 498; Hunt V. Braines, 4 Mod. 402 ; Hulme v. Sanders, 10 Mod. 69 ; 2 Lev. 4 ; 1 Wms. Saun. 201, a. ; Clun's case, 10 Eep. 127. But if a note b^ payable by instalments on the face of it, an action of assumpsit Hes for each instalment. If, however, the note is payable by instalments, tut not on the face of it, only one action of assumpsit lies; and though in such a case a cognovit be taken for the amount of the first instal- ment only, the note is discharged. Siddall v. Rawclifife, 1 C. & M. 487 ;* 1 M. & Rob. 263, S. C. Wager of law is now abolished (3 & 4 Wm. 4, c. 42, s. 13), and debt on simple contract now lies against an executor or administrator (3 & 4 Wm. 4, c. 42, s. 14). .PLEADING. 487 in assumpsit might, and, accordingly, often did suffer judgment by default, in order to bring a writ of error without bail, for the mere purpose rff delay. But now the 6 Geo. 4, c. 96, requires special bail in error on any judgment in any personal action, unless dispensed with by leave of the Court or a Judge. This leave cannot be given in the action of debt, the statute 3 Jac. 1, c. 8, being still in force, but may be given after judgment, in assumpsit, by default, on de- murrer, or on nul tiel record, for to these cases no o.ther statute ap- plies. But, as it is not likely that the Judges will lend their sanction to vexatious and dilatory writs of error, the practical effect of the 6 Geo. 4, c. 96, has been to remove a ground of preference which before existed for the action of debt. A promissory note not being an instrument on which debt could have been brought when the 3 Jac. 1, c. 8, was passed, it is not within that statute ; and, conse- quently, leave may be obtained to bring a writ of error without bail on a judgment in debt on a note ;(Q on a count for goods sold and delivered ; or on an insimul computassent.(w) And, if there be one count in a declaration on which judgment is entered upon a cause of action, for which debt would not lie at the time of the statute of James, bail in error may, by leave of the Court, bo dispensed with.(w) When a Court of Error gives judgment for the defendants in error, it must give interest for such time as the execution has been delayed by the writ of error, (o) The forms of declarations given by the Judges are applicable in debt as well as in assumpsit, and where between intermediate parties, may be joined with a count in debt.(^) The action of assumpsit, on account of its universal '"appli- cability, is by far the most usual remedy on a bill or note. [*335] ^ Most of the following observations are applicable alike to the ac- tion of debt, and to the action of assumpsit. It will be convenient to exhibit the decisions on points of pleading, in the order indicated by the several stages of the pleadings. First^ therefore, of the declaration. It was formerly usual to state that the parties to a bill were mer- {l) Trier v. Bridgman, 2 East, 359. (m) Ibid. (k) Ibid. ; Webb v. Geddes, 1 Taunt. 540. (o) 3 & 4 Wm. 4, c. 42 s 30 {p) Conipton V. Taylor, 4 M. & W. 138 ;* Cloves v. Williams, 3 Bins. N Ca 8fi8 E. C. L. R. vol. 32 ; 5 Scott, 68, S. C. ' S • ■ oo, 488 BYLES ON BILLS OF EXCHANGE. chants, or persons engaged in commerce, and that the bill was drawn ^ according to the custom of' merchants. But such a statement, and, indeed, any reference whatever to the custom of merchants, which custom is parcel of the common law of the land, is unnecessary, and is now disused. In an action against the acceptor on 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 ex- change. (g) A declaration stating that A. B. drew a bill requiring- defendant to pay to the drawer's order, without again naming him, is good,(r) or to his order, the word his, referring to the drawer.(«) In all actions on bills or notes, where any of the parties are de- signated on the instrument by the initial letter, or some contraction of the Christian name,' it is sufiicient so to describe them in the pro- cess and declaration.(i)(l) A single letter, where it is a vowel, may, on special demurrer, be assumed to be a Christian name ;(w) but not if a consonant. (?;) In a declaration by a public officer of a banking copartnership, established under the 7 Geo. 4, c. 46, it is sufficient to describe the plaintiff as a public officer duly appointed, (w) (2) Tigar v. Gordon, 11 L. J. 279, Exch. ; 9 M. & "W. 34'7.* It had been held insufficieut to describe the drawers as certain persons using the name, &c. Ball v. Gordon, Ibid. 221, and 9 M. & W. 345,* S. C. ; sed qusere, see Smith v. Ball, 9 Q. B. Rep. 361, E. C. L. E. vol. 58, and Bass v. Olive, 4 Camp. 78 ; 4 M. & Sel. 13, S. C. ; Sohultz V. Astley, Y C. & P. 99, B. C. L. R. vol. 32 ; 2 Bing. N. Ca. 544, S. C. ; 2 Scott, 815. (r) Knill v. Stockdale, 6 M. & "W. 478.* (s) Spyer v. Thelwell, 2 C. M. & R. 692 ;* 4 Dowl. 509, S. C. (<) 3 & 4 Wm. 4, c. 42, s. 12. But it must appear on the count that they are so described in the instrument itself. Levy v. Webb, 9 Q. B. Rep. 42Y, 442, E. C. L. E. vol. 58 ; Gatty v. Field, Ibid.; Bsdaile v. M'Clean, 15 M. & "W. 277 ;* or the de- claration is specially demurrable : Miller v. Hay, 3 Exch. Rep. 14 ;* Turner v. Fitt, 3 C. B. Rep. 70 ; unless the full Christian name could not be discovered. Lomax v. Landells, 6 C. B. Rep. 583, E. C. L. R. vol. 60. {u) Lomax v. Landells, 18 L. J. 88, C. P. ; 6 C. P. Rep. 583, E. C. L. R. vol. 25, S. C. (u) Kinnersley v. Knott, 7 C. B. Rep. 980, E. C. L. R. vol. 62. {w) SpiUer V. Johnson, 6 M. & W. 570 ;* Christie v. Peart, 7 M. & "W. 491.* (1) When a bill of exchange is payable to and indorsed by a firm, the indorser in declaring on it need not set forth the names of the members of the firm. Havi- land V. Simons, 4 Richardson, 338. i PLEAJ)ING. 489 *The instrument may be described, either by setting it out pggg-, in hsec verba ■,{x) or by stating its legal effect. If it be drawn •- -• in a foreign language, it may be set out in English. («/) It is neither necessary nor safe to aver that the instrument bore date on a certain day, for such an averment, if incorrect, being matter of description, would be a variance.(s) 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 description of the instrument, a making on any day may be proved. Since, however, the recent statutes of amend- ment, this precaution has become less important. 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.(a) When a bill is made payable at usance, the length of the usance must be stated.(J) Where an instrument has been made pay- able 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 hus- band, (c) A bill drawn upon A. B. and 0. may be described as drawn on A. and B.{d) ' Por the proper mode of stating the acceptance of a bill of exchange in pleading, the reader is referred to the Chapter on Acceptance. For the proper mode of pleading a presentment for payment, the reader is referred to the Chapter on that subject. The omission to state notice of dishonor is not cured by verdict.(e) (k) Except in oases where ttat would mislead, as where a bill is drawn payable in a foreign currency of the English denomination, but of a different value. Kear- ney V. King, 2 B. & Aid. 301 ; Sprowle v. Legge, 1 B. & C. 16, B. C. L. R. vol. 8 ; 2 D. & Ry. 15, S. C; see Taylor v. Booth, 1 C. & P. 286, B. C. L. R. vol. 12 ; Harington v. McMorris, 5 Taunt. 228, E. C. L. R. vol. 1 ; 1 Marsh. 33, S. C. ; Sim- monds v. Parminter, 1 Wils. 185 ; 4 Bro. P. C. 604 : Stevenson v: Oliver, 8 M. & "W. 234.* (!/) Attorney-General v. Valabreque, Wightw. 9. (z) Anon. 2 Camp. 308, u. (o) Rees v. Abbott, Cowp. 832 ; Butler v. Malissy, 1 Stra. 16 ; and see Neale v. Ovington, 2 Ld. Raym. 1544. (6) Buckley v. Cambell, 1 Salk. 131 ; Meggadow v. Holt, 12 Mod. 15 ; 1 Show. ^1^' ^- ^- (c) Ankerstein v. Clarke, 4 T. R. 616. (d) Evans v. Lewis, 1 Wms. Saund. 291, d.; Mountatephen v. Brooke, 1 B. & A 224; see Wilson v. Reddall, Gow. 161. (c) Rushton V. Aspinall, Doug. 654. 490 BTLBS ON BILLS OP EXCHANGE. It was formerly considered doubtful,(/) whether such facts r*^^7n *^^ dispense with presentment, protest, or notice of dishonor, could, or could not, be given in evidence, in support of the common allegations of presentment, protest, or notice, in the decla- ration. It is now, however, clear, that facts dispensing with present- ment 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.(^)(l) A promise to pay, however, is still admissible under the common averments as prima facie evidence, that the preliminaries essential to the maintenance of the action, such as presentment and notice, have been satisfied. (A) But if it should distinctly appear in evidence, that there has bfeen a neglect to present, and that the defendant, being aware of the omission, afterwards promised to pay, so that the pro- mise is used as a waiver, it is conceived that the declaration must still be special. It may be otherwise, where there has been a neglect to give notice of dishonor, 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 dishonor, 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. («') It seems, however, that notice too late in the usual course, but reasonable and suflScient under the special circumstances, may be proved under the oifdinary allegation. (^) (/) Cory V. Scott, 3 B. & Aid. 619, E. C. L. R. vol. 5 ; Bayley on Bills, Sth ed. 406. (g) Burgh v. Legge, 5 M. & "W". 418 ;* see Terry v. Parker, 6 Ad. & B. 502, B. C. L. E. vol. 33 ; 1 N. & P. Y52, S. C. ; Carter v. Flower, 16 M. & W. 749.* (h) See Hopley v. Dufresne, 15 Bast, 215 ; Lundie v. Robertson, 1 Bast, 231 ; 3 Smith, 225, S. C. ; Hicks v. Duke of Beaufort, 4 Bing. N. Ca. 229, B. C. L. R. vol. 33 ; 5 Scott, 593, S. C. See the Chapter on Presentmemt for Payment. (i) See Brownell v. Bonney, 1 Q. B. Rep. 39, E. C. L. R. vol. 41 ; 3 M. & Ry.359; Dans. & LI. 151, S. C. ; Firth v. Thrush, 8 B. & C. 387, E. C. L. R. vol. 15 ; Bald- win v. Richardson, 1 B. & C. 245, B. C. L. R. vol. 8 ; 2 D. & Ry. 285, S. C. ; ante, p. 238. (/c) Carter v. Flower, 16 M. & W. 749.* (1) Pacts which excuse demand and notice may be proved, in an action against an indorser, under a declaration in the usual form. Kennon v. McRea, 7 Porter, 175 ; Contra: Curtis v. State Bank, 6 Blackford, 312 ; "Windham Bank v. Norton, 22 Connecticut, 213. In an action against an indorser, proof of a waiver of notice will support an allegation of actual notice. Taunton Bank v. Richardson, 5 Pick. 436. PLEADING. 491 It is not necessary to allege a notice to the defendant of the in- dorsement on a bill or note, and if the declaration contain such a statement, it cannot be traversed.(Z) As to the mode of pleading a protest, see the former Chapter on Protest and Noting. The forms of declarations on bills of exchange, propounded by the Judges, having been settled before the passing *of the Uni- r*33g-| formity of Process Act, the 2 Wm. 4, c. 39, are not now in all cases strictly correct. Before that Act, the plaintiff had a right to treat the declaration as the commencement of the action; but now the writ is for all purposes the commencement. 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.(m) No notice need be taken of the days of graGe.(m) It has been thought that it is not absolutely necessary, even in an action of assumpsit by an indorsee against the indorser, to allege in the declaration a promise to pay by the defendant. " The drawing of a bill," says Lord Holt, "is an actual promise."(o) But the omission of a promise is now ground of special demurrer.(^) For otherwise, in a count on a bill of exchange, there would be nothing to distinguish an action of assumpsit from an action of debt. A (I) Braudbury v. Bmans, 5 M. & W. 595 ;* 1 Dowl. 849, S. C. ; Reynolds v. Davies, 1 B. & P. 625. (m) 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 striciissimo jure perhaps even the latter form is not accurate unless it appear from the whole decla- ration that the bill is due, or unless the period referred to may be considered as including the days of grace. But see Padwick y. Turner, infra. "Where the date when the bill will fall due is laid, but not under a videlicet, the mere date has been held sufiScient, if by comparison with the date of the writ appearing on record, the action appears not to be premature. Shepherd v. Shepherd, 1 C. B. Rep. 849, B. C. L. R. vol. 50. (n) Padwick v. Turner, 11 Q. B. Rep. 124, B. C. L. R. vol. 13. (o) Starke v. Cheesman, 1 Stalk. 128 ; Carthew, 509 ; 1 Ld. Raym. 538 ; "Weger- sloffe V. Keen, 1 Stra. 214 ; Buckler v. Angel, 1 Sid. 246. (p) Griffith V. Roxburgh, 6 Dowl. 133 ; Henry v. Burbidge, 3 Bing. N. Ca. 501, B. 0. L. R. vol. 32 ; 4 Scott, 296 ; 5 Dowl. 484, S. C. ; see Donaldson v. Thompson 6 M. & W. 316 ;* Christie v. Peart, 7 M. & W. 491 ;* Bayley, 6th ed. ; Stericker v. Barker, 9 M. & W. 321 ;* Smith v. Cox, 12 L. J. Bxch. 307, 11 M. & W. 475,* S. C 492 BYLES osr bil^s of exchange. declaration on a promissory note to pay at a certain date, is not double, for setting out another promise after the note is due, to pay on request. (5') A promise to pay, made after the bill is due, should not, in strict- ness, be laid as a promise to pay according to the tenor and effect of the bill, but as a promise to pay on request. A promise, however, to pay an overdue bill according to its tenor and effect is good even on special demurrer, (r) An allegation, that the defendant promised to pay to the plaintiff, or promised the plaintiff to pay according to the tenor, &c., are either of *them sufficient, and amount to L J an allegation of a promise to the plaintiff to pay him.(«) As to the declaration in an action on a set of bills, see the Chapter on Sets of Bills. The breach by non-payment may be assigned, either in the count on the bill, or at the conclusion of the money counts. (f) It is not necessary to add a count for interest, or to claim interest as special damage. It is recoverable as part of the ordinary and necessary damage resulting from non-payment. As to other and special damage, see the Chapter on the remedy by Action on a Bill. The New Rules of Court(M) direct that in all actions upon bills of exchange and promissory notes, the plea of non-assumpsit shall be inadmissible. (z)) In such actions, therefore, a plea in denial must traverse some matter of fact ; ex. gr. the drawing, or making, or in- dorsing, or accepting, or presenting, or notice of dishonor of the bill or note ; and all matters in confession and avoidance must be (2) Shepherd v. Shepherd, 1 C. B. Rep. 849, E. C. L. R. vol. 50 ; 3 D. & L. 199, S. C. {r) Christie v. Peart, ? M. & W. 491 ;* see Hunt v. Massey, 5 B. & Ad. 902, E. C. L. R. vol. 27 ; 3 Nev. & M. 109, S. C. ; Jackson v. Pigott, 1 Ld. Raym. 364 ; see Price V. Easton, 4 B. & Ad. 433, E. C. L. R. vol. 24 ; 1 Nev. & M. 303. (s) Bancks v. Camp. 9 Ring. 604, B. C. L. R. vol. 23 ; 2 M. & Scott, 734, S. C; Schild V. Kilpin, 8 M. & W. 673.* (<) See Benson v. White, 4 Dow. 334; Turner v. Denman, 4 Tyrw. 313. (m) H. T. 4 Wm. 4, 1834, rule 3. (t)) 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 example, where a pro- mise by or to an executor is alleged. See RoUeston v. Dixon, 14 L. J. Exch. 304, post. PLEADING.- 493 specially pleaded, including, not only those by -VN'ay of discharge, but those which show the transaction to be either void or voidable in point of law, on the ground of ^ftaud or otherwise, ex. gr. infancy, cover- ture, release, payment, performance^ illegality of consideration, either by statute or common law, drawing, indorsing, accepting, &o., bills or notes by way of accommodation, set-off, mutual credit, and various other defences. Therefore, since these rules, if the plea of non-assumpsit be pleaded in an action on a bill or note, the plaintiff may sign judgment.(w) But if the pi'omise laid is not the promise implied by law, the general issue may be pleaded. Thus, if *an executor declare on a bill r^o^n-i or note payable to his testator laying a promise to himself (the executor), such promise may still be denied by a plea of non- assumpsit.(a;) Although the New Rules have abolished the plea of nil debet, it has been held, that if, to a declaration in debt against the acceptor of a bill of exchange, the defendant pleads payment into Court of part, and that he is not indebted beyond that sum, and the plaintiff join issue and proceed to trial, it is competent for the defendant to make, under this plea, any defence applicable to the plea of nil debet, notwithstanding that the plea would have been bad on special de- murrer, (y) The general issue by statute may be pleaded to an action on a bill or note.(2) In an action against partners, on their acceptance to a bill of ex- change, a plea stating facts, from which it appears that both partners (w) Keily v. Villebois, 8 Dowl. 136; Sewell v. Dale, 8 Dow. 309. Perhaps a nolle prosequi should he entered on the common counts. Fraser v. Newton, 8 Dow. 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. Enthoven, 1 Exch. Rep. 382.* It has been held, that the plea of non-assumpsit admits the handwriting. Neal v. Proctor, 2 Car. & K. 456, E. C. L. E. vol. 61. (k) Timmis v. Piatt, 2 M. & W. 720 ;* 5 Dow. 748, S. C, nom. Gilbert v. Piatt; ante, p. 339, n. {v) ; but see Donaldson v. Thompson, 6 M. & "W. 316.* (y) Finleyson v. Mackenzie, 3 Biug. N. C. 824, E. C. L. R. vol. 32 ; 6 Dowl. P. C. 71 ; 5 Scott, 20, S. C. (z) Weeks v. Argent, 17 L. J. 209, Ex.; 16 M. & W. 817,* S. G. 494 BYLBS ON BILLS OP EXCHANGE. are not bound, is bad on special demurrer. Tbe proper plea is a traverse of the acceptance, (a) The indorser of a note is not a new maker or drawer as the in- dorser of a bill is. Therefore, where, in an action by indorsee against indorser, the plaintiff declared against the defendant as maker : it was held, that the indorsee of a note could not declare against his in- dorser 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 was entitled to a verdict. (6) But in the case of a bill of exchange 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 substance, as every indorser of a bill is in law a new drawer, and the plaintiff was not allowed to treat the plea as a nullity, and sign judgment. The proper course for the plaintiff to *pursue, if such a plea be pleaded, ■- -■ is to demur instead of signing judgment.(c) A plea denying the indorsement of a bill of exchange puts in issue, as we have seen, not only the fact of the signature, but also such a delivery and transfer, as will constitute the indorsee a holder.((;^) And facts tending to show that no interest passed to the indorsee may be specially pleaded, for they will not amount to an argumentative traverse of the indorsement. (e) It seems that when a distant in- dorsee is plaintiff, an intermediate indorsement may be such in legal effect, though it would not be such if the immediate indorsee were plaintiff.(/) (a) Jones v. Corbett, 11 L. J. 181, Q. B. ; 2 Q. B. Eep. 828, B. C. L. R. vol. 42 ; S. C. ; and see Musgrave v. Drake, 5 Q. B. Eep. 185, B. C. L. R. vol 48 ; see ante, p. 35. (6) Gwinnel v. Herbert, 5 Ad. & BU. 436, B. C. L. E. vol. 31 ; 6 N. & M. 723, S^ C; ante, p. 113. (c) Allen V. Walker, 2 M. & W. SIT ;* 5 Dowl. P. C. 460 ; 1 M. & Hurl. 44, S. C. ; ante, p. 113. {d) Marston v. Allen, 1 Dowl. N. S. 442 ; 8 M. & "W. 494,* S. C. ; BeU v. Ingestre, 12Q. B. 3ir,B. C. L. E. vol. 64. (e) Harmer v. Steele, 19 L. J. Exch. 34, reversing the decision of the Court of Exchequer in Steele v. Harmer, 15 L. J. 21Y, Exch. ; and 14 M. & W. 831,* S. C. (/) Hayes v. Caulfield, 5 Q. B. Eep. 81. PLEADING. 495 A plea simply averring absence of consideration is bad on demurrer. It should state affirmatively the circumstances relating to the consi- deration.(^) But it is good after verdict.(A) If the informal plea of no consideration is traversed, the affirmative still lies on the de- fendant, as it would have done had he pleaded properly.(il Where the defendant pleaded 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 consi- deration was avoided by fraud. (A) If a plea states the circumstances under which the bill or note was given, and adds that there was no consideration, a traverse of the first averment is sufficient, without a traverse of the last.(Z) The defendant may plead, that before the action the plaintiff trans- ferred the bill, and, therefore, that he is not the holder,(m) *As to the mode of pleading payment by bill or note, see [-^q^o-i the Chapter on the question how far a bill or note is con- L J sidered as payment. After pleading over, every ambiguous pleading must have such an interpretation as will make it good rather than bad,(M) for by plead- ing over, the adverse party admits that he has understood it in a sense, which requires an answer. A plaintiff is not entitled to judgment non obstante veredicto, nor a defendant to arrest the judgment for insufficient pleading, if that pleading merely leave a material allegation untraversed. The proper (£r)Easton x. Pratchett, 1 C. M. & R. "798;* 3 Dowl. 4Y2 ; 1 Gale, 33, S. C; Stoughton V. Earl of Kilmorey, 2 C. M. & R. 72 ;* 3 Dowl. 705 ; 1 Gale, 91, S. C. ; Graham v. Pitman, 5 Nev. & Man. 37, B. C. L. R. vol. 36 ; 3 Ad. & Ell. 521, S. C. ; Trinder v. Smedley, 3 Ad. & B. 522, E. C. L. R. vol. 30 ; 5 N. & M. 138, B.C. (h) Baston v. Pratchett, in error, 2 0. M. & R. 542 ;* and see Kemble v. Mills, 1 M. & Gr. 757, B. C. L. R. vol. 39; 5 Soott, 121, S. C. (i) Lacey v. Forrester, 2 C. M. & R. 59 ;* 3 Dowl. 668 ; 1 Gale, 139, S. C. {k) Mills V. Oddy, 2 C. M. & R. 103 ;* 3 Dowl. 722 ; 6 C. & P. 728, B. C. L. R. vol 25, S. C. (1) Atkinson v. Davies, 11 M. & W. 236.* (m) Bason v. Arnold, 6 M. & W. 559 ;* Eraser v. Welch, 8 M. & W. 630 ;* Arthur V. Beales, 1 Ex. Rep. 608.* As to the proper mode of replying to such a plea, see Barber v. Lemon, 11 Q. B. Rep. 302, B. C. L. R. vol. 63 ; 17 L. J. Q. B. 69, S. C. ; Rogers v. Chilton, 17 L. J. 8, 345, Ex.; 1 Exch. 862,* S. C. ' (n) James v. Williams, 13 M. & W. 828.* 496 BYLBS ON BILLS OP EXCHANGE. 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 avoidance.(o) Where the plaintiff's title is to be impeached by notice of fraud, notice must be expressly averred. Indorsee v. Drawer of a bill of exchange. — Plea that the bill had been drawn and indorsed to L. for a specific purpose, who in fraud of that purpose has handed it to H., and that H. handed it to plaintiff, not for good and valuable considera- tion, and that the plaintiff was not a lona 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 circum- stances by which that notice is to be proved, directly or indirectly, to be established in evidence, and that they could not treat the alle- gation that the plaintiff was not a bona fide holder as equivalent to such an averment.(p) - A plea that defendant's agent fraudulently disposed of the bill, of which fact the plaintiff had notice, has been held bad, unless it go on to deny the receipt of any value by the defendant, (g') Until recently payment might, in the action of assumpsit, have *been given in evidence in reduction of damages. But not in ^ -J an action of debt.(r) It must now in both forms of action be pleaded,(s) although the payment be of interest only.(<) If the plain- tiff in his declaration gives credit for part payment, the allegation of part payment is not traversable. (m) (o) Gwynn v. Burnell, Y Bing. N. Oa. 453. Dom. Proc. ; Atkinson v. Davies, 11 M. & W. 242* [p) Uther V. Rioli, 2 P. & D. 5T9. Iq) Noel V. Rich, 2 C. M. & E. 360 ;* 4 Dowl. 228, S. C. ; and see Noel v. Boyd, 4 Dowl. 415. [r] Cooper v. Moreoraft, 3 M. & W. 500 ;* 6 Dowl. 562, S. C. (s) R. Trln., 1 Vict. [t) Adams v. Palk, 3 Q. B. Rep. 2, E. C. L. E. vol. 43. (u) Hodgins y. Hancock, 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. Parkin^n, 16 L. J. 196, Ex.; 4 Dow. & L. 522 ; 16 M. & W. 752,* S. 0. PLEADING. 497 Where a plea alleges the satisfaction of the instrument declared on by the giving of another, it must state that the substituted instrument was given as well as taken in satisfaction.(«)) Both of which allega- tions may be involved by the plaintiff in one traverse.(w) To an action against the acceptor of a bill of exchange, the defen- dant pleaded, that he made the acceptance by force, and duress of imprisonment, and that he never had any value for accepting or pay- ing the bill, concluding with a verification to this plea ; the plaintiff demurred specially. It was held that the plea was bad for duplicity.(a;) Although one of the grounds of defence be badly pleaded, the plea may, nevertheless, be double. («/) So where the defendant, as acceptor, pleaded to an action on a bill of exchange brought by the indorsee, that the defendant's bankers paid the bill, and afterwards lost it, and that it came to the plaintiff's hands without consideration, the plea was held bad for duplicity and uncertainty. (a) And in an action of assumpsit on a bill of exchange, drawn by one S. B. upon and ac- cepted by the defendant for 251., payable three months after date ; ■ the defendant pleaded, that after the bill became due, and before the commencement of the suit, S. B. paid to the plaintiff divers moneys, to the amount of 17Z. and did for the plaintiff *work and labor to the amount of 81., in full satisfaction and discharge ■- J of the sums of money in the bill specified, and of all damages sus- tained by non-payment thereof, which were then accepted and re- ceived by the plaintiff in such full satisfaction and discharge ; and, further, that he, the defendant, accepted the bill at the request and for the accommodation of the said S. B., and not otherwise; and that there never was any consideration or value for the payment by the defendant, of the said bill, or any part thereof; and that the plaintiff, at the commencement of the suit, held the bill, without consideration, (v) Crisp V. Griffiths, 2 C. M. & E. 159 ;* 3 Dowl. 752 ; 1 Gale, 106, S. C. (k>) Webb V. "Weatherby, 1 Bing. N. Ca. 502, B. C. L. E. vol. 27 ; 1 Scott, 477 ; 1 Hodges, 39, S. C; and see Bennison v. Thelwell, 7 M. & W. 512;* Eidley v. Tindall, 7 Ad. & E. 134, B. G. L. E. vol. 34. (k) Stephens v. Underwood, 4 Bing. N. C. 655, E. C. L. R. vol. 33 : 6 Dowl. 737 • 6 Soott, 402, S. C. (?/) Per Tindal, C. J. ; 4 B. N. C. 657, B. C. L. R. vol. 33 ; Com. Dig. Pleader, E. 2 ; and see Wright v. Watts, 3 Q. B. Eep. 89, E. C. L. R. vol. 43. In Regil v Green, 1 M. & W. 328,* Parke, B., observes, "This is not precisely duplicity, but the plaintiff has no right to include several matters in his replication so as to em- barrass the trial." (2) Deacon v. Stodhart, 6 Bing. N. C. 594, E. C. L. R. vol. 37. 32 498 BTLES ON BILLS OF EXCHANGE. to ■which plea the plaintiiF demurred ; the Court held that the plea vas bad for duplicity.(a) Where, in an action by an indorsee,J;he plea alleges fraud on the defendant, and then goes on to allege, both absence of consideration moving from the plaintiff, and notice of the facts, the plea is double. (6) A special demurrer for duplicity must show wherein the duplicity consists.(e) Although the Court will not in general determine upon the validity of a plea in point of law, or the ti'uth of it on motion, except in particular cases, nevertheless, where a plea pleaded is beyond doubt a frivolous or sham plea, they will exercise their authority by so doing.(cZ) Where in an action on a bill of exchange by the indorsee, against the acceptor, the defendant set forth in his plea a number of facts, calculated to perplex the plaintiff, the Court, on an affidavit of its falsehood, no cause being shown for pleading it, set it aside.(e) The use of the general replication, commonly called de injuria, in action of debt and assumpsit, is a novelty introduced by the special pleas now necessary in those actions. The general rules regulating its employment in an action of tort are laid down in Crogate's case.(/) Those rules, originally, perhaps, somewhat capricious and indefinite, have, when applied to actions founded on contract, introduced a great deal *of refinement, of which it is not easy to perceive the L -' practical utility. The general law on the subject is, that where the defendant's plea consists of mere matter of excuse, the plaintiff may reply generally, that the defendant broke his promise without the cause alleged, and (a) Purssford v. Peek, 9 M. & W. 196 ;* Lane v. Ridley, 10 Q. B. Rep. 480, E. C. L. R. vol. 59. (6) Leaf V. Robson, 13 M. & W. 651.* (c) Smith V. Clencli, 2 Q. B. Rep. 835, E. C. L. R. vol. 42. Id) Horner v. Keppel, 10 Ad; & Ell. 17, E. C. L. R. vol. 31; 2 P. & Dav. 234, S.C. (e) Miley v. Walls, 1 Dowl. 648 ; and see Horner v. Keppel, 10 Ad. & Ell. 17 ; E. C. L. R. vol. 37; 2 P. & D. 234, S. C. ; Knowles v. Burward, 10 Ad. & EH. 19, B. C. L. R. vol. 37 i 2 P. & D. 235, S. C. ; Balmauno v. Thompson, 6 Bing. N. C. 153, B. C. L. R. vol. 37 ; 4 Jurist, 43 ; 8 Scott, 306, S. C. ; Bradbury v. Emans, 5 M. & "W. 595 ;* 7 Dowl. P. C. 849, S. C. ; Emanuel v. Randall, 8 Dowl. 238; Mid- ford V. Finden, 9 Dowl. 813. (/) 8 Rep. 66. PLEADING. 499 so put the whole plea in issue.(5') It is, however, often difficult to distinguish between matter of excuse and matter of discharge. To pursue this subject in detail, is rather the province of a Treatise on Pleading, than of a Treatise on Bills of Exchange. The reader, who has occasion to follow out the inquiry in its relation to actions on bills and notes, will find most of the cases to which it is necessary to refer arranged in the note at the foot of the page.(A) De injuria may be replied in debt, as well as indebitatus assumpsit.(i) To a plea denying consideration, a replication simply averring con- sideration is good.(A) And even if the plaintiff, in his replication, set out the particular consideration, and concludes to the country, he is not bound to prove it.(Z) (g) Noel V. Eich, 2 C. M. & B. 360 ;* 4 Dowl'. 228 ; 1 Gale, 225, S. C. ; Griffin V. Yates, 2 Bing. N. Ca. 579, B. C. L. R. vol. 29 ; 2 Scott, 845 ; 4 Dowl. 647 ; 1 Hodges, 387, S. C. ; Isaac v. Farrar, 1 Mees. & W. 65 ;* 4 Dowl. 750 ; 1 Try. & Gr. 281, S. C. (h) Noel V. Eich, 2 C. M. & R. 360,* 4 Dowl. P. C. 228, 1 Gale, 225 ; Solly v. Neish, 2 C. M. & E. 355, E. C. L. E. vol. 31 ; Whittaker v. Mason, 2 B. N. C. 359, E. C. L. E. Tol. 29 ; 2 Scott, 567, 1 Hodges, 318, S. C. ; Isaac v. Parrar, 1 M. & W. 65 ;* 1 Tyr. & G. 281, 4 Dowl. P. C. 750, 1 Gale, 385, S. C. ; Griffin v. Yates, 2 B. N. C. 579, B. C. L. E. vol. 29, 2 Scott, 845, 4 Dowl. P. C. 647, 1 Hodges, 387 ; Watson V. Wilks, 5 Ad. & Ell. 237, E. C. L. E. vol. 31 ; 6 N. & M. 752, S. C. ; Eey- nolds V. Blackburn, 7 Ad. & BU. 161, B. C. L. E. vol. 34; 2 N. & P. 136, 6 Dowl. P. C. 19, S. C. ; Humphreys v. Waldegrave, 8 Dowl. 768 ; Mackay v. Wood, 7 M. & W. 421 ;* Watkius v. Bensusan, 9 M. & W. 422 ;* Myers v. Lazarus, 6 Jur. 583 ; Barnes v. Butcher, 9 C. & P. 725, B. C. L. R. vol. 38 ; Parker v. Eiley, 6 Dowl. 375 ; Curtis v. Headfort, 6 Dowl. 496 ; Jones v. Senior, 4 M. & W. 123 ;* Basau v. Arnold, 6 M. & W. 559 ;* Humphreys v. O'Connell, 7 M. & W. 371 ;* 9 Dowl. P. C. 213, S. C. ; Schild V. Kilpin, 8 M. & W. 673 ;* 5 Jur. 874, S. C. ; Whitehead v. Walker, 9 M. & W. 506 ;* Fisher v. Wood, 5 Jur. 933 ; Scott v. Chappelow, 4 M. & G. 336, B. C. L. R. vol. 43 ; Cowper v. Garbett, 13 M. & W. 33;* Hartley v. Manton, 5 Q. B. Rep. 247, E. C. L. E. vol. 48 ; Herbert v. Sayer, 5 Q. B. Eep. 965, E. C. L. R. vol. 48 ; Robinson v. Little, 18 L. J. 29, Q. B. ; 9 Q. B. Rep. 602, E. C. L. R. vol. 58, S. C. ; La Forest v. Wall, 9 Q. B. 599, B. C. L. R. vol. 58; 16 L. J., Q. B. 100; Tolhurst v. Notley, 17 L. J. 97, Q. B.; 11 Q. B. Rep. 406, B. C. L. E vol. 39. (i) Cowper V. Garbett, 13 M. & W. 33;* PurcheU v. Salter, 1 Q. B. Rep. 209, E. C. L. E. vol. 41. (k) Prescott V. Levi, 3 Dowl. 403; 1 Scott, 726, S. C. ; Bramah v. Roberta, I Bmg. N. Ca. 469, E. C. L. E. vol. 27 ; 1 Scott, 350, S. C. ; May v. Seyler, 2 Bxch. Rep. 563,* {I) Low V. Burrows, 2 Ad. & E. 483, B. C. L. R. vol. 29 ; 4 N. & M. 366, S C • BaUey v. Catterall, 1 M. & Rob. 379. ' • • ; 500 BTLBS ON BILLS OF EXCHANGE. *A defendant cannot demur to a replication for duplicity •- J occasioned by the plea.(»n) Where a party to a bill; as an acceptor or indorser, is concluded from denying a fact, as for example, the drawing of a prior indorse- ment, the estoppel may be replied, or it seems that the plaintiff may demur, (m) For an estoppel in pais need not be pleaded, (o) Where one plea is pleaded to several notes or bills, the plaintiff may often reply by one replication, which will be construed distri- butively.(p) [*347] *OHAPTEE XXXIV. EVIDENCE. RIGHT TO BEGIN', SPLITTING plaintiff's CASE, . COMPETENCY OF PARTIES TO THE IN- STRUMENT AS WITNESSES, IN AC- TIONS BETWEEN OTHER PARTIES, WHEN WITNESS INTERESTED, . IN RESPECT OF COSTS, . COMPETENCY OF DRAWER, ACCEPTOR, PAYEE, OR INDORSEE, DECLARATIONS AT THE TIME OF MAKING THE INSTRUMENT, . DECLARATION BY PRIOR PARTIES, . EFFECTS OF ADMISSIONS ON RECORD, PROOF OF SIGNATURE, . COLLATERAL SECURITY, MEMORAN- DUM OF, Except in actions for personal wrongs the party on whom lies the burden 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 some injustice has been done, (a) (m) Lane v. Eidley, 10 Q. B. Eep. 4^9, E. C. L. R. vol. 59 ; Reynolds v. Black- burn, 7 Ad. & E. 161, E. C. L. ^. vol. 34. (n) Sanderson v. CoUman, 4 M. & G. 209 ; Armani v. Castrique, 13 M. & W. 443.* (o) Vauglian v. Matthews, 18 L. J. 191, Q. B. (p) Wood V. Peyton, 13 M. & W. 30.* [a) Cannam v. Parmer, 3 Exch. Rep. 698.* 34T IDENTITY OF DEFENDANT, 352 348 EVIDENCE OF CONSIDERATION, 353 PRODUCTION OF THE BILL, 353 PROOF OF MARK, .... 353 348 PROOF OF SIGNATURE BY AGENT, . 364 348 EF'FECTOFADMISSIONUNDER judge's 349 ORDER, BILL OR NOTE, EVIDENCE UNDER THE 354 350 COMMON COUNTS, 354 PROOFS IN VARIOUS ACTIONS, 354 351 PAYEE V. MAKER OR ACCEPTOR, 355 351 INDORSEE V. MAKER OR ACCEPTOR, . 355 352 INDORSEE V. INDORSER OR DRAWER, 355 352 PAYEE V. DRAWER, 355 RECEIPT, 355 352 AMENDMENT AT THE TRIAL, . 356 EVIDENCE. '^"'■ Where, in an action on a bill of exchange, the only issues lying on the plaintiff arise on the common counts, the plaintiff is not entitled to begin, unless he proposes to give evidence on those issues ;(6) and using the bill as evidence under the common counts tyiH not be suffi- cient. A defendant will not entitle himself to begin, by admitting all the issues that lie on the -plaintiff, (c) *A plaintiff cannot split his case,(ci!) except by first proving pg^g-. only the issues which lie on him. The being 'a party to the same bill or note, on which the action is brought, is of itself no objection at common law to the competency of a witness. Unless he is directly and necessarily interested in the event of the suit, and is called in support of such interests, or unless a verdict for or against the party by whom he is called, would be ad- missible evidence for or against the witness in another suit, the wit- ness is competent at common law.(e)(l) (6) Homan v. Thompson, 6 C. & P. Ill, E. C. L.'R. vol. 25 ; Smart v. Eayner, Ibid. 721 i Mills v. Oddy, Ibid. Y28; 3 Dowl. 722, 2 C. M. & R. 10,3,* S. C. (c) Pentifex v. Jolly, 9 C. & P. 202, E. 0. L. E. vol. 38. id) Jacobs V. Tarleton, 17 L. J. 194, Q. B. ' (e) Bent v. Baker, 3 T. R. 27 ; Jordaine v. Lasbbrooke, 7 T. R. 601 ; Smith v. Prager, 7 T. R. 60 ; Jones v. Brooke, 4 Taunt. 464. (1) The rule of Walton v. Shelley (1 Term Rep. 296), in which it was decided that a witness could not be heard to impugn a paper to which he had set his hand, was repudiated ten years afterwards in Jordaine v. Lashbrooke, 7 Term Rep. 600. In New York it was adopted in Winton v. Saddler, 3 Johns. Cas. 185, and abandoned afterwards in Stafford v. Rice, 5 Cowen, 25 ; Bank v. Billiard, 5 Cowen, 158 ; Wil- liams V. Walbridge, 3 Wendell, 416. But several of the other states have received the doctrine of Walton v. Shelley, in a modified shape, and maintained it steadily ; for instance, Massachusetts, Maine, and New Hampshire. It h^is received the ex- press indorsement of the Supreme Court of the United States, in the Bank v. Dunn, 6 Peters, 51, and in the United States v. LefBer, 11 Peters, 95. In Pennsylvania, it was recognized in Pemberton 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. 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 regu- lar course of business previous to their maturity. A party to the instrument is not competent to prove that it was not actually so negbtiated. The transaction, as it stands, presents an apparently well-founded objection to his competency, which he cannot remove by his own oath. Baring v. Shippen, 2 Binn. 165 ; McPerran v. Powers, I Serg. & Rawie, 102 ; Cromwell v. Arrott, Ibid. 183 ; Baird v. Cochran, 4Ibid. 399 ; Hepburn v. Cassell, 6 Ibid. 113 ; Bank of Montgomery v. Walker, 9 Ibid. 502 BTLBS ON BILLS OF EXCHANGE. And he was first made a competent witness by statute in cases where the ground of objection was merely, that the verdict or judg- ment would be evidence for or against him. The witness's name was to be indorsed on the record ; and ' then the verdict or judgment was not to be evidence for or against him : 3 & 4 Wm. 4, c. 42, ss. 26 & 27. The decisions as to the effect of this statute are not very con- sistent. But it would seem to have applied in most cases where lia- bility to costs would otherwise disqualify a witness. (/) But the decisions on the former act are now immaterial, for inca- pacity from interest is now removed in nearly all cases, by Lord Denman's Act, 6 & 7 Vict. c. 85. It may, however, not be entirely useless to state what the common law on the subject of the interest of witnesses in actions on bills of exchange still is. If the witness have an interest both ways, he stands indifferent be- tween the parties, and may give evidence for either. Thus, one joint maker of a note is evidence for the payee to prove the handwriting of the other maker, the defendant ; for, if the plaintiff recovers of the defendant, though the witness will be discharged from his liability to the present plaintiff, he will be liable to the defendant for contri- bution. If, on the other hand, the plaintiff fails, though the witness will then be liable to the plaintiff, he will be entitled to recover con- tribution from the defendant. In either case, he must eventually pay his part, and no more, and is, therefore, a competent witness on either (/) Kilpaok V. Major, 11 L. J. 82, Q. B. ; 2 Q. B. Eep. 737, E. C. L. E. toI. 42, S. C. 236 ; Harrisburg Bank v. Foster, 8 Watts, 309 ; Parke v. Smith, 4 Watts & Serg. 289 ; Alexander v. Alexander, 3 Penna. State Rep. 89 ; Grilpin v. Howell, 5 Ibid. 52 ; Griffitb v. Eeford, 1 Eawle, 196 ; Harding v. Mott, 20 Penna. State Eep. 469. The rule in Walton v. Shelley, does not apply where the note or bill is not the sub- ject of the action ; hence, in an action to recover from a prior indorser the amount advanced to take up the bill, the drawer and acceptor are not incompetent under the policy of the law, to prove that the bill was indorsed for the benefit of the party making the advance. Wright v. Truefitt, 9 Penna. State Eep. 507. A party to a bUl or note may testify to facts which occurred subsequently to the negotiation of the instrument affecting it in the hands of the holder, and tending to disprove his right to recover upon it. Parke v. Smith, 4 Watts & Serg. 289; Appleton v. Don- aldson, 3 Penna. State Eep. 381 ; Gilpin v. Howell, 5 Ibid. 52 ; Maynard v. Nekervis, 9 Ibid. 81 ; Bank v. Fordyce, Ibid. 276 ; Pennypacker v. Umberger, 22 Ibid. 492. BVIDBNOB. 503 side.(^) So, where one of two partners delivered a *bill, pg^g-. drawn by the partnership, to a separate creditor of his own, L in payment of a private debt, it was held, in an action by the creditor against the acceptor, that either partner was a competent witness for the defendant, the acceptor : the jiirtner indebted, because, if the plaintiff recovered, the acceptor would charge the firm, and the firm would charge him ; and, if the plaintifi" failed, the plaintiff would do the same. The other partner was competent, because, if the plaintiff recovered, the firm would be liable to the acceptor, and, if not, to the plaintiff, and in both cases the firm could charge the sum to the in- debted partner's private account.(A) But, if the witness be liable for more costs in one case. than in the other, he is interested and incompetent. Thus, in an action by the indorsee against the acceptor of ar bill, accepted for the accommoda- tion of the drawer, the drawer is not a competent witness to prove that the holder came to the bill on usurious consideration ; for, though as to the sum due on the bill the witness may be indifferent, since he would have to pay it to the acceptor if the plaintiff recover, and to the plaintiff if the plaintiff do not recover (foi* in an action against himself he cannot be a witness to prove the usury), yet the plaintiff cannot charge him with the costs of this action, which the acceptor may do. He cannot, therefore, be a witness for the acceptor.(z) Upon the same principle, it should seem that, in an action on a joint and several promissory note, though if the action be against the principal, the surety is a good witness either for plaintiff or defendant, and if the action be against the surety, the principal may be a witness for the plaintiff, yet the principal cannot be a witness for the defendant, the {g) York V. Blott, 5 M. & Sel. 11 ; Lockart v. GraHam, 1 Stra. 35 ; Poole v Palmer, 9 M. & W. 71 ;* Russell v. Blake, 2 Scott, N. R. 574; 2 M. & Gr. 374 E. C. L. R. vol. 40, S. C. ; Page v. Thomas, 6 M. & W. 733.* ' {h) Ridley v. Taylor, 13 Bast, 175. (i) Jones v. Brooke, 4 Taunt. 464, recognized in Stratton v. Matthews, 18 L. J Exch. 5. This decision overrules the case of Birt v. Kershaw, 2 East, 458 and Shnttleworth v. Stephens, 1 Camp. 407 ; but see Roach v. Thompson, M. & M 488 4 C & P. 194, B. C. L. R. vol. 19, S. C. ; and Bagnall v. Andrews, 7 Bing. 217, E C. L.R. vol. 20; 4 M. & P. 839, S. C. Whether the witness's name can be in^ dorsed on the record under the 3 & 4 Wm. 4, c. 42, does not seem clearly settled. Aecordmg to Burgess v. CuthiU, 1 Mood. & R. 315 ; 6 C. & P. 282, E. C. L. R Vol 25, S. C, it cannot. According to Faith v. M'Intyre, 7 C. & P. 44 B C L R vol 32 .t may and with this case accords the most recent decision, Kilpack v." Major', , ri' ; ^ ^°'- ^^- ^"' ^°'^ ^^"'"^"'^ ^'=' (6 & 7 Vict. 0. 85), has rendered these subtleties unimportant. 504 BYLES ON BILLS OF EXCHANGE. surety ; for if the surety is charged, he may recover against his prin- cipal, not only the debt, but the costs of the first action.(A;) But if the accommodation acceptor release the drawer, he will be rendered competent.(Z) Again, where the defendant, the drawer, drew a bill P^oPQI for 500?. on *the acceptir for the acceptor's accommodatiouj and the acceptor delivered it to the witness to get it dis- counted, and the witness delivered it to the plaintiff, it appearing that the witness was previously indebted to the plaintiff in the sum of 89L, he was called by the defendant's counsel, to prove that the plaintiff gave no consideration for the bill, and that it was not delivered by him to the plaintiff in payment of his own previous debt of 891., but that the plaintiff might discount it. It was insisted that the witness was indifferent, inasmuch as if the verdict was for the defendant, the witness would still be liable for his debt to the plaintiff; and, if the plaintiff succeeded, the witness would be liable to the defendant. But Gibbs, C. J., said, " The witness bought goods of the plaintiff, and afterwards gave him this bill, out of which bill, according to the evidence, the price of those goods was to be paid. The defence is, that the witness did not deliver the bill as payment, but in order that the plaintiff might discount it. Now, if the witness received the bill merely to get it discounted, and then pledged it for a debt of his own, I am clearly of opinion, that, in a special action, he would be liable to the costs of this action, as special damage resulting from the viola- tion of his duty."(m) In an action by the indorsee against the acceptor, the drawer or indorser is a competent witness /or the plaintiff , to prove his own in- dorsement ; for, though recovery by the plaintiff will discharge him from his liability to the plaintiff, yet, " the indorser, by proving the handwriting to be his own, will charge himself ;"(w) and, if the plain- tiff resorts to him, he will have his remedy against the acceptor.(o) He is also competent to prove the handwriting of the acceptor.(p) (k) See Townsend v. Downing, 14 East, 565. {I) Hardwick v. Blanchard, Gow's N. P. 0. 113. (m) Harman v. Lasbrey, Holt, N. P. C. 390; Edmonds v. Lowe, 2 Man. & Ey. 427 ; 8 B. & C. 407, E. C. L. R. vol. 15 ; Hall v. Rex, 6 Bing. 181, B. C. L. R. vol. 19 ; 3 Moo. & P. 273, S. 0. {n) Per Lord Ellenborough, in Richardson v. Allan, 2 Stark. 334, E. C. L. R. vol. 3. (o) Wilsheir v. Cox, 1826, Chitty, 9th ed. 673 ; Hobson v. Richards, lb. 673. (j?) Dickinson v. Prentice, 4 Esp. 32 ; Barber v. Gingell, 3 Esp. 60. EVIDENCE. 505 And he is a competent witness /or the defendant, to prove that the plaintiff discounted the bill upon a usurious consideration,(5') or that it has been paid.(r) In an action by the indorsee against the drawer, a prior indorser is a competent witness to prove that, the defendant promised to pay the bill after it had become due.(s) And the acceptor is a competent *witness for the plaintiff, to prove that he had no effects of |-^„-j-, the drawer in his hands, and consequently that notice of dis- ■- -^ honor was unnecessary ; for though a recovery by the plaintiff may, perhaps, relieve him from his liability to the present plaintiff, yet there is still, prima facie, a debt due from himself to the drawer, and the evidence given by him in this action cannot have any effect in an action to be brought against himself.(i) And the payee in such an action is competent to prove that a bill purporting to have been drawn abroad, was in reality drawn in England, and was, therefore, inadmissible in evidenc'e.(M) In an action by the second indorsee against the first indorser, the second indorser was held a competent witness to prove that he, on receiving notice of dishonor from the plaintiff, had communicated due notice to the defendant, (v) The Court of King's Bench held, in the case of Buckland v. Tankard,(w) that a witness who might have a remedy by action, whether the plain- tiff or defendant had a verdict, was incompetent, because, under the particular circumstances, he would have a greater difBculty in one case than in the other to enforce that remedy. But it has been observed, that this is the only case which has been decided on such a ground, and that from the leading cases on this subject, which rest on the broad ground of interest, such a circumstance may now more properly be considered as having a strong influence on the witness, but not as forming any solid objection to his competency. (a;) (g) Rich V. Topping, Peake, 224; 1 Esp. 176, S. C. ; Brard v. Ackerman, 5 Esp. 119. (r) Charrington v. MUner, Peake, 6 ; Phetheon v. "Whitmore, lb. 40 ; Humphrey V. Moxon, lb. 52; Adams v. Lingard, lb. 117. («) Stevens v. Lynch, 2 Camp. 332; 12 Bast, 38, S. C. In an action by indorsee against acceptor, where issue was joined on a plea of payment, a prior indorser was held to be a competent witness for the defendant, though he acknowledged on the voire dire, that he received the money from defendant to pay plaintiff the bill. Eeay v. Packwood, 1 Ad. & Ell. 917, B. C. L. R. vol. 34. (t) Staples V. Okines, 1 Esp. 332 ; Legge v. Thorpe, 2 Camp. 310 ; 12 Bast, 171, S. C. («) Jordaine v. Lashbrooke, 7 T. R. 601. («) Chitty, 9th ed. 674. [w] 5 T. R. 579. (x) Phillipps on Bvid., 7th ed. 69. 506 BTLES ON BILLS OF EXCHANGE. In an action, ex contractu, against several defendants, a defendant •who lias suffered jndgment by default, is a competent witness for the plaintiff against other defendants who plead to the action. («/) 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 gestae. («) It has been held thatdeclarations by the holder of a negotiable in- strument, made whilst he was holder, are evidence against a plaintiff r*oco-| ■who claims under him,(a)in the same *manner as declarations respecting his title, made by a former owner of an estate whilst he was in possession, are evidence against a subsequent owner. (6) But there is an obvious distinction, between the case of an assignee of land or other property and the assignee of a negotiable instrument. The former has, in general, 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, it has 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 him.(c) But if he does stand on the title of a prior holder, as if he have taken the bill overdue or without conside- ration, then the declarations of that prior holder under whom he claims, and on whose titles he stands, are evidence against him. It has been held, that a jury can draw no inference from an ad- mission on record. "The pleadings," says Alderson, B., " are not before the jury, but only the issue, "(ci) But the Court of Queen's Bench have held otherwise. (e) {y) Worral v. Jones, 1 Bing. 395, E. C. L. R. vol. 20 ; Pipe v. Steele, 2 Q. B. Rep. 733, B. C. L. R. vol. 42; Green v. Sutton, 2 Moo. & Rob. 269. {z) Kent v. Lowen, 1 Camp. 177, and 180, d. (a) Pocock V. Billing, 2 Bing. 269, B. C. L. R. vol. 9 ; Ry. & M. 127, S. C. (6) Woolway v. Rowe, 1 Ad. & E. 114, E. C. L. R. vol. 28 ; 3 N. & M. 849, S. C. (c) Barough v. White, 4 B. & C. 325, E. 0. L. R. vol. 10 ; 6 D. & Ry. 379 ; 2 C. & P. 8, B. C. L. R. vol. 12, S. C; Beauchamp v. Parry, 1 B. & Ad. 88, E. C. L. R. vol. 20 ; Shaw v. Broom, 4 D. & R. 731, E. C. L. R. vol. 16 ; Smith v. De Wruitz, 1 R. & M. 212 ; and see Phillips v. Cole, 10 Ad. & E. 106, E. C. L. R. vol. 37 ; 2 P. & D. 288, S. C. (d) Edmunds v. Groves, 2 Mees. k W. 642 ;* 5 Dowl. 775, S. 6. (e) Bingham v. Stanley, 2 Q. B. 117, E. C. L. R. vol. 42 ; see Malpas v. Clements, 19 L. J. 435. EVIDENCE. ^^' Where there is no attesting witness, the signature to a bill may be , proved by any person who has seen the party write, or has received letters from him.(l) Where there is an attesting witness, he must be called, unless he be dead, insane, or out of the jurisdiction of the Court.(/) An agreement that certain shares are to be held as a collateral security for a bill is evidence to prove an allegation that any sum re- ceived by the holder should be satisfaction pro tanto.(^) It has been held that there must be some evidence of the identity of the person whose handwriting is proved *as the defendant's p^ggg-. with the real defendant, and that mere correspondence oi^ Christian and surname is no evidence of identity. (A) But the incon- venience 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."(z) It is conceived that there must be some peculiar circumstances tending to raise a question, before the plaintiff can be required 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. Wh,ere it is necessary to prove the consideration, and on whom the bufden of proof lies, see the Chapter on Consideeation. It is not necessary to produce the bill on the trial, unless some (/) The attesting witness must be called, though the attestation be on the back of the bill. Richards T. Prankum, 9 C. & P. 221, B. C. L. E. vol. 38 ; and though he be blind. Crank v. Frith, 2 Mood. & Rob. 262. {g) Malpas v. Clements, 19 L. J. 435, Q. B. Ih) Whitelock v. Musgrave, 1 C. & M. 511 ;* Jones v. Jones, 9 M. & "W. 75 ;* 11 L. J. 265, Exch. ; Bell v. Gunn, 11 L. J. 57, C. P. ; see p. 355. As to identity of first indorser with drawer, see Smith v. Moneypenny, 2 Mood. & Rob. 317. (i) Sewell v. Evans, 4 Q. B. Rep. 626, E. C. L.-R. vol. 45 ; Eoden v. Ryde, Ibid. ; Hamber v. Roberts, 18 L. J. 250, C. P. (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. 508 BYLES ON BILLS OF BXCHANGB, issued be joined, which rendei-s the production of the bill necessary ;(Z) nor on a writ of inquiry •,{m) nor will statements in the plea entitle the defendant to offer evidence of it without notice to produce.(w) But if interest be sought from a period before the issuing of the writ, it may be necessary to produce the bill.(o) 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.(^) Where an acceptance is by the Christian and surname of the drawer, a witness who has seen him write his surname only is competent to prove the acceptance.(g') *An averment that the defendant made a note, "his own L -I proper hand being thereunto subscribed," is satisfied by proof that the note was made by an agent, for those words may be rejected as surplusage.(g'g') An admission under a Judge's order that a bill was accepted by A. for B., is an admission of A.'s authority. (r) A promissory note, as between the original parties, is evidence of an account stated, and of money lent,(s) and is admissible as a paper or writing to prove the defendant's receipt of so much money ; and that though it has been invalidated, as a note, by alteration. (f) But (0 Shearm v. Barnard, 10 Ad. & E. 593, E. C. L. R. vol. 31 ; 2 Per. & Day. 565 ; Read v. Gamble, 5 N. & M. 433, E. C. L. R. vol. 36 ; 10 Ad. & E. 59?, n., S. C. ; but see Fryer v. Brown, R. & M. 145. (m) Lane v. Mullins, 1 Gale & Dav. 712 ; 11 L. J., Q. B. 51, 2 Q. B. Rep. 254, E. C. L. R. vol. 42, S. 0. ; Davis v. Barker, 3 C. B. Rep. 606, E. C. L. R. vol. 54. («) Goodered v. Armour, 3 Q. B. Rep. 956, E. C. L. R. vol. 43. As to what is a sufficient notice, see Lawrence v. Clark, 3 D. & L. 87. (o) Mutton V. Ward, 19 L. J. 292, Q. S. (p) George v. Surrey, M. & M. 516. (5) Lewis V. Sapio, M. & M. 39, overruling Powell v. Ford, 2 Stark. 164, B. C. L. R. vol. 3. (22) Booth V. Grove, M. & M. 182 ; 3 C. & P. 335, E. C. L. R. vol. 14, S. C. Ir) Wilkes v. Hopkins, 1 C. B. Rep. 131, E. 0. L. R. vol. 50. (s) Clark v. Martin, Ld. Raym. 758 ; per Lord Mansfield in Grant v. Vaughan, 3 Bur. 1525 ; Bayley, 357 ; Morgan v. Jones, 1 C. & J. 167.* Money deposited with a banker is money lent. 'Pott v. Clegg, 16 Mees. & W. 321.* (0 Sutton V. Toomer, 7 B. & C. 416, E. C. L. R. vol. 14 ; 1 Man. & R. 125, S. C. ; Tomkins v. Ashby, 6 B. & C. 541, E. C. L. R. vol. 13 ; 9 Dowl. & R. 543 ; M. & M. 32, S. C. But see ante, p. 253. EVIDENCE. 509 a bill which never was properly stamped is not admissible in evidence for collateral purposes, though formerly held to be so.(m) But an instrument though not stamped is admissible to show that the trans- action is void, as for usury.(«) An instrument promising payment on condition, which, as we have seen, is not a promissory note, is not evidence to sustain the money counts.(w) Uponxprinciple, it Appears clearly that a bill or note can be evidence under the money counts only as between immediate parties, and the later decisions are in favor of this doctrine,(a;) though it has been held evidence of money received to the use of the holder.(«/) An indorse- ment is prima facie evidence of money lent by the indorsee to the in- dorser.(s)(l) A check not presented has been held not> to be evidence of money lent by the drawer to the payee.(a) ' In an, action by the payee against the maker of a note, or acceptor of a bill, the plaintiff must prove the handwriting(6) *of the r-Mcocc-i - person whose name appears as the maker of the note or ac- ceptor of the bill. (m) Jardine v. Payne, 1 B. & Ad. 663, E. C. L. R. vol. 20 ; Jones v. Ryder, 4 M. & W. 32.* (u) Nash V. Duncomb, 1 M. & Rob. 104. Iw) Morgan v. Jones, 1 C. & J. 162 ;* 1 Tyrw. 21, S. C. (a;) Waynam v. Bend, 1 Camp. 175 ; Bentley v. Nortkhouse, M. & M. 66 ; Bales V. Dicker, M. & M. 324 ; Bayley, 357, 6tli ed. (,y) Vide Chitty, 9tli ed. 581, and Bayley, 6tli ed. p. 358 ; Grant v.- Vaugtan, 3 Burr, 1516. (z) Kessebower v. Tims, Bayley, 6t]i ed. 359, and 357. (a) Pearce v. Davis, 1 M. & Rob. 365. (6) By R. Hil. 2 "Wna. 4, the costs of proving handwriting are not to be allowed without a previous summons to admit. B. Hil. 4 Wm. 4, directs the party who is about to adduce any written document in evidence to give the adverse party notice to admit it. (1) In an action indorsee against acceptor, a bill is sufficient prima facie evidence to sustain the common counts. Black v. Gaffe, 3 Selden, 281 ; Haviland v. Simons, 4 Richardson, 338 ; Purdy v. Vermilya, 4 Selden, 346. The third indorser of a promissory note may maintain assumpsit for the money had and received against the first. Martin V. Farnum, 4 Poster, 191. An accommodation note, in an action, indorsee against indorser, is evidence of indebtedness under ,the money counts. Cayuga Bank v. "Warden, 2 Selden, 19. The indorsee of a draft has no right to sue the drawer on the original consideration. Battle v. Coit, 19 Barbour, S. C. Rep. 68. 510 BYLBS ON BILLS OF EXCHANGB. In an action by the indorsee against a maker or acceptor, the plaintiff must first prove the making of the note or the acceptance of the bill. We have already seen that the acceptance admits the draw- ing. 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 or prove(c) a subsequent indorsement. 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.((^ But the admission of an indorser is evidence against him only, not against other parties.(e) In an action by an indorsee against an indorser, it is necessary, first, to prove the indorser's signature, which admits the ability and signature of every antecedent party ;(/) then, a due(^) presentment for payment or acceptance, and dishonor ; and, lastly, notice of dis- honor, or a competent excuse for neglecting to give it. An indorsement is evidence, in this action,, under the common counts.(A) If a bill be taken up by the drawer, the payment of the money mentioned in it may be proved by the payee or indorsee who re- turned it. A general receipt on the back of a bill is not of itself evidence of the payment by the drawer, though he produces the bill,(i) for " prima facie," says Lord Kenyon, "the receipt on the back imports that it was paid by the acceptor," But *this doctrine must be taken L -■ with the qualification that slight circumstances will show the contrary. (^) (c) Unless averred in the declaration. See Chapter on Transfer. (d) Hankey v. Wilson, Sayer, 223 ; Bosanquet v. Anderson, 6 Esp. 43 ; Sidford V. Chambers, 1 Stark. 326, B. C. L. R. vol. 2 ; Jones v. Morgan, 2 Camp. 474. (e) Hemings v. Eohinson, Barnes, 436. (/) Critohlow v. Parry, 2 Camp. 182 ; Chaters v. Bell, 4 Esp. 210 ; Lambert v. Pack, 1 Salk. 127. (g') An entry by a deceased clerk of a notary of the presentment of a bill is evi- dence. Poole v. Dicas, 1 Bing; N. C. 649, E. C. L. E. vol. 27 ; 1 Scott, 600 ; 7 C. & P. 79, E. C. L. R. vol. 32, S. C. Qi) Keesebower v. Tims, Bayley, 6th ed. ; and see ante, 354. (i) Scholey v. Walsby, Peake, 24. (Jc) See Phillips v. Warren, 14 Mees. & W. 379.* EVIDENCE. 611- Parol evidence is admissible to explain the receipt.(^ There are two statutes enabling a Judge to cure a variance by- amending a record at the trial, the 9 Geo. 4, c. 15, and the 3 & 4 Wm. 4, 0. 42, s. 23. Where there is a variance between the bill or note and the record, the Judge, at the trial, may, under the 9 Geo. 4, c. 15, order the record to be amended; but whether he will allow the amendment or not, rests in his discretion, and it should seem that it is not competent for the Court above to review the exercise of that dis- cretion.(9w) Where, in W action by the indorsee against the drawer, the decla- ration stated that the bill was accepted, "payable at Esdaile and Co.'s, Bankers, London, or at No.\%, Poland Street, Oxford Street," and it appeared on the face of the bill that the latter alternative place of payment was not in the acceptor's handwriting, but that it had been added afterwards, Lord Tenterden refused to allow an amendment.' " The object of the act of Parliament," says his Lord- ship, " was to prevent a failure of justice from accidental errors. Now this is a blunder that no man could make who would but use his eyesight. I have always thought that we have gone too far from the strict rules for the purpose of obtaining justice in some particular case. The consequence of which has been, that those cases having been quoted as precedents, great laxity has been introduced into the practice."(w) But where, in an action by an indorsee against an in- dorser, the declaration stated the bill to have been made payable to the drawer, and to have been indorsed by him, whereas the bill, when produced, appeared to have been made payable to another payee, and to have been indorsed by such other payee, the Judge allowed the record to be amended, and the Court of Exchequer, after intimating an opinion that they were not competent to review the amendment, said, that in their judgment the discretion had been properly exer- cised.(o) A variance in the date will be amended.(jp) An amend- ment can 'be made under this *statute only where a party r:cqe7-i assumes to set out a written instrument. (J) Graves v. Key, 3 B. & Ad. 313, B. C. L. R. vol. 23. (m) Parks v. Edge, 1 C. & M. 429 ;* 3 Tyr. 364, 1 Dowl. 64.3, S. C. See Lamey V. Bisiop, 4 B. & Ad. 479, E. C. L. R. vol. 24 ; 1 N. & M. 332, S. C. («) Jelf V. Oriel, 4 C. & P. 22, E. C. L. R. vol. 19. (o) Parks v. Edge, 1 C. M. & R. 429, E. C. L. R. vol. 41 ; 3 Tyr. 364, 1 Dowl. 643, S. C. [p) Bentzing v. Scott, 4 C. & P. 24, E. C. L. R. vol. 19. 512 BYLES ON BILLS OP EXCHANGE. The power of amendment is now much enlarged by the 3 & 4 Wm. 4, e. 42, s. 23, and it is exercised under this act so liberally and bene- ficially as to cure most instances of variance in actions on bills. Where the acceptor had died before presentment for payment, and thp declaration in an action against the indorser averred a present- ment to the drawee, on which averment issue was taken, the plaintiff was permitted to amend by inserting an averment as well of the drawee's death as of presentment to his executor. (§') Yet the amendment must not be such' as will make the declaration bad on special demurrer.(r) But this objection to the amendment must be pointed out at the time.(s) [*358] *OHAPTER XXXV. OF THE BANKRUPTCY OP PARTIES TO A BILL OB NOTE. RELATION OP THE FIAT OR ADJUDI- CATION OP BANKRUPICT, . NOTICE OP ACT OF BANKRUPTCY, BILL TO PETITIONING CREDITOR, IN" WHAT CASES THE HOLDER MAY PROVE, BILLS AND NOTES NOT YET DUE, PROOF OP A BILL OR NOTE PAYABLE ON DEMAND, .... BILL PAYABLE AFTER NOTICE, IRREGULAR BILL OR NOTE, BILL CANNOT BE PROVED AGAINST A MAN NOT A PARTY TO IT, . PROOF OF LOST BILL, PROOF BY A SURETY OR PERSON LIABLE FOR THE DEBT OF A BANK- RUPT, HOLDER MAY ELECT BETWEEN PROOF AND ACTION, .... MUTUAL ACCOMMODATION BILLS, WHERE THERE HAS BEEN SPECIFIC EXCHANGE OP SECURITIES, . WHAT AMOUNTS TO SPECIFIC EX- CHANGE, PARTY TO MUTUAL SPECIFIC EX- CHANGE OP PAPER MUST PAY HIS 359 360 360 360 361 361 361 361 361 362 362 363 363 363 365 OWN PAPER BEFORE HE CAN PROVE, 365 MUTUAL ACCOMMODATION WITHOUT SPECIFIC EXCHANGE, . . . 365 AFTER HOLDER HAS PROVED, NO FURTHER PROOF, . . . 366 CASES OP MUTUAL ACCOMMODATION WITHOUT SPECIFIC EXCHANGE, MUTUAL BANKRUPTCY, AND CASH BALANCE, 365 ACCOMMODATION BILLS IN THE HANDS OF AN INDORSEE POE VALUE, 3^0 PROOF OP INTEREST, . . . 370 OP EXPENSES, RE-EXCHANGE, ETC., . 370 WHERE THERE ARE SEVERAL FIATS OR ADJUDICATIONS OP BANKRUPTdY, UNDER WHICH, AND FOR HOW MUCH, THE HOLDER MAY PROVE, . . 371 WHERE A CREDITOR HOLDS ^ BILL AS A SECURITY, . . . .371 PROOF WHERE A TRANSFER AFTER acceptor's BANKRUPTCY, . . 372 ACTS OP BANKRUPTCY IN RESPECT OF BILLS, 372 {q) Gaunt v. Thompson, 18 L. J. 125, C («) Bury v. Blogg, 18 L. J., Q. B. 57. P. {?■) Oakley v. Pritchard, Exeh. BANKRUPTCY OF PARTIES TO A BILL OR NOTE. 513 WHEN A BILL MAY BE A GOOD PETI- TIONING oreditob's debt, . EVIDENCE OF THE DATE OF A BILL, WHAT TKANSACTIONS IN RESPECT OP BILLS WILL CONSTITUTE A TRADING WITHIN THE BANKRUPT LAWS, BILLS IN THE HANDS OF A BANKER, ETC., BECOMING BANKRUPT, DONOT PASS TO HIS ASSIGNEES, REPUTED OWNERSHIP, . BILLS THE SUBJECT OF REPUTED OWNERSHIP, .... ^12 .373 373 373 375 376 EFFECT OP BANKRUPTCY ON CHOSES IN ACTION ON THE BANKRUPT'S WIFE, 377 TRANSFER IN CASE OF BANKBUPTOy, 377 WHEN THE TRANSFER OP A BILL BY A BANKRUPT IS PAYMENT, . . 377 WHERE THE BANKRUPT IS A TRUSTEE, 378 BILL OR NOTE FOB DEBT BARRED BY CERTIFICATE, .... 378 FRAUDULENT PREFERENCE, . . 378 VOLUNTARY TRANSFER, , . . 379 ength the subject of bankruptcy would far It is proposed, therefore, merely to sketch L J *To discuss at lenj exceed our limits. It is propo an outline of the law on the subject, so far as it relates to bills and notes. The title of assignees (unless where restrained by particular enact- ment),(a) relates to any act of bankruptcy after the date of the petitioning creditor's debt, but not to any act of bankruptcy before that date. It cannot of course relate to any act of bankruptcy prior to the petitioning creditor's debt, if there were not at the time of such prior act of bankruptcy another sufficient debt to found adjudication on.(6) Nor even if there were a sufficient debt to found an adjudication on ; for as that would, even before the 46 Geo. 3, c. 145, s. 5, have in- validated 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 andl3 Vict. c. 106, s. 88, though they relieve the assignees from the disabling effect of such prior act of bank- ruptcy, do not go further, and enable the assignees to take advantage of it. Hence, it follows that the assignees cannot impeach transactions with the bankrupt in respect of bills and notes, except after an act of bankruptcy within the reach of the petitioning creditor's debt.(cZ) (o) The act of bankruptcy must be within twelve months before the petition, 12 & 13 Vict. c. 106, s. 88. (6) Doe v. Boulcot, 2 Esp. 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 21 • Rex V. Bullock, 1 Taunt. 71. ' > > (d) Ward V. Clarke, M. & M. 497 ; Ex parte Birkett, 2 Rose, 71 ; Norman v Booth, 10 B. & C. 703, E. C. L. R. vol. 21. The provisions of the 6 Geo. 4 c I5' s. 16, for the substitution of another debt for the petitioning creditor's, provided that 33 514 BYLES ON BILLS OF EXCHANGE. Further particular limitations -within this general limitation are in- troduced by the old statutes, and by various sections of the new General Bankrupt Act.(e) Conveyances, contracts, and other transactions by the bankrupt, and executions against him, though after an act of bankruptcy, 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 bankrupt, with intent to transfer the property, more than two months before the r5,,q/^n-i 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, now, 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, are protected.(A) Purchasers. of any property from the bankrupt, bona fide. and for valuable consideration after an act of bankruptcy, and with notice thereof, are protected, unless a petition for adjudication of bank- ruptcy shall have been filed within twelve months after such act of bankruptcy.(i) The title to property sold under an adjudication of bankruptcy cannot be impeached by the bankrupt, or any person claiming under him, unless the bankrupt have commenced proceedings to annul the petition within twenty-one days from its advertisement in the Gazette. (A;) 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.(Z) the substituted debt shall not be of prior date. This proviso is omitted in theicor- responding and no-sv existing enactment, 12 & 13 Vict. u. 106, s. 10.^. (e) 12 & 13 Vict. c. 106. (/) 6 Geo. 4, c. 16, s. 81. ((/) Anon. 1 Camp. 492, n. [h) 12 & 13 Vict. c. 106, s. 103, repealing and re-enacting the 2 Vict. c. 11, and 2 & 3 Vict; c. 29. (i) 12 & 13 Vict. c. 106, s. 134; see s. 86 of 6 Geo. 4, c. 16. {k) 12 & 13 Vict. c. 106, ss. 131 and 233, further periods are given him if he -were out of the United Kingdom, s. 233. (Z) Udal V. Walton, 14 Mees. & W. 254 ;* and see Conway v. Nail, 1 C. B. 643, E. C. L. R. vol. 50; PoUet v. Hoppe, 17 L. J., C. P. 76. BANKRUPTCY OF PARTIES TO A BILL OR NOTE. 515 It may be given to the party's attorney ;(m) but not to a mere clerk in the attorney's office, not having the management of the affair.(n) It may be given to the accredited agent of a body corporate pr public company. (o) A bill given by the bankrupt to a petitioning creditor after bank- ruptcy is void.(p) 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 bankrupt's estate for the amount of it. And what- ever would be a defence to a suit in law or equity, will be an answer to such proof.(g) *Where a stock-jobber, having a large sum of money in his p^o^-,-, hands to be employed in stock-jobbing transactions, contrary L -I to the 7 Geo. 2, c. 8, diverted part to his own use, and gave promis- sory 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 xise.{qq) " The equity is," says the Lord Chan- cellor, " that where the consideration consists of two parts, one bad, the other good, the bill shall stand as to what is good."(r) Bills, notes, and securities, not due at the time of the bankruptcy, may be proved, deducting a rebate of interest, at 51. per cent, to be computed from the declaration of a dividend, (s) The holder of a note payable on demand may prove, though no demand has been made before the act of bankruptcy.(<) (m) Eothwell v. Timbrell, 1 Dowl. N. S. 119. in) Pike V. Stephens, 12 Q. B.465, E. C. L. R. vol. 64; 18 L. J., C. P. 291 ; see Pennell v. Stephens ; Fawcett v. Fearne, 6 Q. B. Rep. 20, E. C. L. R. vol. 51 ; Green v. Steer, 1 Q. B. Rep. "710, E. C. L. R. vol. 41. Notice to the sheriff is not sufficient to defeat an execution. Ramsey v. Eaton, 10 M. & W. 22.* (o) 12 & 13 Vict. c. 106, s. 89. {p) Rose V. Main, 1 Bing. N. C. 357, E. C. L. E. vol. 21 ; 1 Scott, 127, S. C. See 12 & 13 Vict. c. 106, ss. Yl & 268. (g) See Ex parte Dewdney, 15 Ves. 495 ; Ex parte Smith, 3 Bro. C. C. 1 ; Ex parte Wilson, 11 Ves. 410 ; Ex parte Gifford, 6 Ves. 807 ; Ex parte Heath, 2 V. & B. 240 ; Ex parte Barclay, 7 Ves.. 797 ; Ex parte Rofey, 19 Ves. 488 j 2 Rose, 245, S. C. (^5) Ex parte Bulmer, 13 Ves. 2 ; C. P. 76. (r) Ex parte Mather, 3 Ves. 373 ; see ante. («) 12 & 13 Vict. c. 106, B. 172. See also the repealed act 6 Geo. 4, c. 16, s, 51. {t) Ex parte Beaufoy, Co. B. Law, 180. 516 BYLES ON BILLS OF EXCHANGE. A note payable at twelve months' notice with interest, is provable against the estate of the maker, though he become bankrupt before any notice is given. (m) A bill or note defective in form, or void for want of a stamp,(v) or payable on a contingency,(«ti) or payable in notes, (a;) is not, as a bill or note, provable. A bill, as such, cannot be proved against a man who is not a party to the instrument,(«/) though he give a written engagement, not on the bill, to guarantee the payment of it.(s) But the holder may prove on such engagement made before the bankruptcy.(a) And in other cases the estate may be liable to proof for the consideration, though not for the bill itself. (J) And it has been h^ld, that a person who passes a bill without *indorsement, and takes it up after the acceptor has become L -• bankrupt, will not be allowed to prove it against the acceptor's estate.(c) Where a bill has been lost, a party claiming to prove, must give an indemnity to the satisfaction of the commissioners.((^) The former Bankrupt Act, 6 Geo. 4, c. 16, s. 62, and the corre- sponding provision in 12 and 13 Vict. c. lOB, s. 173, enacts, that any person, who at the issuing of the commission may have become, with- out 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 (m) Clayton v. Gosling, 5 B. & C. 360, E. C. L. R. vol. 11 ; 8 D. & E. 110, S. C. ; Ex parte Blgar, 2 G. & J. 1 ; Ex parte Downman, 2 G. & J. 85, and 2 G. & J. 241. (i>) Ex parte Manners, 1 Eose, 68. (w) Ex parte Tootel, 4 Ves. 3T2. (k) Ex parte Immesou, 2 Rose, 225 ; Ex parte Davidson, Buck. 31. (y) Ex parte Eoberts, 2 Cox, 111. (z) Ex parte Harrison, 2 Cox, 1T2.; 2 Bro. C. C. 614, S. C; In re Barrington, 2 Scho. & Lef. 112 ; Ex parte Hustler, 1 G. & J. 9. ' (o) Ex parte Bell, 1 Mont. B. L. 194; and see Ex parte Blackburn,- 10 Ves. 206 ; Ex parte Eathbone, Buck. 215. (6) Ibid, and Ex parte Robinson, Buck. 113. (c) Ex parte Isbester, 1 Eose, 20. See the Chapter on Ih-ansfer and Notice of Dishonor. {d) Ex parte Greenway, 6 Ves. 812; General Order, Nov. 12th, 1842, r. 25. BANKKUPTCY OF PARTIES TO A BILL OR NOTE. 517 proved, stand in his place, and receive the dividends, and if the credi- tor have not proved shall be entitled to prove. A man who is at law a principal, if he be in equity a surety, is within the section ; the jurisdiction in bankruptcy being equitable as well as legal.(e) llence, not only a party who is on the face of a bill or note surety for a bankrupt, but one who has accepted, drawn, made, or indorsed a bill or note for the accommodation of the bankrupt, may, at any time after he has paid it, prove the amount upon the estate, though he did not pay it till after the commission issued, for he is deemed a surety or person liable for the debt of the bankrupt within the statute,(/) and will be entitled, if the party to whom he paid the bill have proved his debt, to stand in his place as to the dividends and all other rights under the' commission, and will be barred by the cer- tificate.(^) But an election by the holder to prove will not conclude the drawer, but the drawer having paid the holder, may sue the bank- rupt before certificate. (A) Where upon a dissolution of partnership, the partner continuing the business expressly agrees to assume the firm and to guarantee the retiring partners, and he becoming bank- rupt, they are obliged to pay a bill accepted by the firm, the retiring partners are considered as persons liable for the debts of the *bankrupt, are entitled to prove under his commission, and arc barred by his certificate. (i) If the suretyship commenced L -I before notice of an act of bankruptcy it may be continued afterwards, as, for example, by the renewal of an acceptance. (A;) But where a bond or promissory note is given by a principal and several sureties, and one of the sureties becomes a bankrupt, his obligation is not con- sidered to be a debt within the statute for which the cosureties are liable.(Z) Where the accommodation acceptor has sustained special (e)Wood V. Dodgson, 2 M. &" S. 195, E. C. L. E. vol. 28; Bx parte Lloyd, 1 Rose, 4. (/) 6 Geo. 4, 0. 16, s. 52 ; Ex parte Lloyd, 1 Rose, 4 ; Bassett v. Dodgin, 9 Bing. G53, E. C. L. R. vol. 25 ; 2 M. & Sco. 777, S. C. ; Ex parte Yonge, 3 V. & B. 40 ; 2 Rose, 40, S. C. ; Stedman v. Martinnant, 13 East, 427 ; Haigh v. Jackson, 3 Mees. & W. 598.* {(/) Bassett v. Dodgin, 9 Bing. 653, E. C. L. R. vol. 23 ; 2 M. & Scott, 777, S. C. {h) Mead v. Braham, 3 M. & S. 91 ; Westcott v. Hodges, 5 B. & Aid. 12, E. C. L. R. vol. 7 ; Walker v. Pilbeam, 4 C. B. Rep. 229, E. C L. R. vol. 56. (i) Wood V. Dodgson, 2 M. & Sel. 195; Haigh v. Jackson, 3 M. & W. 598;* Aflalo V. Pourdriner, 6 Bing. 306, E. C. L. R. vol. 19 ; M. & M. 334, n., S. C. (k) Stedman v. Martinnant, 13 East, 427. (?) Clements v. Langley, 5 B. & Ad. 372, E. C. L. R. vol. 27 ; 2 N. & M. 269, S. 518 BTLES ON BILLS OF EXCHANGE. damage, an action for damage is barred by the certificate. (m) Pay- ment of a portion of the debt merely in discharge of the surety's personal liability is not a payment within the statute. (w) A holder has an election to proceed by proof under the bankruptcy, or by action, 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 purp9se."(o) The principal diflEiculties as to proof in respect of accommodation bills arise, where there has been mutual accommodation between the bankrupt and other parties. Mutual accommodation may be either with a specific exchange of securities or without a specific exchange of securities. Mutual accommodation with specific exchange is, where the accep- tance 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. PlaintiflF and de- r*QR4.T fondant each drew a bill on the *other for the same amount, and each accepted the bill drawn on him without further con- sideration. Before the bills became due, defendant became bankrupt, having indorsed the bill accepted by the plaintiff to a creditor. The creditor proved the bill under the commission, and then the plaintiff paid the creditor the residue. The plaintiff 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- C. ; Wallis v. Swinburne, 17 L. J., Bxch. 169 ; but "see the larger provision of 12 & 13 Vict. c. 106, s. 178. (m) Vansandau v. Corsbie, 8 Taunt. 550, E. C. L. R. vol. 4 ; 2 Moo. 602 ; S. C. in error, 3 B. & Aid. 1 3. (ra) Soutten v. Soutten, 5 B. & Aid. 852, B. C. L. R. vol. 7. (o) Bridget v. Mills, 4 Bing. 18, E. C. L. E. vol. 13 ; 12 Moo. 92, S. C. ; Ex parte Grosvenor, 14 Ves. 588 ; Ex parte Glover, 1 G. & J. 270 ; Watson v. Medex, 1 B. & Aid. 121; Harley v. Greenwood, 5 B. & Aid. 95, E. C. L. R. vol. 7 ; 2 D. & R. 337, S. C. ; Mead v. Braham, 3 M. & Sel. 91 ; Ex parte Lobbon, 17 Ves. 344; 1 Rose, 219, S. C. ; Adames v. Bridger, 8 Bing. 314, E. 0. L. R. vol. 21 ; 1 Moore & S. 438, S. C. ; Ex parte Edward, 1 Mont. & Mac. 116 ; 6 Geo. 4, o. 16, s. 59 ; 12 & 13 Vict. c. 106, s. 182. BANKRUPTCY Ot PAETIES TO A BILL OR NOTE. 519 ments, constituting on each side a debt, the one being a considera- tion 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 provable, was necessarily barred by the certificate.(p) 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 ex- changed aoeptances to the amount of 3000?. Both parties became bankrupt. The Peters and their estate had paid money on their own acceptances, and also on the Dunlops' acceptances. Both parties had obtained their certificates. The action was brought by the assignees of the Peters' for money paid against the certificated bankrupts. It was held by Lawrence and Grose, Justices, — First, that for payments on account of the Peters' own acceptances, 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 Dunlops.' acceptances were provable under the Dunlops' commission, and therefore Were barred by the certificate. (g') About four years afterwards, the doc- trine of Mr. J. Grose and Mr. J. Lawrence was adopted by the whole Court of King's Bench. Plaintiff and defendants had made specific exchange of bills. Of some of the bills given by defendants -to plain- tiff, defendants were drawers, of others, indorsers. The bills given by defendants to plaintiff were all dishonored. Defendants became bankrupt. Before their bankruptcy, plaintiff paid money on his own acceptances, for which he had proved under the commission. After the bankruptcy, he paid the residue of the money due on his own acceptances, amounting to 49Z. 15s. 2d. This Action was brought to recover that sum as money paid. It was held, that plaintiff did not pay his own acceptance as *surety ; that he had, therefore, no remedy to recover such payments, but that his remedy L ^ would have been on the cross bills, had they not been barred by the certificate. (r) It is not essential, in order to constitute a specific exchange of ip) Rolfe V. Caslon, 2 H. & Bl. 570, anno 1795. (q) Cowley v. Dunlop, 1 T. R. 565, anno 1798, Lords Kenyon and Asliurst, Jus- tices, dissentieutibus. (r) Buckler v. Buttivant, 3 East, 73, anno 1802. 520 BYLES ON BILLS OF EXCHANGE. securities, that the acceptances given in exchange should be the ac- ceptances 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 divi- dends being retained until he had paid his own paper ;(i) but now he must, before he can prove, take up his own bills, to 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 recover 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 returned, nor by the accommodation acceptor when he pays i\,.{u) 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 ac- commodation 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 in- cluded good bills, as well as payments in cash ; and, secondly, of a bill account, which related exclusively to bills which had been passed by one house to the other, and which were all ultimately *dis- L -J honored. 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 («) Ibid. {t) Ex parte Beaufoy, Cooke's Bank. L. 180 ; Ex parte Lord Clanricarde, Ibid. 182 ; In re Bowness and Padmore, Ibid. 183 ; Ex parte Bloxham, 8 Ves. 5.31 ; Sarratt v. Austin, 4 Taunt. 200 ; Rose, 112, S. 0. See Ex parte Solarte, 2 D. & C. 261. (u) Ex parte Read, 1 G. & J. 224. BANKRUPTCY OF PARTIES TO A BILL OK, NOTE. 521 the Brownes bad bills, to the amount of 305,149?. 19s. IQd., and the Brownes had received from Caldwell and Co. bad bills to the amount of 204,910?. 5g. Of the bad ' bills received from Caldwell and Co., the Brownes had negotiated bills to the amount of 196,589?. 6s. M., and of those received from the Brownes, Caldwell and Co. had nego- tiated bills to the amount of 126,855?. lis. 10c?., having retained the residue, viz., 178,294?. 8s., at the request of the Brownes. All the hills 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 larger amount, vizi, 80,000?., the Brownes had deposited bills as a security for the payment of a much smaller sum, 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 for the whole sum payable on the bill ; and the consequence of this, and of the unequal nego- tiation 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 difference. 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 on\j.(v) Where a petition was presented by the as- signees 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 dishonored bills, upon an issue of cross paper dis- honored on both sides, part of which having been negotiated, was •proved by the holders against both estates. Lord Ellenborough, C, said, " Upon consideration of *the case, Ex parte Walker, it r:)= 0^7-1 struck me, that there were but two ways of taking it, as be- (») Ex parte Walker, 4 Ves. 373. 522 BYLES ON BILLS OF EXCHANGE. tween the two estates, either to consider all the bills as struck out of the case entirely, as issued for a bad purpose, like gambling trans- actions, &c., upon which there could be no proof, or to tJonsider them all as good bills. I do not see that there is a middle course." The order was pronounced, that the petitioners should be at liberty to prove the cash balance only.(w) In the case of Ex parte Rawson,(a;) Lord Eldon said, " I think that I argued the case of Ex parte Walker, and I must say, that the speculations about paper cer- tainly 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 case of it. It was then small in amount, one bill and another. He then considered the ac- ceptance of the one as a consideration for the other, and allowed both to prove, but then there was this difiBculty, that it lessened the V fund for paying the holder of the bill, and thus, by proving, they pre- judiced their own creditors. . It was found this would not do ; and then it was said, ' If you will prove, you must first take up your ac- ceptance, which got rid of the objection of the party proving in com- petition with his own creditor.' Then came the case of those houses at Liverpool and Manchester, drawing on one another to the amount of 50,000?. What was to be done then ? The Court were puzzled and distressed. At last' however, we came to a sort of anchorage in that case, Ex parte Walker ; I have no diflSculty 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 ca.sh 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 against the other till all the creditors of both are paid, I could understand it. If there be lOOOZ. of acceptances on the one side, and 10,000Z. 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 party cannot prove against the estate of his copartner, so as to afiect 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 («)) Ex parte Barle, 5 Ves. 833. (x) 1 Jacob, 2T4. BANKEUPTCY OF PARTIES TO A BILL OR NOTE. 523 that the case of *Ex parte Walker is right, if there is a sur- ,-^„^q-, plus." In the following case there were no cross bills, but L ^ dishonored bills on one side were struck out of the account. Palmer received from Williamson, in cash and bills, 6424Z. 9s. Bd., and Wil- liamson received from Palmer, in cash, 5824?. 19s. 7c?._ Both became bankrupt. Palmer had negotiated the bills, some of which, drawn by Williamson, to the amount of 1098?., were refused acceptance, and were proved under both commissions. Palmer's assignees contended, that 1098Z. should be deducted from the 6424Z. 9s. Bd., which would reduce the sum received by him, and would leave a balance of 498Z. 10s. 4:d. in his favor, 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 bank- rupt, said, " If between these parties, considered as solvent, William- son is entitled to say Palmer should not have the 498Z. until he had restored the bill, being put into his- hands as a medium of raising money, and the first obligation was upon Palmer, what difference does the bankruptcy make ? No other difference than this, that the assignees of Williamson protect his estate against any liability upon the bill. Palmer's estate is entitled to a dividend upon the sum of 4:981., 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 Goodenough (the drawee), but that they were accepted on account of what the ac- ceptor owed to Williamson. "(2/) At the time of the bankruptcy of Lynn, the account between him and the petitioner. Read, stood thus : there was a cash balance of B5761. 8s. 4d!., including therein a sum of 1603Z. 17s. 5d. for premiums of insurance, and commission due from Lynn to Read, and Lynn had given his promissory note for the said sum of 1603Z. 17s. 5d. to Read, who had negotiated it, and it was proved under the commission. Read had accepted, for the accom- modation of Lynn, bills drawn by Lynn to the amount of 6444Z. 7s. 4d., none of which had been paid at the bankruptcy, and they were proved under the commission. Read had likewise guaranteed debts of Lynn to the amount of 773Z. Is. 5d., but had not at the bankruptcy paid any part of those debts, and they were proved under the com- mission. Lynn had given three bills for 1000?. each, drawn by him (i/) Ex parte Metcalfe, 11 Ves. 404. 521 BYLBS ON BILLS OF EXCHANGE. on Stalker, to Kead, who had negotiated them, and those bills were dishonored, and two of them were proved. The petitioner *being insolvent, made a composition, and paid the holders of the L -"bills accepted for Lynn's accommodation, and the parties whose debts wera guaranteed, a composition, amounting to 4894?. 8«. 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 3576Z. 8s. 4:d., and with the balance or difference between the a,mount of dividends paid by Lynn's estate upon Stalker's bills and Lynn's promissory note, and the amount of the commission paM by the petitioner, and that he might he admitted to prove the balance of the account, according 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,(2) inasmuch as the act of 49 Geo. 3, has introduced a new principle, by which cases of this sort must now be tried. By this act, a surety paying after the bankruptcy can only prove against the estate of the bank- rupt where the creditor 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 the case of the accommodation bills be first tried by this principle. Read accepts, for the accommo- dation of the bankrupt, bills to the amount of 6444Z., which remains wholly unpaid at the time of the bankruptcy. 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 1603Z., 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 to have the benefit of that proof. The remainder of the cash balance is more than covered by the two bills of Stalker, which have been proved against the bankrupt's estate by the holders with whom the petitioner negotiated them. It is hardly necessary to refer to the debts, amounting to 773Z., which were guaranteed by the petitioner, but which have been proved by the creditors against the bankrupt's estate." Petition disniissed.(a) The latest case upon this intricate (») See supra. (a) Ex parte Read, 1 G. & J. 224. BANKRUPTCY OF PARTIES TO A BILL OB NOTE. 525 subject is Ex parte La Foreste,(J) in wbicb there was a cash balance between two bankrupt houses, and an account of mutual accommoda- tion bills dishonored. *And the cash balance alone was ad- ^-^07^1 mitted to be proved. And it was said, that Lord Eldon's dis- '- -■ satisfaction to Ex parte Walker, applied only in case 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 ap- pealed from, but on account of the small amount of the estate the appeal was not prosecuted, and the case seemed 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 Read applies. When accommodation bills are in the hands of a 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.(c) Before the 6 Geo. 4, c. 16, interest on a bill was not provable unless payable on the face of it,(c^) and no interest after the act of bankruptcy could be proved at all.(e) But that act(/) enabled the holder to prove, on overdue bills or notes, for interest down to the date of the fiat at the rate usually allowed by the Court of Queen's Bench.(^) The present general act, 12 and 13 Vict. c. 106, s. 180, allows interest at 4Z. per cent, down to the time of filing the petition. The assignees may recover interest as if no bankruptcy had hap- pened. (A) Other expenses, such as protesting, re-exchange, &c., if recoverable (6) 2 D. & C. 199 ; 1 M. & B. 363, S. C. (c) Ex parte King, Cook's B. L. Ill ; Ex parte Lee, 1 P. Wms. Y82 ; Ex parte Orossley, 3 Bro. 237 ; Ex parte Bloxham, 6 Ves. 449, 600 ; 8 Ves. 531 ; Fentum v. Pocook, 5 Taunt. 192, E. C. L. R. vol. 1 ; 1 Marsh. 14, S. C. ; Jones v. Hibbert, 2 Stark. 304, E. 0. L. R. vol. 3 ; Bank of Ireland y. Beresford, 6 Dow. 233. {d) Ex parte Marlar, 1 Atk. 150. (e) Ex parte Moore, 2 Bro. C. C. 597. (/) Sect. 57. {g) Aa to subsequent interest where there is a surplus, see 13 Ves. 573 ; Ex parte Higginbotham ; Ex parte Baton, 1 Glyn & Jam. 332. {h) Pott V. Beavan, T M. & G. 604, E. C. L. R. vol. 49. 526- BYLES ON BILLS OF EXCHANGE. in an action, and if incurred before the act of bankruptcy, are prova- ble.(«) *Under separate adjudications of bankruptcy against dif- L "J' IJ ferent parties to a bill or note, the holder may prove the whole amount of the money due to him iipon the bill or note, at the time he makes his proof, and receive dividends under each upon the sums proved, until he shall, altogether, have received the -whole amount. " In cases of bills or notes," says Lord Hardvricke, " where there is a drawer, and, perhaps, several indorsers, suppose two of these per- sons become bankrupts, the holder may prove his whole debt under each commission, and is entitled to receive satisfaction out of both estates, according to the dividends to be made, 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 bank- ruptcy of one, he had received payment of part from the other, he could only have proved the residue under the latter bankruptcy, as the form of proving his debt shows, because no more would remain due to him. "(A;) And not only if any part of a bill have been received 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. (Z) Where the creditor knowingly holds the joint and separate security of partners for the same debt, he cannot prove both on the joint and separate estate. 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.(m) (i) Anon. 1 Atk. 140 ; Ex parte Moore, 2 Bro. C. C. 59? ; Ex parte Hoffman, Co. B. L. 194; Francis v. Rucker, Ambler, 672. In the first and last of these cases, the expenses had been incurred after the act of bankruptcy and before the com- mission. (7c) Ex parte Wildman, 1 Atk. 109; 2 Ves. 113, S. C. ; Ex parte Par. 11 Ves. 65 ; 1 Rose, 76, S. C. [l) Cooper V. Pepys, 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, however. In re Gibson and Johnson, cited 19 Ves. 311, and Ex parte De Tastet, 1 Rose, 16. [m) Ex parte Smith, Cook's B. L. 175, 191 ; Ex parte Barratt, 1 Glyn & J. 327 ; Ex parte Bloxham, Cook's B. L. 176; Ex parte Burn, 2 Rose, 55; Ex parte Ruf- ford, 1 G. & J. 41. See further as to the mode of dealing with bills which have been deposited as a security, Ex parte Baldwin, 19 Ves. 230 ; Ex parte Towgood, BANKRUPTCY OF PARTIES TO A BILL OR NOTE. 527 Where a creditor holds a bill as a security for a smaller sum than the amount of the bill, he may prove under a fiat against any parties to the bill, except against the party who deposited the bill -with him, the whole amount of the bill, provided he does not receive more than twenty shillings in the pound on the debt due to him from the de- positor of the bill.(n) *A holder who has bought up the notes or acceptances of the bankrupt after the bankruptcy, will be admitted to prove, (o) ■- -^ provided that, at the time of the bankruptcy, they were in the hands of persons entitled to prove.(^) If a trader deny himself to the holder of a bill on the morning of the day when it is payable, though the trader pay it the same day, that is an act of bankruptcy.(5') A bill of exchange is a chattel, the fraudulent transfer of which is an act of bankruptcy within the 6 Geo. 4, c. 16, s. 3,(r) and 12 & 13 Vict. c. 106, s. 67. A bill of exchange, amounting to 501., is a good petitioning cre- ditor's debt, though it be not due,(s) and that against the drawer, though, after the bankruptcy, it be duly presented and paid by the acceptor.(i) Interest cannot be reckoned, for this purpose, as part of the debt unless specially made payable on the face of the bill.(M) 19 Ves. 229; Ex parte Rushworth, 10 Ves. 419; Ex parte Rufford, 1 G. & J. 41 ; Ex parte Brown, 1 G. & J. 407. (n) Ex parte King, Co. B. L. 177 ; Ex parte Crossley, 3 Bro. C. 0. 237 ; Co. B. L. 177, S. C. ; Ex parte Bloxham, 5 Ves. 449 ; see Ex parte Reader, Buck. 381. (o) Ex parte Lee, 1 P. Wins. 782 ; Ex parte, Atkins, Buck. 479 ; Ex parte Deey, 2 Gov. 423; Exparfe Brymer, Co. B. L. 187 ; Ex parte Thomas, 1 Atk. 73 ; Joseph v. Orme, 2 N. B. 180; Meade v. Braham, 3 M. & Sel. 91 : Cowley v. Dnnlop, 7 T. E. 565 ; Houle v. Baxter, 3 East, 177. (^) Ex parte Rogers, Buck. 490 ; see Ex parte Dickinson, 3 D. & C. 520 ; Ex parte Bolton, 1 M. & Bli. 412. See the Chapter on transfer. (2) Colkett V. Freeman, 2 T. R. 59 ; and see Bleasby v. Crossley, 2 C. & P. 213, E. C;L.R.vol. 12. ()■) Gumming v. Bailey, 6 Bing. 363, E. G. L. R. vol. 19 ; 4 Moo. & P. 39, S. C. (s) And so now as to any other debt of sufficient amoilnt, though not due and not secured by' any writing, 5 & 6 Vict. c. 122, s". 9, repealed and re-enacted by the 12 & 13 Vict. c. 106, s. 91. (t) Ex parte Douthat, 4 B. & AH. '67, E. C. L. R. vol. 6. But a hill 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. 426, E. C. L. R. vol. 8 ; 1 Moo. 536, S. C. (a) Cameron v. Smith, 2 B. & Aid. 305 ; In re Burgess, 8 Taunt. 660, E. C. L. E. vol. 4 ; 2 Moo. 745 ; Buck. 412. 528 BYLES ON BILLS OF EXCHANGE. Though a bill be for the exact sum of 50?., and not due at the time of the act of bankruptcy, the rebate of interest will not make it an insufficient petitioning creditor's debt.(«) Where there is a specific exchange of accommodation acceptances, and before the bills are at maturity, one of the parties commits an act of bankruptcy, it has been held that the bankrupt's acceptance is not a sufficient debt to support a commission; until the petitioning creditor has paid his own acceptance.(Mi) Where an acceptor, for the accommodation of the bankrupt before an *act of bankruptcy, paid the amount after L ^ an act of bankruptcy, it was held, that this payment being after an act of bankruptcy, did not support the commission.(a;) A bill or note which cannot be sued on at law,(y) or against law pro- ceedings on which equity will enjoin, is not a good petitioning cre- ditor's debt.(s) It was at one time doubtful whether, if a bill existing before the act of bankruptcy were indorsed to the petitioning creditor after the act of bankruptcy, the indorsee would be entitled to a commission. (a) But it is now clear that such a debt is sufficient. The. debt on which the fiat is issued must have existed before the act of bankruptcy, but need not have existed in the petitioning creditor before it ; the in- dorsee represents his indorser.(6) But it must appear that there was a good petitioning creditor's debt in the petitioner at the time of pe- tition, and therefore it must be shown that the bill or note was indorsed (u) Brett V. Levett, 13 East, 213 ; 1 Rose, 112, S. C. \w) Sarratt v. A'ustin, 4 Taunt. 200 ; 2 Eose, 112, S. C. [x) Ex parte Holding, 1 G. & J. 97. [y) Eichmond v. Heapy, 1 Stark. 202, E. C. L. R. vol. 2 ; Buckland v. Newsame, 1 Taunt. 477 ; 1 Camp. 474, S. C. [z) Ex parte Page, 1 tt. & J. 100. (a) Ex parte Lee, 1 P. Wms. 782. (6) Ex parte Thomas, 1 Atk. 73 ; Anon. 2 Wils. 135 ; Bingley v.Maddison, 1 Co. B. L. 32 ; Glaister v. Hewer, 7 T. E. 498. Before the year 1805, the petitioning creditor's debt must have existed before any ad of bankruptcy, on the principle that a man who has committed any act of bankruptcy, has no power to contract so as to bind his estate. But it was provided by the 46 Geo. 3, c. 136, s. 5, that the commission should not be defeated by an act of bankruptcy prior to the petitioning creditor's debt, of which act of bapkruptcy the 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 12 & 13 V-ict. c. 106, s. 88, provides that no commission shall be invali- dated by an act of bankruptcy prior to the petitioning creditor's debt, provided there be a suEBcient 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. BANKRUPTCY OF PARTIES TO A BILL OR NOTE. 529 ' to the petitioner before he petitioned. (e) If, at the time of the act of bankruptcy, 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 enable the creditor to support a &at.{d) When a bill or note is given the -wife dum sola, the husband alone may peti- tion for a commi8sion.(fi) The petitioning creditor's debt must have been contracted, or must have existed while the bankrupt was a trader. (/) The date appearing on the bill has been held prima facie evidence *that it existed before the act of bankruptcy. (^) But when r^gir^-i in an action by assignees of a bankrupt, they produce a bill or note of the bankrupt as evidence of a petitioning creditors debt, they must show by extrinsic evidence that the instrument existed before the act of bankruptcy.(A) From the date of the drawing or making the date of an indorsement cannot be inferred. («') A course of drawing and redrawing bills of exchange, for the sake 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 281,000Z. and upwards, and B. redrew to the amount of 290,000Z. and upwards, on A., but there was no commission money allowed on either side, it was held that a drawing and redrawing such large sums, and a continuation of it, was a trading, though no com- mission money was allowed on either side, and notwithstanding a loss ensued by these transactions to the bankrupt. (A) But the mere cir- 'cumstance of drawing, accepting, or indorsing bills, or even an (c) Eose V. Eowcroft, 4 Camp. 245. (d) Ex parte Botten, 1 Mont. & Bl. 412 ; Ex parte Magnus, 11 L. J., Bank. 32. (e) Ex parte Barber, 1 Gr. & J. 1 ; McNeilage v. Holloway, 1 B. & Aid. 218, (/) Bailie v. Grant, 9 Bing. 121, E. C. L. B. vol. 2.?. {g) See ante, Chapter on Evidence; Goodtitle v. Milburn, 2 M. & "W. 853 ;* Sin- clair V. Baggaley, 4 M. & W. 312 ;* Smith v. Battens, 1 Mood. & R. 341 ; Taylor v. Kinloch, 1 Stark. 175, E. C. L. R. vol. 2 ; Obbard v. Betham, M. & M. 483 ; Potez T. Glossop, 2 Ex. Rep. 195;* Davis v. .Lowndes, 1 Scott, N. Rep. 195; Malpaa v. Clements, 19 L. J. 435, Q. B. (7j) Wright V. Lainson, M. & W. 739 ;* 6 Dowl. 146, S. C. ; and see Anderson v. Weston, 6 Bing. N. Ca. 296, E. C. L. R. vol. 37 ; 8 Scott, 583, S. C. ; and ante, p. 57 ; Fletcher v. Manning, 12 M. & W. 571. (i) Rose V. Roweroft, 4 Camp. 245 ; Cowie v. Harris, M. & M. 141. {k) Richardson v. Bradshaw, 1 Atk. 128 ; Hankey v. Jones, Cowp. 745 ; 1 Mont. 22 ; and see Inglis v. Grant, 5 T. R. 530, and Ex parte Bell, 15 Ves. 356. 34 530 BYLES ON BILLS OF EXCHANGE. occasional drawing or redrawing, for the sake of profit, will not sub- ject a man to the Bankrupt Laws.(Q Bills remitted to an agent as a factor or banker, and entered short while unpaid, or paid in generally, to be received(m) by such banker, or for any other specific purppse,(»i) 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 prin- cipal, 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 L -I 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. "(o) A customer was in the habit of indorsing and paying into his banker's hands bills not due, which, if approved, were immediately 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 payments 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 bankers having become bank- rupts, it was held, that the customer 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 favor of the customer at the time of the bankruptcy; Bayley, J., observing, " It has been argued for the defendants, that we must infer (Z) Hankey v. Jones, Cowp. T45 ; see Hamson v. Harrison, 2 Bsp. 555. (m) See Jombart v. "WooUett, 2 M. & C. 389 ; Ex parte Edwards, 11 L. J. Bank. 36. [n] Belcher v. Campbell, 8 Q. B. Rep. 11. (o) Giles V. Perkins, 9 East, 12 ; see Ex parte Dumas, 1 Atk. 232 ; 2 Ves. sen. 582, S. C; Zinck v. Waller, 2 Bl. 1154; Bolton v. Puller, 1 B. & P. 539 ; Ex parte Sargeant, 1 Rose, 153; Ex parte Sellers, 18 Ves. 229, S. P.; Ex parte Pease, 1 Bose, 232 ; Ex parte Wakefield Bank, 1 Eose, 242 ; Carstairs v. Bates, 3 Camp. 301 ; Ex parte M'Gae, 2 Rose, 376 ; Ex parte the Leeds Bank, 1 Rose, 254 ; 19 Ves. 25, S. C; Ex parte Rowton, 17 Ves. 426 ; 1 Rose, 15, S. C. ; Ex parte Buchanan, 1 Rose, 280 ; 2 Rose, 162; Ex parte Waring, 2 Rose, 182. BANKKUPTOY OF PARTIES TO A BILL OR NOTE. 531 an agreement to have been made between the banker and his customer, 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 customer and banker resembles that of principal and factor ; and the bills, remaining in the banker's hands in specie, will, notwithstanding the bankruptcy of the banker, con- tinue the property of the customer. Though the amount of the bills was carried into the cash column, it does not follow that the customer assented to their being considered as cash."(p) The assignees may be restrained by injunction from negotiating the bills.(g') The Bankrupt Act, 12 & 13 Vict. c. 106, s. 125, enacts that if at the time of the bankruptcy the bankrupt *have, by the con- r-^n„„-, sent of the true owner, in his possession, order, or disposition, ^ -^ 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 sell them for the benefit of the credi- tors. This section applies not only to things in possession, but to things in. action, as bonds, policies, and other debts.(r) Where a creditor assigns a debt not assignable at law, and then becomes a bankrupt, the general rule is, that the debt so assigned passes nevertheless to the assignees in bankruptcy, as- being in the order and disposition of the bankrupt, with the 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 despatch a notice, before the bankruptcy, though it be not received by the debtor till after the bankruptcy.(s) A debt, in order to pass to the assignees within this section, must have been uncon- scientioudy allowed to remain in the hands of a bankrupt. (^) Bills or notes may pass to the assignees under the doctrine of reputed ownership.(M) A person, having three bills of exchange, applied to a country banker, with whom he had had no previous dealings, to give (p) Thompson v. Giles, 2 B. & C. 422, E. C. L, R. vol. 9 ; 3 Dowl. & R. 733, S. C. (g-) Ex parte Jombart, Cor. Vice C. Dec. 1836. [r) Ryall v. RoUe, 1 Ves. 348 ; 1 Atk. 165, S. C. [s) Belcher v. Bellamy, 17 L. J., Ex. 219 ; 2 Bxch. Rep. 303, S. C. (i!) See Joy v. Campbell, 1 Sch. & Lef. 336, and Load v. Green, 15 M. k W. 216.* («) 6 Geo. 4, c. 16, s. T2. 532 BYLES ON BILLS OF EXCHANGE. for them a bill on London for the same amount ; and the bill given by the banker was afterwards dishonored. Held, that this was a complete exchange of securities, and that trover would not lie for the three bills of exchange ; and that, if the exchange has not been com- plete, still that, the banker, having become a bankrupt, and the three bills having come to the possession of his assignees, must he considered as goods and chattels in the order and disposition of the bankrupt, at the time of the bankruptcy, within the meaning of the Bankrupt Act. " These bills," says Abbott, C. J., " being negotiable secu- rities, of which the bankrupts 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, bills of exchange must be."(v) But a bill or note in the hands of an agent for a specific purpose does not pass to his assignees by reputed ownership, (w) V*^'JT\ *^^® 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 delivery. But if a man who afterwards becomes bankrupt, indorses a bill or note not negotiable, unless the debtor have notice, the bill or note passes to the bankrupt's assignees by reputed ownership. (a;) The effect of bankruptcy of the husband on the choses in action of his wife has been discussed in a previous Chapter. («/) If the holder of a bill become bankrupt, the property in the bill vests, from the time of the act of bankruptcy,(s) in his assignees, and they must indorse.(a) But if the money were received by the creditor before the com- mission issued, then an indorsement by the bankrupt would, under the late General Bankrupt Act, have been protected as a payment {v) Hornblower v. Proud, 2 B. & Aid. 327 ; see Bryson v. Wylie, 1 B. & P. 83, n. \w) Bruce v. Hurly, 1 Stark. 23, E. C. L. E. vol. 2 ; Belcher v. Campbell, 8 Q. B. Eep. 1, B. C. L. E. vol. 55 ; see Took v. HoUingworth, 5 T. Eep. 215. (x) Belcher v. Campbell, 8 Q. B. Eep. 1, E. C. L. E. vol. 55. \y) Chapter V. (z) Subject, of course, to the new provisions as to notice of the act of bankruptcy. (a) Pinkerton v. Marshall, 2 H. Bla. 335 ; Thomason v. Prere, 10 East, 418 ; but see now 2 & 3 Viet. o. 29. BANKRUPTCY OF PARTIES TO A BILL OR NOTE. 533 by the bankrupt.(J) "There is no difiference," says the Lord Chan- cellor, "between an actual payment of money in satisfaction of a debt, and indorsing bills of exchange, provided the money was re- ceived on them before the commission of bankruptcy issued ; for I should take that only as a medium of payment and no more ; other- wise it would be very hard."(e) And it has been held, that if a bill of exchange be indorsed in payment of goods sold, it will be a pay- ment within the statute, though the bill be not paid tnl after the issuing of the commission, provided it be paid when due.((^ The distinction between a payment in money and a payment or satisfaction by bills, is, however, now of little moment, since now not only payments, but all dealings without notice of an act of bank- ruptcy, are protected.(e) 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.(/) *If a bankrupt be payee of a negotiable bill or note, the rMcoYo-i acceptor or maker cannot dispute his capacity to indorse.(^) As, in general, property in which a bankrupt has no beneficial in- terest, does not pass to his assignees ; he may, after an act of bank- ruptcy, indorse a bill accepted for his accommodation, so as to con- vey to his indorsee a right of action against the accommodation acceptor. (A) The certificate of the bankrupt discharges him from all debts due when he became bankrupt, and from all claims and demands provable under the bankruptcy. («) And an agreement to pay a debt from (&) 6 Geo. 4, c. 16, s. 82 ; and also under 2 & 3 Vict. c. 29. (c) Hawkins v. Penfold, 2 Ves. sen. 550. (d) Wilkins V. Casey, 1 T. R. Yll ; Bayly v. Schofield, 1 M. & Sel. 338 ; *ee Bishop V. Crawshay, 3 B. & C. 415, B. C. L. E. vol. 10^5 Dowl. & E. 279. (e) The form of pleading may still be afifected. (/) Drayton v. Dale, 2 B. & C. 293, B. C. L. R. vol. 9 ; 3 Dowl. & R. 534. ig) Drayton v. Dale, 2 B. & C. 293, E. C. L. R. vol. 9 ; Pitt v. Chappebw, 8 M. & "W. 616 ;* Braithwaite v. Gardiner, 8 Q. B. Rep. 473, B. C. L. R, vol. 55. See the Chapter on Acceptance. (A) Ardeu v. Watkius, 3 Bast, 317 ; Wallace v. Hardacre, 1 Camp. 45 ; Rams- bottom V. Cator, 1 Stark. 228, B. C. L. R. vol. 2. (i) 12 & 13 Vict. c. 106, s. 200. 534 BTLES ON BILLS OF EXCHANGE. which the bankrupt has been so discharged was formerly void, unless in writing and signed.(A) But an absolute written and signed promise personally to pay, bound, whether given before or after certificate.(Z) But now a subsequent contract to pay is avoided, (m) If a trader, by way of fraudulent preference, transfer a bill to his creditor, that is an act of bankruptcy ; but if he by way of fraudu- lent prefertnce, pay his creditor in money, that is not, it should seem, an act of bankruptcy, but the payment is void as a fraud on the Bankrupt Laws.(w) Until the 6 Geo. 4, c. 16, s. 3j fraudulent preference (except by deed) was not prohibited by any statute, but was void as a fraud on the Bankrupt Laws.(o) If by deed, it was an act of bankruptcy, (p) But now, by the 6 Geo. 4, c. 16, s. 3, repealed and re-enacted by the 12 & 13 Vict. c. 106, s. 67, every fraudulent conveyance or transfer, whether of real property or chattels (though not by deed) is erected into an act of bankruptcy. And a bill of exchange has been decided to be a chattel within this, as well as within other sections of the Bankrupt Act.(g') To be invalid as a fraudulent preference, a transfer or payment ' *must have been spontaneous, and not at the instance or im- L -J portunity of the creditor ; it miust have been with the inten- tion of giving the creditor an unfair advantage, and not in the usual course of business ;{r) it must have been in contemplation of bank- ruptcy as a probable event, (s) ^ But money is not, perhaps, a chattel within this section, and there- ik) 6 Geo. 4, c. 16, s. 131. {I) Kirkpatrick v. Tattersall, 13 M. & W. Y66 ;* Lobb v. Stanley, 5 Q. B. Rep. 5T4, B. C. L. R. vol. 48. (m) 12 & 13 Vict. c. 106, s. 204. (n) See post. (o) Martin t. Pewtress, 4 Bur. 2477. ip) 1 Jac. 1, c. 15, a. 2 ; Bevau v. Nunn, 9 Bing. 107, E. C. L. R. vol. 23 ; 2 Moo. and So. 132. (2) Curaming v. Bailey, 6 Bing. 363, E. C. L. R. vol. 51; 4 Moore & P. 36, S. C. Quffire as to a country bank note. Carr v. Burdias, 1 C. M. & R. 782 ; 5 Tyrw. 309, S. C. See post. , (r) Rust V. Cooper, Cowp. 629. ' is) Poland v. Glynn, 4 Bing. 22, E. C. L. R. vol. 13, n.; 12 Moo. 109, n., S. 0. In Morgan v. Bruudrett, 5 B. & Ad. 289, E. C. L. R. vol. 27 ; 2 Nev. & M. 280, S. C, Mr. Justice Parke aaid that tie cases on this subject had gone too far, and that actual bankruptcy and not mere insolvency must have been contemplated, to make the fSreference fraudulent. And see Atkinson v. Brindall, 2 Bing. N. C. 225, E. C. L. R. vol. 29 ; 2 Scott, 369, S. 0. But see Aldred v. Constable, 4 B. R. Rep. 685. INSOLVENT debtors' ACT. 535 fore the payment of money by way of fraudulent preference to a creditor, is only a void payment.(i) A voluntary transfer, without consideration, by a bankrupt, being at the time insolvent, of land, chattels, bills, bonds or notes, or debts, is avoided by the 12 & 13 Vict. c. 106, s. 126. A gift of money is not, it seems, within this section,(M) but if the money were given with a fraudulent intent, the payment is void and the money recoverable.(t>) *CHAPTEE XXXVI. [*380] OF THE EFFECT OF A DISCHARGE UNDER THE ACTS FOR THE RELIEF OF INSOLVENT DEBTORS. ACTS NOW IS FOKCE, . . . 380 THEIB GENERAL OBJECT, . . 380 THEIR EFFECT ON THE LIABILITY OF THE INSOLYENT TO HOLDERS OF A NEGOTIABLE INSTRUMENT, . 381 EFFECT OF DISCHARGE OF ONE OF THE TWO MAKERS OF A NOTE, . 381 DESCRIPTION OF THE BILL IN THE SCHEDULE, .... 381 NOTICE TO THE CREDITOR, . . 382 EFFECT OP THE INSOLTENt's DIS- CHARGE ON THE LIABILITY OP OTHER PERSONS TO THE HOLDER, 382 EFFECT OF A BILL OR NOTE GIYEif FOB THE DEBT FOB WHICH THE IN- SOLVENT HAS BEEN DISCHARGED, 382 OP A BILL OR NOTE GIVEN TO PRE- VENT OPPOSITION, ... 383 The principal acts now in force for the relief of Insolvent Debtors 'are the 1 & 2 Vict. c. 110, amended by the 2 & 3 Vict. c. 39. , The last general act for this purpose, before the 1 & 2 Vict. c. 110, was the 7 Geo. 4, c. 57, most of the provisions in which act are re- enacted by the 1 & 2 Vict. c. 110, without alteration, so that the decisions in the earlier statutes are, for the most part, applicable to the latter and existing one. (a) (i), Bevan v. Nunn, 9 Bing. 107, E. C. L. R. vol. 23 ; 2 Moore & S. 132, S. C. ; and see Abell v. Daniell, M. & M. 370 ; Ex parte Simpson, 3 De Gex, 9 ; see also Cannan v. Wood, 2 M. & W. 467.* If A. & B. are both creditors for the same debt, a payment to A., with the intention of serving B., is not a fraudulent preference of A. Abbott V. Pomfret, 1 Bing. N. C. 462, E. C. L. R. vol. 27 ; 1 Scott, 470 ; 1 Hodges, 24, S. C. ; see Reg. v. Radley, 18 L. J. 184, Mag. Ca. («) Abell V. Daniell, M. & M. 370. (w) Ibid. (a) The 5 & 6 Vict. c. 116, effected a most important alteration in the law, en- acting that any person, not being a trader, and any trader owing less than 300Z., might petition the Court of Bankruptcy for protecting from process, although he h^e not been to prison. The act was amended by the 7 &. 8 Vict. c. 96, now in 536 BYLES ON BILLS OF EXCHANGE. The object of the act 1 & 2 Vict. c. 110, is to discharge the insol- vent's person from all his debts on bills or notes mentioned in his schedule, whether the persons to whom those debts may have become due be named in the schedule or not, provided there be no fraudulent or intentional misdescription or concealment. *The act,(J) L J therefore, expressely discharges the insolvent from the claims of all persons not known to him at the time of the adjudication, who may be indorsees or holders of any negotiable security set forth in the schedule. Under the Lords' Act, 32 Geo. 2, c. 28, now repealed by 1 & 2 Vict. c. 110, s. 119, it was held that, where the indorsee of a bill sued the acceptor, and charged him in execution, and the acceptor obtained his discharge under the Lords' Act, and the indorsee then sued the drawer, who, after paying the bill, sued the acceptor and charged him in execution again, that the acceptor was not discharged, because the first execution was not a satisfaction as between the drawer and ac- ceptor, (c) This decision, however, proceeded on the limited scope of the Lords' Act, which only proposed to discharge a prisoner from jail, as to a particular pressing creditor, and not like the acts for the relief of the insolvent debtor, to discharge him from all his debts and liabilities. Therefore, a discharge by the Court for the relief of in- solvent debtors has a much more extensive effect. An insolvent in- serted in his schedule the name of the indorsee, but not of the drawer of the bill, and was discharged ; afterwards the drawer took up the bill and sued the insolvent, who pleaded his discharge. It was held ' that the defendant was discharged.(ci) It is conceived that a debtor discharged by the Court for the relief of insolvent debtors, from a bill which is at maturity, is discharged, not only as against the holder at the time of his schedule, but as against all subsequent transferees, and all parties who may take up the bill.(£Z) Where there are two joint makers of a promissory note, the one part repealed by the- 12 & 13 Vict. c. 106, whicli enables an insolvent trader to petition for protection, ss. 211 to 223. See as to the 7 & 8 Vict. c. 96, the case of Phillips V. Pickford, 19 L. J. ITl ; and as to 12 & 13 Vict. c. 106, ss. 211 and 216 ; Levy v. Home, 19 L. J. 260, Exch. (6) 1 & 2 Vict. c. 110, s. 15. (c) M'Donald v. Bovington, 4 T. E. 825 ; and see the decisions on 49 Geo. 3, c. 115 ; Lucas v. Winton, 2 Camp. 443 ; Simpson v. Pogson, 3 Dow. & R. 567, B. C. L. R. vol. 16. (d) Boydell v. Champneys, 2 M^& W. 433.* INSOLVENT DEBTORS' ACT. 637 a principal and the other a surety, and the principal is discharged by the Court for the relief of insolvent debtors, and the surety is obliged to pay the note, the surety may sue the principal notwithstanding his discharge.(e) If the bill be substantially described in the schedule, an uninten- tional mistake in the description, either of the bill or of the parties to it, will not prejudice the insolvent.(/) *But if the insolvent wilfully omit the name of an indorsee p^oQo-i or holder, known by the insolvent to be so, he is not dis- L charged.(^) If the debt only be mentioned in the schedule, the debtor is not discharged from the bill. The bill or note should be mentioned, and the name of the holder, or it should be stated that the holder is not known.(A) And if by mistake the debt be stated to be 3Z. when it should be 11, as the consequence is to deprive the creditor of the benefit of the notice to creditors for 51. and upwards, the debtor is not discharged.(i) A notice to the creditor of the filing of the insolvent's petition and schedule, is not a condition precedent to his discharge, for the notice is the act of the Court. (A) A discharge by the Court for the relief of insolvent debtors, though it discharge the person of the insolvent from liability, is no discharge of other parties to the bill, except to the amount of the sum received by the holder from the insolvent's estate. The act 1 & 2 Vict. c. 110, s. 91, avoids any new contract or se- (e) Powell V. Baston, 8 Bing. 23, E. C. L. R. vol. 21 ; 1 M. & Sco. 68, S. C. (/) Forman v. Drew, 4 B. & C. 15, E. C. L. R. vol. 10 ; 6 D. & R. 75, S. C. ; Wood V. Jowett, 4 B. & C. 20, B. C. L. R. vol. 10, n.; Reeves v. Lambert, Ibid. 214 ; Nias v. Nicholson, R. & M. .322 ; 2 C. & P. 120, E. C. L. R. vol. 12, S. C. ; Levy V. Dolbell, M. & M. 202 ; Boydell v. Champneys, 2 M. & W. 433 ;* Eastwood V. Brown, R. & M. 312 ; Cox v. Read, Ibid. 199 ; 1 C. & P. 602, B. C. L.E. vol. 12, S. C. ; Sharp v. Gye, 4 C. & P. 311, E. C. L. E. vol. 19. (g) Pugh V. Hookham, 5 C. & P. 376, B. C. L. R. vol. 24; Lewis v. Mason, 4 0. & P. 322, B. C. L. R. vol. 19. - (h) Beck V. Beverly, 11 M. & W. 845 ;* Tyers v. Stunt, 7 Scott, 349 ; Leonard V. Baker, 15 M. & W. 202.* (i) Hoyles v. Blore, 14 M. & "W. 387.* (k) Reid V. Croft, 5 Bing. N. Ca. 68, B. C. L. R. vol. 35 ; 6 Scott, 770 ; 7 Dowl. 122, S. C. «• 538 BYLBS ON BILLS OF EXOHANaB. curity for payment of a debt from -which the insolvent has been dis- charged under the act ; therefore, a bill or note for a debt from which the insolvent has obtained his discharge, is void, and that, notwith- standing that it was made on some additional and good considera- tion.(Z) But it has been held that an- innocent indorsee, for value, without notice, before maturity of the instrument, may, notwithstanding, re- cover on such a note.(m) And a bill accepted partly for a debt, from which the acceptor has been discharged by the Insolvent Debtors' Act, *and partly L -I for a new debt, is good as to the new debt.(ji) A bill or note given in consideration of not opposing the insolvent's discharge, is void, except in the hands of an innocent indorsee for value.(o) (I) Evans V. Williams, 1 C. & Mees. 30 ;* 3 Tyr. 236, S. C. ; Ashley v. Kitlick, 5 M. & W. 509* (to) Northam v. Latouclie, 4 C. & P. 140, E. C. L. R. vol. 19 ; Lucas v. Winton, 2 Camp. 443 ; Simpson v. Pogson, 3 Dow. & R. 567, B. C. L. R. vol. 16. As to a warrant of attorney, see Philpot v. Aslett, 4 C. M. & R. 85 ;* Best v. Barker, 8 Price, 533 ; 3 Dong. 188, E. C. L. R. vol. 26, S. C. {n) Sieerman v. Thompson, 11 Ad. & E. 1027, E. C. L. R. vol. 39 ; 3 Per. & Dav. 656, S. C. ; Denne v. Knott, 7 M. & W. 143,* where one of several defendants has teen discharged under the act; and see Raynes v. Jones, 9 M. & W. 104.* (o) Murray v. Reeves, 8 B. & 0. 421, B. C. L. R. vol. 15 ; 2 M. & Ry. 423, S. C. ; Rogers V. Kingston, 2 Bing. 441, E. C. L; R. vol. 9 ; 10 Moore, 97, S. C. ; Horn v. Ion, 4 B. & Ad. 78, B. C. L. R. vol. 24 ; 1 N. & M. 627, S. 0. APPENDIX. *SECTIO]:^ I. [*385] NOTAEY'S FEES OF OFFICE. As settled July 1st, 1799. At a meeting of several notaries of the City of London, held at the George and Vulture Tavern, in London aforesaid, on the 1st of July, A. D. 1797, the following resolutions were unanimously agreed to, and since approved and confirmed by the G-overnor and Company of the Bank of England : — Jirst. — That, from and after the fifth day of the present month of July, the noting of. all hills drawn upon or addressed at, the house of any 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 hereunder specified, the sum of two shillings and six- pence. Second. — For all hills drawn upon, or addressed at, the house of any per- son or persons residing beyond Old, or New Bond Street, Wimpole Street, New Cavendish Street, Upper Marylehone Street, Howland Street, Lower Gower Street, lower end of Gray's Inn Lane (and not off the pavement), Clerkenwell Church, Old Street, Shoreditch Church, Brick Lane, St. George's in the East, Execution Dock, Wapping, Dockhead, upper end of Bermond- sey Street (as far as the church), end of Blackman Street, end of Great Surrey Street, Blackfriars' Road (as far as the Circus), Cuper's Bridge, Bridge Street, Westminster, Arlington Street, Piccadilly, and the like dis- tances, three shillings and sixpence; and, off the pavement, one shilling and sixpence per mile additional. Third. — For protesting a bill drawn upon, or addressed at, the house of any person or persons residing within the ancient walls of the said city (in- cluding the stamp duty of four shillings, and exclusive 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 honor, within the ancient walls of |-^„g„^ the city of London, shall be charged the said sum of one shilling •- ^ J 540 BYLES ON BILLS OF EXCHANGR. and sixpence upon each bill ; and for all acts of honor without the ancient walls of the said city, to be regulated agreeably to the charge of noting bills out of the city, and the like charge for any additional 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 dct thereof, within the ancient walls of the said city, the sum 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, accord- ing to the distance, 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 addi- tional bill so copied (exclusive of the 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 sixpence (exclusive of the duty) for every additional bill. . Eighth. — For every folio of ninety words, translated from the French, 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, G-erman, Danish, and Swedish, one shilling and ninepence 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 shil- lings and sixpence, exclusive of fees and stamps. Ninth. — That all attestations to letters of attorney, affidavits, &o., at the request of any gentleman in the law, shall be charged seven shillings and sixpence, exclusive of fees, stampsj and attendance. Tenth. — For every city seal shall be charged one guinea, for one de- ponent, 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, &o. [*387] *SECTIO¥ 11. STATUTES. [9 & 10 Wm. 3, c. 17.] An Act for the letter Payment of Inland Bills of Exchange. [1698.] " Whereas great damages and other inconveniences do frequently 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 therefore enacted by the king's most excellent Majesty, by and with the advice and APPENDIX. 641_ consent of the lords, spiritual and temporal, and the commons, in this pre- sent Parliament assembled, 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 exdiange 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 sum of five pounds sterling or upwards, upon any person or persons of or in London, or any other trading city, town, or any other place (in which said bill or bills of exchange shall be acknow- ledged and expressed the said value to be received), and is and shall be drawn payable at a certain number of day^, 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 party's hand so accepting), and after the expiration of three days after the said bill or bills shall become due, the party to whom the said bill or bills are made payable, his servant, agent, or assigns, may and shall cause the said bill or bills to be protested by a notary public, and in default of such notary public, by any other substantial person of the city, ^Vfn, or place, in the presence of two or more credible witnesses, refusal or neglect being first made of due payment of the same : which protest shall be made and written under a fair written copy of the said bill of exchange, in the words or form following : Know all men, that I, A. B., on the day of at the usual place of abode of the said have demanded payment of the bill, of the which the above is the copy, which the said did not pay, wherefore I the said do hereby protest the said bill. Dated this day of II. Which protest so made, as aforesaid, shall within fourteen 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 pro- ducing 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 pro- test shall be paid a sum not exceeding the sum of sixpence ; 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 r*QDD-i and shall be liable to all costs, damages, and interest, which do and ■- J shall accrue 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 or persons to whom they are and shall be so delivered giving security, if demanded, to the said drawer, to indemnify him against 542 BTLBS ON BILLS OF EXCHANGE. all persons whatsoever, in case the said bill or bills of exchange so alleged to be lost or miscarried, shall be found again. [3 & 4 Anne, c. 9, s. 1, made perpetual by 7th Anne, c. 25 (1709).] An Act for giving like Remedy upon Promissory Notes as is now used upon Sills of Exchange, and for the better Payment of Inland Bills of Ex- change. [1704.] " Whereas it hath been held, that notes in writing, signed by the party who makes the same, whereby such party promises to pay unto any other person, or his order, any sum of money therein mentioned, are not assignable or indorsable over, within the custom of merchants, to any other person, and that such person to whom the sum of money mentioned in such note is payable cannot maintain an action, 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, 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, the intent to encourage trade and commerce, which will be much advanced if such notes shall have the same effect as inland bills of exchange, and shall be nego- tiated in like manner, be it 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 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 any person or persons, body politic or corporate, or by the servant or agent of any corporation, banker, goldsmith, merchant, or trader, who is usually intrusted by him, her, or them, to sign such promissory notes for him, her, or them, whereby such person or persons, body politic and corpo- rate, 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 in- [*389] dorsable over in the same manner as inland bills of *exchange are or ' may be, according to the custom of nierchants ; 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 merchants, against the perso^i or persons, body politic and corporate, who, or whose servant or agent, as aforesaid, signed the same ; and that any person or persons, body APPENDIX. 643 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 plaintiffs shall recover his, her, or their damages and costs of suit ; and, if such plaintiff Or plaintiffs shall be non-suited, or a verdict be given against him, her, or them, the defendant or defendants shall recover his, her, or their costs against the plaintiff or plaintiffs ; and every such plaifatiff or plaintiffs, defendant or defendafits, respectively, recovering may sue out execution for such damages and costs, by capias, fieri facias, or elegit. TT [17 Geo. 3, 0. 30, made perpetual by 27 Geo. 3, o. 16 (1787).] 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. [1777.] " Whereas by a certain act of Parliament, passed in the fifteenth year of the reign of his present Majesty, intituled, ' An Act to restrain the Negotia- tion of Promissory Notes and Inland Bills of Exchange, under a Limited Sum, within that Part of Great Britain called England,' all negotiable promissory or other notes, 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 June, one thousand seven hundred and seventy-five, were made void, and the publishing or uttering and negotiating of any such notes, bills, drafts, or undertakings, for a less sum than twenty shilfings, or on which less than that sum should be due, was, by the said act, restrained, under certain penalties or forfeitures ;therein mentioned ; and all such notes, bills of exchange, drafts, or undertakings in writing, as have 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 attended with very salutary effects, and, in case the provisions therein contained were ex- tended to a farther sum (but yet without prejudice to the convenience arising to the public from the *negQtiation of promissory notes and inland r-itonm 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 tem- poral, and commons, in this present Parliament assembled, and by the authority of the same, that all promissory or other notes, bills of exchange, 544 ETLBS ON 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 which shall be issued, within that part of Great Britain called England, at any time after the first day of January, one thousand seven hundred and seventy-eight, shall specify the names and places of abode of the persons respectively to whom, or to whose order, the same shall be made payable ; and shall bear date before or at the time of drawing or issuing thereof, and not on any day subsequent thereto; and shall be made payable 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 indorse- ment 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 under- taking, 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 undertakings in writing, may be made or drawn in words to the purport or effect as set out in the schedule hereunto annexed. No. I. and II. ; and that all promissory or other notes, bills of exchange, or drafts, or under- takings 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 in which twenty shillings, or above that sum, and less than five pouhds, shall remain undischarged, and which shall be issued, within that part of Great Britain 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 not- withstanding. II. And be it further enacted, by the authority aforesaid, That the pub- lishing, uttering, or negotiating, within that part of Great Britain called England, of any promissory or other note, bill of exchange, draft, or under- taking in writing, being negotiable ai 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, r^qqi-i *liereby 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 appointed for payment thereof, or before that time, in any other manner than as aforesaid, by any act, contrivance, or means whatsoever, from and after the said first day of January, one thousand seven hundred and seventy-eight, shall be, and the same is hereby declared to be, APPENDIX. 545 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 ex- change, 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 farther 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 years in the said former act mentioned, and from 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 ses- sion of Parliament. SCHEDULE, NO. I. [Place] [Day] [Month] [Tear] Twenty-one days after date I promise to pay to A. B., of [Place] , or his order, the sum of for value received by Witness, E. P. C. D. And the Indorsement, toties quoties. [Day] [Month] [Year] Pay the contents to Gr. H., of [Place] or his order. Witness, J. K. A. B. NO. II. [Place] [Bay] [Month] [Tear] Twenty-one days after date, pay to A. B., of [Place] or his order, the sum of value received, as advised by To E. P., of [Place] Witness, G. H. C. D. And the Indorsement, toties quoties. [Day] [MontK] [Tear] Pay the contents to J. K., of [Place] or his order. Witness, L. M. ^ A. B. *[39&40,Geo. 3,0.28, s. 15.] [*392] An Act for establishing an Agreement with the Governor and Company of the Bank of England, for advancing the sum of Three Millions, towards the Supply for the Service of the Tear One Thousand Eight Hundred: [28th March, 1800.] XV. And to prevent any doubts that may arise concerning the privilege or power given, by former acts of Parliament, to the said governor and com- 35 * 646 BTLES ON BILLS OF EXCHAN&E. pany, of exclusive banking, and also in regard to the erecting any other bank or banks by Parliament, or restraining other persons from banking during the continuance of the said privilege granted to the Governor and Company of the Bank of England, as before recited ; it is hereby further enacted and declared, That it is the true intent and meaning of this act, that no other bank shall be erected, established, or allowed by Parliament, and that it shall not be lawful for any body, politic or corporate whatsoever, erected or to be erected, or for any other persons, united or to be united in covenants or partnership, exceeding the number of six persons, in that part of Great Bri- tain called England, to borrow, owe, or take up, any sum or sums of money on their bills or notes, payable on demand, or at any less time than six months from the borrowing thereof, during the continuance of the said privilege to the said governor and conipany : who are hereby declared to be and remain a corporation, with the privilege of exclusive banking, as before recited, sub- ject to redemption on the terms and conditions before mentioned; that is to say, on one year's notice, to be given after the first day of August one thou- sand eight hundred and thirty-three, and repayment of the said sum of three millions two hundred thousand pounds, and all arrears of the said one hun- dred thousand pounds, per annum ; and also upon repayment of the said sum of eight millions four hundred and eighty-six thousand and eight hundred pounds, and the interest or annuities payable thereon or in respect thereof, and all the principal and interest money that shall be owing on all such tal- lies. Exchequer orders. Exchequer bills, parliamentary funds, or other govern- ment securities, which the said governor and company, or their successors, shall have remaining in their hands, or be entitled to, at the time of such notice to be given as aforesaid, and not otherwise; anything in this act or any former act or acts of Parliament, to the contrary in anywise notwithstand- ing- [48 Geo. 3, c. 88.] An Act to restrain the Negotiation of Promissory Notes and Inland Bills of Exchange under a limited sum, in England. [23d June, 1808.] " Whereas various notes, bills of exchange, and drafts for money for very small sums, have, for some time past, been circulated or negotiated in lieu of cash, within that part of Great Britain called England, to the great pre- judice of trade and public credit, and many of such bills and drafts being payable under certain terms and restrictions, which the poorer sort of manu- _.„(,„-. facturers, artificers, *laborers, and others, cannot comply with other- L -^ wise than by being subject to great extortion and abuse; and where- as an act, passed in the fifteenth year of the reign of his present Majesty, intituled, ' An Act to restrain the Negotiation of Promissory Notes and In- land 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 APPENDIX. 547 hear and determine offences under the said act, and it is therefore expedient that more effectual provisions should be made for enforcing the provisions of the said act ;" be it therefore enacted, by the king's most excellent Ma- jesty, 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, the said recited act shall be, and the same is hereby repealed. II.- And be it further enacted, that all promissory or other notes, bills of exchange or drafts, or undertakings in writing, being negotiable or transfera- ble, for the payment of any sum or sums of mqney, or any orders, notes, or undertakings in writing, being negotiable or transferable, for the delivery of any goods, specifying their 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 day of October, one thousand eight hundred and eight, be and the same are hereby declared to be, abso- lutely 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, de- vice, or means whatsoever, publish or utter any such notes, bills, drafts, or engagements as aforesaid, for a less sum than twenty shillings, or on which less than the sum of twenty shillings shall be due, and which shall be in anywise negotiable or transferable, 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 justice 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 way, at any time within twenty days after such offence shall have been committed; and such justice or justices, upon any informa- tion exhibited, or complaint 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 voluntary confession of the party, or by the oath of one or more credible wit- ness or witnesses, or otherwise (which oath such justice or justices is or are hereby authorized to administer), shall convict the offender and adjudge the penalty of such offence. 548 BYLES ON BILLS OF BXCHANGB. [*394] *[55 Geo. 3, c. 184.J An Act for repealing the Stamp Duties on Deeds, Law Proceedings, and other written or printed Instruments, and the Duties 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. [11th July, 1815.] [present general stamp act.] X. And be it further enacted, That from and after the passing of this act all instruments for or upon which any stamp or stamps shall have been used of any improper denomination or rate of duty, but of equal or greater value in the whole with ox than the stamp or stamps which ought regularly to have been used thereon, shall, nevertheless, be deemed valid and effectual in the law, except in cases where the stamp or stamps used on such instruments shall have been specially appropriated to any other instrument, by having its name on the face thereof. XI. And be it further enacted, That if any person or persons shall make, sign, or issue, or cause to be made, signed, or issued, or shall accept or pay, or cause or permit to be accepted or paid, any bill of exchange, draft, or order, or promissory note, for the payment of money, liable to any of the duties imposed by this act, without the same being duly stamped for denoting the duty hereby charged thereon, he, she, or they shall, for every such bill, draft, order, or note, forfeit the sum of fifty pounds. XII. And be it further enacted, that if any person or persons shall maie and issue, or cause to be made and issued, any bill of exchange, draft, or order, or promissory note for the payment of money, at any time after date or sight, which shall bear date subsequent to the day on which it shall be issued, so that it shall not', in fact, become payable in two months, if made payable after date, or in sixty days, if made payable after sight,, next after the day on which it shall be issued, unless the same shall be stamped for de- noting the duty hereby imposed on a bill of exchange and promissoiy note, for the payment of money, at any time exceeding two months after date, or sixty days after sight, he, she, or they shall, for every such bill, draft, order, or note, forfeit the sum of one hundred pounds. XIII. And, for the more effectually preventing of frauds and evasions of the duties hereby granted on bills of exchange, drafts, or orders, for the pay- ment of money, under color of the exemption in favor of drafts or orders upon bankers, or persons acting as bankers, contained in the schedule here- unto annexed, be it further enacted, That, if any person or persons shall, after the thirty-first day of August, one thousand eight hundred and fifteen, make and issue, or cause to be made and issued, any bill, draft, or order, for the payment of money to the bearer on demand, upon any banker or APPENDIX. 549 bankers, or any person or persons acting as a banker or bankers, which shall * be dated on any day slibsequent to the *day on which it shall be _jj,„q_-. issued, or which shall not truly specify and express the place where ^ it shall be issued, or which shall not, in every respect, fall within the said exemption, unless the same shall be duly stamped as a bill of exchange, ac- cording to this act, the person or persons so offending shall, for every such bill, draft, or order, forfeit the sum of one hundred pounds ; and, if any per- son or persons shall knowingly receive or take any such bill, draft, or order, in payment of, or as security for, the sum therein mentioned, he, she, or they shall, for every such bill, draft, or order, forfeit the sum of twenty pounds ; and, if any banker or bankers, or any person or persons acting as a banker, upon whom any such bill, draft, or order, shall be drawn, shall pay, or cause or permit to be paid, the sum of money therein expressed, or any part thereof, knowing the same to be post-dated, or knowing that the place where it was issued is not truly specified and set forth therein, or knowing that the same does not, in any other respect, fall within the said exemption, then the banker or bankers, or persgn or persons so offending, shall, for every such bill, draft, or order, forfeit the sum of one hundred pounds, and, moreover, shall not be allowed the money so paid, or any part thereof, in account against the person or persons by or for whom such bill, draft, or order, shall be drawn, or his, her, or their executors or administrators, or his, her, or their assignees or creditors, in case of bankruptcy or insolvency, or any other person or per- sons claiming under him, her, or them. XIV. 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 any banker or bankers, or other person or persons, who shall have made and issued any promissory notes for the payment to the bearer on demand of any sum of money not exceeding one hundred pounds each, duly stamped ac- cording to the directions of this act, to reissue the same from time to time, after payment thereof, as often as he, she, or they shall think fit, without being liable to pay any farther duty in respect thereof, and that all promissory notes, so to be reissued as aforesaid, shall be good, and valid, and as avail- able in the law to all intents and purposes, as they were upon the first issuing thereof. Xy. And be it further enacted, that no promissory note for the payment to the bearer on demand of any sum of money not exceeding one hundred pounds, which shall have been made and issued by any bankers or other persons in partnership, and for which the proper stamp duty shall have been once paid, according to the provisions of this act, shall be deemed liable to the payment of any further duty, although the same shall be reissued by and as the note of some only of the persons who originally made and issued the same, or by and as the note of any one or more of the persons who ori- ginally made and issued the same, and any other person or persons in part- nership with him or them jointly; nor although such note, if made payable 550 BYLES ON BILLS OF, EXCHANGE. at any other than the place where drawn, shall be reissued with any altera- tion therein, only of the house or place at which the same shall have been at first made payable. r*^QR1 *XVI- -^°^ te it further enacted, that all promissory notes for '- -^ the payment to the bearer on demand of any sum of money, which shall have been actually and bona fide issued, and in circulation before or upon the said thirty-first day of August, one thousand eight hundred and fifteen, duly stamped, according to the aforesaid act of the forty-eighth year of his Majesty's reign, and which shall then be reissuable, within the in- tent and meaning of that act, or of an act passed in the fifty-third year of his Majesty's reign, for altering, explaining, and amending the said former act, with regard to the duties on reissuable promissory notes, shall continue to be reissuable until the expiration of three years from the date thereof, respectively, but not afterwards, without payment of any further duty for the same ; and if any banker or bankers, or other person or persons, shall, at any time after the said thirty-first day of August, issue or cause to be issued, for the first time, any promissory note for the payment of money to the bearer on demand, bearing date before or upon that day, he, she, or they shall, for every such promissory note, forfeit the sum of fifty pounds. XVII. Provided always, and in regard that certain bankers in Scotland have issued promissory notes for the payment to the bearer on demand, of a sum not exceeding two pounds and two shillings each, with the dates thereof printed therein, and many such notes have been but recently issued for the first time, although they may appear by the date to be of more than three years' standing, be it further enacted. That all such promissory notes as last mentioned, which shall have been actually and bona fide issued, and in circulation, before or upon the said thirty-first day of August, one thou- sand eight hundred and fifteen, duly stamped, according to the said act of the forty-eighth year of his Majesty's reign, and which shall bear a printed date prior to the thirty-first day of August, one thousand eight hundred and thirteen, shall continue to be reissuable until the thirty-first day of August, one thousand eight hundred and sixteen, but not afterwards, without pay- ment of any further duty for the same ; and if any banker or bankers, or other person or persons, shall, at any time after the said thirty-first day of August, one thousand eight hundred and fifteen, issue or cause to be issued, for the first time, any such promissory note, bearing a printed date prior to the said thirty-first day of August, one thousand eight hundred and thirteen, he or they shall, for every promissory note so issued, forfeit the sum of fifty pounds. XVIII. J^ni be it further enacted, that from and after the thirty-first day of August, one thousand eight hundred and fifteen, it shall not be law- ful for any banker or bankers, or other person or persons, to issue any pro- missory note for the payment of money to the bearer on demand, liable to APPENDIX. 551' any of the duties imposed by this act, with the date printed therein ; and, if any banker or bankers, or other person or persons, shall issue, or cause to be issued, any such promissory note, with the date printed therein, he or they shall, for every promissory note so issued, forfeit the sum of fifty pounds. XIX. *And be it further enacted. That all promissory notes i-^koo't-i hereby allowed to continue reissuable for a limited period, but not '- -' afterwards, shall, upon the payment thereof, at any time after the expiration of such period, and all promissory notes, bills of exchange, drafts, or orders for money, not hereby allowed to be reissued, shall, upon any payment thereof, be deemed and taken respectively to be thereupon wholly dis- charged, vacated, and satisfied, and shall be no longer negotiable or avail- able in any manner whatsoever, but shall be forthwith cancelled by the person or persons paying the same; and, if any person or persons shall re- issue, or cause or permit to be reissued, any promissory note hereby allowed to be reissued for a limited period, as aforesaid, at any time after the expi- ration of the term or period allowed for that purpose ; or if any person or persons shall reissue, or cause or permit to be reissued, any promissory note, bill of exchange, draft, or order for money, not hereby allowed to be reissued at any time after the payment thereof; or if any person or persons paying, or causing to be paid, any such note, bill, draft, or order, as aforesaid, shall refuse or neglect to cancel the same, according to the directions of this act, then, and in either of those cases, the person or persons so ofiending shall, for every such note, bill, draft, or order, as aforesaid, forfeit the sum of fifty pounds ; and, in case of any such note, bill, draft, or order, being reissued, contrary to the intent and meaning of this act, the person or persons re- issuing the same, or causing or permitting the same to be reissued, shall also be answerable and accountable to his Majesty, his heirs and successors, for a further duty in respect of every such note, bill, draft, or order, of such and the same amount as would have been chargeable thereon, in case the same had been then issued for the first time, and so from time to time as often as the same shall be so reissued, which further duty shall and may be sued for and recovered accordingly, as a debt to his Majesty, his heirs and successors ; and, if any person or persons shall receive or take any such note, bill, draft, or order, in payment of, or as a security for, the sum therein ex- pressed, knowing the same to be reissued contrary to the intent and mean- ing of this act, he, she, or they shall, for every such note, bill, draft, or order, forfeit the sum of twenty pounds. XX. And be it further enacted. That all promissory notes and bank post- bills which shall be issued by the governor and company of the Bank of England, from and after the said thirty-first day of August, one thousand eight hundred and fifteen, shall be freed and exempted from all the duties hereby granted, and that it shall be lawful for the said governor and com- 552 ByLBS ON BILLS o'f exchange. pany to reissue any of their notes, after payment thereof, as often as tbey shall think fit. 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 r*^QS1 -^P"^ ^^®* > ^^^ *'^^* *^® ^^^^ governor and company shall deliver to '- -' the said commissioners *of stamps, within one calendar month after the passing of this act, and afterwards on the first day of May in every year whilst the present stamp duties shall remain in force, a just and true ac- count, verified 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 day in every week, for the space of three years preceding the sixth day of April, in the year in which the account shall be delivered, together with the average amount of value thereof, according 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 otherwise have been payable for their promissory notes and bank post-bills, issued within the year, 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 for half a million, but not for a less sum than half a million, of the said average amount or value of their said notes and bank post-bills in circulation ; and that one half-part of the sum so to be ascertained as aforesaid for each year'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 payments 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 coihpany of the Bank of Scotland, and the Koyal 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 the bearer on demand, on unstamped paper, in the same manner as 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 Eoyal Bank of Scotland, and British Linen Company, respectively, giving such security, and keeping and producing true accounts of all the notes so to be issued by them respectively, and accounting for and paying the several duties payable in respect of such notes, in such and the same manner, in all respects, as is and are prescribed APPENDIX. 653 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 reissue such promissory notes respectively, from time to time, after the payment 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 be lawful for any banker or bankers, or other person or persons (except 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 reissued as aforesaid, without taking out a license yearly for that purpose ; which license 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 license shall be taken out, for or in respect of levery 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 license shall specify the proper name or names, and place or places of abode, of the person or persons, 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 license shall be granted to persons in partnership, 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 b.e issued by them or not ; and, in default thereof, such license shall be absolutely void ; and every such license which shall be granted between the tenth day of October and the eleventh day of November, in any year, shall be dated on the eleventh day of October ; and every such license which shall be granted at any other time, shall be dated on the day on which the same shall be granted; and every such license respectively shall have effect and continue in force from the day and dale thereof until the tenth day of October following, both inclusive. XXV. Provided always, and be it further enacted. That no banker or bankers, person or persons, 'shall be obliged to take out more than four licenses 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 licenses 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 license. 554 BYLES ON BILLS OE EXCHANGE. XXVI. Provided also, and be it further enacted, That where any banker or bankers, person or persons, applying for a license 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 license, 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. XXVn. And be it further enacted. That the banker or bankers, or other r*Anfn P^''^*"^ ^^ persons, applying for any such license as aforesaid, shall '- ■-' produce and leave with the proper officer a specimen of *the promis- sory notes proposed to be issued by him or them, to the intent that the license 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 be issued, by any agent, any promissory note for money payable to the bearer on demand, hereby charged with a duty, and allowed to be reissued as aforesaid, without being licensed 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 license, the banker or bankers, or other person or. persons, so offending, shaH for every such offence, forfeit the sum of one hundred pounds. XXVIII. And be it further enacted. That where any such license, as aforesaid, shall be granted to any persons in partnership, the same shall con- tinue in force for the issuing of promissory notes duly stamped, under the name, style, or firm tberein specified, until the tenth day of October inclu- sive, following the date thereof, notwithstanding any alteration in the partner- ship. XXIX. And be it further enacted. That from and after the passing of this act, promissory notes for the payment of money to the bearer on demand, made out of Great Britain, or purporting to be made out of Great Britain, or purporting to be made by or on the behalf of any person or persons resident out of Great Britain, shall not be negotiable or be negotiated, or circulated or paid in Great Britain, whether the same shall be made payable in Great Britain or not, unless the same shall have paid such duty, and be stamped in such manner, as the law requires for promissory notes of the like teiior and value, made in Great Britain; and, if any person or persons shall circulate or negotiate, or offer in payment, or shall receive or take in payment, any such promissory note, or shall demand or receive payment of the whole or any part of the money mentioned in such promissory note, from or on account of the drawer thereof, in Great Britain, the same not being duly stamped, as aforesaid ; or if any person or persons in Great Britain shall pay, or cause to be paid, the sum of money expressed in any such note, not being duly stamped as aforesaid, or any part thereof, either as drawer thereof, or in pur- suance of any nomination or appointment for that purpose therein contained, (a) 48 Geo. 3, c. 149, s. 17. APPENDIX. 555 the person or persons so offending shall, for every such promissory note, for- feit the sum of twenty pounds : provided always, that this clause shall not extend to promissory notes made and payable only in Ireland. £ s. d. , . . .010 16 2 2 6 3 6 4 6 5 6 8 6 12 6 15 15 *SCHEDULE. ' Inland Bills op Exchange, draft or order to the bearer, or to order either on demand or otherwise, not exceeding two months after date, or sixty days after sight, of any sum of money — Amounting to 40s. and not exceeding 5?. 5s., Exceeding 5Z. 5s., not exceeding 201., . Exceeding 201, not exceeding 30Z., Exceeding SOL, not exceeding 501., Exceeding 50?., not exceeding 1001., . Exceeding lOOZ., not exceeding 200?., . Exceeding 200?., not exceeding 300?., . Exceeding 300?., not exceeding 500?., . Exceeding 500?., not exceeding 1000?., Exceeding 1000?., not exceeding 2000?., Exceeding 2000?., not exceeding 3000?., Exceeding 3000?., .... Inland bill of exchange, draft, or order for the payment to the bearer, or to order at any time exceeding two months after date, or sixty days after sight, of any sum of money. Amounting to 40s., and not exceeding 5?. 5s., Exceeding 5?. 5., not exceeding 20?., . Exceeding 20?., not exceeding 30?., Exceeding 30?., not exceeding 50?., Exceeding 50?., not exceeding 100?., . Exceeding 100?., not exceeding 200?., . Exceeding 200?., not exceeding 300?., . Exceeding 300?., not exceeding 500?., . Exceeding 500?., not exceeding 1000?., Exceeding 1000?., not exceeding 2000?., Exceeding 2000?., not exceeding 3000?., Exceeding 3000?., .... Inland bill, draft, or order, for the payment of any 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 pay- [*401] ■J 16 2 2 6 3 6 4 6 5 6 8 6 12 6 15 15 1 10 556 BYLBS ON BILLS OF EXCHANGE. able to tie bearer, or to order, or if delivered to tbe payee, or some person on bis or her behalf, where the total amount of the money thereby made payable shall be- specified therein, or can be ascertained therefrom — the same duty as on a bill pay- able to bearer or order on demand, for a sum equal to such total amount. And, where the total amount of the money thereby made payable shall be indefinite — the same duty as on a bill pn demand, for the sum therein expressed only. r*4.n91 *-^^^ ^^^ following instruments shall be deemed and taken L J to be inland bills, drafts, or orders, for the payment of money, within the intent and meaning of this schedule, viz. : All drafts or orders for the payment of any sum of money, by a bill or promissory note, or for the delivery of any such 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 payee, or to some person on his or her behalf. All receipts given by any banker or bankers, or other person or persons, for money received, which shall entitle, or be intended to entitle the person or persons paying the money or the bearer of such receipt^ to receive the like sum from any third person or persons. And all bills, drafts, or orders, 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 performed or happen, if the same shall be made payable to the bearer, or to order, or if the same shall be de- livered to the payee, or some person on his or her behalf. Foreign Bill or Exchange (or bill of exchange drawn in, but payable out of Great Britain), if drawn singly, and not in a set — the same duty as on an inland bill of the same Amount and tenor. Foreign bills of exchange, drawn in sets, according to the custom of merchants, for every bill of each set, where the sum made payable thereby shall not exceed 1001., And where it shall exceed 1001., and not exceed 200Z., Where it shall exceed 2001., and not exceed 500?., Where it shall exceed bOOl., and not exceed lOOOZ., . Where it shall exceed 1000?., and not exceed 2000?., Where it shall exceed 2000?., and not exceed 3000?., Where it shall exceed 3000?., Exemptions from the preceding and all other Stamp Duties. All bills of exchange, or bank post-bills, issued by the governor and company of the Bank of England. e £ s. d. . 1 6 . 3 . 4 . 5 . 7 6 . 10 . 15 APPENDIX. 557 All bills, orders, remittance bills, and remittance certificates, drawn by commissioned officers, masters, and surgeons in the- navy, or by any commissioner or commissioners of the navy, under the authority of the act passed in the thirty-fifth year of his Majesty's reign, for the more expeditious payment of the wages and pay of certain officers of the navy. All bills drawn pursuant to any former act or acts of Parliament by the commissioners of the navy, or by the commissioners for victualling the navy, or by the commissioners for managing the transport service, and *for taking care of sick and r,jcj^Aon wounded seamen, upon, and payable by the treasurer ■- -* of the Navy. All drafts or orders for the payment of any sum of money to the bearer on demand, and drawn upon any banker or bankers, or . any person or persons acting as a banker, who shall reside, or transact the business of a banker, within ten miles of the place where such drafts or orders shall be issued, provided such place shall be specified in such drafts or orders, and provided the same shall bear date on or before the day on which the same shall be issued, and provided the same do not direct the pay- ment to be made by bills or promissory notes. All bills for the pay and allowances 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 by 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 o£ the paymastership during a vacancy, or the absence, suspension, or incapacity of any such paymaster, as aforesaid ; save and except such bills as shall be drawn in favor of contractors, or others, who furnish bread or forage to his Majesty's troops, and who, by their contracts or agreements, shp,ll be liable to pay the stamp duties on the bills given in payment for the articles supplied by them. Promissory Note, for the payment, to the bearer on demand, of any sum of money — Not exceeding 11. Is., .... Exceeding II. Is., and not exceeding 21. 2s., Exceeding 21. 2s., and not exceeding bl. 5s., Exceeding bl. 5s., and not exceeding 101., . Exceeding 101., and not exceeding 20?., Exceeding 20?., and not exceeding 30?., £ s. d. . 5 . 10 . 1 3 . 1 9 . 2 . 3 558 BYLES ON. BILLS OF EXCHANGE. Exceeding 30Z., and not exceeding 501., .... Exceeding bOl., and not exceeding 100?., .... Which said notes may be reissued, after payment thereof, as often as shall be thought fit. Promissory note for the payment, in any other manner than to the bearer on demand, but not exceeding two months after date or sixty days after sight, of any sum of money — Amounting to 40s., and not exceeding 51. 5s., Exceeding 51. 5s., and not exceeding 201., Exceeding 201., and not exceeding 301., Exceeding SOI, and not exceeding 501., Exceeding 501., and not exceeding 100?., r*zin4.1 "'T'^s^^ notes are not to be reissued after being once paid, Promissory note for the payment, either to the bearer on demand, or in any other manner than to the bearer on demand, but not exceeding two months after date, or sixty days after sight, of any sum of money — Exceeding 100?., and not exceeding 200?., . Exceeding 200?., and not exceeding 300?., . Exceeding 300?., and not exceeding 500?., . Exceeding 500?., and not exceeding 1000?., . Exceeding 1000?., and not exceeding 2000?., Exceeding 2000?., and not exceeding 3000?., Exceeding 3000?., These notes are not to be reissued after being once paid. Promissory note for the payment, to the bearer or otherwise, at any time exceeding two months after date, or sixty days after sight, of any sum of money — Amounting to 40s., and not exceeding 5?. 5s.j Exceeding 5?. 5s., and not exceeding 20?., Exceeding 20?., and not exceeding 30?., Exceeding 30?., and not exceeding 50?., Exceeding 50?., and not exceeding 100?., Exceeding 100?., and not exceeding 200?., Exceeding 200?., and not exceeding 300?., Exceeding 300?., and not exceeding 500?., Exceeding 500?., and not exceeding 1000?., Exceeding 1000?., and not exceeding 2000?., Exceeding 2000?., and not exceeding 3000?., Exceeding 3000?., .... These notes are not to be reissued, after being once paid. Promissory note for the payment of any sum of money by instal- ments, or for the payment of several sums of money at different £ s. d. 5 8 6 10 16 2 2 6 3 6 4 6 5 6 8 6 12 6 15 15 ■} .016 .020 .026 .036 .046 .050 .060 .086 . 12 6 . 15 .15 . 1 10 APPENDIX, 559 days or times, so that the whole of the money to be paid shall be definite and certain — The same duty as on a promissory note, payable in less than two months after date for a sum equal to the whole amount of money to be paid. And the following instruments shall be deemed and taken to be promissory notes, within the intent and meaning of this schedule, viz. : — All notes promising the payment of any sum or sums of money out of any particular fund, which may or may not be aTailable; or upon any condition or contingency, which may or may not be performed or happeji ; if the same shall be made payable to the bearer or to order, and if the same shall be definite and certain, and not amount in the whole to twenty pounds. *And all receipts for money deposited in any bank, or in r:^j^Ar-i the hands of any banker or bankers, which shall con- ^ J tain any agreement or memorandum, importing that interest shall be paid for the money so deposited. Exemptions from the Duties on Promissory Notes. 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 ; 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 should 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 th.e 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. Protest of any bill of exchange or promissory note, for any sum of money — Not amounting to 20?., .... Amounting to 20?., and not amounting to 100?., Amounting to 100?., and not amounting to 500?., Amounting to 500?., or upwards, . Protest of any other kind, .... £ s. d. . 2 . 3 . 5 . 10 . 5 560 BYLBS ON BILLS 0¥ EXCHANGE. And for every sheet or piece of paper, parchment, or vellum, upon which the same shall be written, after the first, a fur- £ s. d. ther progressive duty of 5 [58 Geo. 3, c. 93.] An Act to afford relief to the bona fide Holders of Negotiable Securities, without Notice that they are given for a usurious Consideration. [10th June, 1818.] " Whereas, by the laws now in force, all contracts and assurances what- soever, for payment of money, made for a usurious consideration, are utterly r*4.nfi1 ^°i*l5 ^^^ whereas, in the course of mercantile ^transactions, nego- '- -' tiable securities often pass into the hands of persons who have dis- counted the same without any knowledge of the original consideration for which the same were given ; and the avoidance of such securities in the hands of such bona fide indorsees, without 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 commons, 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 consideration, or upon a usurious con- tract. [1 & 2 Geo. 4, c. 78.] A,n Act to regulate Acceptances of Bills of Exchange. [2d July, 1821.] Whereas, according to law, as hath been adjudged, where a bill is accepted payable at a banker's, the acceptance thereof is not a general but a qualified acceptance ; and whereas, a practice hath very generally prevailed among merchants and traders so to accept bills, and the same have, among such persons, been very generally considered as bills generally accepted, and ac- cepted without qualification : and whereas many persons have been and may be much prejudiced 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 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 APPKNDIX. 561 It 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 accept- ance, such acceptance shall be deemed and taken to be, to all intents and purposes, a general acceptance of such bill ; but, if the acceptor shall, in his acceptance, express that he accepts the bill, payable at the banker's house or other place only, and not otherwise or elsewhere, such acceptance shall be deemed and taken to be, to all intents and purposes, a qualified accept- ance 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. II. And be it further enacted. That from and after the said first day of August, no acceptance of any inland bill of exchange shall be *sufB- r*yi nw-i cient to charge any person, unless such acceptance be in writing on L -■ such bill, or if there be more than one part of such bill, on one of the said [6 Geo. 4, c. 16.] An Act to Amend the laws relating to Bankrupts. [2d May, 1825.J XV. And be it enacted, That no such commission shall be issued, unless the single debt(a) of such creditor, or two or more persons being partners, petitioning for the same, shall amount to one hundred pounds or upwards, or unless the debt of two creditors so petitioning shall amount to one hundred and fifty pounds or upwards, or unless the debt of three or more creditors so petitioning shall amount to two hundred pounds or upwards ; and that every person who has given credit to any trader upon valuable consideration, for any sum payable at a certain time, which time shall not have arrived when such trader committed an act of bankruptcy, may so petition or join in such petitioning as aforesaid, whether he shall have any security in writ- ing or otherwise for such sum or not. , LII. And be it enacted, That any person who, at the issuing the commis- sion, shall be surety or liable for any debt of the bankrupt, or bail of the bankrupt, either to the sheriff or to the action, if he shall have paid the debt or any part thereof in discharge of the whole debt (although he may have paid the same after the commission issued), if the creditor shall have prpved his debt under the commission, shall be entitled to stand in the place of such creditor as to the dividends and all. other rights under the said com- mission, which said creditor possessed or would be entitled to in respect of such proof; or if the creditor shall not have proved under the commission, such surety or person liable, or bail, shall be entitled to prove his demand in respect of such payment, as a debt under the commission, not disturbing (a) 5 & 6 Vict. c. 122, s. 9. 36 562 . BYLBS ON BILLS OF EXCHANGE. the former dividends, and may receive dividends with the other creditors, although he may have become surety, liable, or bail as aforesaid, after an act of bankruptcy committed by such bankrupt : provided that such person had not, when he became such surety or bail, or so liable, as aforesaid, notice of any act of bankruptcy by such bankrupt committed. LYII. And be it enacted, That in all future commissions against any person or persons liable upon any bill of exchange or promissory note, whereupon interest is not reserved, overdue at the issuing the commission, the holder of such bill of exchange or promissory note shall be entitled to prove for interest upon the same, to be calculated by the commissioners to the date of the commission, at such rate as is allowed by the Court of King's Bench in actions upon such bills or notes. r*a.fisn *LXXII. And be it enacted. That if any bankrupt, at the time L -"he becomes bankrupt, shall, by the consent and permission of the true owner thereof, have in his possession, order, or disposition, any goods or chattels, whereof he was reputed owner, or whereof he had taken upon him the sale, alteration, or disposition as owner, the commissioners shall have power to sell and dispose of the same for the benefit of his creditors under the commission; provided, that nothing herein contained shall invalidate or affect any transfer or assignment of any ship or vessel, or any share thereof, made as a security for any debt or debts, either by way of mortgage or as- signment, duly registered according to the provisions of an Act of Parliament made in the fourth year of his present Majesty, intituled, "An Act for the Registering of Vessels." LXXIII. And be it enacted, That if any bankrupt, being at the time in- solvent, shall (except upon the marriage of any of his children, or for some valuable consideration), have conveyed, assigned, or transferred to any of his children, or any other person, any hereditaments, offices, fees, annuities, leases, goods, or chattels, or have delivered or made over to any such person any bills, bonds, notes or other securities, or have transferred his debts to any other person or persons, or into any other person's name, the commissioners shall have power to sell and dispose of the same, as aforesaid; and every such sale shall be valid against the bankrupt, and such children and persons as aforesaid, and against all persons claiming under him. CXXV. And be it 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, or with intent to persuade such creditor to consent to or sign such certificate, shall be void, and the money thereby secured or agreed to be paid shall not be recoverable ; and the party sued on such contract or security may plead the general issue, and give this act and the special matter in evidence. APPENDIX. • 563 [7 Geo. 4, c. 6.] An Act to limit, and after a certain period to prohibit the Issuing of Pro- missory Notes, under a limited Sum in England. [27th March, 1826.] " Whereas it is expedient to limit, and after the expiration of a certain period to prohibit the issuing, or reissuing, and circulation by bankers, bank- ing companies, or other persons, of promissory notes, drafts, or undertakings in writing, under a limited sum, payable on demand to the bearer thereof, in that part of the United Kingdom called England ;" 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 Par- t^^^q-, liament assembled, and by the authority of the same, That from and ^ -I after the passing of this act, an act passed in the third year of the reign of his present Majesty, intituled "An Act to continue, until the Fifth Day of January, One Thousand Eight ■ Hundred and Thirty-three, an Act of the Thirty-seventh Year of his late Majesty, for suspending the Operation of an Act of the Seventeenth Year of his late ISajesty, for restraining the Negotia- tion of Promissory Notes and Bills of Exchange under a limited sum in England," shall be and the same is hereby repealed. II. Provided always, and be it enacted. That the said act passed in the seventeenth year of his late Majesty, intituled, "An Act for further restrain- ing the Negotiation of Promissory Notes and Inland Bills of Exchange, under a limited Sum, within that part of Great Britain called England" (which act was made perpetual by an act passed in the twenty-seventh year of the reign of his late Majesty, intituled, "An Act fur making perpetual Two Acts passed in the Fifteenth and Seventeenth Years of the reign of his present Majesty, for restraining the Negotiation of Promissory Notes and Bills of Exchange, under a limited Sum, within thai part of Great Britain called England," and will, by the repeal of the said recited act of the third year of the reign of his present Majesty, become and be in full force), shall not extend, or be construed to extend, to any such promissory notes, or forms of promissory notes payable to bearer on demand, of any bankers or banking companies, or other person or persons in England, duly licensed, as shall have been stamped before the fifth day of February, one thousand eight hundred and twenty-six, under the provisions of any act or acts relating to the stamp duties upon promissory notes or bills of exchange under the sum of five pounds ; nor to any promissory notes of the governor and company of the Bank of England, payable to the bearer on demand, for any sum under five pounds, which shall have been made out and bear date before the tenth day of October, one thousand eight hundred and twenty-six ; but all such pro- missory notes so duly stamped, or so made out and bearing date as aforesaid, may be issued and reissued by all such bankers and banking companies, and persons aforesaid, and by the governor and company of the Bank of England respectively, until the fifth day of April, one thousand eight hundred and 564 BYLES ON BILLS OF EXCHANGE. twenty-nine ; anything in any act or acts of Parliament to the contrary not- withstanding. III. And be it further enacted, That if any body politic or corporate, or any person or persons, shall, from and after the passing of this act and be- fore the fifth day of April, one thousand eight hundred and twenty-nine, make, sign, issue, or reissue, in England, any promissory note payable on demand to the bearer thereof, for any sum of money less than the sum of five pounds, except such promissory note or form of note as aforesaid, of any banker or bankers, or banking companies, or person or persons duly licensed in that behalf, which shall have been duly stamped before the fifth day of February, one thousand eight hundred and twenty-six ; and except such promissory note of the governor and company of the Bank of England as shall have r*/il m ^^^^ '^ ®^^^^ ^^ made out and bear *date before the said tenth day ■- -^ of October, one thousand eight hundred and twenty-six ; or if any body politic or corporate, or person or persons, shall, after the said fifth day of April, one thousand eight hundred and twenty-nine, make, sign, issue, or reissue in England, any promissory note in Writing, payable on demand to the bearer thereof, for any sum of money less than five pounds, then and in either of such cases every such body politic or corporate, or person or persons so making, signing, issuing, or reissuing any such promissory note as afore- said, except as aforesaid, shall, for every such note so made, signed, issued, or reissued, forfeit the sum of twenty pounds. IV. And be it further enacted, that if any body politic or corporate, or person or persons, in England, shall, from and after the passing of this act, publish, utter, or negotiate any promissory or other note (not being a note payable to bearer on demand, as is hereinbefore mentioned), or any bill of exchange, draft or undertaking in vrriting, 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 indorsed in any other manner than as is directed by the said act passed in the seventeenth year of the reign of his late Majesty ; every such body politic or corporate, or person or persons, so publishing, uttering, or negotiating any such promissory or other note (not being such note payable to bearer on demand, as aforesaid), bill of exchange, draft, or undertaking in writing, as aforesaid, shall forfeit and pay the sum of twenty pounds. V. And be it further enacted, That the penalties which shall or may be incurred under any of the provisions of this act, and which are in lieu of the penalties imposed by the said a,ct of the seventeenth year of his late Majesty, may be sued for, recovered, levied,' mitigated, and applied in such and the same manner as any other penalties imposed by any of the laws now in force relating to the duties under the management of the commissioners of stamps. APPENDIX. 665 IX. Provided always, and be it further enacted, That nothing herein con- tained shall extend to any draft or order drawn by any person or persons on his, her, or their banker or bankers, or on any person or persons acting as such banker or bankers, for the payment of monejr held by such banker or bankers, person or persons, to the use of the person or persons by whom such draft or order shall be drawn. *[7 Geo. 4, c. 46.] [*411] An Act for the better regulating Copartnerships of certain Bankers in Eng- land ; and for amending so much of an Act of the Thirty-ninth and Fortieth Years of the Reign of his late Majesty King George the Third, intituled, " An Act for establishing an Agreement with the Governor and Company of the Bank of England, for advancing the Sum of Three Millions towards the Supply for the service of the Tear One Thousand Eight Hundred, as relates to the same." [26th May, 1826.] " Whereas an act was passed in the thirty-ninth and fortieth years of the reign of his late Majesty King George the Third, intituled, 'An Act for establishing an Agreement with the Governor and Company of the Bank of England, for advancing the Sum of Three Millions towards the Supply for the Service of the Year One Thousand Eight Hundred :' And whereas it was, to prevent doubts as to the privilege of the said governor and com- pany, enacted and declared in the said recited act, that no other bank should be erected, established, or allowed by Parliament ; and that it should not be lawful for any body politic or corporate whatsoever, erected or to be erected, or for any other persons united or to be united in covenants or partnership, exceeding the number of six persons, in that part of Great Britain called England, to borrow, owe, or take up any sum or sums of money on their bills or notes payable on demand, or at any less time than six months from the borrowing thereof, during the continuance of the said privilege to the said governor and company, who were thereby declared to be and remain a corporation, with the privilege of exclusive banking, as before recited ; but subject nevertheless to redemption on the terms and conditions in the said act specified. And whereas the governor and company of the Bank of England have consented to relinquish so much of their exclusive privilege as prohibits any body politic or corporate, or any number of persons exceed- ing six, in England, acting in copartnership, from borrowing, owing, or taking up any sum or sums of money on their bills or notes payable on de- mand, or at any less time than six months from the borrowing thereof: provided that such body politic or corporate, or persons united in covenants or partnerships, exceeding the number of six persons in .each copartnership, shall have the whole of their banking establishments, and carry on their business as bankers at any place or places in Englamd exceeding the dis- tance of sixty-five miles from London, and that all the individuals composing such corporations or copartnerships, carrying on such business, shall be 566 BYLES ON BILLS OF EXCHANGE. liable to and responsible for the due payment of all bills and notes issued by such corporations or copartnerships respectively:'' 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, it shall and may be lawful for any bodies politic or corporate, erected for the purposes of banking, or for any number of persons united in covenants or copartnership, although such persons so united or carrying on r*41 91 ^'i'S'"^^^ together shall consist of more than *six in number, to carry L -I on the trade or business of bankers in England, in like manner as copartnerships of bankers consisting of not more than six persons in number may lawfully do ; and for such bodies politic or corporate, or such persons so united as aforesaid, to make and issue their bills or notes at any place or places in England exceeding the distance of sixty-five miles from London, payable on demand, or otherwise, at some place or places specified upon such bills or notes, exceeding the distance of sixty-five miles from London, and not elsewhere, and to borrow, ow-e, or take up any sum or sums of money on their bills or notes so made and issued at any such place or places as afore- said ; provided always, that such corporations or persons carrying on such trade or business of bankers in copartnership, shall not have any house of business or establishment as bankers in London, or at any place or places not exceeding the distance of sixty-five miles from London; and that every member of any such corporation or copartnership, shall be liable to and re- sponsible for the due payment of all bills and notes which shall be issued, and for all sums of money which shall be borrowed, pwed, or taken up by the corporation or copartnership of which such person shall be a member, such person being a member at the period of the date of the bills or notes, or becoming or being a member before or at the time of the bills or notes being payable, or being such member at the time of the borrowing, owing, or taliing up of any sum or sums of money upon any bills or notes by the corporation or copartnership, or while any sum of money on any bills or notes is owing, or unpaid, or at the time the same became due from the corpora- tion or copartnership ; any agreement, covenant, or contract to the contrary notwithstanding. II. Provided always, and be it further enacted, That nothing in this act contained shall extend to or be construed to extend to enable or authorize any such corporation or copartnership exceeding the number of six persons, so carrying on the trade or business of bankers as aforesaid, either by any member of or person belonging to any such corporation or copartnership or by any agent or agents, or any other person or persons on behalf of any such corporation or copartnership, to issue, or reissue in London, or at any place or places not exceeding the distance of sixty-five miles from London, any bill or note of such corporation or copartnership, which shall be payable to bearer on demand, or any bank post-bill ; nor to draw upon any partner or agent or other person or persons who may be resident in London, or at any place or APPENDIX. 66T places not exceeding the distance of sixty-five miles from London, any bill of exchange which shall be payable on demand, or which shall be for a less amount than fifty pounds ; provided also, that it shall be lawful, notwith- standing anything herein or in the said recited act contained, for any such corporation or copartnership to draw any bill of exchange for any sum of money amounting to the sum of fifty pounds or upwards, payable either in London, er elsewhere, at any period after date or after sight. \ III. Provided also, and be it further enacted, that nothing in p^ ,^ q-i *this act contained shall extend to or be construed to extend to ■- -^ enable or authorize any such corporation or copartnership exceeding the number of six persons, so carrying on the trade or business of bankers in England as aforesaid, or any member, agent or agents of any such corpora- tion or copartnership, to borrow, owe, or take up in London, or at' any place or places not exceeding the distance of sixty-five miles from London, any sum or sums of money on any bill or promissory note of any such corporation or copartnership payable on demand, or at any less time than six months from the borrowing thereof, nor to make or issue any bill or bills of ex- change, or promissory note or notes of such corporation or copartnership, contrary to the provisions of the said recited act of the thirty-ninth and fortieth years of King Greorge the Third, save as provided by this act on that behalf; provided also, that nothing herein contained shall extend or be construed to extend to prevent any such corporation or copartnership, by any agent or person authorized by them, from discounting, in London or else- where, any bill or bills of exchange not drawn by or upon such corporation or copartnership, or by or upon any person on their behalf. IV. And be it further enacted. That before any such corporation or copartnership exceeding the number of six persons, in England, shall begin to issue any bills or notes, or borrow, owe, or take up any money on their bills or notes, an account or return shall be made out, according to the form contained in the schedule marked (A.) to this act annexed, wherein shall be set forth the true names, title, or form of such intended or existing corpora- tion or copartnership, and also the names and places of abode of all the mem- bers of such corporation, or of all the partners concerned or engaged in such copartnership, as the same respectively shall appear on the books of such corporation or copartnership, and the name or firm of every bank or banks established or to be established by such corporation or copartnership, and also the names and places of abode of two or more persons, being members of such corporation or copartnership, and being resident in England, who shall have been appointed public officers of such corporation or copartner- ship, together with the title of office or other description of every such public officer respectively, in the name of any one of whom such corporation shall sue and be sued as hereinafter provided, and also the name of every "* town and place where any of the bills or notes of such corporation or copart- 568 BYLES ON BILLS OF EXCHANGE. nership shall be issued by any such corporation, or by their agent or agents ; and every such amount or return shall be delivered to the commissioners of stamps, at the stamp office in London, who shall cause the same to be filed and kept in the said stamp office, and an entry and registry thereof to be made in a book or books to be there kept for that purpose by some person or persons to be appointed by the said commissioners in that behalf, and which book or books any person or persons shall from time to time have liberty to search and inspect on payment of the sum of one shilling for every search. r*4.1zn ^' '^^^ ^^ ^^ f'^rther enacted. That such account or return *shall L -I be made out by the secretary or other person, being one of the public officers appointed as aforesaid, and shall be verified by the oath of smih secre- tary or other public officer taken before any justice of tlie peace, and which oath any justice of the peace is hereby authorized and empowered to admi- nister ; and that such account or return shall, between the twenty-eighth day of February and the twenty-fifth day of March in every year, after such cor- poration or copartnership shall be formed, be in like manner delivered by such secretary or other public officer as aforesaid to the commissioners of stamps, to be filed and kept in the manner and for the purposes as herein- before mentioned. VI. And be it further enacted. That a copy of any such account or return so filed or kept and registered at the stamp office, as by this act is directed, and which copy shall be certified to be a true copy under the hand or hands of one or more of the commissioners of stamps for the time being, upon proof made that such certificate has been signed with the handwriting of the per- son or persons making the same, and whom it shall not be necessary to prove to be a commissioner or commissioners, shall in all proceedings, civil or criminal, and in all cases whatsoever, be received in evidence as proof of the appointment and authority of the public officers named in such account or return, and also of the fact that all persons named therein as members of such corporation or copartnership were members thereof at the date of such account or return. VII. And be it further enacted. That the said commissioners of stamps for the time being shall and they are hereby required, upon application made to them by any person or persons requiring a copy certified according to this act of any such account or returns as aforesaid, in order that the same may be produced in evidence or for any other purpose, to deliver to the person or persons so applying for the same such certified copy, he, she, or they paying for the same the sum of ten shillings and no more. VIII. Provided also, and be it further enacted. That the secretary or other officer of every such corporation or copartnership shall and he is hereby required, from time to time, as often as occasion shall render it necessary, make out upon oath, in a manner hereinbefore directed, and cause to be APPENDIX. 569 delivered to the commissioners of stamps as aforesaid, a further account or return, according to the form contained in the schedule marked (B.) to this act annexed, of the name or names of any person or persons who shall have been nominated or appointed a new or additional public officer or public officers of such corporation or copartnership, and also of the name or names of any person or persons who shall have ceased to be members of such cor- poration or copartnership, aud also of the name or names of any person or persons who shall have become a member or members of such corporation or copartnership, either in addition to or in the place or stead of any former member or members thereof, and of the name or names of -any new or addi- tional town or towns, place or places, where such bills or notes are or are in- tended to be issued, and where the same are to be made payable ; and such further accounts or returns shall *from time to time be filed and r;). j-i r-i kept, and entered, and registered at the stamp office in London, in I- -^ like manner as is hereinbefore required with respect to the original or annual account or return hereinbefore directed to be made. IX. And be it further enacted. That all actions and suits, and also all petitions to found any commission of bankruptcy against any person or per- sons who may be at any time indebted to any such copartnership carrying on business under the provisions of this act, and all proceedings at law or in equity under any commission of bankruptcy, and all other proceedings at law or in equity to be commenced or instituted for, or on behalf of any such copartnership against any person or persons, bodies politic or corporate, or others, whether members of such copartnership or otherwise, for recovering any debts or enforcing any claims or demands due to sueh copartnership, or for any other matter relating to the concerns of sueh copartnership, shall and lawfully may, from and after the passing of this act, be commenced or in- stituted and prosecuted in the name of any one of the public officers nomi- nated as aforesaid for the time being of such copartnership, as the nominal plaintiff or petitioner for and on behalf of such copartnership ; and that all actions or suits, and proceedings at law or in equityy to be commenced or instituted by any person or persons, bodies politic or corporate, or others, whether members of such copartnership or otherwise, against such copart- nership, shall and lawfully may be commenced, instituted, and prosecuted against any one or more of the public officers nominated as aforesaid for the time being of such copartnership, as the nominal defendant for and on behalf of such copartnership; and that all indictments, informations, and prosecutions by or on behalf of such copartnership, for any stealing or em- bezzlement of any money, goods, effects, bills, notes, securities, or other property of or belonging to such copartnership, or for any fraud, forgery, crime or offence committed against or with intent to injure or defi-aud such copartnership, shall and lawfully may be had, preferred, and carried on in the name of any one of the public officers nominated as aforesaid for the time being of such copartnership ; and that in all indictments and informations, to be had or preferred by or on behalf of such copartnership against any 570 BYLBS ON BILLS OFEXCHANSB. person or persons whomsoever, notwithstanding such person or persons may happen to be a member or members of such copartnership, it shall be lawful ancj suflScient to state the money, goods, effects, bills, notes, securities, or other property of such copartnership, to be the money, goods, effects, bills, notes, securities, or other property of any one of the public officers nominated as aforesaid for the time being of such copartnership ; and that any forgery, frau'ii, crime, or other offence committed against or with intent to injure or defraud any such copartnership, shall and lawfully may in such indictment or indictments, notwithstanding as aforesaid, be laid or stated to have been committed against or with intent to injure or defraud any one of the public officers nominated as aforesaid for the time being of such copartnership; and any offender or offenders may thereupon be lawfully convicted for any such forgery, fraud, crime, or offence ; and that in all other allegations, indict- r=K4.i Ri ™6nts, informations, *or other proceedings of any kind whatsoever, "- -"in which it otherwise might or would have been necessary to state the names of the persons composing such copartnership, it .shall and may be lawful and sufficient to state the name of any one of the public officers nominated as aforesaid for the time being of such copartnership ; and the death, resignation, removal, or any act of such public officers, shall not abate or prejudice any such a,ction, suit, indictment, information, prosecution, or other proceeding commenced against or by or on behalf of such copartner- ship, but the same may be continued, prosecuted, and carried on in the name of any other of the public officers of such copartnership for the time being. X. And be it further enacted, That no person or persons, or body or bodies politic or corporate, having or claiming to have any demand upon or against any such corporation or copartnership, shall bring more than one action or suit, in case the merits shall have been tried in such action or suit, in respect of such demand ; and the proceedings in any action or suit, by or against any one of the public officers nominated as aforesaid for the time being of any such copartnership, may be pleaded in bar of any other action or actions, suit or suits, for the • same demand, by or against any other of the public officers of such copartnership. XI. And be it further enacted. That all and every decree or decrees, order or orders, made or pronounced in any suit or proceeding in any court of equity against any public officer of any such copartnership carrying on business under the provisions of this act, shall have the like effect and opera- tion upon and against the property and funds of such copartnership, and upon and against the persons and property of every or any member or mem- bers thereof, as if every or any such members of such copartnership were parties, members before the court to and in any such suit or proceeding ; and that it shall and may be lawful for any court in which such order or decree shall have been made to cause such order and decree to be enforced against every or any member of such copartnership, in like manner as if every member of such copartnership were parties before such court to and APPENDIX. 571 in such suit or proceeding, and although all such members are not before the court. XII. And be it further enacted, That all and every judgment or judg- ments, decree or decrees, which shall at any time after the passing of this act be had or recovered or entered up as aforesaid, in any action, suit, or proceedings in law or equity, against any public officer of any such copartner- ship, shall have the like effect and operation upon and against the property of such copartnership, and upon and against the property of every such member thereof as aforesaid, as if such judgment or judgments had been recovered or obtained against such copartnership ; and that the bankruptcy, insolvency, or stopping payment of any such public officer for the time being of such copartnership in his individual character or capacity, shall not be nor be construed to be the bankruptcy, insolvency, or stopping payment of such copartnership ; *and that such copartnership and every member ^^ . ^ „-. thereof, and the capital stock and eiFects of such copartnership, and *- -' the effects of every member of such copartnership, shall in all cases, not- withstanding the bankruptcy, insolvency, or stopping payment of any such public officer, be attached and attachable, and be in all respects liable to the lawful claims and demands of the creditor and creditors, of such copartner- ship, or of any member or members thereof, as if no such bankruptcy, in- solvency, or stopping payment of such public officer of such copartnership had happened or taken place. XIII. And be it further enacted. That execution upon any judgment in any action obtained against any public officer for the time being of any such corporation or copartnership carrying on the business of banking under the provisions of this act, whether as plaintiff or ■ defendant, may be issued against any member or members for the time being of such corporation or copartnership ; and that in case any such execution against any member or members for the time being of any such corporation or copartnership shall be ineffectual for obtaining payment or satisfaction of the amount of such judgment, it shall be lawful for tiie party or parties so having obtained judg- ment against such public officer for the time being to issue execution against any person or persons who was or were a member or members of such corpo- ration or copartnership at the time when the contract or contracts, or engage- ment or engagements in which such judgment may have been obtained was or were entered into, or became a member at any time before such contracts or engagements were executed, or was a member at the time of the judgment obtained : Provided always, that no such execution as last mentioned shall be issued without leave first granted, on motion in open Court, by the Court in which such judgment shall have been obtained, and when motion shall be made on notice to the person or persons sought to be charged, nor after the expiration of three years next after any such person or persons shall have ceased to be a member or members of feuoh corporation or copartnership. 572 BYLES ON BILLS OF EXCHANGE. XIV. Provided always, and be it further enacted, That every such public officer in whose name any such suit or action shall have been commenced, prosecuted, or defended, and every person or persons against whom execu- tion upon any judgment obtained or entered up as aforesaid in any such action shall be issued as aforesaid, shall always be reimbursed and fully in- demnified for all loss, damages, costs, and charges, without deduction, which any such officer or person may have incurred by reason of such execution, out of the funds of such copartnership, or, in failure thereof,^by contribution from the other members of such copartnership, as in the ordinary cases of copartnership. XV. And to prevent any doubts that might arise whether the said go- vernor and company, under and by virtue of their charter, and the several acts of Parliament which have been made and passed in relation to the afiairs of the said governor and company, can lawfully carry on the trade or r*Ai fin lousiness of banking, otherwise *than under the immediate order, '- J management, and direction of the court, of directors of the said governor and company ; be it therefore enacted. That it shall and may be lawful for the said governor and company to authorize and empower any committee or committees, agent or agents, to carry on the trade and business of banking, for and on behalf of the sajd governor and company, at any place or places in that part of the, United Kingdom called England, and for that purpose to invest such committees, agent or agent, with such powers of management and superintendence, and such authority to appoiiit cashiers and other officers and servants, as may be necessary or convenient for carry- ing on such trade and business as aforesaid ; and for the same purpose to issue to such committee or committees, agent or agents, cashier or cashiers, or other officer or officers, servant or servants, cash, bills of exchange, bank post bills, bank notes, promissory notes, and other securities for payment of money : Provided always, that all such acts of the said governor and com- pany shall be done and exercised in such manner as may be appointed by any by-laws, constitutions, orders, rules, and directions from time to time hereafter to be made by the general court of the said governor and company in that behalf, such by-laws not being repugnant to the laws of that part of the United Kingdom called England ; and in all cases where such by-laws, constitutions, orders, rules, or directions of the said general court shall be wanting, in such manner as the governor, deputy-governor, and directors, or the major part of them assembled, whereof the said governor or deputy- governor is always to be one, shall or may direct, such directions not being repugnant to the laws of that part of the United Kingdom called England ; anything in the said charter or acts of Parliament, or other law, usage, matter, or thing to the contrary thereof notwithstanding : Provided always, that in any place where the trade and business of banking shall be carried on for and on behalf of the said governor and company of the Bank of England, any promissory note issued on their account in such place shall be made pay- able in coin in such place as well as in London. APPENDIX. 573 XVI. And be it further enacted, That if any corporation or copartnership carrying on the trade or business of bankers under the authority of this act, shall be desirous of issuing and reissuing notes in the nature of bank notes, payable to the bearer on demand, without the same being stamped as by law is required, it shall be lawful for them so to do on giving security by bond to his Majesty, his heirs and successors, in which bond two of the directors, members, or partners of such corporation or copartnership shall be the obligors, together with the cashier or cashiers, or accountant or accountants, employed by such corporation or copartnership, as the said commissioners of stamps shall require ; and such bonds shall be taken in such reasonable sums as the duties may amount unto during the period of one year, with condition to deliver to the said commissioners of stamps, within fourteen days after the fifth day of January, the fifth day of April, the fifth day of July, and the tenth day of October in every year, whilst the present stamp duties shall remain in force, a just and true account, verified upon the oaths or aflirma- tions of two directors, memberi^, or partners of such *corporation or ri^iQ-i copartnership, and of the said cashier or cashiers, accountant or ac- '- J countants, or such of them as the said commissioners of stamps shall require, such oaths or affirmations to be taken before any justice of the peace, and which oaths or affirmations any justice of the peace is hereby authorized and empowered to administer, of the amount or value of all their promissory notes iti circulation on some given day in every week, for the space of one quarter of a year prior to the quarter day immediately preceding the delivery of such account, together with the average amount or value thereof according to such account ; and also to pay or cause to be paid into the hands of the receivers- general of stamp duties in Great Britain, as a composition for the duties which would otherwise have been payable for such promissory notes issued within the space of one year, the sum of seven shillings for every one hun- dred pounds, and also for the fractional part of one hundred pounds of the said average amount or value of such notes in circulation, according to the true intent and meaning of this act ; and on due performance thereof, such bond shall be void ; and it shall be lawful for the said commissioners to fix the time or times of making such payment, and to specify the same in the condition to every such bond ; and every such bond may be required to be renewed from time to time, at the discretion of the said commissioners or the major part of them, and as often as the same shall be forfeited, or the party or parties to the same, or any of them, shall die, become bankrupt or in- solvent, or reside in parts beyond the seas. XVII. Provided always, and be it further enacted. That no such corpo- ration or copartnership shall be obliged to take out more than four licenses for the issuing of any promissory notes for money payable to the bearer on demand, allowed by law to be reissued in all for any number of towns or places in England ; and in case any such corporation or copartnership shall issue such promissory notes as aforesaid, by themselves or their agents, at more than four difierent towns or places in England, then after taking out 574 BYLES ON BILLS OF EXCHANGE. three distinct licenses for three of sueh towns or places, such corporation or copartnership shall be entitled to have all the rest of such towns or places in- cluded in the fourth license. XVIII. And be it further enacted, That if any such corporation or co- partnership exceeding the number of six persons in England shall begin to issue any bills or notes, or to borrow, owe, or take up any money on their bills or notes, without having caused such account or return as aforesaid to be made out and delivered in the manner and form directed by this act, or shall neglect or omit to cause such account or return to be renewed yearly and every year, between the days or times hereinbefore appointed for that purpose, such corporation or copartnership so offending shall for each arid every week they shall so neglect to make such account and return, forfeit the sum . of five hundred pounds ; and if any secretary or other officer of such corpora- tion or copartnership shall make out or sign any false account or return, or any account or return which shall not truly set forth all the several particulars r*49m ^^ ^^^^ ^'^^ required to be contained or inserted in such account or '- "^ -■ return, the ^corporation or copartnership to which such secretary or other officer so offending shall belong, shall for every such offence forfeit the sum of five hundred pounds, and the said secretary or other officer so offending shall also for every such offence forfeit the sum of one hundred pounds ; and if any such secretary or other officer making out or signing any such account or return as aforesaid shall knowingly and wilfully make a false oath of, for, or concerning any of the matters to be therein specified and set forth, every such secretary or other officer so offending, and being thereof lawfully convicted, shall be subject and liable to such pains and penalties as by any law now in force persons convicted of wilful and corrupt perjury are subjected and liable to. XIX. And be it further enacted. That if any such corporation or copart- nership exceeding the number of six persons, so carrying on the trade or business of bankers as aforesaid, shall, either by any member of or person belonging to any such corporation or copartnership, or by any agent or agents, or any other person or persons on behalf of any such corporation or copart- nership, issue or reissue in London, or at any place or places not exceeding the distance of sixty-five miles from London, any bill or note of such corpo- ration or copartnership which shall be payable on demand ; or shall draw upon any partner or agent, or other person or persons who may be resident in London, or at any place or places not exceeding the distance of sixty-five miles from London, any bill of exchange which shall be payable on demand, or which shall be for a less amount than fifty pounds ; or if any such cor- poration or copartnership exceeding the number of six persons, so carrying on the trade or business of bankers in England as aforesaid, or any member, agent, or agents of any such corporation or copartnership, shall borrow, owe, or take up in London, or at any place or places not exceeding the distance of sixty-five miles from London, any sum or sums of money on any bill or APPENDIX. 575 promissory note of any such corporation or eopartnersliip payable on demand, or at any less time than six months from the borrowing thereof, or shall make or issue any bill or bills of exchange or promissory note or notes of such corporation or copartnership contrary to the provisions of the said re- cited act of the thirty-ninth and fortieth years of King George the Third, save as provided by this act, such corporation or copartnership so offending, or on whose account and behalf any such offence as aforesaid shall be com- mitted, shall for every such offence forfeit the sum of fifty pounds. XX. Provided also, and be it further enacted, That nothing in this act contained shall extend or be construed to extend to prejudice, alter, or affect any of the rights, powers, or privileges of the said governor and company of the Bank of England ; except as the said exclusive privilege of the said governor and company is by this act specially altered and varied. XXI. And be it further enacted. That all pecuniary penalties and for- feitures imposed by this act shall and may be sued for and recovered in his Majesty's Court of Exchequer at Westminster, in the same manner as pen- alties incurred under any act or acts *relating to stamp duties ^^J nAn-i-i be sued for and recovered in such Court. '- -" XXII. And be it further enacted, That this act maybe altered, amended, or repealed by any act or acts to be passed in this present session of Par- liament. Schedules referred to by this Act. SCHEDULE (A.) Return or account to be entered at the stamp office in London, in pur- suance of an act passed in the seventh year of the reign of King George the Fourth, intituled [here insert the title of this act], viz. Firm or name of the banking corporation or copartnership, viz. [set forth the firm or name.l Names and places of abode of all the partners concerned or engaged in such corporation or copartnership, viz. [set forth all the names and places of abode.^ Names and places of the bank or banks established by such corporation or copartnership, viz. [set forth all the names and places.'] Names and descriptions of the public officers of the said banking corporation or copartnership, viz. [set forth all the names and descriptions.] Names of the several towns and places where the bills or notes of the said banking corporation or copartnership are to be issued by the said corpora^ tion or copartnership, or their agent or agents, viz. [set forth the names of all the towns and places.] 576 BYLES ON BILLS OF EXCHANGE. A. B., af secretary [or other officer, descrihing tlie office] of the above corporation or copartnership, maketh oath and saith, that the above doth contain the name, style, and firm of the above corporation or copartnership, and the names and places of abode of the several members thereof, and of the banks established by the said corpora- tion or copartnership, and the names, titles and descriptions , of the public officers of the said corporation or copartnership, and the names of the towns and places where the notes of the said corporation or copartnership, are to be issued, as the same respectively appear in the books of the said corporation or copartnership, and to the best of the information, knowledge, and belief of this deponent. Sworn before me, the day of at in the county of C. D. Justice of the peace in and for the said county. [*422] *SCHEDULE (B.) Return or account to be entered at the stamp office in London, on behalf of [name of the corporation or copartnership] in pursuance of an act passed in the seventh year of the reign of King George the Fourth, intituled [insert the title of this act] viz. Name of any and every new or additional public officer of the said corpora- tion or copartnership : viz. A. B. in the room of C. D. deceased or removed [as the case may he] [set forth every name]. Name of any and every person who may have ceased to be a member of such corporation or copartnership; vi^. [set forth every name.] Name of any and every person who may have become a new member of such corporation or copartnership, [set forth every name.] Names of any additional towns or places' /ssfhere bills or notes are to be issued and where the same are to be made pa,yable. A. B. of secretary [or other officer] of the ab.ove-named corpora- tion or copartnership, maketh oath |nd saith that the above doth con- tain the name and place of abode of any and every person who hath become or been appointed a public officer of the above corporation or copartnership, and also the name and place of abode of any and every person who hath ceased to be a member of the said corporation or co- partnership, and of any and every person who hath become a member of the said copartnership since the registry of the said corporation or copartnership on the day of last, as the same respec- tively appear on the books of the said corporation or copartnership, and to the bes\ of the information, knowledge, and belief of the deponent. APPENDIX. ^ 577 Sworn before me the day of at in the county of C. D. Justice of the peace in and for the said county. [7 & 8 Geo. 4, c. 15.] An Act for declaring the Law in relation to Bills of Exchange and Promis- sory Notes becoming payable on Good Friday or Christmas Day. [12th April, 1827.] " Whereas an act was passed in the thirty-ninth and fortieth years of the reign of his late Majesty King Greorge the Third, intituled, 'An 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 same should, from and after the first *day of June then next ensuing, be payable on the daypj,. „„-, before Good Friday; and that the holder or holders of such bills of*- -^ exchange or promissory notes might note and protest the same for non-pay- ment on the day preceding Good Friday, in like manner as if the same had fallen due and become payable on the day preceding Good Friday ; and that such noting and protest should have the same effect and operation at law as if such bills or promissory notes had fallen due 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 birth- day of our Lord, commonly called Christmas Day ; and whereas, notwith- standing the said recited act, and notwithstanding the general custom of merchants, doubts have arisen whether notice of the dishonor of bills of ex- change and promissory notes not falling due on any Good Friday, or on any Christmas 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 dishonor 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, That from and immediately after the tenth day of April, one thousand eight hundred and twenty-seven, in all cases where bills of exchange or pro- missory notes shall be payable, either under or by virtue of the said recited act, or otherwise, on the day preceding any Good Friday, or on the day pre- ceding 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 dishonor thereof until the day next after such Good Friday or Christmas Day ; and 37 578 BYLBS ON BILLS OF EXCHANGE. i that whenever Christmas Day shall fall on 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 dishonor thereof until the Tuesday next after such Christmas Day ; and that every such notice given as aforesaid, shall be valid and effectual to all intents and purposes. II. And whereas similar doubts have existed with respect to bills of ex- change and promissory notes falling due upon days appointed by his Majesty's proclamation for solemn fasts, or days of thanksgiving, 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 non- r^Ai)A-i payment, *may be noted and protested on such preceding day; and '- -I that, as well in such cases as in the 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 dishonor thereof until the day next after such day of fast or day of thanks- giving ; and that, whensoever such day of fast or day of thanksgiving shall be appointed 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 pre- ceding Saturday, to give notice of the dishonor thereof until the Tuesday next after such day of fast or day 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 of April) one thousand eight hundred and twenty-seven, Good Friday 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. IV. 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. APPENDIX. 679 [7 & 8 Geo. 4, c. 29.] An Act for consolidating and amending the Laws in England relative to Larceny and other Offences connected therewith. [21st June, 1827.] V. And be it enacted, That if any person shall steal any tally, order, or other security whatsoever, entitling or evidencing the title of any person or body corporate to any share or interest in any public stock or fund, whether of this kingdom, or of Great Britain, or of Ireland, or of any foreign state, or in any fund of any body corporate, company or society, or to any deposit in any savings bank, or shall steal any debenture, deed, bond, bill, note, war- rant, order, or other security whatsoever, for money or for payment of money, whether of this kingdom, or of any foreign state, or shall steal any warrant or order for the delivery or transfer of any goods or valuable thing, every such offender shall be deemed guilty of felony, of the same nature and in the same degree, and punishable in the same manner, as if he had stolen any chattel of like value with the share, interest, or deposit, to which the security so stolen may relate, or with the money due on the security so stolen, or se- cured thereby and remaining unsatisfied, or with the value of the goods or other valuable things mentioned in the warrant or order ; and each of the several documents ^hereinbefore enumerated shall, throughout this r^jfAcyr-i act, be deemed for every purpose to be included under, and denoted ^ ' -^ by, the words " valuable security." XLIX. And, for the punishment of embezzlements committed by agents intrusted with property, be it enacted, That if any money, or security for the payment of money, shall be intrusted to any banker, merchant, broker, attorney, or other agent, with any direction in writing to apply such money, or any part thereof, or the proceeds or any part of the proceeds of such se- curity, for any purpose specified in such direction, and he shall, in violation of good faith, and contrary to the purpose so specified, in anywise convert to his own use or benefit such' money, security, or proceeds, or any part thereof respectively, every such oiFender shall be guilty of a misdemeanor, and, being . convicted thereof, shall be liable, at the discretion of the Court, to be trans- ported beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to suffer such other punishment by fine or imprisonment, or by both, as the Court shall award ; and if any chattel, or valuable security, or any power of attorney for the sale or transfer of any share or interest in any public stock or fund, whether of this kingdom, or of Great Britain, or of Ireland, or in any foreign state, or in any fund of any body corporate, company or society, shall be intrusted to any banker, merchant, broker, at- torney or other agent, for safe custody, or for any special purpose, without any authority to sell, negotiate, transfer, or pledge, and he shall, in violation of good faith, and contrary to the object or purpose for which such chattel, security, or power of attorney, shall have been intrusted to him, sell, nego- tiate, transfer, pledge, or in any manner convert to his own use or benefit 580 BTLES ON BILLS OF EXCHANGE. such chattel or security, or the proceeds of the same, or any part thereof, or the share or interest in the stock or fiind to which such power of attorney shall relate, or any part thereof, every such offender shall be guilty of a mis- demeanor, and, being convicted thereof, shall be liable, at the discretion of the Court, to any of the punishments which the Court may award, as herein- before last mentioned. L. Provided always, and be it enacted, That nothing hereinbefore con- tained relating to agents shall affect any trustee in or under any instrument whatever, or any mortgagee of any property, real or personal, in respect of any act done by such trustee or mortgagee, in relation to the property com- prised in or affected by any such trust or mortgage ; nor shall restrain any banker, merchant, broker, attorney, or other agent, from receiving any money which shall be or become actually due and payable upon or by virtue of any valuable security, according to the tenor and effect thereof, in such manner as he might have done if this act had not been passed ; nor from selling, transferring, or otherwise disposing of any securities or effects in his posses- sion, upon which he shall have any lien, claim, or demand, entitling him by law so to do, unless such sale, transfer, or other disposal, shall extend to a greater number or part of such securities or effects than shall be requisite for satisfying such lien, claim, or demand. [*426] *[9 Geo. 4, c. 14.] An Act for rendering a written Memorandum necessary to the Validity of certain Promises and Engagements. , [9th May, 1828.] " Whereas, by an act passed in England, in the twenty-first year 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 merchant 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 after the end of the then present session of Parliament, or within six years next after the cause of such actions or suits, and not after : and whereas a similar enactment was 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 pur- pose of taking cases out of the operation of the said enactments ; and it is expedient to prevent such questions, and to make provisions for giving effect to the said enactments ; and to the intention thereof :" be it therefore en- acted, by the king's most excellent Majesty, by and with the advice and consent of the lArds spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, That, in actions of appen'dix. 581 debt or upon the case, grounded upon any simple contract, no acknowledg- ment or promise ly words only shall be deemed sufficient evidence of a new or continuing contract, 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 vyriting, to he signed hy the party chargeable thereby ; and that, where there shall be two or more joint contractors, or executors, or adminis- trators of any contractor, no such joint contractor, or executor, or adminis- trator, shall lose the benefit of the said enactments or either of them, so as to be chargeable in respect or by reason only of any written achnowledgment 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 : pro- vided also, that, in actions to be commenced against two or more such joint contractors, or executors, or administrators, if it shall appear, at the trial or otherwise, that the plaintiff, though barred by either of the said recited acts or this act, as to one or more such joint contractors, or executors, or administra- tors, shall nevertheless be entitled to recover against any 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 defen- dant or defendants against whom he shall recover, or for the other defendant or defendants, against the plaintiff. *ni. And be it further enacted. That no indorsement or memo- r^iiAnrj-i randum of any payment, written or made after the time appointed ■- -' for this act to take effect, upon every promissory 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 the cause out of the operation of either of the said statutes. IV. And be it 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 con- tract, alleged by way of set-off on the part of any defendant, either by plea, notice, or otherwise. V. 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 pro- mise or simple contract made during infancy, unless such promise or ratifica- tion shall be made by some writing signed by the party to be charged therewith. VIII. And it be further enacted. That no memorandum 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. 582 BTLES ON BILLS OF EXCHANGE, [9 Geo. 4, c. 15.] An Act to prevent a Failure of Justice hi/ Reason of Variance between Records and Writings produced in Evidence in support thereof. [9t]i May, 1828.] " Whereas great expense is often incurred, and delay or failure of justice takes place, at trials, by reason of variances between writings produced in evidence and the recital or setting forth thereof upon the record on which the trial is had, in matters not material to the merits of the case, and such record cannot now in any case be amended at the trial, and in some cases cannot be amended at any time ;" 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 commons, in this present Parliament assembled, and by the authority of the same. That it shall and may be law- ful for every Court of record holding plea in civil actions, and judge sitting at nisi prius, and any Court of oyer and terminer and general jail-delivery in England, Wales, the town of Berwick-upon-Tweed, and Ireland, if such Court or judge shall see fit so to do, to cause the record on which any trial may be pending before any such judge or Court in any civil action, or in any indictment or information for any misdemeanor, when any variance shall r*A9Sn ^PP®^"^ between any matter in writing or in print ^produced in evi- '- -' dence, and the recital or setting forth thereof upon the record whereon the trial is pending, to be forthwith amended in such particular by some officer of the Court, on payment of such costs (if any) to the other party, as such judge or Court shall think reasonable; and thereupon the trial shall proceed as if no such variance had appeared ; and in case such trial shall be had at nisi prius, the order for the amendment shall be indorsed on the postea, and returned together with the record ; and thereupon the papers, rolls, and other records of the Court from which such record issued, shall be amended accordingly. [9 Geo. 4, c. 23.] An Act to enable Bankers in England to issue certain unstamped Promis- sory notes and Bills of Exchange, upon Payment of a Composition in Lieu of the Stamp Duties thereon. [9th June, 1828.] " Whereas it is expedient to permit all persons carrying on the business of bankers in England (except within the city of London, or within- three miles thereof), to issue theJr promissory notes, payable to bearer on demand, or to order, within a limited period after sight, and to draw bills of exchange payable to order on demand, or within a limited period after sight or date, on unstamped paper, on payment of a composition in lieu of the stamp duties APPENDIX. 583 whicli would otlierwise be payable upon such notes and bills respectively, and subject to the regulations hereinafter mentioned :" be it therefore en- acted, 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 July, one thousand eight hundred and twenty-eight, it shall be lawful for any person or persons carrying on the business of a banker or bankers in England {except within the city of London, or within three miles thereof^, having first duly obtained a license for that purpose, and given security by bond in manner hereinafter mentioned, to issue, on unstamped paper, promissory notes for any sum of money amounting to five pounds and upwards, expressed to be payable to the bearer on demand, or to order, at any period not exceeding seven days after sight ; and also to draw and issue, on unstamped paper, bills of exchange, expressed to be payable to order on demand, or at any period not exceeding seven days after sight, or twenty-one days after the date thereof, provided such bills of exchange be drawn upon a person or persons carrying on the business of a banker or bankers, in London, Westminster, or the borough of South wark, or provided such bills of exchange be drawn by any banker or bankers, at a town or place where he or they shall be duly licensed to issue unstamped notes and bills, under tie authority of this act, upon himself or themselves, or his or their *copartner or copartners, payable at any other town or place p^^oQ-i where such banker or bankers shall also be duly licensed to issue ^ ^ such notes and bills as aforesaid. XII. And be it further enacted. That if any person or persons, who shall be licensed under the provisions of this act, shall draw or issue, or cause to be drawn or issued, upon unstamped paper, any promissory note payable to order, or any bill of exchange, which shall bear date subsequent to the day on which it shall be issued, the person or persons so offending, shall, for every such note or bill so drawn or issued, forfeit the sum of one hundred pounds. [9 Geo. 4, c. 49, s. 15.] An Act to amend the Laws in Force relating to the Stamp Duties on Sea Insurances, on articles of Clerhship, on Certificates of Writers to the Sig- net, and of Conveyancers and others, on Licenses to Dealers in Gold and Silver Plate and Pawnbrokers, on Drafts on Bankers, and on Licenses for Stage Coaches in Great Britain, and on Receipts in Ireland. [15th July, 1828.] XV. And be it further enacted. That, from and after the passing of this act, all drafts or orders for the payment of any sum of money to the bearer on demand, and drawn in any part of Great Britain upon any banker or 584 BTLES ON BILLS OF EXCHANGE. bankers, or any person or persons acting as a banker, who shall reside or transact the business of a banker within fifteen miles of the place where such drafts or orders shall be issued, shall be, and the same are hereby exempted from any stamp duty imposed by any act or acts in force immediately before the passing of this act, anything in any such act or acts to the contrary not- withstanding ; provided the place where such drafts or orders shall be issued shall be specified therein, and provided the same shall bear date on or before the day on which the same shall be issued, and provided the same do not direct the payment to be made by bills or .promissory notes. [*430] *[9 Geo. 4, c. 65.] An Act to restrain the Negotiation in England of Promissory Notes and Bills under a limited Sum, issued in Scotland or Ireland. [15 July, 1828.] " Whereas an act was passed in the seventh year of his present Majesty's reign, intituled, ' An Act to limit, and after a certain period to prohibit, the issuing of Promissory Notes, under a limited Sum, in England' and doubts may arise how far the provisions of the said act may be effectual to restrain the circulating, in England, of certain notes, drafts, or undertakings, made or issued in Scotland or Ireland ;" 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 if any body politic or corporate, or person or persons, shall, after the fifth day of April, one thousand eight hundred and twenty-nine, by any art, device or means whatsoever, publish, utter, nego- tiate, or transfer in any part of England, any promissory or other note, draft, engagement, or undertaking in writing, made payable on demand to the bearer thereof, and being negotiable or transferable, for the payment of any sum of money less than five pounds, or on which less than the sum of five pounds shall remain undischarged, which shall have been made or issued, or shall purport to have been made or issued, in Scotland or Ireland, or else- where out of England, wheresoever the same shall or may be payable, every such body politic or corporate, or person or persons, so publishing, uttering, negotiating, or transferring, any such note, bill, draft, engagement or under- taking, in any part of England, shall forfeit and pay for every such offence any sum not exceeding twenty pounds, nor less than five pounds, at the dis- cretion of the justiqe of the peace who shall hear and determine such offence. [11 Geo. 4 and 1 Wm. 4, c. 66.] An Act for reducing into One Act all such Forgeries as shall henceforth he •punished with Death, and for otherwise amending the Laws relating to Forgery. [22d July, 1830.] III. And be it enacted. That if any person shall forge or alter, or shall APPENDIX. 585 offer, utter, dispose of, or put off, knowing the same to be forged or altered, any exchequer bill or exchequer debenture, or any indorsement on or assign- ment of any exchequer bill or exchequer debenture, or any bond under the common seal of the united company of merchants of England trading to the East Indies, commonly called an East India bond, or any indorsement on, or assignment of any East India bond, or any note or bill of exchange of the governor and company of the Bani of England, commonly *called a r^^o-i-i bank note, a bank bill of exchange, or a bank post-bill, or any in- ■- -^ dorsement on, or assignment of, any bank note, bank bill of exchange, or bank post-bill, or any will, testament, codicil, or testamentaiy writing, or any bill of exchange or any promissory note for the payment of money, or any indorsement on or assignment of any bill of exchange or promissory note for the payment of money, or any acceptance of any bill of exchange, or any undertaking, warrant, or order for the payment of money, with intent, in any of the cases aforesaid, to defraud any person whatsoever, every such offender shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon. IV. And be it declared and enacted, That where by any act now in force any person is made liable to the punishment of death for forging or alter- ing, or for offering, uttering, disposing of, or putting off, knowing the same to be forged or altered, any instrument or writing designated in such act by any special name or description, and such instrument or writing, however designated, is in law a will, testament, codicil or testamentary writing, or a bill of exchange or promissory note for the payment of money, or an indorse- ment on or an assignment of a bill of exchange or promissory note for the payment of money, or an acceptance of a bill of exchange, or an undertaking, warrant or order for the payment of money, within the true intent and meaning of this act, in every such case the person forging or altering such instrument or writing, or offering or uttering, disposing of, or putting off such instrument or writing, knowing the same to be forged or altered, may be in- dieted as an offender against this act, and punished with death accordingly. V. And be it enacted. That if any person shall wilfully make any false entry in, or wilfully alter any word or figure in, any of the books of account kept by the governor and company of the Bank of England, or by the governor and company of merchants of Great Britain trading to the South Seas and other parts of America, and for encouraging the fishery, commonly called the South Sea Company, in which books the accounts of the owners of any stock annuities, or other public funds which now are or hereafter may be transferable at the Bank of England or at the South Sea House shall be entered and kept, or shall in any manner wilfully falsify the accounts of such owners in any of the said books, with intent in any of the cases aforesaid to defraud any person whatsoever; or if any person shall wilfully make any transfer of any share or interest of or in any stock, annuity, or other public fund which now is or hereafter may be transferable at the Bank of England 586 BTLBS ON BILLS OF EXCHANGE. or at the South Sea House, in the name of any person not being the true and lawful owner of such share or interest, with intent to defraud any person whatsoever ; every such offender shall be guilty of felony, and, being con- victed thereof, shall suffer death as a felon. XIII. And be it enacted, That if any person shall, without the authority of the governor and company of the Bank of England, to be proved by the party r*4Q9"i accused, make or use, or shall, without *lawful excuse, to be proved L -"by the party accused, knowingly have in his custody or possession, any frame, mould, or instrument for the making of paper with the words "Bank of England" visible in the substance of the paper, or for the making of paper with curved or waving bar lines, or with the laying wire lines thereof in a waving or curved shape, or with any number, sum, or amount, expressed in a word or words in roman letters, visible in the substance of the paper ; or if any person shall, without such authority to be proved as aforesaid, manufacture, use, sell, expose to sale, utter, or dispose of, or shall, without lawful excuse, to be proved as aforesaid, knowingly have in his possession any paper whatsoever with the words " Bank of England" visible in the substance of the paper, or any paper with curved or waving bar lines, or with the laying wire lines thereof in a waving or curved shape, or with any num- ber, sum, or amount, expressed in a word or words in roman letters, appear- ing visible in the substance of the paper ; or if any person, without such authority, to be proved as aforesaid, shall, by any art or contrivance, cause the words " Bank of England" to appear visible in the substance of any paper, or cause the numerical sum or amount of any bank note, bank bill of exchange, or bank post-bill, blank bank note, blank bank bill of exchange or blank bank post-bill, in a word or words in roman letters, to appear visible in the substance of the paper, whereon the same shall be written or printed ; every such offender shall be guilty of felony, and, being convicted thereof, shall be transported beyond the seas for the term of fourteen years. XIV. Provided always, and be it enacted, That nothing herein contained shall prevent any person from issuing any bill of exchange or promissory note having the amount thereof expresed in guineas, or in numerical figure' or figures denoting the amount thereof in pounds sterling, appearing visible in the substance of the paper upon which the same shall be written or printed, nor shall prevent any person from making, using, or selling any paper having waving or curved lines, or any other devices in the nature of watermarks, visible in the substance of the paper, not being bar lines or laying wire lines, provided, the same are not so contrived as to form the groundwork or texture of the paper, or to resemble the waving or curved laying wire lines or bar lines or watermarks of the paper used by the governor and company of the Bank of England. XY. And be it enacted, That if any person shall engrave or in anywise make upon any plate whatever, or upon any wood, stone, or other material, any promissory note or bill of exchange, or blank promissory note or blank APPENDIX. 687 bin of exchange, or part of a promissory note or bill of exchange, purporting to be a bank note, bank bill of exchange, or bank post-bill, or blank bank note, blank bank bill of exchange, or blank bank post-bill, or part of a bank note, bank bill of exchange, or bank post-bill, without the authority of the governor and company of the Bank of England, to be proved by the party accused ; or if any person shall use such plate, wood, stone, or other material, or any other instrument or device, for the making or printing any bank note, bank bill of exchange, or bank post-bill, or blank bank note, blank bank bill of exchange, or blank bank post-bill, or part of a bank note, bank bill of ex- change, or bank post-bill, without such authority, to be proved as aforesaid j or if any person shall, without lawful excuse, the proof whereof shall lie on the party accused, knowingly have in his custody or possession any such plate, wood, stone, or other material, or any such instrument or device; or if any person shall, without such authority, to be proved as aforesaid, knowingly offer, utter, dispose of, or put off any paper upon which any blank bank note, blank bank bill of exchange, or blank'bank *post-bill, or r^^oon part of a bank note, bank bill of exchange, or bank post-bill, shall '- -■ be made or printed ; or if any person shall, without lawful excuse, to be proved as aforesaid, knowingly have in his custody or possession any such paper ; every such offender shall be guilty of felony, and, being convicted thereof, shall be transported beyond the seas for the term of fourteen years. XVI. And be it enacted. That if any person shall engrave or in anywise make upon any plate whatever, or upon any wood, stone, or other material, any word, number, figure, character, or ornament, the impression taken from which shall resemble, or apparently be intended to resemble, any part of a bank note, bank bill of exchange, or. bank post-bill, without the authority of the governor and company of the Bank of England, to be proved by the party accused ; or if any person shall use any such plate, wood, stone, or other material, or any other instrument or device, for the making upon any paper or, other material the impression of any word, number, figure, cha- racter, or ornament which shall resemble, or apparently be intended to re- semble any part of a bank note, bank bill of exchange, or bank post-bill, with- out such authority, to be proved as aforesaid ; or if any person shall, without lawful excuse, the proof whereof shall lie on the party accused, knowingly have in his custody or possessioe any such plate, wood, stone, or other ma- terial, or any such instrument or device ; or if any person shall, without such authority, to be proved as aforesaid, knowingly offer, utter, dispose of, or put off any paper or other material upon which there shall be an impression of any such matter aforesaid ; or if any person shall, without lawful excuse, to be proved as aforesaid, knowingly have in his custody or possession any paper or other material upon which there shall be an impression of any such matter as aforesaid ; every such offender shall be guilty of felony, and, being convicted thereof, shall be transported beyond the seas for the term of four- teen years. 588 BTLBS ON BILLS OF EXCHANGE. XVII. And be it enacted, That if any person stall make or use any frame, mould, or instrument for the manufacture of paper with the name or firm of any person or persons, body corporate, or company carrying on the business of bankers (other than and except the Bank of England), appearing visible in the substance of the paper, without the authority of such person ot per- sons, body corporate, or company, the proof of which authority shall lie on the party acctised ; or if any person shall, without lawful excuse, the proof whereof shall lie on the party accused, knowingly have in his custody or possession any such frame, mould, or instrument ; or if any person shall, r^A^Al ^i*^ou* such authority, to be proved as *aforesaid, manufacture, use, '- -' sell, expose to sale, utter, or dispose of, or shall, without lawful ex- cuse, ta be proved as aforesaid, knowingly have in his custody or possession, any paper in the substance of which the name or firm of any such person or persons, body corporate, or company carrying on the business of bankers, shall appear visible ; or if any person shall without such authority, to be proved as aforesaid, cause the name or firm of any such person or persons, body corporate or company carrying on the business of bankers to appear visible in the substance of the paper, upon which the same shall be written or printed ; every such offender shall be guilty of felony, and, being con- victed thereof, shall be liable, at the discretion of the Court, to be trans- ported beyond the seas for any term not exceeding fourteen years nor less than seven years, or to be imprisoned for any term not exceeding three years, nor less than one year. XVIII. And be it enacted. That if any person shall engrave or in any- wise make upon any plate whatever, or upon any wood, stone, or other ma- terial, any bill of exchange or promissory note for the payment of money, or any part of any bill of exchange or promissory note for the payment of money, purporting to be the bill or note, or part of the bill or note, of any person or persons, body corporate or company carrying on the business of bankers (other than and except the Bank of England)., without the authority of such person or persons, body corporate, or company, the proof of which authority shall lie on the party accused : or if any person shall engrave or make upon any plate whatever, or upon any wood, stone, or other material, any word or words resembling, or apparently intended to resemble, any subscription sub- joined to any bill of exchange or promissory note for the payment of money issued by any such person or persons, body corporate or company carrying on the business of bankers,, without such authority, to be proved as aforesaid; or if any person shall, without such authority, to be proved as aforesaid, use, or shall, without lawful excuse, to be proved by the party accused, know- ingly have in his custody or possession, any plate, wood, stone, or other material upon which any such bill or note, or part thereof, or any word or words resembling or apparently intended to resemble such subscription, shall be engraved or made ; or if any person shall, without such authority, to be proved as aforesaid, knowingly offer, utter, dispose of, or put off, or shall, without lawful excuse, to be proved as aforesaid, knowingly have in his cus- . [*435] APPENDIX. 589 tody or possession any paper upon which any part of such bill or note, or any word or words resembling, or apparently intended to resemble, any such subscription, shall be made or printed ; every such offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for any term not exceeding fourteen years nor less than seven years, or to be imprisoned for any term not exceed- ing three years nor less than pne year. XIX. And be it enacted, That if any person shall engrave or in anywise make upon any plate whatever, or upon any wood, stone, or other material, any bill of exchange, promissory note, ^undertaking, or order for . payment of money, or any part of any bill of exchange, promissory ' note, undertaking, or order for payment of money, in whatever language or languages the same may be expressed, and whether the same shall or shall not be or be intended to be under seal, purporting to be the bill, note, under- taking, or order, or part of the bill, note, undertaking, or order, of any foreign prince or state, or of any minister or officer in the service of any foreign prince or state, or of any body corporate, or body of the like nature, constituted or recognized by any foreign prince or state, or of any person or company of persons resident in any country, not under the dominion of his Majesty, without the authority of such foreign prince or state, ministefr or officer, body corporate, or body of the like nature, person or company of per- sons, the proof of which authority shall lie on the party accused ; or if any person shall, without such authority, to be proved as aforesaid, use, or shall, without lawful excuse, to be proved by the party accused, knowingly have in his custody or possession, any plate, stone, wood, or other material upon which any such foreign bill, note, undertaking, or order, or any part thereof, shall be engraved or made ; or if any person shall, without such authority, to be proved as aforesaid, knowingly utter, dispose of, or put off, or shall, without lawful excuse, to be proved as aforesaid, knowingly have in his cus- tody or possession, any paper upon which any part of such foreign bill, note, undertaking, or order shall be made or printed; every such offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the discre- tion of the Court, to be transported beyond the seas for any term not exceed- ing fourteen years nor less than seven years, or to be imprisoned for any term not exceeding three years nor less than one year. XXVIII. And be it declared and enacted. That where the having any matter in the custody or possession of any person is in this act expressed to be an offence, if any person shall have Etny such matter in his personal cus- tody or possession, or shall knowingly and wilfully have any such matter in any dwelling-house or other building, lodging, apartment, field, or other place, open or enclosed, whether belonging to or occupied by himself or not, and whether such matter shall be so had for his own use or for the use or benefit of another, every such person shall be deemed and taken to have such matter in his custody or possession within the meaning of this act ; 590 BYLBS ON BILLS OF EXCHANGE. and where the committing any offence with intent to defraud any person whatsoever is made punishable by this act, in every such case the word "person" shall throughout this act be deemed to include his Majesty or any foreign prince or state, or any body corporate, or any company or society of persons not incorporated, or any person or number of persons whatsoever who may be intended to be defrauded by such offence, whether such body corpo- rate, company, society, person or number of persons shall reside or carry on business in England or elsewhere, in any place or country, whether under the' dominion of his Majesty or not; and it shall be sufficient in any in- dictment to name one person only of such company, society, or number of r*4QRn persons, and to *allege the offence to have been committed with in- L J tent to defraud the person so named, and another or others, as the case may be. XXX. Provided always, and be it declared and enacted. That where the forging or altering any writing or matter whatsoever, or the offering, utter- ing, disposing of, or putting off any writing or matter whatsoever, knowing the same to be forged or altered, is in this act expressed to be an offence, if any person shalj, in that part of the United Kingdom called England, forge or alter, or offer, utter, dispose of, or put off, knowing the same to be forged or altered, any such writing or matter, in whatsoever place or country out of England, whether under the dominion of his Majesty or not, such writing or matter may purport to be made or may have been made, and in whatever language or languages the same or any part thereof may be expressed, every such person, and every person aiding, abetting, or counselling such person, shall be deemed to be an offender within the meaning of this act, and shall be punishable thereby in the same manner as if the writing or matter had pur- ported to be made or had been made in England ; and if any person shall in England forge or alter, or offer, utter, dispose of, or put off, knowing the same to be forged or altered, any bill of exchange or any promissory note for the payment of money, or any indorsement on, or assignment of any bill of exchange or promissory note for the payment of money, or any acceptance of any bill of exchange, or any undertaking, warrant or order for the payment of money, or any deed, bond or writing obligatory for the payment of money (whether such deed, bond, or writing obligatory shall be made only for the payment of money, or for the payment of money together with some other purpose), in whatever place or country out of England, whether under the dominion of his Majesty or not, the money payable or secured by such bill, note, underta:king, warrant, order, deed, bond, or writing obligatory may be or may purport to be payable, and in whatever language or languages the same respectively or any part thereof may be expressed, and whether such bill, note, undertaking, warrant, or order be or be not under seal, every such person, and every person aiding, abetting, or counselling such person, shall be deemed to be an offender within the meaning of this act, and shall be punishable thereby in the same manner as if the money had been payable or had purported to be payable in England. APPENDIX. 591 *[2 & 3 Wm. 4, c. 98.] [*437] An Act for regulating the Protesting for Non-payment of Bills of Exchange drawn payable at a place not being the Place of the residence of the Drawee or Drawees of the same. [9tli August, 1832.] " Whereas doubts having arisen as to the place in which it is requisite to protest for non-payment bills of exchange, which on the presentment for ac- ceptance to the drawee or drawees shall not have been accepted, such bills of exchange being made payable at a place olher than the plate mentioned therein to be the residence of the drawee or drawees thereof, and it is ex- pedient 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 thereof 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, protested for non-payment in the place in which such bills of exchange shall have been by the drawer or drawers expressed to be pay- able, 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 ex- change would have become payable, had the same been duly accepted. [3 & 4 Wm. 4, c. 42.] An Act for the further Amendment of the Law, and the letter Advancement of Justice. [14 th August, 1833.] , "Whereas it would greatly contribute to the diminishing of expense in suits in the superior Courts of common law at Westminster if the pleadings therein were in some respects altered, and the questions to be tried by the jury left less at large than they now are according to the course and practice of pleading in several forms of action ; but this cannot be conveniently done otherwise than by rules or orders of the judges of the said Courts from time to time to be made, and doubts may arise as to the power of the said judges to make such alterations without the authority of the Parliament ;" 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 the Judges of the said superior Courts, or any eight or more of them, of r*^3g-i whom the chiefs *of eaph of the said Courts shall be three, shall and •- may, by any rule or order to be from time to time by them made, in term or 592 BTLBS ON BILLS OF EXCHANGE. vacation, at any time within five years from the time when this act shall take effect, make such alterations in the mode of pleading in the said Courts, and in the mode of entering and transcribing pleadings, judgments, and other proceeding in actions at law, and such regulations as to the payment of costs, and otherwise for carrying into effect the said alterations, as to them may seem expedient ; and all such rules, orders, or regulations shall be laid before both houses of Parliament, if Parliament be then sitting, immediately upon the making of the same, or if Parliament be not sitting, then within five days after the next meeting thereof, and no such rule, order, or regula- tion, shall have effect until six weeks after the same shall have been so laid before both houses of Parliament ; and any rule or order so made shall, from and after such time aforesaid, be binding and obligatory on the said Courts, and all other Courts of common law, and on all Courts of error into which the judgments of the said Courts, or any of them, shall be carried by any writ of error, and be of the like force and effect as if the provisions contained therein had been expressly enacted by Parliament : provided always, that no such rule or order shall have the effect of depriving any person of the power of pleading the general issue, and giving the special matter in evidence, in any case wherein he is now or hereafter shall be entitled to do so by virtue of any act of Parliament now or hereafter to be in force. 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. XIII. And be it further enacted, That no wager of law shall be hereafter allowed. XIV. And be it further enacted, that an action of debt on simple con- tract shall be maintainable in any Court of common law against any executor or administrator. XV. " And whereas it is expedient to lessen the expense of the proof of written or printed documents, or copies thereof, on the trial of causes ;" be it further enacted. That it shall and may be lawful for the said Judges, or any such eight or more of them as aforesaid, at any time within five years after this act shall take effect, to make regulations, by general rules or orders, from time to time, in term or in vacation, touching the voluntary admission, upon an application for that purpose, at a reasonable time before the trial, of one party to the other, of all such written or printed documents or copies of documents as are intended to be offered in evidence on the said trial by the r*4QQ'] P^'^^y requiring such admission, *and touching the inspection thereof "- -■ before such admission is made, and touching the costs which may be APPENDIX. 593 incurred by the proof of suet documents or copies on the trial of the cause in case of the omitting to apply for such admission, or the not producing of such document or copies for the purpose of obtaining admission thereof, or of the refusal to make such admission, as the case may be, and as to the said Judges shall seem meet; and all such rules and orders shall be binding and obligatory in all Courts of common law, and of the like force as if the pro- visions therein contained had been expressly enacted by Parliament. XVI. " And whereas it would also lessen the expense of trials and pre- vent delay if such writs of inquiry as hereinafter mentioned were executed, and such issues as hereinafter mentioned were tried, before the sheriff of the county where the venue is laid;" be it therefore enacted, that all writs issued under and by virtue of the statute passed in the session of Parliament held in the eighth and ninth years of the reign of King William the Third, intituled, "An Act for the better preventing Frivolous and Vexatious Suits," shall, unless the Court where such action is pending, or a Judge of one of the said superior Courts shall otherwise order, direct the sheriff of the county where the action shall be brought to summon a jury to appear before such sheriff, instead of the justices or justice of assize or nisi prius of that coiinty, to inquire of the truth of the breaches suggested, and assess the damages that the plaintiff shall have sustained thereby, and shall command the said sheriff to make return thereof to the Court from whence the same shall issue at a day certain, in term or in vacation, in such writ to be mentioned ; and such proceedings shall be had after the return of such writ as are in the said statute in that behalf mentioned, in like manner as if such writ had been executed before a justice of assize or nisi prius. XVII. And be it further enacted. That in any action depending in any of the said superior Courts for any debt or demand in which the sum sought to be recovered, and indorsed on the writ of summons, shall not exceed twenty pounds, it shall be lawful for the Court in which such suit shall be pending, or any Judge of any of the said Courts, if such Court or Judge shall be satisfied that the trial will not involve any difficult question of fact or law, and such Court or Judge shall think fit so to do, to order and direct that the issue or issues joined shall be tried before the sheriff of the county where the action is brought, or any Judge of any Court of record for the recovery of debt in such county, and for that purpose a writ shall issue directed to such sheriff, commanding him to try such issue or issues by a jury to be summoned by him, and to return such writ, with the finding of the jury thereon in- dorsed, at a day certain, in term or in vacation, to be named in such writ ; and thereupon such sheriff or Judge shall summon a jury, and proceed to try such issue or issues. XVIII. And be it further enacted, that at the return of any such writ of inquiry, or writ for the trial of such issue or issues as aforesaid, costs shall be taxed, judgment signed, and execution *issued forthwith, unless r:|tj^^fv-] the sheriff or his deputy before whom such writ of inquiry may be •- -■ 38 594 BYLES ON BILLS OF EXCHANGE. executed, or such sheriff, deputy, or Judge before whom such trial shall be had, shall certify under his hand upon such writ that judgment ought not to be signed until the defendant shall have had an opportunity to apply to the Court for a new inquiry or trial, or a Judge of any of the said Courts shall think fit to order that judgment or execution shall be stayed till a day be named in such order ; and the verdict of such jury, on the trial of such issue or issues, shall be as valid and of the like force as a verdict of a jury at nisi prius ; and the sheriff, or his deputy, or Judge, presiding at the trial of such issue or issues, shall have the like powers, with respefct to amendment on such trial, as are hereinafter given to Judges at nisi prius. XXIII. And whereas great expense is often incurred, and delay or failure of justice takes place at trials by reason of variance as to some particular or particulars between the proof and the record, or setting forth on the record or document on which the trial is had, of contracts, customs, prescriptions, names, and other matters or circumstances not material to the merits of the case, and by the misstatement of which the opposite party cannot have been prejudiced, and the same cannot in any case be amended at the trial, except where the variance is between any matter in writing or in print produced in evidence and the record ; and whereas it is expedient to allow such amend- ments as hereinafter mentioned to be made on the trial of the cause : be it therefore enacted. That it shall be lawful for any Court of record holding plea in civil actions, and any Judge sitting at nisi prius, if such Court or Judge shall see fit so to do, to cause the record, writ, or document on which any trial may be pending before any such Court or Judge, in any civil action, or in any information in the nature of a quo warranto, or proceedings on a mandamus, when any variance shall appear between the proof and the recital or setting forth on the record, writ, or document on which the trial is pro- ceeding, of any contract, custom, prescription, name, or other matter, in any particular or particulars, in the judgment of such Court or Judge, not mate- rial to the" merits of the case, and by which the opposite party cannot have been prejudiced in the conduct of his action, prosecution, or defence, to be forthwith amended by some officer of the Court or otherwise, both in the part of the pleadings where such variance occurs, and in every other part of the pleadings which it may become necessary to amend, on such terms, as to payment of costs to the other party, or postponing the trial to be had before the same or another jury, or both payment of costs and postponement, as such Court or Judge shall think reasonable ; and in case such variance shall be in some particular or particulars in the judgment of such Court or Judge not material to the merits of the case, but such as that the opposite party may have been prejudiced thereby in the conduct of his action, prosecution, or defence, then such Court or Judge shall have power to cause the same to be amended, upon payment of costs to the other party and withdrawing the record or postponing the trial as aforesaid, as such Court or Judge shall think reasonable ; and after any such amendment the trial shall proceed, in APPENDIX. 595 case the same shall be proceeded with, in the same *maiiner in all r-i^AA-i-i respects, both with respect to the liability of witnesses to be indicted ■- -" for perjury, and otherwise, as if no such variance had appeared; and in case such trial shall be had at nisi prius or by virtue pf such writ as aforesaid, the order for the amendment shall be indorsed on the postea, or the writ, as the case may be, and returned together with the record or writ, and thereupon such papers, rolls, and other records of the Court from which such record or writ issued, as it may be necessary to amend, shall" be amended accordingly ; and in case the trial shall be had in any Court of record, then the order for amendment shall be entered on the roll or other document upon which the trial shall be had ; provided that it shall be lawful for any party who is dis- satisfied with the decision of such Judge at nisi prius, sheriif, or other officer, respecting his allowance of any such amendment, to apply to the Court from which such record or writ issued for a new trial upon that ground, and in case any such Court shall think such amendment improper, a new trial shall be granted accordingly, on such terms as the Court shall think fit, or the Court shall make such other order as to them may seem meet. XXIV. And be it further enacted. That the said Court or Judge shall and may, if they or he think fit, in all such cases of variance, instead of causing the record or document to be amended as aforesaid, direct the jury to find the fact or facts according to the evidence, and thereupon such find- ing shall be stated on' such record or document, and, notwithstanding the finding on the issue joined, the said Court, or the Court from which the record has issued, shall, if they shall think the said variance immaterial to the merits of the case, and the misstatement such as could not have preju- diced the opposite party in the conduct of the action or defence, give judg- ment according to the very right and justice of the case. XXVI. And in order to render the rejection of witnesses on the ground of interest less frequent, be it further enacted. That if any witness shall be objected to as incompetent, on the ground that the verdict or judgment in the action, on which it shall be proposed to examine him, would be admis- sible in evidence for or against him, such witness shall nevertheless be exa^ mined, but, in that case, a verdict or judgment in that action in favor of the party on whose behalf he shall have been examined, shall not be admis- sible in evidence for him or any one claiming under him, nor shall a verdict or judgment against the party on whose behalf he shall have been examined be admissible in evidence against him or, any one claiming under him. XXVII. And be it further enacted. That the name of every witness objected to as incompetent on the ground that such verdict or judgment would be admissible in evidence for or against him, shall at the trial be in- dorsed on the record or document on whioji the trial shall be had, together with the name of the party on whose behalf he was examined, by some 596 BTLES ON BILLS OF EXCHANGE. officer of the Court, at the request of either party, and shall be afterwards entered on the record of the judgment ; and such indorsement or entry shall be sufficient evidence that such witness was examined, in any subsequent r*4J.91 *proceeding in which the verdict or judgment shall be offered in L -^ evidence. XXVIII. And be it further enacted. That upon all debts or sums certain, payable at a certain time or otherwise, the jury, 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 payable by virtue of some written instrument at a certain time, or, if pay- able 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 in- terest will be claimed from the date of such demand until the term of pay- ment ; 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 any issue oi: 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 asportatis, and over and above the money recoverable in all actions on policies of assurance made after the passing of this act. XXX. And be it further enacted, That if any person shall sue out any writ of error, upon any judgment whatsoever, given in any Court in any action personal, and the Court of error shall give judgment for the defen- dant thereon, then interest shall be allowed by the Court of error for such time as execution has been delayed by such writ of error, for the delaying thereof. XXXI. And. be it further enacted. That in every action brought by any executor or administrator in right of the testator or intestate, such executor or administrator shall, unless the Court in which such action is brought, or a Judge of any of the superior Courts shall otherwise order, be liable to pay costs to the defendant, in case of being nonsuited, or a verdict passing against the plaintiff, and in all other cases in which he would be liable, if such plaintiff were suing in his own right upon a cause of action accruing to himself; and the defendant shall have judgment for such costs, and they shall be recovered in like manner. APPENDIX. 597 *[3 & 4 Wm. 4, e. 83.] [*443] An Act to compel Banks issuing Promissory Notes payable to Bearer on Demand to m,ahe Returns of their Notes in Circulation, and to authorize Banks to issue Notes payable in London for less than Fifty Pounds. [28th August, 1833.] " Whereas it is expedient that all corporations, copartnerships, and per- sons carrying on banking business, and making and issuing promissory notes payable to bearer on demand, should make returns of the amount of such notes in circulation ;" be it therefore enacted by the king's most excellent Majesty, by and with the advice and consent of the lords, spiritual and tem- poral, and commons, in this present Parliament assembled, and by the au- thority of the same, that all the corporations and copartnerships carrying on banking business, under the provisions of an act passed in the seventh year of the reign of his late Majesty King George the Fourth, intituled, " An Act for the better regulating Copartnerships of certain Bankers in England, and for amending so much of an Act of the Thirty-ninth and Fortieth years of the Reign of Ms late Majesty King George the Third, intituled ' An Act for establishing an Agreement with the Governor and Company of the Bank of England for advancing the sum of Three Millions towards the Supply for the Service of the Year One Thousand Fight Hundred,' as relates to the same," and all other persons carrying on banking business, and making and issuing promissory notes payable to bearer on demand, shall respectively keep weekly accounts from the passing of this act of the average amount of notes in circulation at the end of each week of the corporation copartnership, or persons or person so carrying on banking business and keeping such weekly account, and shall, within one month after the thirty-first day of December after the passing of this act, make up from such weekly account an average account of the amount of such notes in circulation during the period between the passing of this act and the making up such account; and shall also make up a like account at the end of each quarter ending on the first day of April, the first day of July, the first day of October, and the first day of January in the year one thousand eight hundred and thirty-four, and every subsequent year, of the average amount of notes in circulation in the preceding quarter, and shall return and deliver such account to the com- missioners of stamps at the Stamp Office in London ; and such accounts and returns shall be verified upon the oath of the secretary or accountant, or some officer of the corporation, company or copartnership of persons or person so carrying on banking business and making such return, which oath shall be taken before any justice of the peace, and which oath any justice of the peace is hereby authorized to administer ; and if any corporation, company, or copartnership, or persons or person carrying on banking business, shall neglect to keep such weekly accounts, or to make out or to return or deliver such averages to the commissioners of stamps at the Stamp Office in London, 598 BTLES ON BILLS OF EXCHANGE. or if any secretary, accountant, or other person verifying any such account or average, shall return or deliver to the commissioners of stamps any false r*444.1 *^'^'^'^^^^ o'" return of such averages, the corporation, company, or "- -• copartnership, or persons or person to whom any such account or averages, or such secretary, accountant, or person verifying the account, shall belong, shall forfeit for every such ofiFence the sum of five hundred pounds, and the secretary or other person so offending shall also forfeit for every such offence the sum of one hundred pounds ; and any secretary, accountant, or other person who shall knowingly and wilfully take any false oath as to any such account or averages, shall be subject to such pains and penalties as are by any law in force at the time of taking such oath enacted as to persons convicted of wilful and corrupt perjury. II. And be it further enacted. That it shall be lawful for any body politic or corporate whatsoever, erected or to be erected, and for any other persons united or to be united in covenants or partnership, exceeding the number of six persons, carrying on business as bankers, to make any bill of exchange or promissory note of such corporation or copartnership payable in London by any agent of such corporation or copartnership in London, or to draw any bill of exchange or promissory note upon any such agent in London, payable on demand or otherwise in London, and for any less amount than fifty pounds ; anything in the said recited act of the seventh year of the reign of his late Majesty King Greorge the Fourth, or in any other act, to the con- trary notwithstanding. III. Be it farther enacted, That this act may be amended, altered, oj re- pealed by any act or acts to be passed in this present session of Parliament. [3 & 4 Wm. 4, c. 97.] An Act to prevent tJie selling, and uttering of Forged Stamps and to exempt from Stamp Duty artificial Mineral Waters in Great Britain, and to allow a Drawback on the Exportation of Gold and Silver Plate manu- factured in Ireland. [29th of August, 1833.] XVI. And be it enacted. That it shall be lawful for the commissioners of stamps from time to time, whenever they shall deem it necessary or expedient to discontinue the use of all or any of the dies heretofore provided or used, or at any time hereafter to be provided or used, for denoting or marking any stamp duty which now is, or at any time hereafter shall be by law payable for or in respect of any manner or thing whatsoever, and to cause any new die or dies, with such altered device or devices respectively thereon as the said commissioners shall think fit, to be provided and used in lieu of the die or dies so discontinued. XVII. And belt enacted. That whenever the said commissioners shall de- APPENDIX. 599 termine to discontinue the use of any die or dies, and shall provide any new die or dies to be used in lieu thereof, *and the said commissioners 1-^,44^-1 shall give public notice thereof by advertisement in the London '- J and Edinburgh Gazettes respectively, then from and after such day or time as shall be fixed and appointed by such advertisement, not being within the space of one calendar month next after the same shall have been published in the said gazettes respectively, the said new die or dies so provided shall be the only true and lawful die or dies for denoting the duty charged or charge- able in any case to which such die or dies is or are respectively applicable ; and all deeds and instruments for the marking or stamping of which any such new die or dies shall have been provided, and which after the day so ' fixed and appointed as aforesaid shall be ingrossed, written, or printed upon vellum, parchment, or paper stamped or marked with any other die or dies, than the said new die or dies so provided for the same as aforesaid, and also all such deeds and instruments as aforesaid which, having been ingrossed, written or printed upon vellum, parchment, or paper stamped or marked as last aforesaid, shall not have been executed, or signed by any party thereto , before or upon the said day so fixed and appointed as aforesaid, respectively be deemed to be ingrossed, written or printed on vellum, parchment, or paper not duly stamped or marked as required by law : provided always, that in the case of any deed or instrument required to be stamped or marked with such new die or dies, as aforesaid, which shall be ingrossed, written, or printed upon vellum, parchment, or paper, stamped or marked otherwise than with such new die or dies, and which after the said day or time so fixed and appointed as aforesaid shall be first executed or signed by any party thereto at any place out of the United Kingdom, it shall be lawful for the said commissioners, and they are hereby required, upon proof of the facts to their satisfaction, to cancel and allow the stamp or stamps impressed on such deed or instrument, and to cause such deed or instrument to be stamped or marked with such new die or dies, to the same amount of duty, without payment of any penalty, provided such deed or instrument shall be produced to the said commissioners for the purpose aforesaid within one calendar month next after the same shall arrive in this kingdom. XVIII. Provided always, and be it enacted. That whenever the said com- missioners shall discontinue the use of any die or dies, and shall provide any new die or dies to be used in lieu thereof, and shall give public notice thereof by advertisement in the manner directed by this act, it shall be lawful for all persons who shall have in their custody or possession any vellum, parchment, or paper stamped or marked with any die or dies in lieu of which any such new dies shall have been provided, and which vellum, parchment, or paper shall, by reason of the providing of such new die or dies be ren- dered useless or inapplicable for the purposes for which the same was origi- nally designed, to send the same to the head office for stamps in Westminster or Edinburgh at any time within three calendar months next after the day so fixed and appointed by such advertisement as aforesaid ; and it shall be 600 BYLBS ON BILLS OF EXCHANGE. lawful for the said commissioners, or for any officer of stamp duties duly authorized in that behalf, to cause the stamp or stamps upon such velljim, r*4/t«n parchment, or paper to be cancelled, and such vellum, *parchment, '- -'or paper, or (if the said commissioners or such officer shall think fit) any other vellum, parchment or paper to be duly stamped or marked with such new die or dies in lieu of and to an equal amount with the stamp or stamps so cancelled. [3 & 4 Wm. 4, c. 98.] An Act for giving to the Corporation of the Governor and Company of the BanJc of England certain Privileges, for a limited Period, under certain Conditions. [29th August, 1833.] Whereas an act was passed in the thirty-ninth and fortieth years of the reign of his Majesty King George the Third, intituled " An Act for establish- ing an Agreement with the Governor and Company of the Bank of England for advancing the sunn of Three Millions towards the Supply for the service of the Year One Thousand Eight Hundred :" and whereas it was by the said recited act declared and enacted, that the said governor and company should be and continue a corporation, with such powers, authorities, emolu- ments, profits, and advantages, and such privileges of exclusive banking, as are in the said recited act specified, subject nevertheless to the powers and conditions of redemption, and on the terms in the said act mentioned : and whereas an act passed in the seventh year of the reign of his late Majesty King George the Fourth, intituled, "An Act for the letter regulating Co- partnerships of certain Bankers in England, and for amending so much of an Act of the Thirty-ninth and Fortieth Tears of the Reign of his late Majesty King George the Third, intituled, 'An Act for establishing an agreement with the Governor and Company of the Bank of England for advancing the sum of Three Millions towards the Supply for the Service of the Year One Thousand Eight Hundred,' as relates to the same:" And whereas it is expedient that certain privileges of exclusive banking should be continued to the said governor and company for a further limited period, upon certain conditions : and whereas the said governor and company of the Bank of England are willing to deduct and allow to the public, from the sums now payable to the said governor and company for the charges of manage- ment of the public unredeemed debt, the annual sum hereinafter mentioned, and for the period in this act specified, provided the privilege of exclusive banking specified in this act is continued to the said governor and company for the period specified in this act : may it therefore please your Majesty that it may be enacted; and be it 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 the said governor and company of the Bank of England shall APPENDIX. 601 have and enjoy such exclusive privilege of banking as is given by this act as a body corporate, for the period and upon *the terms and conditions t-^aaij-i hereinafter mentioned and subject to termination of such exclusive '- -■ privilege at the time and in the manner in this act specified. II. And be it further enacted, That during the continuance of the said privilege, no body politic or corporate and no society or company, or persons united or to be united in covenants or partnerships, exceeding six persons, shall make or issue in London, or within sixty-five miles thereof, any bill of exchange or promissory note, or engagement for the payment of money on demand, or upon which any person holding the same ma,y obtain payment on demand : Provided always, that nothing herein or in the said recited act of the seventh year of the reign of his late Majesty King George the Fourth, contained shall be construed to prevent any body politic or corporate, or any society or company, or incorporated company or corporation, or copartnership, carrying on and transacting banking business at any greater distance than sixty-five miles from London, and not having any house of business or esta- blishment as bankers in London, within sixty-five miles thereof (except as htereinafter mentioned), to make and issue their bills and notes, payable on demand or otherwise, at the place at which the same shall be issued, being more than sixty-five miles from London, and also in London, and to have an agent or agents in London, or at any other place at which such bills or notes shall be made payable for the purpose of payment only, but no such bill or note shall be for any sum less than five pounds, or be reissued in London, or within sixty-five miles thereof. III. " And whereas the intention of this act is, that the governor and company of the Bank of England should during the period stated in this act (subject nevertheless to such redemption as is described in this act), continue to hold and enjoy all the exclusive privileges of banking given by the said recited act of the thirty-ninth and fortieth years of the reign of his Majesty King George the Third aforesaid, as regulated by the said recited act of the seventh year of his late Majesty King George the Fourth, or any prior or subsequent act or acts of Parliament, but no other or further exclusive pri- vilege of banking; and whereas doubts have arisen as to the construction of the said acts, and as to the extent of such exclusive privilege : and it is ex- pedient that all such doubts should be removed ;'' be it therefore declared and enacted. That any body politic or corporate, or society, or company, or partnership, although consisting of more than six persons, may carry on the trade or business of banking in London or within sixty-five miles thereof, ■ provided that such body politic or corporate, or society, or company, or part- nership do not borrow, owe, or take up, in England, any sum or sums of money on their bills or notes payable on demand or at any less time than six months from the borrowing thereof, during the continuance of the privi- leges granted by this act to the said governor and company of the Bank of England. 602 BYLES ON BILLS OF EXCHANGE. IV. Provided always, and be it further enacted, That from and after the r*4.J.S1 ^^^^ '^^y °-^ August, one thousand eight hundred and *thirty-four, "- -' all promissory notes payable on demand of the governor and com- pany of the Bank of England, which shall be issued at any place in that part of the United Kingdom called England out of London, where the trade and business of banking shall be carried on for and on behalf of the said governor and company of the Bank of England, shall be made payable at the place where such promissory notes shall be issued ; it shall not be lawful for the said governor and company or any committee, agent, cashier, officer, or servant of the said governor and company, to issue, at any such place out of London, any promissory note payable on demand which shall not be made payable at the place where the same shall be issued, anything in the said recited act of the seventh year aforesaid to the contrary notwithstanding. V. And be it further enacted, That upon one year's notice given within six months after the expiration of ten years from the first day of August, one thousand eight hundred and thirty-four, and upon repayment by Parlia- ment to the said governor and company, or their successors, of all principal money, interest, or annuities, which may be due from the public to the said governor and company at the term of the expiration of such notice, in like ' manner as is hereinafter stipulated and provided, in the event of such notice being deferred until after the first day of August, one thousand eight hun- dred and fifty-five, the said exclusive privileges of banking granted by this act shall cease and determine at the expiration of such year's notice ; and any vote or resolution of the House of Commons, signified by the Speaker of the said House in writing, and delivered at the public ofiBce of the said governor and company, or their successors, shall be deemed and adjudged to be a sufficient notice. VI. And be it further enacted. That from and after the first day of Au- gust, one thousand eight hundred and thirty-four, unless and until Parlia- ment shall otherwise direct, a tender of a note or notes of the governor and company of the Bank of England, expressed to be' payable to bearer on de- mand, shall be a legal tender, to the amount expressed in such note or notes, and shall be taken to be valid as a tender to such amount for all sums above five pounds, on all occasions on which any tender of money may be legally made, so long as the Bank of England shall continue to pay on demand their said notes in legal coin : Provided always, that no such note or notes shall be deemed legal tender of payment by the governor and company of the Bank of England, or any branch bank of the said governor and company ; but the said governor and company are not to become liable or be required to pay and satisfy, at any branch bank of the said governor and company, any note or notes of the said governor and company not made specially payable at such branch bank ; but the said governor and company shall be liable to pay and satisfy at the Bank of England in London all notes of the said governor and company of any branch thereof. APPENDIX. 603 VII. And be it further enacted, That no bill of exchange or promissory note made payable at or within three months after the date thereof, or not [*449] having more than three months to run, shall, by *reason of any in- terest taken thereon or secured thereby, or any agreement to pay or receive or allow interest in discounting, negotiating, or transferring the same, be void, nor shall the liability of any party to any bill of exchange or promis- sory note be affected by reason of any statute or law in force for the preven- tion of usury, nor shall any person or persons, drawing, accepting, indorsing or signing any such bill or note, or lending or advancing any money, or taking more than the present rate of legal interest in Great Britain and Ireland re- spectively, for the loan of money on any such bill or note, be subject to any penalties under any statute or law relating to usury, or any other penalty or forfeiture ; anything in any law or statute relating ,to usury in any part of the United Kingdom to the contrary notwithstanding. VIII. And be it further enacted, That an account of the amount of bul- lion and securities in the Bank of England belonging to the said governor and company, and of notes in circulation, and of deposits in the said bank, shall be transmitted weekly to the Chancellor of the Exchequer for the time being, and such accounts shall be consolidated at the end of every month, and an average state of the bank accounts of the preceding three months, made from such consolidated accounts as aforesaid, shall be published every month in the next succeeding London Gazette. IX. And be it further enacted, That one-fourth part of the debt of four- teen million six hundred and eighty-six thousand eight hundred pounds, now due from the public to the governor and company of the Bank of England, shall and may be repaid to the said governor and company. X. And be it further enacted. That a general Court of Proprietors of the said governor and company of the Bank of England shall be held at some time between the passing of this act and the fifth day of October, one thou- sand eight hundred and thirty-four, to determine upon the propriety of dividing and appropriating the sum of three million six hundred and thirty- eight thousand two hundred and fifty pounds, out of or by means of the sum to be repaid to the said governor and company as hereinbefore mentioned, or out of or by means of the fund to be provided for that purpose, amongst the several persons, bodies politic or corporate, who may be proprietors of the capital stock of the said governor and company on the said fifth day of Oc- tober, one thousand eight hundred and thirty-four, and upon the manner and the time for making such division and appropriation, not inconsistent with, the provisions for that purpose herein contained ; and in case such general Court, or any adjourned general Court, shall determine that it will be proper to make such division, then, but not otherwise, the capital stock of the said governor and company shall be and the same is hereby declared to be reduced from the sum of fourteen million five hundred and fifty-three thousand 604 BYLBS ON BILLS OF EXCHANGE. pounds, of whict the same now consists, to the sum of ten million nine hun- dred and fourteen thousand seven hundred and fifty pounds, making a reduc- tion or difference of three million six hundred and thirty-eight thousand two r*4.'ifn '^^"'^^s'i ^°"i fi% pounds capital stock, *and such reduction shall L -I take place from and after the said fifth day of October, one thousand eight hundred and thirty-four ; and thereupon, out of or by means of the sum to be repaid to the said governor and company as hereinbefore men- tioned, or out of or by means of the fund to be provided for that purpose, the sum of three million six hundred and thirty-eight thousand two hundred and fifty pounds sterling, or such proportion of the said fund as shall repre- sent the same, shall be appropriated and divided amongst the several persons, bodies politic or corporate, who may be proprietors of the said sum of four- teen million five hundred and fifty-three thousand pounds bank stock on the said fifth day of October, one thousand eight hundred and thirty-four, at the rate of twenty-five pounds sterling for every one hundred pounds of bank stock which such persons, bodies politic and corporate, may then be proprie- tors of or shall have standing in their respective names in the books kept by the said governor and gompany for the entry and transfer of such stock, and so in proportion for a greater or lesser sum. XI. Provided always, and be it enacted, That the reduction of the share of each proprietor of and in the capital stock of the said governor and com- pany of the Bank of England, by the repayment of such one-fourth part thereof, shall not disqualify the present governor, deputy governor, or direc- tors, or any or either of them, or any governor, deputy governor, or director who may be chosen in the room of the present governor, deputy governor,' or directors at any time before the general Court of the said governor and company to be held between the twenty-fifth day of March and the twenty- fifth day of April, one thousand eight hundred and thirty-five : Provided that at the said general Court, and from and after the same, no g6vernor, deputy governor, or director of the said corporation shall be capable of being'chosen such governor, deputy governor, or director, or shall continue in his or their respective offices, unless he or they respectively shall at the time of such choice have, and during such his respective office continue to have, in his and their respective name, in his and their own right, and for his and their own use, the respective sums or shares of and in the capital stock of the said corporation in and by the charter of the said governor and company prescribed as the qualification of governor, deputy governor, and directors respectively. XII. Provided also, and be it enacted, That no proprietor shall be dis- qualified from attending and voting at any general Court of the said governor and company, to be held between the said fifth day of October, one thousand eight hundred and thirty-four, and the twenty-fifth day of April, one thou- sand eight hundred and thirty-five, in consequence of the share of such pro- prietor of and in the capital stock of the said governor and company having been reduced by such payment as aforesaid below the sum of five hundred APPENDIX. 605 pounds of and in the said capital stock : Provided suoh proprietor had in his own name the full sum of five hundred pounds of and in the said capital stock on the said fifth day of October, one thousand eight hundred and thirty-four; nor shall any proprietor be required, between the fifth |-j^..^_ day of October, *one thousand eight hundred and thirty-four, and *- ^ the twenty-fifth day of April, one thousand eight hundred and thirty-five, to take the oath of qualification in the said charter. XIII. And be it further enacted, That from and after the said first day of August, one thousand eight hundred and thirty-four, the said governor and company, in consideration of the privileges of exclusive banking given by this act, shall, during the continuance of such privileges, but no longer, deduct from the sums now payable to the said governor and company, for the charges of management of the public unredeemed debt, the annual sum of one hundred and twenty thousand pounds, anything in any act or acts of Parliament or agreement to the contrary notwithstanding : Provided always, that such deduction shall in no respect prejudice or affect the right of the said governor and company to be paid for the management of the public debt at the rate and according to the terms provided in an act passed in the forty-eighth year of his late Majesty King Greorge the Third, intituled, "An Act to authorize the Advancing for the Public Service, upon certain condi- tions, a 'proportion of the balance remaining in the Bank of England for payment of unclaimed dividends, annuities, and lottery prizes, and for Regulating the Allowances to be made for the Management of the National Debt." XIV. And be it further enacted. That all the powers, authorities, fran- chises, privileges, and advantages given or recognized by the said recited act, of the thirty-ninth and fortieth years aforesaid, as belonging to or enjoyed by the governor and company of the Bank of England, or by any subsequent act or acts of Parliament, shall be and the same are hereby declared to be in flill force and continued by this act, except so far as the same are altered by this act, subject nevertheless to such redemption upon the terms and condi- tions following : (that is to say,) that at any time upon twelve months' notice to be given after the first day of August, one thousand eight hundred and fifty-five, and upon repayment by Parliament to the said governor and com- pany or their successors of the sum of eleven million fifteen thousand one hundred pounds, being the debt which will remain due from the public to the said governor and company after the payment of the one-fourth of the debt of fourteen million six hundred and eighty-six thousand eight hundred pounds as hereinbefore provided, without any deduction, discount, or abate- ment whatsoever, and upon payment to the said governor and company and their successors of all arrears of the sum of one hundred thousand pounds per annum in the said act of the thirty-ninth and fortieth years aforesaid mentioned, together with the interest or aiinuities payable upon the said debt or in respect thereof, and also upon repayment of all the principal and 606 BYLES ON BILLS OF EXCHANGE. interest wticli shall be owing unto the said governor and company and their successors upon all such tallies, exchequer orders, exchequer bills, or parlia- mentary funds which the said governor and company or their successors shall have remaining in their hands or be entitled to at the time of such notice to be given as last aforesaid, then and in such case, and not until then (unless r^Acn-, under the proviso hereinbefore contained), the said exclusive *privi- •- -^ leges of banking granted by this act shall cease and determine at the expiration of such notice of twelve months. XV. And be it further enacted, that this act may be altered, amended, or repealed,'by any act to be passed in this session of Parliament. [5 & 6 Wm. 4, c. 41.] An Act to amend the Law relating to Securities given for Considerations arising out of Gaming, usurious, and certain other illegal Transactions. [31st August, 1835.] " 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 year of the reign of his late Majesty King William the Third, each of such acts being intituled 'An Act against deceitful, dis- orderly, and excessive Gaming,' it was enacted, that all and singular judg- ments, statutes, recognizances, mortgages, conveyances, assurances, bonds, bills, specialties, promises, 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 respectively 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 said 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 convey- ances whatsoever, given, granted, drawn, or entered into or executed by any person or persons whatsoever, where the whole or any part of the conside- ration of such conveyances or securities should be for any money or other valuable thiiig 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 reim- bursing or repaying any money knowingly lent or advanced for such gaming or betting 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 mort- APPENDIX. 607 gages, securities, or other conveyances, should be of lands, tenements, or hereditaments, or should be such 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 rj^Aro-i 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 payment of any principal or money to be lent or covenanted to be per- formed 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 men- tioned, should be utterly void : And whereas by an act passed in the Parlia- ment 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 Cept.,' 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 upon or for any loan, whereupon or whereby there should be taken or re- served above the rate of six pounds in the hundred, should be utterly void : And whereas by an act passed in the fifty-eighth year of the reign of his late Majesty King George the Third, intituled 'An Act to afford 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 that 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 consi- deration, unless such indorsee had at the time of discounting or paying such consideration for the same actual notice that such bill of exchange or promis- sory note had been originally given for a usurious consideration or upon a usurious contract : And whereas by an act passed in the Parliament of Ire- lan4 in the eleventh and twelfth year of the reign of his late Majesty King George the Third, intituled 'An Act to prevent Frauds committed by Bank- rupts,' 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 bankrupt, or any part thereof. 608 BYLBS ON BILLS OE EXCHANGE. between the time of his becoming bankrupt and such bankrupt's discharge, as a consideration or to the intent to persuade him, her, or them to consent to or sign any such allowance or certificate, should be wholly void and of no r*A^Al ^^^°^> ^"*^ *^® moneys 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, intituled, 'An Act for the Encouragement of Seamen, and for the better and more effectually 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 be given, by any person or persons for ransom of any ship or vessel, or of any merchandise or goods on board the same, contrary to that act, should be absolutely null and void in law, and of no effect whatsoever : And whereas by an act passed in the sixth year of the reign of his late Majesty King G-eorge the Fourth, intituled ' An Act to amend the Laws relating to Banhrnpts,' 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 or with intent to persuade such creditor to consent to or sign the certificate of any such bankrupt, should be void, and the money thereby secured or agreed to be paid should not be recoverable, and the party sued on such 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 here- inbefore 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, the nintli and eleventh years of the reign of her said late Majesty Queen Anne, the eleventh and twelfth years of the reign of his 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 instru- ments 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 the Second, other than bills of exchange or pro- missory notes 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, trans- ferred, assigned, conveyed to purchasers or other persons for a valuable con- sideration without notice of the original consideration for which such securities or instruments were given ; and the avoidance of such securities or instru- ments 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 Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament as- sembled, 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 Majesty King William the Third, the ninth, eleventh, and twelfth years of the reign of her APPENDIX. 609 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 r^j-^r r-i Fourth, as *enacts that any note, hill, 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 consideration, and the said several acts shall have the same force and eff'ect which they would respectively have had if instead of enacting that any such note, bill, or mortgage should be ab- Bolutely void, such acts had respectively provided that' every such note, bill, or mortgage should be deemed and taken to have been made, drawn, accepted, given or executed for an illegal consideration : Provided always, that nothing herein contained shall prejudice or afiect 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 mortg-age 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 any 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 so have paid such money, and shall accordingly be recoverable by 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 en- acts that where such mortgages, securities, or other conveyances as therein mentioned should be of lands, tenements, or hereditaments, or should be such as should incumber or aifect 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, as if such mortgages, securities, or other conveyances had been made 39 610 BYLBS ON BILLS OF EXCHANGE. 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, shall be and the same is hereby P . .„-. repealed; saving to *all persons all rights acquired by virtue thereof ■- -^ previously to the passing of this act. IV. And be it further enacted, That this act may be altered or repealed by any other act during this present session of Parliament. [6 & 7 Wm. 4, c. 58.] • An Act for declaring the Law as to the Day on which it is requisite to pre- sent/or Payment to the Acceptors or Acceptor supra protest /or Honor , or to the Referees or Referee in case of Need, Bills of Exchange which had been dishonored. [13th August, 1836.] "Whereas bills of exchange are occasionally accepted supra protest for honor or have a reference thereon in case of need : 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 acceptor or acceptors for honor, 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 consent and advice 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 acceptors or acceptor for honor, or to such referees or referee, until the day 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 honor, or of such referees 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 pay- ment to such acceptors or acceptor for honor, 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 following 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 Majesty's proclamation for solemn fast or of thanksgiving, then it shall not be necessary that such bill of exchange shall be presented for payment, or be forwarded for such presentment for payment, to such acceptors or acceptor for honor, APPENDIX. 611 or referees or referee, until the day following such Sunday, Good Friday, Christmas Day, or solemn fast or day of thanksgiving. ' *[7 Wm. 4, and 1 Vict. c. 80.] [*457] An Act to exempt certain Bills of Exchange and Promissory Notes from the Operation of the Laws relating to Usury. [17th July, 1837.] "Whereas by an act passed in the fourth year of the reign of his Majesty King William the Fourth, intituled 'An Act for giving to the Corporation of the Governor and Company of the Bank of England certain Privileges for a limited Period under certain Conditions,' bills of exchange and pro- missory notes made payable at or within three months after the date thereof, or not having more than three months to run, and certain transactions in respect of such bills, were exempted from the operations of the statutes re- lating to Usury; and it is desirable to extend such exemptions:" be it there- fore 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, and till the first day of January, one thousand eight hundred and forty, 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, 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 the same, be void, nor shall the liability of any party to any bill of exchange or promissory note be affected, by reason of any statute or law in force for the prevention of usury ; nor shall any person or persons or body corporate drawing, accepting, indorsing, or signing any such bill or note, or lending or advancing any money, or taking more than the present rate of legal interest in Great Britain and Ireland respectively for the loan of money, on any such bill or note, be subject to any penalties under any statute or law relating to usury, or any other penalty or forfeit- ure; 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 not- withstanding. [1 & 2 Vict. c. 10.] An Act to make good certain Contracts which have been or may he entered into by certain Banking and other Copartnerships. [20th February, 1838.] " Whereas divers associations and copartnerships, consisting of more than six members or shareholders, have from time to time been formed for the 612 BYLES ON BILLS OF EXCHANGE. purpose of being engaged in and carrying on the business of banking and P^ . -n-j divers other trades and dealings for *gain and profit, and have ac- L -I cordingly for some time past been and now are engaged in carrying on the same by means of boards of directors or managers, committees or other officers, acting on behalf of all the members or shareholders of or persons otherwise interested in such associations or copartnerships : And whereas divers spiritual persons, having or holding dignities, prebends, canonries, benefices, stipendiary curacies, or lectureships, have been and are members or shareholders of, or otherwise interested in divers of such associations and copartnerships, and it has not been commonly known or understood that the holding of such shares or interests by such spiritual persons was contrary to law : And whereas it is expedient to render legal and valid all contracts entered into by such associations or copartnerships, or which for a limited time may be entered into by them, although the same may now be void by reason of such spiritual persons being or having been such member or share- holders or otherwise interested as aforesaid :" 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 as- sembled, and by the authority of the same. That no such association or co- partnership already formed or which may be formed at any time before the end of the next session of Parliament, nor any contract either as between the members, partners, or shareholders composing such association or copartner- ship for the purpose thereof, or as between such association or copartnership and other persons, heretofore entered into, or which before the end of the next session of Parliament shall be entered into, by any such association or copartnership already formed or hereafter to be formed, shall be deemed or taken to be illegal or void, or to occasion any forfeiture whatsoever, by reason only of any such spiritual person as aforesaid being or having been a member, partner, shareholder, manager, or director of or otherwise interested in the same, but all such associations and copartnerships shall have the same vali- dity, and all such contracts shall and may be enforced in the same manner to all intents and purposes as if no such spiritual person had been or was a member, partner, shareholder, manager, or director of or interested in such association or copartnership. II. And be it further enacted, That in all actions and suits which shall have be§ji brought or instituted by or on behalf of any such association or copartnership, in case any defendant therein shall, before the sixth day of February, one thousand eight hundred and thirty-eight, by plea or otherwise, have insisted on the invalidity of any contract thereby sought to be enforced, by reason of any such spiritual person as aforesaid being or having been a member, or shareholder in such association or copartnership, such defendant shall be entitled to the full costs of such plea or defence, to be paid by the plaintiff, and to be taxed as the Court in which the said action or suit shall be depending, or any Judge thereof, shall direct ; and in order fully to in- demnify such defendant, it shall be lawful for such Court or Judge to order APPENDIX. 613 tte plaintiff to pay to him sucli farther costs (if any) of the said action or suit as the justice of the case may require. *III. And he it further enacted, That this act maybe repealed or j-^.^^-. altered by any other act in this present session of Parliament. ^ -^ [1 & 2 Vict. c. 85.J An Act to authorize the using in any 'part of ike United Kingdom, Stamps denoting Duties pay aile in Great Britain and Ireland respectively. [10th August, 1838.] " Whereas under and by virtue of the laws in force separate and distinct stamps are used for denoting the stamp duties payable in Great Britain and Ireland respectively, and it is expedient to permit stamps denoting the duties payable on deeds or instruments in either of the said parts of the United Kingdom of Great Britain and Ireland, to be used for deeds or instruments liable to stamp duties payable in the other part of the said United Kingdom :" 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 any deed or instrument liable to any stamp duty payable in either part of the said United Kingdom, and for or upon which any stamp or stamps denoting a stamp duty or stamp duties pay- able in the other part of the United Kingdom shall have been at any time heretofore or shall be at any time hereafter used, of equal or greater amount with or than the duty or duties chargeable by law upon or in respect of such deed or instrument, shall nevertheless be deemed valid and effectual in the law : Provided always, that nothing herein contained shall extend to authorize the using of any stamp denoting any of the law, chancery, or exchequer fund duties in Ireland for any instrument other than such as is or shall be liable to the duty denoted by such stamp, nor to authorize the using for any in- strument liable to any of the said last-mentioned duties any stamp other than such as is or may be provided and appropriated for denoting the duty to which such last-mentioned instrument is or may be liable, nor to authorize the using for any instrument any stamp specially appropriated to any other instrument by having its name on the face thereof. *[1 & 2 Vict. c. 96.] [*460] An Act to amend, until the end of the next session of Parliament, the Law relative to Legal Proceedings hy certain Joint Stock Banking Companies against their own Members, and hy such Members against the Companies. [14th August, 1838.] " Whereas by an act passed in the seventh year of the reign of his late 614 BYLBS ON BILLS OF EXCHANGE. Majesty King George the Fourth, intituled, 'An Act for the better regu- lating Copartnerships of certain Bankers in England, and for amending so much of an Act of the Thirty-ninth and Fortieth Years of the Reign of his late Majesty King George the Third, intituled, An Act for establishing an Agreement with the Governor and Company of the Bank of England, for advancing the Sum of Three Millions towards the Supply of the Service for the Year Eighteen Hundred, as relates to the same,' it was amongst other things enacted, that it should be lawful for any bodies politic or cor- porate erected for the purposes of banking, or for any number of persons united in covenants or copartnerships, although such persons so united or carrying on business together should consist of more than six in number, to carry on (subject to certain provisions therein contained) the trade or busi- ness of bankers in England, in like manner as copartnerships of bankers consisting of not more than six persons in number might lawfully do ; and it was further enacted, that all actions and suits against any persons who might be at any time indebted to any such copartnership carrying on busi- ness under the provisions of the said act, and all other proceedings at law and in equity to be instituted on behalf of any such copartnership against any persons, bodies politic or corporate, or others, whether members of such copartnership or otherwise, for recovering any debts or enforcing any claims or demands due to such copartnership, or for any other matter relating to the concerns of such copartnership, might be commenced and prosecuted in the name of any one of the public officers for the time being of such copart- nership, to be nominated as therein is mentioned, as the nominal party on behalf of such copartnership, and that actions or suits, and proceedings at law or in equity, to be instituted by any persons, bodies politic or corporate, or others, whether members of such copartnership or otherwise, against such copartnership, should be commenced and prosecuted against any one or more of the public officers for the time being of such copartnership as the nominal defendant on behalf of such copartnership, and that the death, resignation, removal, or any act of such public officer should not abate or prejudice any such action, suit, or other proceeding commenced against or on behalf of such copartnership, but that the same might be continued in the name of any other of the public officers of such copartnership for the time being : and whereas an act was passed in the sixth year of the reign of his said late Majesty, intituled, 'An Act for the better regulation of Copartnerships of certain Bankers in Ireland :' and whereas it is expedient that the said acts should for a limited time be amended so far as relates to the powers enabling r*ztR1 1 ^°y saah. copartnership, not being a body corporate, to sue any of L J its own *members, and the powers enabling any member of any such copartnership, not being a body corporate, to sue the said copartner- ship :" 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 any person now being or having been, or who may hereafter be or have been a member of any copartnership now carrying on or which may APPENDIX. 615 hereafter carry on the business of banking under the provisions of the said recited acts, may, at any time during the continuance of this act, in respect of any demand which such pergon may have, either solely or jointly with any other peraon, against the said copartnership, or the funds or property thereof, commence and prosecute, either solely or jointly with any other person (as the case may require), any action, suit, or other proceeding at law or in equity against any public officer appointed or to be appointed under the provisions of the said acts, to sue and be sued on the behalf of the said copartnership ; and that any such public officer may in his own name com- mence and prosecute any action, suit, or other proceeding at law or in equity against any person being or having been a member of the said copartnership, either alone or jointly with any other person, against whom any such co- partnership has or may have any demand whatsoever; and that every person being or having been a member of any such copartnership shall, either solely or jointly with any other person (as the case may require), be capable of pro- ceeding against any such copartnership by their public officer, and be liable to be proceeded against, by or for the benefit of the said copartnership, by such public officer as aforesaid, by such proceedings and with the same legal consequences as if such person had not been a member of the said copartner- ship ; and that no action or suit shall in anywise be affected or defeated by reason of the plaintiffs or defendants, or any of them respectively, or any other person in whona any interest may be averred, or who may be in any- wise interested or concerned in such action, being or having been a member of the said copartnership; and that all such actions, suits, and proceedings shall be conducted and have effect as if the same had been between strangers. II. And be it enacted, That in case the merits of any demand by or against any such copartnership shall have been determined in any action or suit by or against any such public officer, the proceedings in such action or suit may be pleaded in bar of any other action or suit by or against the public officer of the same copartnership for the same demand III. And be it enacted. That all the provisions of the said recited acts relative to actions, suits, and proceedings commenced or prosecuted under the authority thereof, shall be applicable to actions, suits, and proceedings commenced or prosecuted under the authority of this act. IV. And be it enacted. That no claim or demand which any member of any such copartnership may have in respect of his share of the capital or joint stock thereof, or of any dividends, interest, *profits, or bonds r^Aoi)-, payable or apportionable in respect of such share, shall be capable of ■- -■ being set off, either at law or in equity, against any demand which such co- partnership may have against such member on account of any other matter or thing whatsoever; but all proceeds in respect of such other matter or thing may be carried on as if no claim or demand existed in respect of such 616 BYLBS ON BILLS OF EXCHANGE. capital or joint stock, or of any dividends, interest, profits, or bonus payable or apportionable in respect thereof. V. And be it enacted, That this act shall continue in force until the end of the next session of Parliament : and that any such action, suit, or other proceeding as aforesaid, which during the continuance of this act may have been commenced or instituted, shall (notwithstanding this act may have expired) be carried on in all respects whatsoever as if this act had continued in force. VI. And be it enacted. That this act may be amended or repealed by any act to be passed in this present session of Parliament. [1 & 2 Yict. c. 110.] An Act for Alolishing Arrest on Mesne Process in Civil Actions, except in certain Cases; for extending the Remedies of Creditors against the Property of Debtors ; and for amending the Laws for the Belief of In- solvent Debtors in England. [16th August, 1838.] Whereas the present power of arrest upon mesne process is unnecessarily extensive and severe, and ought to be relaxed ; 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 time appointed for the commencement of this act no person shall be arrested upon mesne process in any civil action in any inferior Court whatsoever, or (except in the cases and in the manner hereinafter provided for) in any superior Court. II. And be it enacted, That all personal actions in her Majesty's superior Courts of law at Westminster shall be commenced by writ of summons. III. And be it enacted, That if a plaintiff in any action in any of her Majesty's superior Courts of-law at Westminster, in which the defendant is now liable to arrest, whether upon the order of a judge, or without such order, shall, by the affidavit of himself or of some other person, show to the satisfaction of a judge of one of the said superior Courts, that such plaintiff V*AR-X\ ^^® ^ cause of action *against the defendant or defendants to the L ^ amount of twenty pounds or upwards, or has sustained damages to that amount,' and that there is probable cause for believing that the defen- dant or any one or more of the defendants, is or are about to quit England, unless he or they be forthwith apprehended, it shall be lawful for such judge, by a special order, to direct that such defendant or defendants so about to quit England, shall be held to bail for such sum as such judge shall think fit, not exceeding the amount of the debt or damages ; and thereupon it APPENDIX. 617 shall Ibe lawful for such plaintiff, within the time which shall be expressed in such order, hut not afterwards, to sue out one or more writ or writs of capias into one or more different counties, as the case may require, against any such defendant so directed to be held to bail, which writ of capias shall be in the form contained in the schedule to this act annexed, and it shall bear date on the day on which the same shall be issued : Provided always, that the said writ of capias, and all writs of execution to be issued out of the superior Courts of law at Westminster into the counties palatine of Lancaster and Durham, shall be directed to the Chancellor of the county palatine of Lancaster, or his deputy there, or to the Chancellor of the county palatine at Durham, or his deputy there. IV. And be it enacted. That the sheriff or other officer to whom any such writ of capias shall be directed, shall, within one calendar month after the date thereof, including the day of such date, but not afterwards, proceed to arrest the defendant thereupon ; and such defendant when so arrested shall remain in custody until he shall have given a bail bond to the sheriff, or shall have made deposit of the sum indorsed on such writ of capias, together with ten pounds for costs, according to the present practice of the said superior Courts ; and all subsequent proceedings as to the putting in and perfecting special bail, or of making deposit and payment of money into Court, instead of putting in and perfecting special bail, shall be according to the like practice of the said superior Courts, or as near thereto as the circum- stances of the case will admit. V. And be it enacted. That any such special order may be made, and the defendant arrested in pursuance thereof at any time after the commence- ment of such action, and before final judgment shall have been obtained therein; and that a defendant in custody upon any such arrest, and not previously served with a copy of the writ of summons, may be lawfully served therewith. VL And be it enacted. That it shall be lawfiil for any person arrested upon any such writ of capias to apply at any time after such arrest, to a judge of one of the superior Courts at Westminster, or to the Court in which the action shall have been commenced, for an order or rule on the plaintiff in such action, to show cause why the person arrested should not be discharged out of custody ; and that it shall be lawful for such Judge or Court to make absolute or discharge such order or rule, and to direct the costs of the application to be paid by either party, or to make such other order therein as to such Judge or Court shall seem fit : Provided that any such order made by a judge may be discharged or *varied by the r-i^^Af-A-i Court, on application made thereto by either party dissatisfied with '- J such order. VII. And be it enacted. That every prisoner who at the time appointed for the commencement of this act shall be in custody upon the mesne pro- 618 BYLES ON BILLS OF EXCHANGE. cess for any debt or demand, and shall not have filed a petition to be dis- charged under the laws now in force for the relief of insolvent debtors, shall be entitled to his discharge upon entering a common appearance to the action : Provided nevertheless, that every such prisoner shall be liable to be detained, or after such discharge to be again arrested, by virtue of any such special order as aforesaid, at the suit of the plaintiff at whose suit he was previously arrested, or of any other plaintiff. VIII. And be it enacted, That if any single creditor, or any two or more creditors being partners, whose debt shall amount to one hundred pounds or upwards, or any two creditors whose debts shall amount to one hundred and fifty pounds or upwards, or any three or more creditors, whose debts shall amount to two hundred pounds or upwards, of any trader within the meaning of the laws now in force respecting bankrupts, shall file an affidavit or affi- davits in her Majesty's Courts of Bankruptcy, that such debt or debts is or are justly due to him or them respectively, and that ,such debtor, as he or they verily believe, is such trader as aforesaid, and shall cause him to be served personally with a copy of such affidavit or affidavits, and with a notice in writing requiring immediate payment of such debt or debts; and if such trader shall not within twenty-one days after personal service of such affidavit or affidavits and notice, pay such debt or debts, or secure or compound for the same to the satisfaction of such creditor or creditors, or enter into a bond in such sum and with such sufficient sureties as a commissioner of the Court of Bankruptcy shall approve of, to pay such sum or sums as shall be recovered in any action or actions which shall have been brought or shall thereafter be brought for the recovery of the same, together with such costs as shall be given in the same, or to render himself to the custody of the gaoler of the Court in which such action shall have been or may be brought according to the practice of such Court, or within such time and in such manner as the said Court or any Judge thereof shall direct after judgment shall have been recovered in such action, every such trader shall be deemed to have committed an act of bankruptcy on the twenty-second day after the service of such affi- davit or affidavits and notice, provided a fiat in bankruptcy shall issue against such trader within two calendar months from the filing of such affidavit or affidavits, but not otherwise. IX. And whereas it is expedient that provision should be made for giving every person executing a warrant of attorney to confess judgment or a cog- novit actionem due information of the nature and effect thereof; be it en- acted. That from and after the time appointed for the commencement of this act no warrant of attorney to confess judgment in any personal action or cognovit actionem, given by any person, shall be of any force unless there shall he present some attorney of one of the superior Courts on behalf of r*4fi'^1 ^^°^ person, *expressly named by him and attending at his own re- '- -' quest, to inform him of the nature and effect of such warrant or cognovit, before the same is executed ; which attorney shall subscribe his APPENDIX. 619 name as a witness to the due execution thereof, and thereby declare himself to be attorney for the person executing the same, and state that he subscribes as such attorney. X. And be it enacted, That a warrant of attorney to confess judgment or cognovit actionem not executed in manner aforesaid shall not be rendered valid by proof that the person executing the same did in fact understand the nature and effect thereof, or was fully informed of the same. XI. And whereas the existing law is defective in not providing adequate means for enabling judgment creditors to obtain satisfaction from the pro- perty of their debtors, and it is expedient to give judgment creditors more effectual remedies against the real and personal estate of their debtors than they possess under the existing law ; be it therefore further enacted. That it shall be lawful for the sheriff or other oflScer to whom any writ of elegit or any precept in pursuance thereof, shall be directed, at the suit of any person, upon any judgment which at the time appointed for the commence- ment of this act shall have been recovered, or shall be thereafter recovered in any action in any of her Majesty's superior Courts at Westminster, to make and deliver execution unto the party in that behalf suing of all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure, as the person against whom execution is so sued, or any person in trust for him, shall have been seized or possessed of at the time of entering up the said judgment, or at any time afterwards, or over which such person shall at the. time of entering up such judgment, or at any time afterwards, have any disposing power which he might without the assent of any other person exercise for his own benefit, in like manner as the sheriff or othejr oJEcer may now make and deliver execution of one moiety of the lands and tenements of any person against whom a writ of elegit is sued out ; which lands, tenements, rectories, tithes, rents, and hereditaments, by force and virtue of such execution, shall accordingly be held and enjoyed by the party to whom such execution shall be- so made and delivered, subject to such account in the Court out of which such execution shall have been sued out as a tenant by elegit is now subject to in a Court of equity : Provided always, that such party suing out execu- tion, and to whom any copyhold or customary lands shall be so delivered in execution, shall be liable and is hereby required to make, perform, and ren- der to the lord of the manor or other person entitled all such and the like payments and services as the person against whom such execution shall be issued would have been bound to make, perform, and render in case such execution had not issued ; and that the party so suing out such execution, and to whom any such copyhold or customary lands shall have been so de- livered in execution, shall be entitled to hold the same until the amount of such payments, and the value of such services, as well as the amount of the judgment, shall have been levied : *Provided also, that as against r*4^/»p-i purchasers, mortgagees, or creditors who shall have become such ^ -' 620 BTLBS ON BILLS OP EXCHANGE. before the time appointed for the commencement of this act, such writ of elegit shall have no greater or other effect than a writ of elegit would have had in case this acf had not passed. XII. And be it enacted, that by virtue of any writ of fieri facias 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 o^cer having the execution thereof may and shall seize and tike any money or bank notes (whether of the governor and company of the Bank of England, or of any other bank or bankers), 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 the party suing out such execution any money or bank notes which shall be so seized or a suffi- cient part thereof ; and may and shall hold any such cheques, bills of ex- change, promissory notes, bonds, specialties, or other securities for money as a security or securities for 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 officer for the re- covery of the sum or sums secured thereby, if and when the time of pay- ment thereof shall have arrived; and that the payment to such sheriff or other officer by the party liable on such cheque, bill of exchange, promis- sory note, bond, specialty, or other security, 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 execu- tion, as the case may be, from his liability on any such cheque, bill of ex- change, promissory note, bond, specialty or other security j 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 dis- charge the amount by such writ directed to be levied ; and if, after satis- faction of the amount so to be levied, together with sheriff's poundage and expenses, any surplus shall remain in the haxids 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 exchange, 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 what 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. XIII. And be it enacted, That a judgment already entered up or to be hereafter entered up against any person in any of her Majesty's superior Courts at Westminster shall operate as a charge upon all lands, tenements, rectories, advowsons, tithes, rents, and hereditaments (including lands and APPENDIX. 621 hereditaments of *copyhold or customary tenure) of or to which such r^j^ow-i person shall at the time of entering up such judgment, or at any '- J time afterwards, be seised, possessed, or entitled for any estate or interest whatever, at law or in equity, whether in possession, or reversion, remainder, or expectancy, or over which such person shall at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might without the assent of any other person exercise for his own benefit, and shall be binding as against the person against whom judgment shall be so entered up, and against all persons claiming under him after such judg- ment, and shall also be binding as against the issue of his body, and all other persons whom he might without the assent of any other person cut off and debar from any remainder, reversion or other interest in or out of any of the said lands, tenements, rectories, advowsons, tithes, rents, and heredita- ments; and that every judgment creditor shall have such and the same remedies in a Court of equity against the hereditaments so charged by virtue of this act, or any part thereof, as he would be entitled to in case the person against whom such judgment shall have been so entered up had power to charge the same hereditaments, and had by writing under his hand agreed to charge the same with the amount of such judgment debt and interest thereon : Provided that no judgment creditor shall be entitled to proceed in equity to obtain the benefit of such charge until ^fter the expiration of one year from the time of entering up such judgment, or in cases of judgments already entered up, or to be entered up before the time appointed for the commence- ment of this act, until after the expiration of one year from the time appointed for the commencement of this act, nor shall such charge operate to give the judgment creditor any preference in 'case of the bankruptcy of the person against whom judgment shall have been entered up unless such judgment shall have been entered up one year at least before the bankruptcy : Provided also, that as regards purchasers, mortgagees, or creditors, who shall have be- come such before the time appointed for the commencement of this act, such judgment shall not affect lands, tenements, or hereditaments, otherwise than as the same would have been affected by such judgment if this act had not passed : Provided also, that nothing herein contained shall be deemed or taken'to alter or affect any doctrine of Courts of equity whereby protection is given to purchasers for valuable consideration without notice. XIV. And be it enacted. That if any person against whom any judgment shall have been entered up in any of her Majesty's superior Courts at West- minster shall have any government stock, fands, or annuities, or any stock or shares of or in any public company in England (whether incorporated or not), standing in his name in his own right, or in the name of any person in trust for him, it shall be lawful for a Judge of one of the superior Courts, on the application of any judgment creditor, to order that such stock, funds, annuities, or shares, or such of them or such part thereof respectively as he shall think fit, shall stand charged with the payment of the amount for which judgment shall have been so recovered, and interest thereon, and such order 622 BYLES ON BILLS OF EXCHANGE. r*4-fi8n ^^*^^ *entitle the judgment creditor to all such remedies as he would •- -■ have been entitled to if such charge had been made in his favor by the judgment debtor : Provided that no proceedings shall be taken to have the benefit of such charge until after the expiration of six calendar months from the date of such order. XV. And in order to prevent any person against whom judgment shall have been obtained from transferring, receiving or disposing of any stock, funds, annuities or shares hereby authorized to be charged for the benefit of the judgment creditor under an order of a Judge, be it further enacted, That every order of a Judge charging any government stock, funds, or annuities, or any stock or shares in any public company under this act, shall be made in the first instance ex parte, and without any notice to the judgment debtor, and shall be an order to show cause only ; and such order, if any government stock, funds, or annuities standing in the name of the judgment debtor in his own right, or in the name of any person in trust for him, is to be afiected by such order, shall restrain the governor and company of the Bank of Eng- land from permitting a transfer of such stock in the meantime and until such order shall be made absolute or discharged ; and if any stock or shares of or in any public company standing in the name of the judgment debtor in his own right, or in the name of any person in trust for him, is or are to be affected by any such order, shall in like manner restrain such public company from permitting a transfer thereof; and that if, after notice of such order to the person or persons to be restrained thereby, or in case of corporations to any authorized agent of such corporation, and before the same order shall be discharged or made absolute, such corporation or person or persons shall permit any such transfer to be made, then and in such case the corporation or person or persons so permitting such transfer shall be liable to the judg- ment creditor for the value or amount of the property so charged and so transferred, or such part thereof as may be sufficient to sati^ his judgment; and that no disposition of the judgment debtor in the meantime shall be valid or effectual as against the judgment creditor ; and further, that unless the judgment debtor shall within a time to be mentioned in suph order show to a Judge of one of the said superior Courts sufficient cause to the contrary, the said order shall after proof of notice thereof to the judgment debtor, his attorney or agent, be made absolute : Provided that any such Judge shall, upon the application of the judgment debtor, or any person interested, have full power to discharge or vary such order, and to award such costs upon such application as he may think fit. ♦ XVI. And be it enacted. That if any judgment creditor, who, under the powers of this act, shall have obtained any charge or be entitled to the benefit of any security whatsoever, shall afterwards and before the property so charged or secured shall have been converted into money or realized, and the produce thereof applied towards payment of the judgment debt, cause the person of the judgment debtor to be taken or charged in execution upon such judg- APPENBIX. 623 ment, then and in such case such judgment creditor shall be *deemed i-^/i /^q-i and taken to have relinquished all right and title to the benefit of ^ -' such charge and security, and shall forfeit the same accordingly. 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 commencement 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. XVIII. And be it enacted. That all decrees and orders of Courts of equity, and all rules of Courts of common law, and all orders of the Lord Chancellor or of the Court of review in matters of bankruptcy, and all orders of the Lord Chancellor in matters of lunacy, whereby any sum of money, or any costs, charges, or expenses, shall be payable to any person, shall have the effect of judgments in the superior Courts of common law, and the per- son to whom any such moneys, or costs, charges, or expenses, shall be pay- able, shall be deemed judgment creditors within the meaning of this act; and all powers hereby given to the Judges of the superior Courts of common law with respect to matters depending in the same Courts shall and may be exercised by Courts of equity with respect to matters therein depending, and by the Lord Chancellor and the Court of review in matters of bank- ruptcy, and by the Lord Chancellor in matters of lunacy, and all remedies hereby given to judgment creditors are in like manner given to persons to whom any moneys, or costs, charges, or expenses, are by such orders or rules respectively directed to be paid. XIX. Provided always, and be it fiirther enacted. That no judgment of any of the said superior Courts, nor any decree or order in any Court of equity, nor any rule of a Court of common law, nor any order in bankruptcy or lunacy, shall by virtue of this act affect any lands, tenements, or heredita- ments, as to purchasers, mortgagees, or creditors, unless and until a memo- randum or minute, containing the name, and the usual or last known place of abode, and the title, trade, or profession of the person whose estate is in- tended to be affected thereby, and the Court and the title of the cause or matter in which such judgment, decree, order, or rule, shall have been ob- tained or made, and the date of such judgment, decree, order, or rule, and the account of the debt, damages, costs, or moneys thereby recovered or ordered to be paid, shall be left with the senior Master of the Court of common pleas, at Westminster, who shall forthwith enter the same particu- lars in a book, in alphabetical order, by the name of the person whose estate is intended to be afiected by such judgment, decree, order or rule ; and such officer shall be entitled for any such entry to the sum of five shillings ; and all persons shall be at liberty to search the same book, on payment of the sum of one shilling. 624 BTLES ON BILLS OP EXCHANGE. r*47m ^^' ^^^ ^® ** ^^^^^> *^^* ^^°^ ^^'^ '"■ 3-ltered writs shall be- *- -I sued out of the Courts of law, equity, and bankruptcy as may *by such Courts respectively be deemed necessary or expedient for giving effect to the provisions hereinbefore contained, and in such forms as the Judges of such Courts respectively shall from time to time think fit to order ; and the esecution of such writs shall be enforced in such and the same manner as the execution of writs of execution is now enforced, or as near thereto as the circumstances of the cases will admit ; and that any existing writ, the form of which shall be in any manner altered in pursuance of this act, shall nevertheless be of the same force and virtue, as if no alteration had been made therein, except so far as the effect thereof may be varied by this act. XXI. And be it enacted, that all the remedies, authorities, and provi- sions of this act applicable to her Majesty's superior courts of common law at Westminster, and the judgments and proceedings therein, shall extend to and be applicable to the Court of common pleas of the county palatine of Lancaster, and the Court of pleas of the county palatine of Durham, within the limit§ of the jurisdiction of the same Courts respectively; and the judg- ments of each of the said last-meptioned Courts shall, within the limits of the jurisdiction of the same Courts respectively, have the same effect in all respects as the judgments of any of her Majesty's said superior Courts at Westminster, under and by virtue of this act ; and all powers and authorities hereby given to the Judges, or any Judge of her Majesty's superior Courts at Westminster, with respect to matters depending in the same Courts, shall and may be exercised by the Judges, or any Judge of the said Court of common pleas at Lancaster, or the justices or any justice of the said Court of pleas at Durham, with respect to matters therein depending, and within the jurisdiction of the same Courts respectively : Provided always, that no judgment of either of the same last-mentioned Courts, shall by virtue of this act affect any lands, tenements, or hereditaments, as to purchasers, mortgagees, or creditors, unless and until a memorandum or minute, con- taining the name and the usual or last known place of abode, and title, trade, or profession of the plaintiff and defendant, the date when such judg- ment was signed, and the amount of the debt, damages, and costs thereby recovered, shall be left with the prothonotary, or deputy prothonotary, or some other officer to be appointed for that purpose by the said Courts re- spectively, who shall forthwith enter the same particulars in a book, in alphabetical order, by the name bf the person whose estate is to be affected thereby ; and such officer shall be entitled for every such entry to the sum of two shillings and sixpence ; and all persons shall be at liberty to search the same book, on payment of the sum of one shilling : and provided also, that no order or other proceeding under this act, made by any justice or justices of the said Court of common pleas of the county palatine of Lan- caster, or the Court of pleas in the county palatine of Durham, shall be valid or effectual, except made in open Court on one of the Court or return days of the same Court, or except such justice or justices shall be also a APPENDIX. 625 Judge or Judges of one of the said Courts at Westminster : Provided also, that no order directing any person or persons to be held to bail under this act, nor any order for discharging out of custody, any *person or rif^An-in persons arrested under this act, shall be made by any justice or jus- '- -' tices of the Court of pleas in the county palatine of Durham, who shall not be a Judge or Judges of one of the said Courts of common law at West- minster. XXII. And be it enacted, That in all cases where final judgment shall be obtained in any action or suit in any inferior Court of record, in which, at the time of passing of this act, a barrister of not less than seven years' standing shall act as Judge, assessor, or assistant in the trial of causes, and also in all cases where any rule or order shall be made by any such inferior Court of record as aforesaid whereby any sum of money or any costs, charges or expenses shall be payable to any person, it shall be lawful for the Judges of any of her Majesty's superior Courts of record at Westminster, or if such inferior Court be within the county palatine of Lancaster, for the Judges of the Court of Common Pleas at Lancaster, or for any Judge of any of the said Courts at chambers, either in term or vacation, upon the applica- tion of any person, who at the time of the commencement of this act shall have recovered, or who shall at any time thereafter recover such judgment, or to whom any money, or costs, charges, or expenses, shall be payable by such rule or order as aforesaid,,br upon the application of any person on his behalf, and upon the production of the record of such judgment, or upon the pro- duction of such rule or order, such record, or rule or order, as the case may be, being respectively under the seal of the inferior Court and signature of the proper officer thereof, to order and direct the judgment, or, as the case may be, the rule or order, of such inferior Court to be removed into the said superior Court, or into the Court of Common Pleas at Lancaster, as the case may be, and immediately thereupon such judgment, rule, or order shall be or the same force, charge, and effect as a judgment recovered in, or a rule or order made by such superior Court, and all proceedings shall and may be im- mediately had and taken thereupon, or by reason or in consequence thereof, :as if such judgment so recovered, or rule or order so made, had been origi- nally recovered in or made by the said superior Court, or into the Court of Common Pleas at Lancaster^ as the case may be ; and all the reasonable costs and charges attendant upon such application and removal shall be recovered in like manner as if the same were part of such judgment or rule or order : Provided always, that no such judgment or rule or order when so removed as aforesaid shall affect any lands, tenements, or hereditaments, as to purchasers, mortgagees, or creditors, any further than the same would have done if the same had remained a judgment, rule or order of such inferior Court, and until a writ of execution thereon shall be actually put into the hands of the sheriff or other officer appointed to execute the same. 40 626 BYLBS ON BILLS OF EXCHANGE. [*4T2] *[2 & 3 Vict. c. 29.] An Act for the letter Protection of Parties dealing with Persons liable to the BanJcrupt Laws. [19th July, 1839.] Whereas by an act passed in the sixth year of the reign of his late Majesty King Greorge the Fourth, intituled "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 bankrupt or by any person on his behalf, before the date and issuing of the comniission against such bankrupt, to any creditor of such bankrupt (such payment not being a fraudulent preference of such creditor), should be deemed valid, notwithstanding any prior act of bankruptcy by such bankrupt committed, and that all payments really and bona fide made to any bankrupt before the date and issuing of the commis- sion against such bankrupt should be deemed valid, notwithstanding 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 bankruptcy committed : And whereas by an act pEissed 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 among other things enacted, that all conveyances by any bankrupt bona fide made and executed before the date and issuing of the fiat against such bankrupt, shall be valid, notwithstanding any prior act of bankruptcy by him committed, provided 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 fiat 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 comlnons, in this present Parliament as- sembled, and by the authority of the same. That all contracts, dealings and transactions by and with any bankrupt really and bona fide made and entered into before the date apd issuing of the fiat against him, and all executions and attachments against the lands and tenements or goods and chattels of such bankrupt, bona fide executed or levied before the date and issuing of the fiat, shall be deemed to be valid, notwithstanding any prior act of bank- ruptcy by Such bankrupt committed ; provided the person or persons so deal- ing 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, deal- ing, or transaction, or at the time of executing or levying such execution or attachment, notice of any prior act of bankruptcy by him committed ; pro- vided also that nothing herein contained shall be deemed or taken to give validity to any payment made by any bankrupt being a fraudulent preference of any creditor or creditors of such bankrupt, or to any execution founded' APPENDIX. 627 on a *judgment on a warrant of attorney, or cognovit given by any , bankrupt by way of such fraudulent preference [*4T3] n. And be it further enacted, That this act may be repealed or altered by any other act in this present session of Parliament. [2 & 3 Vict. c. 37.] 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 Exchange and Pro- missory 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 liniited 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 thousand eight hundred and forty ; and it is expedient that the provisions 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 dis- counting, negotiating, or transferring any such bill of exchange or promissory note, be void, nor shall the liability of any part of any such bill of exchange or promissory note, nor the liability of any person borrowing any sum of money as aforesaid, be afiected, by reason of any statute or law in force for the prevention of usury; nor shall any person or persons or body corporate drawing, accepting, indorsing or signing any such bill or note, or landing 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 forfeiture ; anything in any law or statute relating to usury, or any other law whatso- ever in force in any part of the United Kingdom, to the contrary notwith- standing : Provided always, that nothing herein contained shall extend to the loan or forbearance of any money *upon security of any lands, rifAt,A-\ tenements, or hereditaments, or any estate or interest therein. L -' 628 BYLES ON BILLS OP EXCHANGE. II. Provided always, and be it enacted, That nothing in this act contained shall be construed to enable any person or persons to claim, 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 Courts that any different rates of interest was agreed to between the parties. III. Provided always, and be it enacted. 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. IV. And be it enacted. That this act shall continue in force until the first day of January, one thousand eight hundred and forty-two. V. And be it enacted. That this act may be amended or repealed by any act to be passed in this session of Parliament. iContinued hy the 3 & i Vict. c. 83 ; 4 (fc 5 Vict. c. 54 ; Q &7 Vict. c. 45 ; 8 cfc 9 Vict. c. 102, and ly 13 & 14 Vict. c. 56, to the \st January, 1856.] [6 & 7 Vict. c. 85.] An Act for improving the Law of Evidence. [22d August, 1843.] " Whereas the inquiry after truth in Courts of justice is often obstructed by incapacities created by the present law, and it is desirable that full in- formation as to the facts in issue, both in criminal and in civil cases, should be laid before the persons who are appointed to decide upon them, and that all such persons should exercise their judgment on the credit of the witnesses adduced and on the truth of their testimony :" now therefore be it 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 no person offered as a wit- ness shall hereafter be excluded by reason of incapacity from crime or interest from giving evidence, either in person or by deposition, according to the practice of the Court, on the trial of any issue joined, or of any matter or question or on any inquiry arising in any suit, action, or proceeding, civil or criminal, in any Court, or before any Judge, jury, sheriff, coroner, magistrate, rif An tr\ officer, or person having by law or by consent *of parties, authority '- -"to hear, receive and examine evidence ; but that every person so offered may and shall be admitted to give evidence on oath, or solemn affirma- APPENDIX. 629 tion in those cases wlierein affirmation is by law receivable, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question, or injury, or of the suit, action, or proceeding in which he is offered as a witness, and notwith- standing that such person offered as a witness may have been previously convicted of any crime or offence : provided that this act shall not render competent any party to any suit, action, or proceeding individually named in the record, or any lessor of the plaintiff, or tenant of premises sought to be recovered in ejectment, or the landlord or other person in whose right any defendant in replevin may rdake cognizance, or any person in whose imme- diate and individual behalf any action may be brought or defended, either wholly or in part, or the husband or wife of such persons respectively; pro- vided, also, that this act shall not repeal any provision in a certain act passed in the session of Parliament holden in the seventh year of the reign of his late Majesty, and in the first year of the reign of her present Majesty, inti- tuled, "An Act for the Amendment of the Laws with respect to Wills:" pro- vided that in 'Courts of equity any defendant to any cause pending in any such Court may be examined as a witness on the behalf of the plaintiff, or of any co-defendant in any such cause, saving just exceptions; and that any interest which such defendant so to be examined may have in the matters or any of the matters in question in the cause shall not be deemed a just excep- tion to the testimony of such defendant, but shall only be considered as affect- ing or tending to affect the credit of such a defendant as a witness. II. And be it enacted, That wherever in any legal proceedings whatever legal proceedings may be set out, it shall be necessary to specify that any particular persons who acted as jurors have made affirmation instead of oath, but it may be stated that they served as jurymen, in the same manner as if no act had passed for enabling persons to serve as jurymen, without oath. in. And be it enacted, That nothing in this act shall apply to or affect any suit, action, or proceeding brought or commenced before the passing of this act. IV. And be it enacted, That nothing in this act shall extend to Scotland. *[7 & 8 Vict. c. 32.] [*476] An Act to regulate the Issue of Bank Notes, and for giving to the Governor and Company of the Bank of England certain Privileges 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 630 BYLES ON BILLS OF EXCHANGE. notes in exchange for gold bullion, at the rate of three pounds seventeen shillings and nine pence per ounce of standard gold : Provided always, that the said governor and company shall in all cases be entitled to require such gold bullion to be melted and assayed by persons approved by the said governor 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 pay- 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 hundred and forty-four carrying on the business of a banker in England or Wales, and was then lawfully issuing, in England or Wales, his own bank notes, under the authority of a license to that effect, to continue to issue such notes to the extent and under the conditions hereinafter mentioned, but not further or otherwise ; and the right of any company or partnership to continue to issue such notes shall 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 con- sisting 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. XII. And be it enacted. That if any banker in any part of the United 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 r*d.7'71 ^^^ ^^^ governor and company of the *Bank of England or other- L -^ wise, 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 the passing of this act it shall be lawful for any society or company or any persons in partnership, though exceeding six in number, carrying on the business of banking in London, or within sixty-five miles thereof, to draw, accept, or indorse bills of exchange, not being payable to bearer oil demand, anything in the herein- APPENDIX. 631 before recited act passed in tlie fourth year of the reign of his said Majesty- King William the Fourth, or in any other act, to the contrary notwithstand- ing- [12 & 13 Vict. c. 106.] An Act to amend and consolidate the Laws relating to Bankrupts. [1st August, 1849.] LXXXIX. And with respect to the proceedings before adjudication of bankruptcy, be it enacted, That proceedings to obtain adjudication of bank- ruptcy shall be by petition (such petition, if presented by a creditor, being in the form specified in the schedule (M.) to this act annexed, and the truth thereof verified by the affidaivit of the petitioner in the form specified in the schedule (N.) to this act annexed, and if presented by a trader, being in the form specified in the schedule (0.) to this act annexed, and the truth thereof verified by the affidavit of such trader in the form specified in the schedule (N.) to this act annexed) ; and every such petition shall be filed of record and prosecuted as directed by this act ; and from and after the filing of such petition the Court shall by virtue of this act, and without any commission, fiat, or special authority whatsoever, have full power and authority to take such order and direction with the body of the bankrupt as mentioned in this act, as also with all his lands, tenements, and hereditaments, both within this realm and abroad, as well copy or customary hold as freehold, which he shall have in his own right before he became bankrupt, as also with all such interest in any such lands, tenements, and hereditaments as such bankrupt may lawfully depart withal, and with all his money, fees, offices, annuities, goods, chattels, wares, merchandise, and debts, wheresoever they may be found or known, and to make or order sale thereof in manner herein men- tioned, or otherwise order the same for satisfaction and payment of the creditors of the bankrupt. XCI. That the amount of the debt of any creditor petitioning for adjudi- cation of bankruptcy shall be as follows ; that is to say, the single debt of such creditor, or of two or more persons being partners, so petitioning, shall amount to fifty pounds or upwards, and the debt of two creditors so rifAno-i petitioning shall amount to *seventy pounds or upwards, and the *- J debt of three or more creditors so petitioning shall amount to one hundred pounds or upwards ; and every person who has given credit to any trader upon valuable consideration for any sum payable at a certain time, which time shall not have arrived when such trader committed an act of bankruptcy, may so petition or join in petitioning, whether he shall have had any security in writing for such sum or not. XCIII. That any trader liable. to become bankrupt may petition for adju- 632 BYLES ON BIIiLS OF EXCHANGE. dication of bankruptcy against himself 5 provided always, that unless such trader' shall forthwith after the filing of his petition, and before adjudication of bankruptcy thereunder, make it appear to the satisfaction of the Court that his available estate is sufficient to pay his creditors at least five shillings in the, pound, clear of all charges (to be estimated by the Court) of prosecu- ting the bankruptcy, such petition shall be dismissed, and no further petition shall be filled by such trader in the same district without the leave of the Court first obtained for that purpose, and the adjudication on any further petition shall be subject to the like condition as aforesaid as to the available estate of the trader. CXXY. And with respect to the power of the Court over certain descrip- tions of property, be it enacted, That if any bankrupt at the time he becomes bankrupt shall, by the consent and permission of the true owner thereof, have in his possession, order, or disposition, any goods or chattels whereof he was reputed owner, or whereof he had taken upon him the sale, alteration, or disposition as owner, the Court shall have power to order the same to be sold and disposed of for the benefit of the creditors under the bankruptcy : Provided that nothing herein contained shall invalidate or affect any transfer or assignment of any ship or vessel, or any share thereof, made as a security for any debt or debts, either by way of mortgage and assignment, duly registered according to the provisions of an act made in the Parliament holden in the eighth and ninth years of the reign of her Majesty, intituled "An Act for the registering of British Vessels," or any of the acts therein mentioned. \ CXXVI. That if any bankrupt, being at the time insolvent, shall (except upon the marriage of any of his children, or for some valuable consideration), have conveyed, assigned, or transferred to any of his children, or to any other person, any hereditaments, offices, fees, annuities, leases, goods or chattels, or have delivered or made over to any such person any bills, bonds, notes, or other securities, or have transferred his debts to any other person or into any other person's name, the Court shall have power to order the same to be sold and disposed of for the benefit of the creditors under the bankruptcy; and every such sale shall be valid against the bankrupt, and such children and persons, and against all persons claiming under him. CXXXIII. And with respect to transactions with the bankrupt, and r*zl7Qn executions against his property, up to the time of the bankruptcy, ■- -I or within a limited time previously thereto, be it enacted, *That all payments really and bona fide made by any bankrupt, or by any person on his behalf, before date of the fiat or the filing of a petition for adjudication of bankruptcy, to any creditor of such bankrupt, and all payments really and bona fide made to any bankrupt before the date of the fiat or the filing of such petition, and all conveyances by any bankrupt bona fide made and executed before the date of the fiat or the filing of such petition, and all APPENDIX. 633 contracts, dealings, and transactions by and with any bankrupt really and bona fide made and entered into before the date of the fiat or the filing of such petition, and all executions and attachments against the lands and tene- ments of any bankrupt bona fide executed by seizure, and all executions and attachments against the goods and chattels of any bankrupt bona fide executed and levied by seizure and sale before the date of the fiat or the filing of such petition, shall be deemed to be valid, notwithstanding any prior act of bank- ruptcy by such bankrupt committed, provided the person so dealing with or paying to or being paid by such bankrupt, or at whose suit or on whose account such execution or attachment shall have issued, had not at the time of such payment, conveyance, contract, dealing, or^ transaction, or at the time of so executing or levying such execution or attachment, or at the time of making any sale thereunder, 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 or to any delivery or transfer of any goods or chattels made by any bankrupt, being a fraudulent preference of any creditor of such bankrupt, or to any conveyance or equitable mortgage made or given by any bankrupt by way of fraudulent preference of any creditor of such bankrupt, or to any execution founded on a judgment on a warrant of attorney or cognovit actionem or Judge's order, obtained by consent given by any bankrupt by way of fraudulent preference. CXXXIV. That no purchase from any bankrupt bona fide and for valuable consideration, where the purchaser had notice at the time of such purchase of an act of bankruptcy by such bankrupt committed, shall be impeached by reason thereof, unless a fiat or petition for adjudication of bankruptcy shall have been sued out or filed within twelve months after such act of bankruptcy. CXXXV. That every warrant of attorney to confess judgment in any per- sonal action, given by any bankrupt after the commencement of this act, and within two months of the filing of a petition for adjudication of bankruptcy by or against such bankrupt, and being for or in respect of (wholly or in part) an antecedent debt or money demand, and every cognovit actionem or consent to a Judge's order for judgment given by any bankrupt, at any time after the commencement of this act, and within two months of the filing of any such petition in any action commenced by collusion with the bankrupt, and not adversely, or purporting to have been given in an action, but having been in fact given before the commencement of any action against the bank- rupt, such bankrupt being unable to meet his engagements at the time of giving such warrant of attorney, cognovit actionem, or consent (as r:(.4on-i the *case may be), shall be deemed and taken to be null and void, '- -^ whether the same shall have been given by such bankrupt in contemplation of bankruptcy or not. CLXXI. That where there has been mutual credit given by the bankrupt 634 BYLBS ON BILLS OF EXCHANGE. and any other person, or where there are mutual debts between the bankrupt and any other person, the Court shall state the account between them, and one debt or demand may be set against another, notwithstanding any prior act of bankruptcy committed by such bankrupt before the credit given to or the debt contracted by him; and what shall appear due on either side on the balance of such account, and no more, shall be claimed or paid on either side respectively ; and every debt or demand hereby made provable against the estate of the bankrupt, may also be set off in manner aforesaid against such estate, provided that the person claiming the benefit of such set-off had not, when such credit was given, notice of an act of bankruptcy by such bank- rupt committed. CLXXIII. That any person who at the time of issuing the fiat or of filing a petition for adjudication of bankruptcy, shall be surety or liable for any debt of the bankrupt, or bail for the bankrupt, either to the sheriff or to the action, if he shall have paid the debt, or any part thereof in discharge of the whole debt (although he may have paid the same after the issuing of the fiat or the filing of the petition for adjudication of bankruptcy), if the creditor shall have proved his debt under the bankruptcy, shall be entitled to stand in the place of such creditor as to the dividends and all other rights under the bankruptcy which such creditor possessed or would be entitled to in re- spect of such proof; or if the creditor shall not have proved, such surety or person liable, or bail, shall be entitled to prove his demand in respect of such payment as a debt under the bankruptcy, not disturbing the former dividends, and may receive dividends with the other creditors, although he may have become surety, bail, or liable as aforesaid, after an act of bankruptcy com- mitted by the bankrupt, provided that such person had not, when he became surety or bail, or so liable as aforesaid, notice of an act of bankruptcy by such bankrupt committed. CLXXVIII. That if any trader who shall become bankrupt after the com- mencement of this act shall have contracted, before the filing of a petition for adjudication of bankruptcy, a liability to pay money upon a contingency which shall not have happened, and the demand in respect thereof shall not have been ascertained before the filing, of such petition, in every such case, if such liability be not provable under any other provision of this act, the person with whom such liability has been contracted shall be admitted to claim for such sum as the Court shall think fit; and after the contingency shall have happened, and the demand in respect of such liability shall have been ascertained, he shall be admitted to prove such demand, and receive dividends with the other creditors, and, so far as practicable, as if the con- r* time of payment, 58. request to pay, 59. description of payee, 60. bills under 20s.— 63. under £5—63. transfer of, 134. attesting witnesses to, 65. cannot be the subject of a donatio mortis causa, 136. capacity of contracting parties to, 21 to 55. value received, of the words, 63. attesting witness, 65. direction to drawee, 66. place where made payable, 66. by copartnerships or corporations, 67. must be for payment of a certain sum, 70. not out of a particular fund, 73. must not be drawn on a contingency, 75 to 72. operation of agreements respecting, 75, 76. formal parts of, 56 to 67. ' ambiguous, conditional, or irregular, 68 to 74. agreements, controlling, 75 to 77. stamps on, 78 to 90. consideration of, 92 to 111. transfer of, 112 to 138. pot subjects of larceny, at common law, 137. are so by statute, 137. presentment for acceptance, 139 to 142. acceptance, 143 to 156. presentment for payment, 157 to 171. payment of, 172 to 181. satisfaction, extinguishment and suspension of right of action, 182 to 186. release of, 187. 644. BTLBS ON BILLS OF EXCHANGE. BILLS OF EXCRA.'SaE— continued. principal and surety in relation to, 189 to 199. protest of, and noting, 200 to 205. ' acceptance, supra protest, 206 to 209. payment, supra protest, 210 to 211. notice of dishonor, 212 to 239. interest on, 240 to 252. alteration of, 253 to 259. forgery of, 260 to 268. Statute of Limitations as to, 269 to 286. set-off and mutual credit, 2S1 to 296. lost bill or note, 297 to 302. bill when a payment, 303 to 308. sets and copies of bill, 309 to 311. foreign bills and law, 312 to 320. remedy by action on, 321 to 331. pleadings in actions on, 332 to 346. evidence, 347 to 35T. bankruptcy, 358 to 379. insolvency, 380. BILL BROKER, how he may raise money on bills, 25. BLANK, indorsement in, 114, 125, 127. acceptance on, 145. BLANK INDORSEMENT, 114. See Indorsement. BLIND MAN, note by, 47, note (/). blind attesting witness, 352, note (_/"). BONA NOTABILIA, bills are, 41. BRANCH BANKS, notice of dishonor through, 224. > CANCELLING, when an acceptance may be cancelled, 152. an indorsement, 178. payment of cancelled check, 173, 174. CERTIPICATB.IN BANKRUPTCY, effect of, 357. CHATTELS, to what purpose bills and notes are, 2. CHECKS, what, 10. not liable to stamp duties, 11. , requisites to bring them within the exemption, 11. consequences of drawing improper check on unstamped paper, 1 2. penalty on banker paying the same, 12. postdating, 12, 58. amount for which check may be drawn, 12. obligation of banker to pay, 13. should be presented the day after it is issued, 13, 14. general rule as tO presentment of, 14. between holder and drawer, 14. between holder and his own banker, 14. where parties do not live in the same place, 14. between holder and transferer who is not the drawer, 14. what amounts to an engagement by drawer to pay check, 15. crossed checks, 15. when check evidence of payment, 16. INDEX. 645 CHECKS — continued. when it amounts to payment, 16. when it may be taken in payment, 16. holder of, whether assignee of a chose in action, 17. drawer's death, effect of, IT. fraud in filling up checks, 17. when several must join in drawing, 18. period at which bankers should debit customers with, 18. are not protestable, 18. may be referred to Master to compute, 18. canndt be the subject of a donatio mortis causa, 18, 136. right to cash a check, 18. overdue check, 18. transfer of, 130. banker paying check before due, or long after it is drawn, to a wrongiul owner, it is his own loss, 130, ITS, IH. if lost, action will not lie upon it, 299. venue in action on, 326. CHRISTMAS DAY, considered for all purposes as Sunday, t & 8 Geo. 4, c. 15 — 161, 224. CODICIL, when a bill or note may be, 3. See Will. COPARTNER OR COPLAINTIFF, bound by acts of his companion, 33. CHURCHWARDEN, note given by or to, 54. COHABITATION, past illicit, a consideration not illegal, but insufficient to sup{)ort a note, 103. future, an illegal consideration, 103. COLLATERAL SECURITY, effect of memorandum, 352. COMMISSION, for discounting or remitting bill, what amount may be taken, 245, 246. what will be usurious, 245, 246. COMMISSION OP BANKRUPTCY. See Bankruptcy. COMMON COUNTS. See Money Counts. COMPANIES. See Corporations and Companies. COMPOSITION WITH CREDITORS, not secretly given to one creditor in preference to others, void, 101. though given by a third person, 101, 102. any secret additional security void, though for the same sum, 101, 102. compounding creditor cannot split his demand, 102. when he must refund money paid on bills which he retains, 102. composition entered into by holder with acceptor discharges other parties, 196. COMPUTE, rule to, 328. CONDITION, bill or note cannot be made payable on, YO to Y2. conditional indorsement, 117. conditional acceptance, 149. CONFLICT OP LAWS, 313. CONSIDERATION, presumed, 2, 92. whether a transferee, in consideration of pre-existing debt, is considered a holder for value without fresh consideration, 27, 28, 95. executory in an action by a corporation, 52. when it must be proved, 93. effect of new rules of pleading, 94. gift of a bill or note, 94. nature of the consideration, 95. 646 BYLES ON BILLS OF EXCHANGE. CONSIDBRATIOlSr— con/MMci. pre-existing debt, 95. fluctuating balance, 96. debt of third person, 96. judgment debt, 97. where more than one consideration comes in question, 97. failure of consideration, 98. notice of its absence, 98. notice to prove not necessary, 93, note (c). as between what parties its absence is a defence, 94. its partial failure, 98. fraudulent considerations, 100. illegal, 10.3. notice of illegality, 110. immoral, 103. illegal by statute, 106. in contravention of public policy, 104. usurious, 106. See Usury. gaming, 100. norse-racing, 106. innocent indorsee, 107. new security, 107. stock-jobbing, 108. / sale of an office, 109. stipulation with sheriff for ease and favor, 109. signing bankrupt's certificates, 109. sale of spirituous liquors, 110. attorney's bill not delivered, 110. part illegal. 111. when can be taken advantage of after judgment by default, 112. when the Court will stay proceedings on affidavit of absence of consideration, 328. renewed biU given on illegal consideration when void. 111. • transferer by delivery not in general liable on the, 122. CONSOLIDATING ACTIONS, on bills or notes, 327. CONSTRUCTION, of written instruments, 217. CONTINGENCY. See Condition. CONTRACT, bill or note does not suspend a contract under seal, 304. contrary to public morals, 315. CONTRIBUTION BETWEEN SURETIES, 199. CONVICTED FELONS, when cannot acquire title to bill, 51. COPIES OP BILLS, 311. COPLAINTIPFS, bound by misconduct of each other, 33. COPY, of notice of dishonor, admissible evidence, without notice to produce, 219. of protest need not accompany notice of dishonor, 203, 218. CORPORATION AND COMPANIES, corporations can, in general, contract only by writing under their common seal, 51. ■ ' exceptions to the rule, 51. effect of bank acts, 52. do not apply to commercial firms, 52. relaxed by the 7 Geo. 4, c. 46 — 52. privileges of the Bank of England, 52, 53. when a corporation can sue in assumpsit, 51. INDEX. 647 CORPORATIONS AND COMPANIES— confewed when it can be sued in that form of action, 52. members of joint-stock banking companies may sue the firm, and be sued by it, 30, 31. liability of directors on bills and notes, 54. COSTS, when, on payment of debts and costs, the Court will stay proceedings, 327. what costs must be paid, 327. proceedings for costs, 322. liability to, how far it affects the competency of witnesses, 349. COVENANT, not to sue, 186, 188. not to sue within a limited time, 186, 188. COUNTRY BANK NOTES. See Bankers' Cash Notes, 7. CREDITOR, taking bills of third person, consequence of, 305. agent of, taking debtors' bill, 305. if bill dishonored, what he must prove, 806. CROSSED CHECKS, 15, 173. CROSS BILLS AND ACCEPTANCES, when mutually considerations for each other, 95. proof in bankruptcy on, 363. DAMAGES, what recoverable, 330. in trover, 323. DATE, _ not, in general, essential, 57. printed dates, when illegal, 57. postdating a bill, so as to evade higher duty, 58, 87. postdating check, 12. dates of bills under £5 — 58. • alteration of, 254. statement of, in declaration, 57, 58. amendment of, 356. when interest runs from, 241. evidence of, 57, 58, 373. DAYS, how computed, 159. DAYS OP Q^RACE, how many allowed in foreign countries, 160, 161. in this country, 161. Sundays and holidays how reckoned, 161. presentment before expiration of, 162. on what bills allowed, 162. on notes payable by instalments, 5. DEATH, indorsement to a dead man, 40. who is to indorse after, 40, 135. of drawer of check, 17. donatio mortis caus4, 136. presentment for acceptance on death of drawee, 142. notice of dishonor not dispensed with by death of drawee, 236. presentment for paymSnt on drawee's death, 159. DEBT, ACTION OP, 333. See Action. DEBT, a pre-existing, is a consideration, 28, 29, 95. DEED, taken as security, how far it is an extinguishment of liability on a bill, 185. DB INJURIA, replication, 344. 648 BYLES ON BILLS OF EXCHANGE. DELIVERY, by executor after indorser's death, 43, 135. necessary to perfect indorsement, 116. to perfect acceptance, 151. transfer by, 122, 123. liability of party transferring by delivery without indorsement, 122, 125. rights of transferee by delivery, 125, 298. warrants, genuineness of signature, 125. unauthorized, 24. DEMAND, particulars of, 326. DEMAND, BILL OR NOTE PAYABLE ON, where no time of payment is specified, bill or note is payable on demand, 165. actual demand not necessary to charge acceptor or maker, 170, 361. from what time the Statute of Limitations- runs on, 273. presentment of, 163. proof in bankruptcy of bill payable on demand, 361. when considered overdue, 131, 163, 164. DEMAND OP ACCEPTANCE, ^ea Presentment for Acceptance. DEMAND OP PAYMENT. See Presentment for Payment. DEPOSIT, by a bill broker, 24, 25. fraudulent, by agent, 28. by restricted indorsee, 119, 121. DESTRUCTION. See £oss. DETINUE, ACTION OP, for a bill, 323. DIES, may be changed, 89. effect of stamping with superseded dies, 89. DIRECTION, to drawee, 66. where the word at precedes, 66. of a letter containing notice of dishonor, 218. DIRECTORS, drawing or accepting bills, 64. DISCHARGE, by giving time. See PriTicipal and Surety. before breach of contract, 182. what conduct of the holder towards the surety discharges the principal, 198. under insolvent acts, 380 to 383. by bankruptcy, 356 to 379. DISCOUNT, usury on, 245. of a man's own acceptances, whether usury, 245. commission for, 247. by advancing goods, 249. by banker, who be*comes bankrupt, 374. by giving other bills in exchange, 246. under suspicions circumstances, 125, 126, 298. of bills at very long dates, 246. usurious. See Usury. DISCOVERY, BILL OP, . in aid of action or defence on bill, 331. ofauL 0. U., 20. DISHONOR, by non-acceptance. See Presentment for Acceptance. by non-payment. See Presentment for Payment. notice of. See Notice of Dishonor. INDEX. 649 DISTRESS, right of, not suspended by bill or note, 304. DIVIDEND WARRANTS, 127. DONATIO MORTIS CAUSA, bond may be, 136. or bank-note, 136. check cannot be, 18, 136. nor bill, nor note of hand, 136. inclination of the Courts with respect to, 136. DORMANT PARTNER. See Partner. DRAWEE, who he is, 1. ■, direction to, 66. DRAWER, _ who he is, 1. his signature, 65. when it must be attested, 65. when he must make the bill payable at a particular place, 66, 166. DRAWING BILL, effect of, 2, 113. DRUNKENNESS, note made in, 47. must be specially pleaded, 48. DURESS, makes proof of consideration necessary, 93. EARNEST, bill or pote is, EAST INDIA BONDS, 127. EFFECTS, whether want of, in the drawee's hands, prevents the drawer from being dis- charged by indulgence shown to the drawee, 191. want of, excuses protest, 203. and notice of dishonor, 231. will not avail as an excuse in an action against indorser, 332. nor as an excuse in an action against the drawer, where there is reasonable ground to expect payment, 232. whether against an acceptor without effects, a party paying supra protest has any remedy, 211. when acceptor is a competent witness to prove absence of effects in his hands, 350, 351. ELECTION TO PROVE OR SUE. See Bankruptcy. EMBEZZLEMENT OP BILLS, is felony, 137. EQUITY, COURT OP, when it will restrain the negotiation of a bill, or order it to be delivered up to be cancelled, 131, 136. jurisdiction in case of lost or destroyed bills, 301, 302. when will restrain action on bill, 330. bill of discovery in, in aid of defence, &c., 20, 331. ERROR, bail in, when necessary, 334. interest after writ of error, 334. by acceptance, 346. ESTOPPEL, pleading, 346. on a married woman, 48. on an infant, 47. EVIDENCE, where bill or note payable at a particular place, 167, 168, 169., 650 BTLES ON BILLS OF EXCHANGE. i EVIDENCE— continued. competency of parties to the iustrament as witnesses in actions between other parties, 348. declarations at the time of making the instrument, 351. of former holders, 357. effect of admissions on record, 352. proof of signature or mark, 352, 353. collateral security, 352. i identity of defendant, 35,2. of consideration, 93, 353. , production of bill, when necessary, 353. proof of i^ame, 35.3. proof of mark, 353. proof of signature by agent, 354. bill or note evidence under the common counts, 354. proof in various actions, 354. receipt, 355. •amendment at trial, 356. ofdateof bill, 373. to save the Statute of Limitations, 284. of notice of dishonor, 219. 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, 59. of bill for other bill, 123, 185, 307. of acceptances, proof of, in case of bankruptcy, 363. expenses of re-exchange, 329. EXCHEQUER BILLS, when wrongful transfer of, will pass property, 127, 136. EXECUTION, bank notes, bills of exchange, promissory notes and checks can be taken in, 3, 18, 136. effect of waiving execution against the person, 185, 194. against the goods, 184. taking party in execution, where he is discharged under the Lords' Act, 381. under the Insolvent Act, 381. where the Court will restrain execution, 322. when execution is a satisfaction, 184, 195, 322. EXECUTORS AND ADMINISTRATORS, rights and liabilities of, 40. ^ always bound and implied without being named, 40. effect of indorsement to a dead man, 40. indorsement by executor, 40, 42, 135. indorsement by one of several co-executors, 43. presentment by, and notice to, 40. effect of probate, 41. bills and notes, bona notabilia, 41. appointment of debtor to be executor a release, 41. debtor becoming administrator, 42. where executors may sue as such, 43. delivery by executor after indorser's death, 43, 135. joinder of common counts, 43, 44. liabiUty to costs, 44. profert of probate, 43. when executor personally liable, 44. ' acknowledgment by, 297. EXPENSES, of special messenger, to give notice of dishonor, when recoverable, 220. INDEX. 651 EXPENSES— coniJireMed of noting, 203. of postages, &c., 330. proof of, in Bankruptcy, 370. EXTENT, bills and notes may be seized under, 3, 137. and presentment excused by, 170. where bill is taken uiider, notice of dishonor is not necessary, 238. EXTINGUISHMENT, of right of action on a bill, 182 to 184. effect of warrant of attorney, 184. FACTOR, how far he can convey a title by pledging bills, 24. misdemeanor, if he pledge beyond the extent of his lien, 28, 137. PAST-DAY. See Holiday. FATHER OR SON, of the same name, bill payable to, 60. FEME COVERT, See Married Woman. FELON CONVICT, acquires no title to bill by indorsement, 51. FELONY, embezzlement of bills or notes is, 137. FIAT. See Bankruptcy. FICTITIOUS BILLS, where one partner indorsed the name of the firm on, firm liable, 32. FICTITIOUS NAME, forging, 262. FLUCTUATING BALANCE, when a consideration, 96. FOREIGN LAWS, how far regarded, 314. revenue laws, 316. pleading, 320. FOREIGN BILLS, wh?(t, 312. sets of bills, 309, 313. presentment of, 320. See Presentment for Acceptance, Presentment for Pay- ment. presumption of being inland, 313. acceptance of, 147, 148, 313. protest, 200. See Protest. conflict of laws relating to, 313. where lex loci contractus governs, 316, 316. foreign acceptance of, 316. 'foreign indorsement of, 316. foreign discharge, 316. where lex loci solutionis governs, 315, 316. foreign indorsement of English note, 317. time of payment, 317. protest and notice of dishonor, 317. iinmoral, illegal, and injurious contracts with respect to, 317. stamps on, 318. on Irish or colonial bills, 318. application of lex fori, 316, 319. Statutes of Limitations as to, 320. protest and notice of dishonor, 320. burden of proof, 320. * arrest on, 320. pleading foreign law, 320. 652 BYLBS ON BILLS OF EXCHANGE. FOREIGN BILLS— continued. transfer of, 134, 316. forgery of, 265. FORGERY, what it is, 260. when acceptor precluded from setting it up, 156. See Acceptance. forgery of indorsement conveys no title, 265. degree of crime, 250. statutes, 260. of void or informal bills, 260. by misapplication of a genuine signature, 261. by filling up a blank acceptance for more than authority, 262. by signature of fictitious name, 262. by fraudulent signature of a man's own name, 262. personating the party signing, 263. misrepresentation of authority, 263. by alteration, 263. uttering, 264. procuring to utter, 264. of foreign bills, 265. form of indictment, 264. where several make distinct parts of the instrument, 265. evidence, 265. civil consequences of, 266. payment of a forged bill, 266. when money paid on forged bill may be recovered back, 266. inspection of forged bill, 268. FORM OF BILLS OR NOTES, 56 to 67. FRAUD, ■ in filling up checks, 17. fraudulent transfer, 125. fraudulent considerations, 100 to 103. when a party who has been defrauded is bound, 47, 103. on defendant, entitles him to dispute consideration, 94. by one partner on another, 33, 34. equity will relieve in case of, 137. FRAUDULENT PREFERENCE, 378. FRIENDLY SOCIETY, note to, 55. FRIVOLOUS PLEAS, will be set aside, 328. FUND, bill or note must not be payable out of a particular fund, 73. GAMING CONSIDERATION, 106. GIFT, of bill, &e., intra vivos, whether valid, 94. as a donatio mortis causa, 136. GIVING TIME. See Principal and Surety. GOOD FRIDAY. See Christmas Day and Holiday. GOVERNMENT CHECKS, at what hour payable, 14. GRACE. See Days of Grace. GUARANTEE, when presentment is requisite to charge guarantor, 158. notice of dishonor, 230. second acceptance may be a guarantee, 151. • second maker of a note may be liable as, 6. distinction between it and a promissory note, 8. INDEX. 653 HA^F NOTES, loss of, 301. HOLDER, who he is, 1. HOLIDAYS, Sunday, Christmas Day, Good Friday, a public fast or thanksgiving day, treated for ail purposes alike, 161, 224. festival of other religions, 224. hill payable on, falls due the day preceding, 161. HONOR, acceptance for, 206. payment for, 210. ■HOaSB-RACING, where a bet is valid, lOT. bill for bet void, 107. HOUR, at what hour presentment should be made, 141. HUSBAND AND WIFE. See Married Woman. IDENTITY, evidence of, 352, 354. of name, 60. IDIOT, bill or note by, 47. ILLEGAL CONSIDERATIONS AND CONTRACTS, 103, 317. ILLNESS, whether it excuses presentment for acceptance, 141. notice of dishonor, 235. IMBECILITY OP MIND. See Lunatic. IMMORAL CONSIDERATIONS AND CONTRACTS, 103, 317. INDEMNITY, for a lost bill, 302. in bankruptcy, 362. ■ where it is a defence to an action, 296. surety's right to, 199. INDICTMENT. See Lairemy and Forgery. INDORSEMENT, effect of, 2. warrants genuineness of prior indorsements, 174, note {h). unauthorized, 24. after dissolution of partnership, 39. what bills transferable by, 113. bills payable to order transferable only by indorsement, 1, 114. two modes of indorsement, 114. effect of indorsement of biU not negotiable, 113. where an indorsee is trustee, 119. restrictive indorsements, 121. delivery essential to complete indorsement, 116. after blank indorsement, bill payable to bearer, 114, 125, 126. and as many may sue jointly on a bill as can agree to do so, 114. indorsee may convert blank into special indorsement, 116. liability of indorser, 117. how avoided, 117. party transferring by delivery only, how liable, 122. when the bill is to be considered as sold, 123. conditional indorsement, 117. rights of indorsee, 119. effect of reindorsing a bill to a previous indorser, 119. distinction as to the right acquired by transferee where the bill is or ia not transferable by delivery, 122. sale of a bill, 123. 654 BYLBS ON BILLS 01 BXCHANGiE, INDORSEMENT— co9i/i««ec?. transfer for part of the sum due on the instrument, 133. consequence of indorsing before bill or note is made, 127. may be either before or after acceptance, 128. either on the face or back of the bill, 115. after refusal to accept, where indorsee knew of the dishonor, 128. where indorsee did not know, 128. effect of indorsing an overdue biU or check, 129, 130. bill or note cannot be negotiated after payment by acceptor or maker, 132. except notes reissuable by the Stamp Act, 132. presumption as to time of indorsement, 131. when may be negotiated after payment by drawer, 132. requisites to the indorsement of a bill or note under £5 — 134. jurisdiction of a Court of equity in restraining negotiation, 137. striking out indorsements, 118. omission of intermediate indorsements in declaration, 118. when it is doubtful whether the bill were paid or transferred, 133. after release, 134, 187. after action brought, 134. statement of, in affidavit to hold to bail, 324. by agent. See Agent. by or to executor. See Executor. by partner. 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. INFANT, cannot be attorney to conduct a suit, 22, note (6). when he can make a valid contract, 44. distinction between his contracts, void and voidable, 45. acceptance for necessaries, 44. contracts made in the course of trade, 45. ratification of contracts made by an infant must be in writing, 45. promissory note for necessaries, 46. party to a note with an adult, 46. infant partner, 46. what title infants, parties to a bill, can convey to other parties, 46. as against themselves, 46. may sue on a bill, 47. payment to an infant, 47. INDULGENCE. See Principal afid Surety. INFORMAL BILLS, 68 to 74. may be evidence of an agreement, 74. stamp on, 80. proof of, 361. forgery of, 261. INITIALS, party to bill may be described by, in affidavit to hold to bail, 325. in the pleadings, INLAND BILL, what it is, 313. INQUIRY, writ of, 328. not necessary to produce bill on, 353. INSANITY. See Lunatic. INSOLVENT DEBTORS' ACT, acts now in force, 380. INDEX. 665 iMSOLVBNT DEBTORS' ACT— continued. general object of, 380. ' effect of, on liability of insolvent to holders of negotiable instrument, 381. of diseliarge of one of two makers of a note, 381. description of bill in schedule, 381. notice to creditor, 382. effect of disciarge on third persons, 382. bill or note given for debt for which insolvent has been discharged, 109, 382. bill given to prevent opposition, 383. INSPECTION OF A BILL, by defendant, 268, 326. INSTALMENTS, bill or note payable by, 5, 333. action of debt on, 333. days of grace on, 6. INTEREST, when recoverable, 240. where made payable by the instrument, and where not, 241. from what period it runs, 241. aa against an indorser, 242. how bankers should charge it, 242. to what period computed, 242. when money paid into court, 242. when engagement to give a bill will create a liability to, 243. in trover, 242. after tender, 242. proceeding for, after payment of principal, 243. when not recoverable, 243. rate of, 243. arrest for, when, 324. on judgments after error brought, 334. proof for, in bankruptcy, 3^0. usurious. See Usury. INTOXICATION. See Drunkenness. INTERESTED WITNESSES, common law, as to, 348. in respect of costs, 349. drawer, acceptor, and indorser, competency of, as witnesses, 350. Lord Denman's Act, 348. Appendix, 474. JOINDER IN ACTIONS, 36. JOINT AND SEVERAL NOTE, what it is, 6. evidence that one maker is surety, 6, 192. JOINT STOCK COMPANIES,, whether directors or members can bind company by bills, 33, 54. notice of dishonor to a member, 229. I. 0. U. what it'is, 19. need not be stamped, 19. otherwise if it amount to an agreement, 20. need not be addressed to creditor, 20. bill in equity lies to discover consideration of, 20. when action on it will not be restrained, 20. IRISH BILLS, 318. interest on, 249. IRREGULAR BILL OR NOTE, 68 to 74. may be evidence of agreement, 74. stamp on, 80. proof of, 361. 656 BYLES ON BILLS OF EXCHANGE. JUDGMENT, obtaininfi; on bill, effect thereof, 184. KING, cannot be guilty of laches, 170, 238. KNOWLEDaE, means of, not equivalent to, 213, 23Z, 25T, note [y). LACHES. See Presentment; Notice of Dishonor; and Principal and Surety. LADING, BILL OP, ' in what sense assignable, 2, note (d). LANGUAGE, in which a bill should be written, 56. LARCENY OF BILL OR NOTE, statutable felony, 137. bill, how described in indictment, 264, note [g). LAW MERCHANT, need not be pleaded, 2. LEGACY, when it will amount to payment, ll'l. when a bill or note may operate to bequeath, 3. LETTER, direction of, containing notice of dishonor, 218. LIEN, of bankers, 2, 135. when determined by a bill, 307. when it revives, 307. not destroyed by mutual credit, 294. LIMITATIONS, STATUTE OP, its general effect, 270. does not destroy the debt, 271. foreign Statute of Limitations, 271. what proceedings it limits, 271. as to merchants' accounts, 272. effect of statute on subsequent indorsee, 272. when it begins to run, 272. on a bill payable after date, 272. payable on a contingency, 272. payable by instalments, 272. against an administrator, 273. on a bill at or after sight, 273. on a bank note, 272, note (o), 273, note (a;). on a bill on demand, 273. after demand, 273. in case of fraud, 273. in case of accommodation bill, 274. where there has been both non-acceptance and non-payment, 274. up to what period of the suit time of limitation computed, 274. ' how avoided by issuing a writ, 274. the saving clause, 275. infants, married women, lunatics, prisoners, and parties abroad, 275. supervening disabilities, 276. acknowledgments and payments, 276. when to be made, 281. by whom, 281. to whom, 283. evidence of, 284. plea and replication of the statute, 285, 286. presumption of payment, 286. LOAN SOCIETIES' NOTES, stamp on, 87. INDEX. 657 LORDS' ACT. See Insolvent BeUora' Act. LOSS OF BILLS AND NOTES, title of the finder, 297._ title of the finder's assignee,, 297. proper course for the loser, 297. cannot bring an action against the postmaster-general, 297. pubHe notice of loss, 298. whether an action at law lies on a destroyed bill, 299. will not lie on a lost bill, 299. at least not unless not negotiable, or transferable by indorsement only, 300. loss after action brought, 301. loss of half notes, 301. trover for lost bills, 301. action for money had and received, 301. remedy in equity, 301. lost bill when a payment, 306. when payment of a lost bill protected, 173, 299, 300. a court of law has no jurisHiction under the 9 & 10 Wm. 3, o. 17, s. 3 — 302. indemnity to be given by the loser, 302. proof in bankruptcy of a lost bill, 362. on whom the loss of a bill or note sent by post will fall, 302. whether an action will lie on the consideration of a lost or destroyed bill, 299, 300. presentment and notice of dishonor, 299. LUNATIC, bill or note by, 47. pleading, 47. MAKER, of a promissory note, who he is, 4. presentment to for payment, not in general, necessary, 170. where a biU payable at a particular place, 170. MARKSMAN, signature or indorsement by, 57, 114, note (ft). evidence of, 353. MARRIAGE, contract in restraint of, void, 104. contract of marriage brocage void, 104. transfer of bill on, 135. MARRIED WOMAN, her contracts are void, 48. except after a divorce, a vinculo, 48. sole trader by custom of London, 48. estoppel on, 48. if she have a separate estate and make a bill or note, liable in equity, 48. after her husband's death, a promise to pay valid at law, 49. where her husband is transported, 49. or alien abroad, 49. or presumed to be dead, 49. where a bill is given to a single woman and she marries, 49, 373. • bill or note given after marriage, 49. redaction into possession of her chose in action, 51. where a single woman, liable on a bill, marries, 50. indorsement by a married woman, 49, 50. note by husband to wife, 51. payment to, 51. acknowledgment by, to save the statute, 281. MASTER, reference to," 328. Bse Action. 42 658 BTLES ON BILLS OP EXCHANGE. MEMORANDUM, effect of, on bill or note, 75, 76. duty of bankers to make on bills, &c., when paid, 133, 181. MESSAGE, sent, not presumed to be delivered, 98. 'J£>i. MISDEMEANOR, _W*- compounding, when an illegal consideration, 105. when legal, 105. embezzlement of bills, &c., 28, 137. MISSPELLING, will not avoid an indorsement, 115. MISTAKE, in charging too high an interest, not usury, 248. alteration of bill to correct, when allowed, 256k amendment of, on trial, 356. MONEY HAD AND RECEIVED, bill or note evidence of, 354. MONEY COUNTS, where applicable, 354. MONEY LENT, bill or note evidence of, 354. money deposited with a banker, 354. MONTH, how calculated, 159. MORAL OBLIGATION, ^ a good consideration for a bill or note, 97. MORALS, contracts contrary to, 315. MORTGAGE, note amounting to equitable, 76. MUTUAL CREDIT. See Setroff. what it is, 293. need not be money, 293. the debts need not be due, 294. need not be intended, 294. does not destroy a lien, 284. MUTUAL PROMISES, when satisfaction, 183. NAME, proof of, 353. suing in another's name, 322. NEED, presentment to referee in case of need, 206, 207. NEGLIGENCE, of transferee formerly affected his title, 125, 298. now does not, 126, 298. unless it amounts to fraud, 126. NEW AND OLD STYLE, 160. NEW SECURITY, 107. NON-ACCEPTANCE, notice of, 212, 213. NON-PAYMENT, notice of, 212, 213. See Notice of Dishonor. NOTARY PUBLIC, how appointed, 201. his office, 201. what he may charge, 203. table of fees. See Appendix, 385. ^ NOTE PROMISSORY. See Promissory Note. INDEX, 659 NOTICE, proof in bantruptcy of note payable after, 361. of dissolution of partnership, 3Y. NOTICE OF NON-ACCEPTANCE,, 212, 213. See Notice of Dishonor. NOTICE OP NON-PAYMENT, 212, 213. See Notice of Dishonor. NOTICE OP PROTEgji',- •when it must be givefty'203. NOTICE OP DISHONOR, mode of giving it, 213, 218. what form of, requisite, 213. instances when held insufficient, 215, 216, in notes. the like where sufSoient, 216, 217. statement of party on whose behalf it is given, 217. notice of protest need not accompany it, 218. verbal message, 213, 217. by post, 219. how it should be directed, 218. where it should be posted, 218. evidence of posting, 218. consequence of miscarriage, 218, 220, 302. twopenny post, 219. special messenger, 220. when expense of special messenger may be charge'd, 220. by what conveyance notice of dishonor should be sent abroad, 220, 317. at what place, 220. when to be given, 221. where the parties live in different places, 221. in the same place, 222. where a party, receiving notice, must transmit it, 223. whether it may be given on the day of dishonor, 223. in case bill is- deposited with banker or agent, 223. where Sundays or holidays intervene, 24. evidence, on whom proof lies, 224. what is evidence, 224, 225, 238. by whom notice may be given, 225. cannot be given by a stranger to the bill, 225. where the notice circulates back through several parties, 226, 227. notice of dishonor'of a bill payable at a particular place, need not be given to acceptor, 228. by an agent, 226. to whom, 226. to an agent or attorney, 228. need not be given to acceptor, 228. to a party not indorsing, 229. to a guarantor, 230. to an indorser giving a bond, 230. where several are jointly liable, 229. consequences of neglect to give notice, 230. what excuses notice, 231. agreement of the parties, 231. where the drawer had no effects in drawee's hands, 231. nor reasonable expectation that the bill would be paid, 234. ignorance of residence, 234. in case of death, 228, 236. of illness, 235. of accident, 235. of bills drawn by several on one of themselves, 236. bill or note not negotiable, 236. death, bankruptcy, or insolvency of drawee, 228, 236. where bill is on, an insufSoient stamp, 236. 660 BYLES ON BILLS OF EXCHANGE. NOTICE OP DISHONOR— coraimweii. notice to produce not necessary, 239. consequence of neglect waived by promise, payment, or acknowledgment, 236, 237. where tlie bill is taken under an extent, 238. pleading, where notice is excused or waived, 238. , i evidence of notice, 224, 238. ^j of a' lost bill, 299. NOTICE OP FILINO INSOLVENT'S PETITION, 382. NOTICE OP ILLEGALITY OP CONSIDERATION, 110. NOTICE TO PROVE CONSIDERATION, not necessary, 93, note (c), 219, 238. NOTICE TO PRODUCE, notice of dishonor not necessary, 219. NOTING, what, 202. is an incipient protest, 202. use of noting, 202. expenses of, 203. OPPICIAL SITUATIONS, liability of persons filing, 54. bill or note given to, 54. officer of friendly society, &5. OLD AND NEW STYLE, 160. OR ORDER, of the words, 1, 62, 115. subsequent insertion of these words, 114, 25S. OVERDUE BILL OR NOTE, transfer of, 12. when a bill on demand is overdue, 131, 163. when a check is, 130. transfer of check, when, 130. ^ equitable relief, 131. OVERSEER,- note given by, 54. note. given to, 105. PARISH OFPICER. See Overseer. PART OP CONSIDERATION ILLEGAL, 111. PARTIAL ACCEPTANCE, 150. PARTICULARS OP DEMAND, what it should include, 326. PARTNER, what constitutes a partnership, 29. ' agreement not to draw bills, 29. partners both entitled and liable on a bill, 30. where one partner can bind the other by will, 31. not bound by promissory note of his copartner, 32. nor if style of firm varied, 32. farming, mining, and joint stock partnerships, 33. partnerships not in trade, 33. partner exceeding his authority, 33. where there is notice, 34. nleading and evidence, 34. partner in two firms, 35. incotoing partner, 35. when the holder of a bill discharges the firm by taking fi'esh security, 35. ratification, 36. ^ dormant partner, 36. \ INDEX. 661 -PAWS'NTSR— continued. , whei;e the partnership is to commence by relation from a time past, 36. when a dormant partner may join as plaintiff, 36. or be joined as defendant, 36. nominal partner, 36. dissolution, 37. notice of it, 37. effect of dissolution, 38. dissolution by death, 38, 39. transfer, how to be made after dissolution, 38. when authority to indorse after dissolution may be inferred, 39. dissolution by bankruptcy, 39. occasional partnership, 40. acknowledgment by taking a bill out of the statute, 281. receiving profits without risk, usury, 249. ' PAYEE, who he is, 1. I description of, 60. indorsement by another man of same name, 60. where there is no payee, 61. a fictitious payee, 61. ' when principal and when surety, 190, 191. PAYMENT, presentment for. See Presentment far Payment. transfer after, 132. to whom payment should be made, 172. of a lost or stolen bill, 173, 174, 266, 306. See Loss of Bills and Mies.' of a forged bill, 181, 251. See Forgery. of crossed checks, 173. when payment of a forged bill may be recovered back, 181, 266. when payment should be made, 175. at what time of day, 176. before bill is due, l76. when a legacy will be a satisfaction, 177. payment after action brought, 177. by banker's notes and checks, 177. appropriation of payments, 178, 179. rateable appropriation, 179. part payment, 179. by acceptor, 174. by drawer or indorser, 132, 174. by a stranger, 175. by drawer where there is a third person payee, 132. when a bill taken of a third person is payment, 305. when a bill is payment in bankruptcy, 377. presumptive evidence of payment, 180, 286. delivering up the bill, 180. giving a receipt, 180. effect of a receipt, 181. tender, 181. retraction of paymentj 181. how far a bill or note'is considered payment, 303. how far extinction of the debt as to one party on a bill will be satis&ction as to another, 184, 192. to an infant, 47. ; ** to a married woman, 51. by negotiable instruments, 307. PAYMENT, SUPRA PROTEST, what and how made, 210. right of party paying supra protest, 210. 662 BYLES ON BILLS OF EXCHAN'GB. PAYMENT, SUPRA FB.0TE8T:— continued. paying for honor without protest, 211. of accommodation bills, 211. PAYMENT OP MONEY INTO COURT, formerly admitted sufficiency of stamp, 91. effect under the Statute of Limitations, 281. PENCIL, bills and notes may be written in, 56. PETITIONING CREDITOR'S DEBT. See Bankruptey. PLACE WHERE BILL OR NOTE IS MADE, superscription of, 57. PLACE WHERE BILL OR NOTE IS PAYABLE, appointed by the drawer, 66, 166, 167, 168. by the acceptor, 66, 166, 167, 254. by maker of note, 66, 168, 169. Bank of England notes, 67. other bank notes, 67. PLEADING, of law merchant unnecessary, 2. imbecility, 47. drunkenness, 48. agreement, 77. in action on bill payable at a particular place, 168. where note so payable, 169. forms of action, 332. debt, 333. assumpsit, 334. declaration, 335. statement of parties, 335. may be by initials, 335. description of instrument, 336. statement of acceptance, 336. of presentment and notice of dishonor, 238, 336. statement of excuse for not presenting, 336. statement of maturity of instrument, 237. of notice of indorsement, 117, 118, 337. allegation of promise to pay, 338. on bill drawn in sets, 339. breach and damages, 339. pleas, 339. effect of new rules, 339. non-assumpsit, 339. nil debet, 340. general issue by statute, 340. traverse of acceptance and indorsement, 340. effect of traverse of indorsement, 341. no consideration, 341. denial that plaintiff is holder, 341. defect of stamp need not be pleaded, 89, 90, 257. fraud, 342. payment and satisfaction, 342, 343. duplicity and sham pleas, 343, 344. estoppel, 346. foreign law, 320. of alteration, 277. replication de injuria,' 344. to plea denying consideration, 345. duplicity of replication, 346. distributive replication, 346. INDEX. 663 PLEDGING BILLS, rights of party to wlom bill pledged, 2, 127. by agent, 24. by agent, a misdemeanor, 28, 1'3T. in a mass by bill-broker, 25. POLICY, PUBLIC. See Fiiblic Policy. POSTAGE, .S30. POSTDATING. See Bate. POWER OP ATTORNEY. See Attorney, Power of. PRE-EXISTING DEBT, when a consideration, 27, 28, 95. PRESENTMENT FOR ACCEPTANCE, what time may be given for deliberation, 142. whether the bill may be left, 142. advisable in all cases, 139. when necessary, 139. when it shonld be made, 139. at what hour, 141. when excused, 141. to whom, 141. consequence of neglect to present, 142. course when drawee cannot be found, 142. where the owner is bound to acquiesce in acceptance by agent, 25. pleading, 142. PRESENTMENT FOR PAYMENT, how made, 157. in case of bankruptcy or insolvency, 158. whether necessary when a bank stops payment, 158. not necessary in order to charge a guarantee whose name ia not on the biU, 158. where drawee is dead, 159. or cannot be found, 159, 170. when to be made, 159. at what hour, 166. computation of time, 159 to 160. where the instrument is payable on demand, 163, 164. where payable at sight, 162. of a check, 13, 14, 164. of a note payable on demand, 164. of bank notes, 165. where no time is specified, 165. where bill lost or destroyed, 299. where, when a bill is made payable at a particular place, 166, 168, 169. pleading, where bill is made so payable, 168, 336. presentment, when note is so payable, 169. of bill or note when place of payment is mentioned in a memorandum, 169. not necessary in order to charge acceptor or maker, 170. effect of not presenting on the liability of other parties, 169. when neglect to present is excused or waived, 170, 171. presentment for payment to the drawee, necessary after protest for non-accept- ance, 207. when bill or note due on Sunday, &c., 161, 224. pleading, 171. ' evidence, l67, 168, 169, 171. PRESUMPTION, of consideration, 92. of payment, 180. PRINCIPAL AND AGENT. See Agent. unnamed principal not liable on a bill, 27. 664 BYLES ON BILLS OP EXCHANGE. PRINCIPAL AND SURETY. See Indulgence. when evidence of this relation admissible, 192. what parties principals, and what sureties, 190. agreement to give timelo the maker or acceptor, discharges other parties, 188, 192, 193, 194, 197. agreement to give time to prior indorser, discharges subsequent indorsers, 190. the agreement to give time must, in order to discharge other parties, be a valid one, 192, 193. taking fresh security, 196. obtaining a judgment, 195. taking a new bill, 194. ,-. a warrant of attorney, 195. accepting part payment, 195. proving under fiat, 195, and see Bankrwptcy. compounding, 196. waiving executions against the person, 194. against the goods, 194, note (w). agreement that the surety shall not be discharged, 197. consequence of indulgence, how waived by consent, 198. proof under a fiat by a suretv, 362. PROCURATION. See Agent. ' PRODUCTION OP BILL, unnecessary at trial unless issue require it, 353. and on a writ of inquiry, 353. PROMISES, MUTUAL, when satisfaction, 183, note [d). PROMISSORY NOTE, payable to maker, 68. what it is, 4. what at common law and what by statute, 4. foreign promissory notes, 4, 134, 312. form of, 5. note by a man to himself, 5. how declared on after indorsement, 5. note by a man and himself to another, 5. joint and several, 6. payable by instalments, 6. contracting words in, 8. invalidated by agreement to give further security, 9, ambiguous instruments, 68. must be for a certain sum of money only, 70. and in specie, 70. must not be conditional, 71. nor be payable out of a particular fund, 73. time of payment may be uncertain if inevitable, 72. when an irregular note may be evidence of an agreement, 74. effect of memorandum on the note, 75. of distinct agreement relating to the note, 76. when evidence under the common counts, 354. given by an infant for necessaries, 44, 45. payable after sight, 59, 160, 170. promise in, 8. PROOF. See Evidence. under fiat. See Banhruptcy, of consideration, 93. PROTEST, necessary on foreign bills, 200. why, 200. check cannot be protested, 18. by whom to be made, 200. INDEX. 665 VWIESI— continued. office of a notary, 201. when protest should be made, 201, 211. form of a protest, 201. for better security, 202, 209. notice of protest, when necessary, 203. when protest is excused, 203. of inland bills, 204. of notes, 204. of lost bills, 204. pleading, 204. evidence, 206. acceptance, supra protest, 206. payment, supra protest, 210. stamp on, 202^ 405. PROOF UNDER A FIAT. See Bankruptcy. PUBLIC POLICY, bill given for consideration contrary to, 104. PUBLIU INTERESTS, contracts against, 315. RATIFICATION, of agent's acts, 22. of partner's acts, 36. by an infant, 45. RATIHABITION. RECEIPT, / may be demanded, 180. effect of, 181. when on a bill, no stamp necessary, 181. evidence admissible to explain, 181. unstamped may be used to refresh the memory, 181. RE-EXCHANGE, what and when recoverable, 329. when provable, 370. RBISSUABLB NOTES, what, 87. exempt from stamp, 87. REFERENCE TO MASTER, 328. See Aetim. RELEASE, what it is, 187. premature, 187. at maturity, 187. by a party not the holder, 187. to the acceptor, 187, 193, 194. to one of several acceptors, 187. how far a covenant not to sue will operate as a release, 188, 193, 194. its effect on the liability of other parties, 187, 188. whether its effect may be restrained by the terms of the instrument, 188. its effect on the liability of a surety, 191, 192. by appointing debtor executor, 41, 42, 185, 188. transfer after, 134. RENEWAL OF A BILL, meaning of agreement to renew, 77.. when it discharges Bther parties, 194. when it is a satisfaction of the former bill, 184, 185, 307. of bill given on illegal consideration. 111. of altered bill, 257. RENT, bill or note does not suspend distress for, 304, 666 BTLBS ON BILLS OF EXCHANaE. REPUTED OWNERSHIP, , applies to bills, 375, 376. See Banlcruptcy. bills in the hands of agent or banker when they pass by, 374. REQUEST TO PAY, what sufficient on the face of the bill, 59. how made, 157. RESIDUE, trSitiSTPr for 1^4 RESTRICTIVE INDORSEMENT. See Indorsement. RETOUR SANS PROTET, 203, 204. RETRACTION OP PAYMENT, 181. REVENUE LAWS, 316. RULE, to compute, 328. SALE OP BILL, what is considered as such, 123. SANS PRAIS, effect of those words, 204. SANS RECOURS, effect of those words, 27, 117. SATISFACTION, not necessary before breach, 182. its requisites, 182. what amounts to, 182, 183, 184, 185. by one party releases the others, 322. payment of a smaller sum by a third party, 183. engagement by a third party, 183. relinquishing a suit, 183. when a bill operates as, 184. SEA, bill made at, 318. beyond seas, what is, 275. SCOTLAND, bills and notes of, 320, and see the 9 Geo. 4, c. 56,^-430. [Appendix.) SECURITY, taking security from one partner, 35. collateral, 196. SETS OP BILLS, what they are, 309. statement of, in pleading, 339. who entitled to bill, when parts are in different hands, 310. number of parts, 310. effect of omitting to refer to other parts, 310. liability of drawee or indorser, 310, 311. copies of bills, 311. SET-OPP AND MUTUAL CREDIT, nature of set-off, 287. unknown to the common law, 288. recognized by equity, 288. introduced by statute, 288. general statutes, 289. statutes permissive, not imperative, 291. what debts may be set off, 289. set-off and mutual credit in bankruptcy, 291. set-off in equity, 295. fraudulent, 292. where an indemnity will operate as a set-off, 296. how to be taken advantage of, 295. INDEX. 667 SIGHT, » bills drawn at or after, ■when to be presented, 139. what is considered to be sight, 59, 170. whether days of grace are allowed on bills at, 162. note payable at or after, 58, 59, Y9, 160, 170. stamp on note payable after, 79. SIGNATURE, of drawer, 65. where to be written, 65. by a mark, 57, 65. how pleaded, 65, 335. when to be affixed, 65. by an agent, 22, 25, 26. not essential to an acceptance, 147. forgery of, 261. proof of, 352. SOMNAMBULISM, 48. SPECIE, bill or note must be for payment in, 70. SPELLING, wrong will not prejudice indorsement, 115. SPIRITUOUS LIQUORS, bill or note for, 110. appropriation of payment to, 110, 178, 179. STAMP, when first imposed, 78. what regulations of former acts still in force, 85. restamping, 86. exemptions from stamp duty, 81, 84, 85, 86. on foreign bills and notes, 88, 318. on Irisl^ and colonial bills, 88, 318. on reissuable notes, 87. on instruments in the nature of bills, 89. effect of alterations in the law, 86. reservation of interest, 90. on postdated bill, 90. effect of want of a stamp, 88. effect of post-stamping contrary to law, 89. on instruments which are in law but agreements, 90. when objection to the stamp should be taken, 91. pleading, 91, 258, 261. formerly sufficiency of stamp admitted by payment of money into court, 91. effect of alteration under the Stamp Act, 255, 258. Stamp. Act. See Appendix. amount of stamp, 83, 84. on bill or note payable after sight, 79, 84. STATUTE, general issue by, 340. of limitations. See lAmiiations. STERLING, meaning of, 63. STRIKING OUT INDORSEMENTS, 118. STATUTES, ^ee Appendix. STAYING PROCEEDINGS, in what, cases and on what terms, proceedings will be stayed, 327. STEALING. See Larceny and Loss. STOCK-JOBBING, statutes, 108, 109. what it is, 108, 109. putting upon stock, 108. 668 ~ BYLBS ON BILLS OF EXCHANGE. STOCK-JOBBING— continued. when a bill is void for, 109. innocent indorsee, 198. STYLE, old and new, how computed, 160. . SUBSCRIBING WITNESS. See Attesting Witness. SUE, who may, on a bill, 321. SUM PAYABLE, subscription of, 58, 62. when error aided by the body of the instrument, 58. affidavit to hold to bail must state the sum, 324. SUNDAY. SeeSoliday. SUPERVBNINa DISABILITY, 2T4, 2?6. SUPBA PROTEST, acceptance, 206. payment, 210. SURETY. See Principal and Surety. proof fty surety in bankruptcy, 362. SUSPENSION, of right to sue on a bill, 185, 186. effect of renewal, 185. by debtor becoming administrator, 42, 185. not by covenant restraining right to sue for a limited time, 186. nor by collateral agreement upon good consideration, 186. TENDER, of part, 181. plea of, after day of payment, 176, 181, 327. interest ceases to run after, 242. when bills or notes a good tender, 7. TESTAMENTARY PAPER, when bill or note may be, 3. See Wills. TIME OF PAYMENT, when a particular time necessary, 58. may be uncertain if inevitable, 72. when not expressed, 165. See Presentment for Payment and Days of Grace. giving time. See Principal and Surety. TOKENS, 127. TRADING, what transactions on bills constitute, 374. TRANSFER. See Indorsement and Delivery. after partnership dissolved, 39. what bills transferable, 113. liability of party transferring by delivery, 122. under peculiar circumstances, 127. before bill filled up, 127. after due, 129, 130. of overdue check, 130. of check drawn on banker or bearer, 131. after abandonment of right, by transferee, 131. after payment by party ultimately liable, 132. by other parties, 132. after premature payment, 133. after partial payment, 133. for part of the sum due, 133. for residue, 134. after release, 134. after action brought, 134. INDEX. 669 TRANSFER— coniiraMei. of bills and notes under £5 — 134. in a foreign country, 134. ' after holder's death, 135. after bankruptcy, 135. after marriage, 135. by deposit with banker, 135. by will, 135. in bankruptcy, 3T7. fraudulent, 378. See Bankruupicy. voluntary, 378. when restrained, 137. TEOVER, lies for bills, 301, 323. to what period interest computed in action of, 242. TRUSTEE, bill in the hands of, does not pass to assignee, 378. ■ See Restrictive Indorsement and Agent. USANCE, what it is, 59, 160. what between different countries, 160. USURY, at common law, .244. statutes, 244. effect of them, 245. their construction, 244. on bills under three months, 251. under twelve months, 251. there must be a loan, 245. usury on discounts, 245.' usurious security for good debt, 246. where interest charged not for loan but labor, not usury, 246. intention material, 247. excessive interest charged by mistake, 248. hazard of the principal, 248. loan to partner, 248. advance of goods, 249. Irish interest, 249. colonial interest, 249. foreign interest, 249. substituted security, 250. , separate instruments, 250. innocent indorsees, 250. improper amount of commission, 247. ' when the contract is void, 245. when the penalty is incurred, 245. how interest should be charged by a banker on checks, 245. exemption from the usury laws, 252. pleading, 252. UTTERING FORGED BILCS. See Forgary. VALUE RECEIVED, these words unnecessary, 63, 333. VARIANCE, ; amendment of, on trial, 356. VARYING ACCEPTANCE, 150. VENUE, when it may be changed, 325. 670 BYIiBS ON BILLS OF EXCHANGE. VOID BILLS, forgery of, 261. VOLUNTARY TRANSFER, when void, 358. WA&ER, illegal, 105, 106, 101. WAIVER, of indorsement, 131. of acceptance, 153. of presentment, lYl. ' of want of protest, 203. of absence of notice of dishonor, 236. when the taking of a bill effects a waiver of a lien, 307. "WANT OP EFFECTS. See Effects. WARRANTY, ' transfer by delivery warrants genuineness of Signature, 125. indorsement warrants genuineness of former indorsements, 174, note {k). WARRANTY, FRAUDULENT, defence to an action, 100. WARRANT OF ATTORNEY. See Attorney, Warrant of. WIFE. See Married Woman. WILL, when a bill, check, or note, might be, before the late statute, 3. when an indorsement might operate as a testamentary instrument, 3. trransfer of a bill by, 135. WITNESS. See Evidence and Attesting Witness. WRIT OP INQUIRY. See Action. Should the Index in any 'part of it he found defective, the reader is referred to the Analytical Table of Contents prefixed. THE END. BYLES ON BILLS AND NOTES. New Ed. 1866. $4 50. COPIOUS NOTES BY HON, GEORGE SHARSWOOD. THE TEXT-BOOK AT HAKTARD LAW SCHOOL, THE TJNITERSITT OP VIRGINIA, ETC. A Treatise of the Law of Bills of Exchange, Promissory Notes, Bankers' Cash Notes, and Checks. By John Barnard Btles. Fourth American from the last London Edition, enlarged, with very full notes referring to American Authorities, by Hon. Geo. Sharswood. " Vigilantibns non dormientibus jura subveniunt." " This Treatise is now presented to the American Profession, in a much improved form. 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 succinct- ness and for its judicious selection of leading points and cases. It is evi- dent that an attempt to do more, to make a library of the book, would have destroyed its symmetry and usefulness. Byles on Bills has now established its reputation as a standard work, and it may safely be commended, as well for its accuracy as its compendiousness, to the American Student and Prac- titioner." — American Preface. " This work supplies a want, felt by many, of a plain and brief auMMAET of the principal PRAC1I0AL POINTS relating to bills and notes, supported by a reference to the leading or latest authority. In many cases the reader will, however, find the law laid down in the Tery words of the judgment, — a plan which the author has been induced to adopt, partly that those who may not have ready access to the authorities may be satisfied that the law is correctly stated, partly because he distrusted his own ability to enunciate, on so complicated a subject, a gene- ral rule, neither too narrow nor too wide, beset as almost all such general rules now are with numerous qualifications and exceptions, and partly because the language of judges is infinitely superior to any he could presume to substitute, — ^remarkable as are many of the reported judgments on this sultject in our courts of law for accuracy, precision, and perspicuity." — English Preface, CONTENTS. CHAPTER I.— General Obseryations on a Bill of Exchange. II. — Of a Promissory Note. III. — Of a Check on a Banker. IT.— Of an I. 0. U. T.— Of the Capacity of Contracting Parties to a Bill or Note. VI.— Of the Form of Bills and Notes. Til.— Of Ambiguous, Conditional, and Irregu- lar Instruments. Tni. — Of Agreements intended to Control the Operations of Bills or Notes. IX.— Of the Stamp. X.— Of the Consideration. XI.— Of the Transfer of Bills and Notes. Xll.^On the Presentment for Acceptance. XIII. — Of Acceptance. XIV.— Of Presentment for Payment. XT.— Of Payment. XTI. — Of the Satisfaction, Extinguishment, and Suspension of the Right of Action on a Bill. XTII.-Of Release. XTIII.— Of the Law of Principal and Surety, in its application to Bills and Notes. XIX.— Of Protest and Noting. XX. — Of Acceptance supra Protest, or for Honor. XXI. — Of Payment supra Protest, or for Honor. XXII.— Of Notice of Dishonor. XXIII.— Of Interest. XXIV.— Of the Alteration of a Bill or Note. XXV.— Of the Forgery of Bills or Notes. XXVI. — Of the Statute of Limitations, in its application to Bills and Notes. XXVII.— Of the Law of Set-off and Mutual Credit, in relation to Bills and Notes. XXVIII.-Of a Lost Bill or Note. XXIX. — How far a Bill or Note is considered as Payment. XXX.— Of Sets and Copies of Bills. XXXI.— Of Foreign Bills and Notes, and ot Foreign Law relating to Bills and Notes. XXXII.- Of the Kemedy by Action on a Bill. XXXIII.— Of the Pleadings in Actions on Bills and Notes. XXXIV.— Evidence. XXXV.— Of the Bankruptcy of Parties to a Bill or Note. XXXVI.— Of the Effect of a Discharge under the Acts for the Relief of Insolvent Debtors. The fact that this work has now reached its Sixth Edition (the first being issued in 1829) indicates the high estimate entertained of it in England. The present edition, with full American Notes, has given the work a pro- minent position before the profession here. "The English work is undoubtedly an excellent one; and is particularly convenient ibr reference, from its arrangement and condensation. And the notes of American decisions by J udge Sharswood, display much, research and correct judgment on his part, and add greatly to the value of this edition." B. B. Xaket. "I am delighted with Byles on Bills, and shall recommend it to our students as the best ari ranged, clearest, most succinct, and valuable exposition of the Law of Negotiable Paper, which we have in this language. The notes by Judge Sharswood add very greatly to its value : they are very judicious, and the cases cited are exceedingly well selected. " With great respect, I am truly yours, "Amos Dean, University of JS^any." "It is a work of merit, and Judge Sharswood has rendered it much more valuable to the profession in this country by his lucid and discriminating notes of American cases.'' K. H. Walwoeth. "A judicious selection from the American Reports has enabled the learned editor (without overburdening the English text, or rendering the volume inconveniently large), to axld com- prehensive and valuable statements of the points decided and principles established by the ^ —ding American Cases, bearing directly upon the subjects so ably treated by the English ^- '' N. K. Hall, P: S. District Court. "I was familiar with the merits of the original work, and on my first connection with the University of Virginia, introduced it among our Text Books in Mercantile Law. It seems to me from its precision, brevity, coMPRBHBNSiVENESa, practical point and acooraot, eminently adapted to the wants of the student. The fiill annotations of Judge Sharswood have greatly enhanced its value, and render it an extremely convenient manual for the practitioner." James F. Holcombe. "Your new and corrected edition of Byles on Bills, seems to me quite an improvement of a very valuable book." Theophilus Parsons, Barvard Law School. *' It remains the standard practical summary and book of reference for every-day use upon the subject."— iaw Heporter, May, 1856. " The learned American editor ^as judged well in annotating a treatise less cumbrous than Chitty, more neat and exact than Story, and more modern than Bayley, and perhaps quite as meritorious. The editorial department leaves little to be desired. ,The cases have been selected, and arranged, and digested with a view of aiding and illustrating the principles stated in the text: the work is neither encumbered with copious cases, cheaply borrowed from the Digests, nor is it swollen by afn amplified discussion of the grounds of the cases familiar to all practi- tioners, and to be found in the horn-books of the law." — Law Register. 'f^The fact that this work has recently been introduced Into the Law School of Harvard College as a Text Book, will give it a reputation sufficient to place it in the library of every lawyer who knows this fact. Before it could find its way into that celebrated school it had to he criticised by two of the greatest masters of their profession living, the Royal and Dane Profs, of Law in that Institution. To say that it is used as a Text Book there, is equivalent to saying that it surpasses in intrvnsic merit all other works extant on this subject." — ^Saco {Mainz) Paper. ADAMS'S EQUITY. 930 Pages, 1855. «5 50. ADDITIONAL NOTES BY HENRY WHARTON, ESQ. THE TEXT BOOK AT HARTAED LAW SCHOOL, WILLIAM AND MART COLLEGE, CINCINNATI LAW SCHOOL, UNIVEESITT OF VIRGINIA, UNIVERSITY OP MISSISSIPPI, ETC. ETC. The Doctrine of Equity, being a Commentary on the Law as administered by the Court of Chancery. By John Adams, Jr., Esq., with copious Notes and References to Atnerican cases, by James R. Ludlow and John M. Collins, Esqs., and with later English and American Annotations, by Henry Wharton, Esq. Third American edition. Book I — Of the Jurisdiction of Courts of Equity, as regards their Power of enforcing Discovery. Book II. — Of the Jurisdiction of Courts of Equity, in Cases in Which the Courts of Ordinary Jurisdiction cannot enforce a right. *" Book III. — Of the Jurisdiction of Courts of Equity, in Cases in which the Courts of Ordinary Jurisdiction cannot administer a right. _ Book IV. — Of the forms of Pleading and Procedure, by which the Juris- diction of the Courts of Equity is exercised. Law SonooL op the TJnitersiti at CiMBRjrOE. August 22ii, 1856. Messrs. T. & J. W. JoDNsoif.— Adams's Equity is in my opinion the best' treatise for students who are desirous of acquiring a linowledge of the principles of Equity Jurisprudence. I have ndoptetl it as the Text book for one course of the lectures in the school. The value of the work to the American student and practitioner is greatly enhanced by the notes ot Messrs. Ludlow, Collins, and Wharton. Very respectfully, yours, Joel Parker. "G-ENEEAL Order, Supreme Cocht.— Students preparing to he examined for a Superior Court License, are required hereafter to reaa Adams's Doctrine op Equity, instead of Fonblanque." — Volume 7 IreddVs Equity Reports, North Carolina, "How^ighly Adams's Doctrine of Equity is appreciated in North Carolina, is suflSciently shown by the fact that it has been prescribed by our Supreme Court, as a part of the course to he read by students who intend to apply for license to practise in our highest judicial tribunals. The notes have greatly increased the value of the work to the American Lawyer." Wm. H. Battle. "Adams's Equity is a work of real value to the profession. Its value is much enhanced to the American Bar by the copious and well-arranged notes with which your edilion is enriched." E. B. Tanet. " Adams's Equity is a work of great intrinsic value, enhanced by the judicious and waU- selected notes of Messrs. Ludlow and Collins, and, I doubt not, will be highly esteemed by*CBe profession." S. Greenleaf. "I have no hesitation in saying that Adams's Equity is a work of great merit upon the branch of the law of which it treats. The American notes are also valuable to the Equity practitioner." K. h. Walworth. " Adams's Equity has already a high reputation. Besides being a safe and convenient guide to the practitioner, it is admirably calculated, with the aid of its Introduction, to give the pro- fessional student clear and full views of the principles of Equity, and of the powers and duties of the Court of Chancery. " Messrs. Ludlow and Collins appear to have performed their duty as editors and annotators with learning, taste, fidelity, and ability. Their notes are neat, concise, to the point, and add greatly to the value and usefulness of the work, especially in the hands of an American student and lawyer." Samuel A. Foot, Supreme Caurtj New Torlc. " Adams's Equity is a Treatise of great merit and originality. I shall strongly recommend it tp my class, and if practicable, I will at a future day introduce it in the course. In the departments of Equity and Mercantile Law, which are under my care, I expect to use White and Tudor's Leading Cases, and Smith's ditto at Law." James P. Holcombe, Professor of Equity in the Vhiversity of Virginia, " It is the most complete, comprehensive, and accurate elementary work on Equity that has, at any time, come to my hands— full, though brief; methodical and clear, and sustaining itself by pertinent references, it is fitted not only to unfold the beautiful system of juris- prudence to which it relates, to ordinary students, but .to infix its principles in the mind of the most advanced professional man. Job Johnston, Newberry, S. C. "The best evidence which lean give of the estimate which I have formed of Adams's Equity is, that I have adopted it as one of the Text Books in my school. I regard it as one of the best elementary treatises upon Equity ever published." Geo. P. Soarburgh, William and Mary College. "Adams's Equity is a valuable work ; the notes very well executed ; the style of getting up beyond praise." Geo. Sharswood, Law School, University of Pennsylvania. " Adams's Equity js by far the best treatise on the sutyect I know." Benj. Gerhard. " Adams's Equity seems to he an admirable summary of Equity Law, written in a remark- ably CLEAR, TERSE, and VIGOROUS Style." Sam'l T. Douglass. "Adams's Equity is a work of great excellence." Oswald Thompbow, President Judge Common Pleas, Philaddphia. *'_Adams*s Equity is incomparably the most finished and philosophical system of equitable jurisprudence in the whole range of professional writing. It is truly a work of principle ; and the arrangement is so perfectly logical and harmonious, that the great leading ideas of chancery juripdiction are brought before the eye of the student as in a map. The Ameri- can notes render it exceedingly valuable in practice; and it is very certain that, to the begin- ner in the profession, it furnishes not only the best work extant, but all that can be desired on the subject. Other compilers and writers may publish, but they never can improve on Adams, even should they he fortunate enough to equal him — a truly diflicult labor. He has reached the highest point in the edifice, and holds the temple." — B. P. Porter, University of Alabama. " In the American annotations to Mr. Hill's Treatise upon Trustees, and to this work of Mr. Adams, now just presented in a third edition, the last commentator, Mr. Henry Wharton, has given good proof of the discernment of Mr. Justice Grier, who, a year or two since, went pub- licly out of his way in delivering an opinion in the case of The Margaret v. The Conestoga, to speak of him as b^,ving, by bis argument in that case, given ' certain omen of future success and eminence in fais honorable profession.' Mr. Wharton's notes (which constitute the chief characteristic of this new edition of Mr. Adams's book) are numerous, thoughtful, learned, and well written. " Mr. Adams's book, itself, is, in our judgment, the best elementary treatise on equity which we have. We cannot but rpgard it aa greatly more condensed, lucid, and precise, than that of Mr. Justice Story ; the considerable reputation of which, in America, was, we believe, very 3 much a reflected one from England— in -which country, from particular causes, the hook had hecome known in high places, from which the notice of anything American radiates over the world— rather than a confidence inspired by thorough testing and study anywhere. Mr. Adams seems to have heen profoundly imbued with a comprehension of the whole Equity system. He has not only studied books deeply, but has also considered them thoughtfully and with comprehension. He has read more than he quotes; and when he quotes, he has understood what he has read." — Legal IntdUgenceTf May 18, 1855. SMITH ON CONTRACTS. AMERICAN NOTES. 1856. $3 50. THE TEXT BOOK OF THE UNIVERSITY OF VIRGINIA, OF MISSISSIPPI, ETC. The Law of Contracts. By John William Smith, Esq., author of Smith's Leading Cases. With Notes and Appendix^ embodying the latest Cases, by J. G. Malcolm. With Notes and references to English and American Cases, by William Henry Rawle, and additional Notes by Hon. George Sharswood. " Its value is greatly enhanced by Mr. Kawle's notes, vfhich are copious and well arranged, displaying nrnch research as well as legal judgment, I do not know any law book, which, within the same compass, contains more useful and valuable information upon questions which are almost daily arising in our courts." R. B. Ianet. "The doctrine of Contracts has been very thoroughly considered by the learned author, and I regard his work as one of the best, on this subject that can be put into the hands of a student." S. Greesleaf. "Of the many works on Contracts, I know of no one which contains so much valuable matter in so small a compass. The Notes of Mr. Eawle add greatly to its value.'' K. C. Grier, Supreme Court TT. S. ''Smith on the Law of Contracts, is well known to and highly appreciate^ by the profession, and its value is greatly increased by the Notes and References of Mr. Eawle." Amasa J. Parker, Supreme Court, New York. *' Mr. Bawle's Treatise on Covenants for Title, prepared vin for a favorable reception of his Notes on Smith's Law of Contracts— itself a valuable book. The American cases are well collated; and the difference between them and the English cases is distinctly marked. The Notes with the book will be exceedingly useful to the profession." John B. Gibson, Supreme (hurt of Pennsylvania. " Smith' s Law of Contracts is a work of great value to the student, as well as to the lawyer in full practice. The Notes to the recent Bnglish and American cases have greatly enhanced its value." John 'Willard, Supreme Court, New Tork. "Admirable as is the text of this lucid treatise, Mr. Bawie has, by his many excellent, elaborate, and discriminating Notes, rendered it to the American lawyer the very best for instruction or reference, of all the works on Contracts." Ivbrsos L. Harris. "The Notes and Appendix by Mr. Symonds, and the additional Notes by Mr. Rawie, make the work a full and quite complete treatise on that branch of law. I am acquainted with no book on that subiect, which, in my opinion, is superior to it. Every student of law should read and study it thoroughly, and every practitioner have a copy for reference." Samuel A. Poot, Supreme OmriofNew TorJc, " The original work I imported some years since, and found it a valuable addition to our legal publications ; but Mr. Rawle's very discriminating Notes of additional decisions have rendered the present edition far more valuable, especially to American lawyers." R. H. Walworth. "I am fully satisfied of the great merit of Mr. Smith's Lectures, as an elementary outline of the Law of Contracts, and of the increased value which has been imparted to them by the labors of the American editor, and shall have no hesitation in recommending my class to procure it." James P. Holcombe, University of Virginia. " I look upon both Smith's Contracts and Adams's Equity, as extremely valuable. They are written by very able men, with great care, and adapted to the telegraphic character of the day, by being compressed and condensed to the last degree. The Notes of the American editors add much to their usefulness." L. S. Ccshixg. " This is a nbw and handsome edition of Smith's Law of Contracts, one of the most admira- ble and complete legal treatises ever written."— XiYerary Worldj April 2, 1863. 4 -«l