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it is made penal to utter or publish any such; they being deemed prejudicial to trade and public credit. And, by 17 Geo. III. c. 30 (29), all such notes, bills, drafts, and undertakings, to the amount of twenty shillings, and less than five pounds, are subjected to many other regulations and formalities; the omission of any one of which vacates the security, and is penal to him that utters it.

The payee, we may observe, either of a bill of exchange the property in or promissory note, has clearly a property vested in him both bills and

notes is vested (not indeed in possession but in action) by the express con- in the payee. tract of the drawer in the case of a promissory note, and, in the case of a bill of exchange, by his implied contract, viz. . that, provided the drawee does not pay the bill, the drawer will: for which reason it is usual, in bills of exchange, to express that the value thereof hath been received by the drawer (u); in order to shew the consideration, upon which the implied contract of repayment arises. And this property, so vested, may be transferred and assigned from the payee to any other man; contrary to the general rule of the common law, that no chose in action is assignable: which assignment is the life of paper credit. It may, therefore, be of some use, to mention a few of the principal incidents attending this transfer or assignment, in order to make it regular, and thereby to charge the drawer with the payment of the debt to other persons than those with whom he originally contracted.

In the first place then, the payee, or person to whom or As to the mode whose order such bill of exchange or promissory note is pay- and notes.

of assigning bills able, may, by indorsement, or writing his name in dorso, or on the back of it, assign over his whole property to the bearer, or else to another person by name, either of whom is

(u) Stra. 1212.

(29) By the statute of 7 Geo. IV. under a penalty of 201, for every such ch. 6, the issuing of promissory notes note issued. for any sum under 51. is prohibited,


then called the indorsee; and he may assign the same to another, and so on in infinitum. And a promissory note,

payable to A. or bearer, is negotiable without any indorse[ *469 ) ment, and payment thereof may be demanded by any bearAcceptance of er *of it (v). But, in case of a bill of exchange, the payee,

or the indorsee (whether it be a general or particular indorsement), is to go to the drawee, and offer his bill for acceptance; which acceptance (so as to charge the drawer with costs) must be in writing, under or on the back of the bill. If the drawee accepts the bill, either verbally (30) or in writing (w), he then makes himself liable to pay it; this being now a contract on his side, grounded on an acknow

ledgment that the drawer has effects in his hands, or at least Protest for non- credit sufficient to warrant the payment. If the drawee reacceptance.

fuses to accept the bill, and it be of the value of 201. or upwards, and expressed to be for value received, the payee or indorsee may protest it for non-acceptance; which protest must be made in writing, under a copy of such bill of exchange, by some notary public; or, if no such notary be resident in the place, then by any other substantial inhabitant in the presence of two credible witnesses; and notice of such

(v) Show. 235.-Grant v. Vaughan, T. 4 Geo. III. B. R.
(w) Stra. 1000.

(30) The statute of 1 & 2 Geo. IV.c. (therefore, in such case, the holder is 78, enacts, that no acceptance of any not bound to present the bill at any parinland bill shall be sufficient to charge ticular time or place; Turner v. Hayany person, unless such acceptance be den, 4 Barn. & Cress. 3); but if the in writing on the bill, or on one of its acceptance express that the bill is acparts when drawn in sets. But a parol cepted, payable at a specified place only, acceptance of a foreign bill of exchange and not otherwise or elsewhere, such acis still valid. (Fairlee v. Herring, 3 ceptance shall be deemed to all intents Bingh. 625). The same statute enacts, and purposes a qualified acceptance of that acceptance of any bill of exchange, the bill, and the acceptor shall not be payable at a specified place, without liable to pay the said bill, except in defurther expression qualifying the ac- fault of payment, when such payment ceptance, shall be deemed to all intents shall have been first duly demanded at and purposes a general acceptance; the place specified.

protest must, within fourteen days after, be given to the drawer (31)

(31) The ground upon which the the petitioning creditor's debt, in order drawer of a bill of exchange is discharg. to support the commission. (Smalled from liability to the holder in re- combe v. Bruges, 1 M'Clel. 60). And spect thereof, if he has not received due the necessity of notice is not dispensed notice of its dishonour, is, that the with by any understanding which exholder, omitting to send such notice to isted between the parties; for, evidence the drawer, must be presumed to have of such an understanding can never be given credit to some person liable as admitted to vary the legal operation of between him and the drawer: and it an instrument: (Free v. Hawkins, 8 has been held, (in E.x parte Barclay, Taunt. 97): nor, will mere knowledge 7 Ves. 598, in Staples v. Okines, 1 of the dishonour of a bill, (such knowEsp. N. P. C. 333, and in Stewart v. ledge not being derived from any par. Kennet, 2 Camp. 177), that notice of ty to the bill, or person who would have the dishonour of a bill should be given a right of action thereon, if returned to by the holder himself or his authorized him), be equivalent to notice from the agent, otherwise the drawer would be holder, or other party thereto, for the discharged: but in later cases, at law, purpose of fixing the person who has it has been decided that it is sufficient acquired such casual knowledge of the for an indorsee to prove that the draw- fact with responsibility, for, unless er of a bill had notice of its dishonour such notice be received, it may be supfrom the acceptor, or any party to the posed that the holder intends to give bill: (Rosher v. Kiernan, Camp. 87. credit to some other party. (Esdaile Wilson v. Swabey, 1 Stark. 34): and v. Sowerby, 11 East, 116. Tindal v. likewise, that if the indorser of a bill Brown, 1 T. R. 169). Even when the receive notice of its dishonour from drawer of a bill of exchange has become any person who is a party to the bill, bankrupt, and absconded before it was he is directly liable upon it to a subse- due, and the acceptor also has become quent indorsee, although he had no no- bankrupt before the bill was due; the tice of the dishonour from such subse- holder will not be entitled to prove the quent indorsee. (Jameson v. Swinton, bill under the commission against the 2 Camp. 373). It seems, also, that drawer, unless notice of the dishonour want of notice to a drawer, of the dis- of the bill has been duly given to the honour of one of his bills of exchange, assignees of the said drawer; at all may be supplied by evidence of his events when the bankrupt drawer's acknowledgment to the holder, when house was open, and a notice left there asked if the bill would be paid, that would have reached his assignees. “ it would not:" (Brett v. Levelt, 13 (Rohde v. Proctor, 4 Barn. & Cress. East, 214, and see infra): but such 524). If, indeed, the bill had been disan acknowledgment, made by the draw- honoured before assignees of the drawer after he has committed an act of er's estate were chosen, notice to the bankruptcy, is inadmissible as evidence, drawer himself would be sufficient. (E.c in an action by his assignees, to prove parte Moline, 19 Ves. 217).

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 days after it becomes duet (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

There are certain excepted cases, in exceptions have been frequently rewhich notice of the dishonour of a bill gretted by courts both of law and equiof exchange has been determined not to ty, as tending to introduce nice distincbe necessary: for instance, (as was be- tions, instead of adhering to a plain fore intimated), where the drawer has and intelligible rule. (Cory v. Scott, 3 no effects in the hands of the drawee, Barn. & Ald. 622. Claridge v. Dalton, nor any right upon any other ground 4 Mau. & Sel. 231.

Wallwyn v. St. to expect the bill will be paid, he is held Quintin, 1 Bos. & Pull. 655. Marson not to be entitled to formal notice of its v. Stock, 6 Ves. 305. Ex parte Wilson, dishonour; knowledge being, in such 11 Ves. 411. Ex parte Heath, 2 Ves. case substituted for notice: but the & Bea. 240). decisions establishing this and similar

† Mr. Christian observes, that “a (4 T. R. 148). bill or note is not now considered due “ A promissory note made payable to or demandable till the last day of the A., without adding or to his order, or to three days grace; as, if a bill or note is bearer, though not negotiable, is a note dated on the 12th of any month, and within the statute, and the three days made payable ten days, one week, or of grace must be allowed upon it. (6 T. one month, after date, payment must be R. 123). demanded on the 25th, the 22d, of the “ A bill or note must be drawn upon same, and on the 15th of the next month a proper stamp, and if it be drawn upon respectively. But, if the third day of a greater stamp than the statutes regrace falls on a Sunday, the bill or note quire, it cannot be received in eviis payable and due on the Saturday pre- dence; but the plaintiff may recover as ceding; and by 39 & 40 Geo. III. c. for so much money lent or advanced, 42, if payable on Good Friday, they if he can prove the defendant's promise are due the day before. Days of grace to pay, or the consideration received by are allowed upon promissory notes, in him from the plaintiff, independently like manner as upon bills of exchange. of the imperfect note. (1 East, 55)."

time after non-payment, without any protest, by the rules of the common law (2), 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 protest, or to of the bill. The bill, when refused, must be demanded of the dishonour.

give notice 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 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) (32).

If the bill be an indorsed bill, and the indorsee cannot Each indorsee get the drawee to discharge it, he may call upon either the may, on default

acceptor, drawer or the indorser, or if the bill has been negotiated or drawee, resort through many hands, upon any of the indorsers; for each the prior ing

dorsers for pay(x) Lord Raym. 993.

(y) Salk. 127.

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(32) Notice of the non-acceptance quently is to be determined by the of a bill must be sent or given to the court, and not by the jury. (Tindal v. parties to whom the holder means to Brown, 1 T. R. 168. Darbishire v. resort within a reasonable time after the Parker, 6 East, 10. Haynes v. Birks, dishonour of the bill: but, it has been 3 Bos. & Pul. 601. Bateman v. Joseph, much disputed, whether it is the pro- 12 East, 434. Baldwin v. Richardson, vince of the court or of the jury to de- 1 Barn. & Cress. 247. Sturges v. Dercide what is a reasonable time for this rick, Wightw. 76. Langdale v. Trimpurpose: it seems, however, now to be mer, 15 East, 292). As a general rule, understood that this is a question part- however, the day following that in ly of fact and partly of law; and, that which the holder of a bill receives the the jury are to find the facts, such intelligence of its dishonour, is the time as the distance from each other at which at which he ought to give notice to the the parties live, the course of the post, parties whom he intends to hold re&c.; but, when those facts are esta- sponsible. (Bray v. Hadwen, 5 Mau. blished, the reasonableness of the time & Sel. 70. Williams v. Smith, 2 Barn. becomes a question of law, and conse. & Ald. 500).

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