Sivut kuvina
PDF
ePub

Protest for nonpayment.

But, in case such bill be accepted by the drawee, and after acceptance he fails or refuses to pay it within three

holder, omitting to send such notice to the drawer, must be presumed to have given credit to some person liable as between him and the drawer and it has been held, (in Ex parte Barclay, 7 Ves. 598, in Staples v. Okines, 1 Esp. N. P. C. 333, and in Stewart v. Kennet, 2 Camp. 177,) that notice of the dishonour of a bill should be given by the holder himself or his authorised agent, otherwise the drawer would be discharged: but in later cases, at law, it has been decided, that it is sufficient for an indorsee to prove that the drawer of a bill had notice of its dishonour from the acceptor, or any party to the bill: (Rosher v. Kiernan, 4 Camp. 87; Wilson v. Swabey, 1 Stark. 34; Chapman v. Keane, 3 Adol. & Ellis, 197; S. C. 4 Nev. & M. 607 :) and likewise, that if the indorser of a bill receive notice of its dishonour from any person who is a party to the bill, he is directly liable upon it to a subsequent indorsee, although he had no notice of the dishonour from such subsequent indorsee. (Jameson v. Swinton, 2 Camp. 373.) It seems, also, that want of notice to a drawer, of the dishonour of one of his bills of exchange, may be supplied by evidence of his acknowledgment to the holder when asked if the bill would be paid, that "it would not:" (Brett v. Levett, 13 East, 214; and see infrà :) but such an acknowledgment, made by the drawer after he has committed an act of bankruptcy, is inadmissible as evidence, in an action by his assignees, to prove the petitioning creditor's debt, in order to support the commission. (Smallcombe v. Bruges, 1 M'Clel. 60.) And the necessity of notice is not dispensed with by any understand. ing which existed between the parties; for, evidence of such an understanding can never be admitted to vary the legal operation of an instrument: (Free v. Hawkins, 8 Taunt. 97;

S. C. 1 Moore, 535 :) nor, will mere knowledge of the dishonour of a bill, (such knowledge not being derived from any party to the bill, or person who would have a right of action thereon, if returned to him,) be equivalent to notice from the holder, or other party thereto, for the purpose of fixing the person who has acquired such casual knowledge of the fact with responsibility, for, unless such notice be received, it may be supposed that the holder intends to give credit to some other party. (Esdaile v. Sowerby, 11 East, 116; Tindal v. Brown, 1 T. R. 169.) Even when the drawer of a bill of exchange has become bankrupt, and absconded before it was due, and the acceptor also has become bankrupt before the bill was due; the holder will not be entitled to prove the bill under the commission against the drawer, unless notice of the dishonour of the bill has been duly given to the assignees of the said drawer; at all events when the bankrupt drawer's house was open, and a notice left there would have reached his assignees. (Rohde v. Proctor, 4 Barn. & Cress. 524; S. C. 6 D. & R. 616.) If, indeed, the bill had been dishonoured before assignees of the drawer's estate were chosen, notice to the drawer himself would be sufficient. (Ex parte Moline, 19 Ves. 217.)

There are certain excepted cases, in which notice of the dishonour of a bill of exchange has been determined not to be necessary: for instance, (as was before intimated,) where the drawer has no effects in the hands of the drawee, nor any right upon any other ground to expect the bill will be paid, he is held not to be entitled to formal notice of its dishonour; knowledge being, in such case substituted for notice: but the decisions establishing this and similar exceptions have been frequently regretted by courts both of law and

days after it becomes due (50) (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 non-acceptance, 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 Consequences of no protest be made or notified to the drawer, and the holder to damage accrues by such neglect, it shall fall on the holder give notice of 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 *exchange, he subjects himself to [* 470 ] 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

(x) Lord Raym. 993.

equity, as tending to introduce nice distinctions, instead of adhering to a plain and intelligible rule. (Cory v. Scott, 3 Barn. & Ald. 622; Claridge v. Dalton, 4 Mau. & Sel. 231; Wallwyn v. St. Quintin, 1 Bos. & Pull. 655; Mawson v. Stock, 6 Ves. 305; Ex parte Wilson, 11 Ves. 411; Ex parte Heath, 2 Ves. & Bea. 240.)

(50) Mr. Christian observes, that "a bill or note is not now considered due or demandable till the last day of the three days' grace; as, if a bill or note is dated on the 12th of any month, and made payable ten days, one week, or one month, after date, payment must be demanded on the 25th, the 22d, of the same, and on the 15th of the next month respectively. But, if the third day of grace falls on a Sunday, the bill or note is payable and due on the Saturday preceding; and by 39 & 40 Geo. III. c. 42, if payable

any

on Good Friday, they are due the day
before. Days of grace are allowed
upon promissory notes, in like man-
ner as upon bills of exchange. (4 T.
R. 148.)

"A promissory note made payable
to A., without adding or to his order,
or to bearer, though not negotiable,
is a note within the statute, and the
three days of grace must be allowed
upon it. (6 T. R. 123.)

"A bill or note must be drawn upon a proper stamp, and if it be drawn upon a greater stamp than the statutes require, it cannot be received in evidence ; but the plaintiff may recover as for so much money lent or advanced, if he can prove the defendant's promise to pay, or the consideration received by him from the plaintiff, independently of the imperfect note. (1 East, 55.)"

[But, as to this last point, a ra

the neglect of

protest, or to

the dishonour.

Each indorsee may, on default

of the acceptor,

or drawee, resort

to all or any of

the prior in

dorsers for pay

ment of the bill;

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) (51).

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 indorsers; 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 (52).

(y) Salk. 127.

tional alteration of the law has been
enacted by the stat. of 55 Geo. III.
c. 184, s. 10. If a stamp is of suffi-
cient amount, the instrument is not
now invalid merely because a higher
rate of duty than was necessary has
been paid. See Green v. Davies, 4
Barn. & Cress. 240; S. C. 6 D. & R.
311.-ED.]

(51) Notice of the non-acceptance
of a bill must be sent or given to the
parties to whom the holder or indorsee
means to resort within a reasonable
time after the dishonour of the bill:
but, it has been much disputed, whe-
ther it is the province of the court
or of the jury to decide what is a
reasonable time for this purpose: it
seems, however, now to be under-
stood that this is a question partly
of fact and partly of law; and, that
the jury are to find the facts, such as
the distance from each other at which
the parties live, the course of the post,
&c.; but, when those facts are esta-
blished, the reasonableness of the time
becomes a question of law, and conse-
quently is to be determined by the

court, and not by the jury. (Tindal v. Brown, 1 T. R. 168; Darbishire v. Parker, 6 East, 10; Haynes v. Birks, 3 Bos. & Pul. 601; Bateman v. Joseph, 12 East, 434; Baldwin v. Richardson, 1 Barn. & Cress. 247; S. C. 2 D. & R. 287; Sturges v. Derrick, Wightw. 76; Langdale v. Trimmer, 15 East, 292.) As a general rule, however, the day following that in which the holder of a bill receives the intelligence of its dishonour, is the time at which he ought to give notice to the parties whom he intends to hold responsible. (Bray v. Hadwen, 5 Mau. & Sel. 70; Williams v. Smith, 2 Barn. & Ald. 500.)

(52) Mr. Christian observes, that "the holder of the bill may bring actions against the acceptor, drawer, and all the indorsers at the same time; but though he may obtain judgments in all the actions, yet he can recover but one satisfaction for the value of the bill; but he may sue out execution against all the rest for the costs of their respective actions. (Bayley, 43.)"

sory note, on default of the

What has been said of bills of exchange is applicable or of a promis also to promissory notes, that are indorsed over, and nego-maker. tiated 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.

471

CHAPTER XXXI.

OF TITLE BY BANKRUPTCY (1).

[merged small][merged small][ocr errors]

THE preceding chapter having treated pretty largely of the acquisition of personal property by several commercial methods, we from thence shall be easily led to take into our present consideration a tenth method of transferring property, which is that of

X. Bankruptcy; a title which we before lightly touched upon (a), so far as it related to the transfer of the real estate of the bankrupt (2). At present we are to treat of it more minutely, as it principally relates to the disposition of chattels, in which the property of persons concerned in trade more usually consists, than in lands or tenements. Let us, therefore, first of all consider, 1. Who may become a bankrupt: 2. What acts make a bankrupt: 3. The proceedings on a commission of bankrupt: and 4. In what manner an estate in goods and chattels may be transferred by bankruptcy.

1. Who may become a bankrupt. A bankrupt was before(b) defined to be "a trader, who secretes himself, or "does certain other acts, tending to defraud his creditors." He was formerly considered merely in the light of a crimi(a) See pag. 285.

(1) By the statute of 1 & 2 Gul. IV.
c. 56, the duty of administering and
distributing the estate and effects of
bankrupts, was transferred to a court
specially created for that purpose;

· from the decisions of which court an
appeal lies to the Lord Chancellor on

(b) Ibid.

matters of law and equity, or on the refusal or admission of evidence.

(2) See ante, the note to chap. 18, p. 286, a summary of the statutory provisions at present affecting the real estates of bankrupts.

« EdellinenJatka »