Sivut kuvina

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 S. C. 1 Moore, 535 :) nor, will mere the drawer, must be presumed to have knowledge of the dishonour of a given credit to some person liable as bill, (such knowledge not being de. between him and the drawer : and it rived from any party to the bill, or has been held, (in Ex parte Barclay, person who would have a right of ac7 Ves. 598, in Staples v. Okines, 1 tion thereon, if returned to him,) be Esp. N. P. C. 333, and in Stewart v. equivalent to notice from the holder, Kennet, 2 Camp. 177,) that notice of or other party thereto, for the purpose the dishonour of a bill should be given of fixing the person who has acquired by the holder himself or his authorised such casual knowledge of the fact with agent, otherwise the drawer would be responsibility, for, unless such notice discharged: but in later cases, at law, be received, it may be supposed that it has been decided, that it is sufficient the holder intends to give credit to for an indorsee to prove that the drawer


some other party. (Esdaile v. Sowerof a bill had notice of its dishonour by, 11 East, 116; Tindal v. Brown, from the acceptor, or any party to the IT. R. 169.) Even when the drawer bill : (Rosher v. Kiernan, 4 Camp. 87; of a bill of exchange has become bankWilson v. Swabey, 1 Stark. 34; Chap- rupt, and absconded before it was due, man v. Keane, 3 Adol. & Ellis, 197;

and the acceptor also has become S. C. 4 Nev. & M. 607 :) and like- bankrupt before the bill was due ; the wise, that if the indorser of a bill re- holder will not be entitled to prove the ceive notice of its dishonour from any bill under the commission against the person who is a party to the bill, he drawer, unless notice of the dishonour is directly liable upon it to a subse. of the bill has been duly given to the quent indorsee, although he had no

assignees of the said drawer ; at all notice of the dishonour from such sub

events when the bankrupt drawer's sequent indorsee. (Jameson v. Swin

house was open, and a notice left there ton, 2 Camp. 373.) It seems, also, would have reached his assignees. that want of notice to a drawer, of the (Rohde v. Proctor, 4 Barn. & Cress. dishonour of one of his bills of ex. 524; S. C. 6 D. & R. 616.) If, inchange, may be supplied by evidence deed, the bill had been dishonoured of his acknowledgment to the holder before assignees of the drawer's estate when asked if the bill would be paid, were chosen, notice to the drawer that“ it would not:" (Brettv. Levett, himself would be sufficient. (Ex parte 13 East, 214; and see infrà :) but Moline, 19 Ves. 217.) such an acknowledgment, made by There are certain excepted cases, in the drawer after he has committed an which notice of the dishonour of a bill act of bankruptcy, is inadmissible as of exchange has been determined not to evidence, in an action by his assignees, be necessary: for instance, (as was beto prove the petitioning creditor's fore intimated,) where the drawer has debt, in order to support the commis. no effects in the hands of the drawee, sion. (Smallcombe v. Bruges, 1 M'Clel. nor any right upon any other ground 60.) And the necessity of notice is

to expect the bill will be paid, he is held not dispensed with by any understand. not to be entitled to formal notice of ing which existed between the parties; its dishonour; knowledge being, in for, evidence of such an understanding such case substituted for notice : but can never be admitted to vary the the decisions establishing this and si. legal operation of an instrument: milar exceptions have been frequently (Free V. Hawkins, 8 Taunt. 97;

regretted by courts both of law and upon it.

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 any 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

(2) Lord Raym. 993.

the dishonour.


equity, as tending to introduce nice on Good Friday, they are due the day distinctions, instead of adhering to a before. Days of grace are allowed plain and intelligible rule. (

(Cory v. upon promissory notes, in like manScott, 3 Barn. & Ald. 622 ; Claridge ner as upon bills of exchange. (4 T. v. Dalton, 4 Mau. & Sel. 231; Wall

R. 148.) wyn v. St. Quintin, 1 Bos. & Pull. "A promissory note made payable 655 ; Mawson v. Stock, 6 Ves. 305 ; to A., without adding or to his order, Ex parte Wilson, 11 Ves. 411; Ex or to bearer, though not negotiable, parte Heath, 2 Ves. & Bea. 240.) is a note within the statute, and the

(50) Mr. Christian observes, that three days of grace must be allowed " a bill or note is not now considered

(6 T. R. 123.) due or demandable till the last day of "A bill or note must be drawn upthe three days' grace; as, if a bill or on a proper stamp, and if it be drawn note is dated on the 12th of any month, upon a greater stamp than the statutes and made payable ten days, one week, require, it cannot be received in evi. or one month, after date, payment dence; but the plaintiff may recover as must be demanded on the 25th, the for so much money lent or advanced, 22d, of the same, and on the 15th of if he can prove the defendant's prothe next month respectively. But, if mise to pay, or the consideration rethe third day of grace falls on a Sun- ceived by him from the plaintiff, inday, the bill or note is payable and dependently of the imperfect note. (1 due on the Saturday preceding ; and East, 55.)” by 39 & 40 Geo. III. c. 42, if payable [But, as to this last point, a ra

Each indorsee may, on default

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 of the acceptor, get the drawee to discharge it, he may call upon either the or drawee, resort to all or any of drawer or the indorser, or if the bill has been negotiated the prior ina dorsers for ray-. 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.

ment of the bill;

tional alteration of the law has been court, and not by the jury. (Tindal v. enacted by the stat. of 55 Geo. III. Brown, 1 T. R. 168; Darbishire v. c. 184, s. 10. If a stamp is of suffi- Parker, 6 East, 10; Haynes v. Birks, cient amount, the instrument is not 3 Bos. & Pul. 601; Batemanv. Joseph, now invalid merely because a higher 12 East, 434; Baldwin v. Richardson, rate of duty than was necessary has 1 Barn, & Cress. 247; S. C. 2 D. & been paid. See Green v. Davies, 4 R. 287 ; Sturges v. Derrick, Wightw. Barn. & Cress. 240 ; S. C. 6 D. & R. 76; Langdale v. Trimmer,

15 East, 311.-Ed.]

292.) As a general rule, however, (51) Notice of the non-acceptance the day following that in which the of a bill must be sent or given to the holder of a bill receives the intelliparties to whom the holder or indorsee gence of its disponour, is the time means to resort within a reasonable' at which he ought to give notice to time after the dishonour of the bill : the parties whom he intends to hold but, it has been much disputed, whe- responsible. (Brayv. Hadwen, 5 Mau. ther it is the province of the court & Sel. 70; Williamsv. Smith, 2 Barn. or of the jury to decide what is a & Ald. 500.) reasonable time for this purpose: it (52) Mr. Christian observes, that seems, however, now to be under- " the holder of the bill may bring acstood that this is a question partly tions against the acceptor, drawer, of fact and partly of law; and, that and all the indorsers at the same time; the jury are to find the facts, such as but though he may obtain judgments the distance from each other at which in all the actions, yet he can recover the parties live, the course of the post, but one satisfaction for the value of &c. ; but, when those facts are esta- the bill ; but he may sue out execublished, the reasonableness of the time tion against all the rest for the costs becomes a question of law, and conse- of their respective actions. (Bayley, quently is to be determined by the 43.)"

[ocr errors]
[ocr errors]

sory note, on

What has been said of bills of exchange is applicable

or of a promisalso to promissory notes, that are indorsed over, and nego-makel.

default of the 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.




X. By bank ruptcy.

[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(6) 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



1. Who may become a bankrupt.

[ocr errors]


[merged small][merged small][merged small][merged small][ocr errors]
« EdellinenJatka »