Sivut kuvina

But, in case such bill be accepted by the drawee, and after acceptance he fails or refuses to pay it within three days after it becomes due (which three days are called days of grace) the payee or indorsee is then to get it protested for non-payment, in the same manner, and by the same persons who are to protest it in case of non-acceptance, and such protest must also be notified, within fourteen days after, to the drawer.* And he, on producing such protest, either of nonacceptance or non-payment, is bound to make good to the payee, or indorsee, not only the amount of the said bills (which he is bound to do within a reasonable time after non-payment, without any protest, by the rules of the common law x), but also interest and all charges, to be computed from the time of making such protest. But if no protest be made or notified to the drawer, and any damage accrues by such neglect, it shall fall on the holder of the bill. The bill, when refused, must be demanded of the drawer as soon as conveniently may be: for though, when one draws a bill of [470] exchange, he subjects himself to the payment, if the person on whom it is drawn refuses either to accept or pay, yet that is with this limitation, that if the bill be not paid, when due, the person to whom it is payable shall in convenient time give the drawer notice thereof; for otherwise the law will imply it paid since it would be prejudicial to commerce, if a bill might rise up to charge the drawer at any distance of time; when in the mean time all reckonings and accounts may be adjusted between the drawer and the drawee.y

If the bill be an indorsed bill, and the indorsee cannot get the drawee to discharge it, he may call upon either the drawer or the indorser, or if the bill has been negotiated through many hands, upon any of the in

x Lord Raym. 993.

y Salk. 127.
*Cited, when exercised, 44 Miss. 12.
2 BLACKST. - 60.

dorsers; for each indorser is a warrantor for the payment of the bill, which is frequently taken in payment as much (or more) upon the credit of the indorser, as of the drawer. And if such indorser, so called upon, has the names of one or more indorsers prior to his own, to each of whom he is properly an indorsee, he is also at liberty to call upon any of them to make him satisfaction; and so upwards. But the first indorser has nobody to resort to, but the drawer only.

What has been said of bills of exchange is applicable also to promissory notes, that are indorsed over, and negotiated from one hand to another: only that, in this case, as there is no drawee, there can be no protest for non-acceptance; or rather, the law considers a promissory note in the light of a bill drawn by a man upon himself, and accepted at the time of drawing. And, in case of non-payment by the drawer, the several indorsees of a promissory note have the same remedy, as upon bills of exchange, against the prior indorsers.


(83) Any of which considerations will the gift if executed into a grant, page 440.

• ...


Is a gift of chattels without delivery made effectual by deed? This question has been much discussed, without sufficiently discriminating the two forms it may take. It is one thing to say that it is binding as a gift, another to say that it becomes a grant and is binding as such. The latter may safely be affirmed on common-law principles: if a grant of land by deed is valid without consideration, or with the consideration implied in a deed, why not one of chattels also? But there is no principle of law by which a deed supplies the lack of delivery, except by virtue of the statute of uses, which is not applicable to chattels. The rule that a **Quoted, 2 Cal. 488; 56 Am. Dec. 358.

bargain and sale transferred title to the vendee was known long before that statute, but it did not apply to land, for want of a livery of seisin: why then to chattels now? Can the deed supply the place of actual delivery in the case of a chattel any more than in that of land? For discussions of the subject, see 2 Kent Com. 439; Williams on Personal Property, *35; Wall v. Wall, 30 Miss. 91 64 Am. Dec. 147; McWillie v. Van Vacter, 33 Miss. 428; 72 Am. Dec. 127, with note, p. 135.

By the common law as Blackstone describes it a chose in action could not be the subject of gift; for it was neither capable of transfer nor of delivery. Yet in recent times most of the disputed questions as to such gifts deal with choses in action of various kinds. A distinction is now made between such choses as are, so to speak, embodied in a definite form capable of manual delivery, and serving as a means of reducing the chose in action to possession, and such as are not so embodied. To the former class belong notes and bills, bonds and mortgages, certificates of stock, bank-bills, and currency of all kinds, etc. The line has never been accurately drawn: the test seems to be that the possession of the instrument shall be a sufficient means of realizing its value without further act of the donor. Therefore the donor's own note to donee or his bond or check does not come within the line. (Fink v. Cox, 18 Johns. 145; 9 Am. Dec. 191; Raymond v. Sellick, 10 Conn. 482.)

As to checks and drafts drawn by the donor himself on a third party, and not accepted by drawee, the distinction is made to depend on the question whether they constitute an equitable assignment of the amount drawn for. (Harris v. Clark, 3 N. Y. 93; 51 Am. Dec. 352, and note citing cases.) But quære, whether such cases are properly to be classed here, as decisive on the one side or on the other. Is the equitable assignment itself to be reckoned a gift or a grant? The delivery

of the check or draft is not sufficient as a symbolical delivery of the amount, as it is in cases where those of a third person are given.

In these cases delivery of the instrument is delivery of the chose in action represented by it, and makes the gift valid, precisely as in the case of a thing in possession, under Blackstone's rule. (Harris v. Clark, 3 N. Y. 93; 51 Am. Dec. 352; Basket v. Hassell, 107 U. S. 612.) It has even been held valid without an indorsement of the instrument, in cases where an indorsement by the donor would be necessary to pass the legal title.

The other class of choses in action have no symbol or instrument to represent them, and therefore are incapable of delivery still, although the common-law rule forbidding their transfer has been almost entirely done away with. Therefore to make a gift of these some substitute for delivery must be found. Debts, accounts, and all unliquidated sums belong to this class.

A transfer or assignment of these by deed is now held valid, even when gratuitous, except when intended to defraud creditors: and the question whether it is to be called a gift without delivery or a contract passing the title may arise in the same way as in regard to choses in possession. But as no rule of law ever existed giving effect to a gift of them by delivery, there is less objection to saying that they may now be given by deed, subject to the above qualification as to third perTo bring a supposed requirement of delivery into play here is not merely needless; it has been the means of introducing a fresh distinction between the giver's retention simply, and to the use of the donee, so that the gift takes effect in the latter case and not in the former. (See Pomeroy's Equity Jurisprudence, 22 997, 998.) This is utterly unknown to the statute of uses as well as to the common law, but probably had its origin in the practice of suing such choses in action to the use of the assignee.


Another question arises when chattels in possession are in the hands of a bailee. Can the bailor in such cases by virtue of his mediate possession (cf. p. *396) make such a delivery of these as will render a gift complete? The answer to this seems to depend on a distinction very like that made in the case of choses in action. If the bailor holds a symbol of his right of possession, such as a warehouse receipt, pawnbroker's ticket, etc., he may make a symbolical delivery which satisfies the requirement: otherwise his gift must be made known to the bailee, and the donee accepted by him as a new bailor to make the transfer complete. Here, then, the gift is again put on the same footing with a sale or contract. (Williams on Personal Property, p. *35.)

(84) The maxim of the civil law, that ex nudo pacto non oritur actio, page 444.

Although it is true, as Blackstone says, that our law has borrowed this from the Roman, where it is found in various forms, e. g., ex nudo pacto inter cives Romanos actio non nascitur (Paulus, R. S. ii. 14, 1), and nuda pactio obligationem non parit (Dig. ii. 14, 7, 4; see, also, Cod. Just. iv. 65, 27, and Consultatio veteris J. Ci. iv. 9.), yet it must not be inferred that in that law the phrase meant as in ours the absence of a consideration. The notion of a consideration as necessary or able to make a contract binding was foreign to that law: the statements to the contrary made in books of so much reputation as Story on Promissory Notes, section 183, are misleading. The nude pact of the civilians was any promise or agreement that did not constitute an actionable contract, that was not clothed with the established forms requisite to make it binding. Besides, to a certain extent, such pacts were more effective in that system than mere promises without consideration are with us. They gave a natural obligation, though not a

« EdellinenJatka »