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itself into almost all pecuniary transactions. It is an open letter of request from one man to another, desiring him to pay a sum named therein to a third person on his account; by which means a man at the most distant part of the world may have money remitted to him from any trading country. If A. lives in Jamaica, and owes B. who lives in England 10001., now if C. be going from England to Jamaica, he may pay B. this 10001., and take a bill of exchange drawn by B. in England upon A. in Jamaica, and receive it when he comes thither. Thus does B. receive his debt, at any distance of place, by transferring it to C.; who carries over his money *in paper credit
, without danger of robbery or [ * 467 ] loss. This method is said to have been brought into general use by the Jews and Lombards, when banished for their usury and other vices; in order the more easily to draw their effects out of France and England, into those countries in which they had chosen to reside. But the invention of it was a little earlier: for the Jews were banished out of Guienne in 1287, and out of England in 1290 (r); and in 1236 the use of paper credit was introduced into the Mogul empire in China (s). In common speech, such a bill is frequently called a draft, but a bill of exchange is the more legal as well as mercantile expression. The person, however, who writes this letter, is called in law the drawer, and he to whom it is written the drawee; and the third person, or negotiator, to whom it is payable (whether specially named, or the bearer generally) is called the payee.
. These bills are either foreign, or inland; foreign, when Foreign. drawn by a merchant residing abroad upon his correspondent in England, or vice versa; and inland, when both the Inland. drawer and the drawee reside within the kingdom. Formerly foreign bills of exchange were much more regarded in the eye of the law than inland ones, as being thought of more public concern in the advancement of trade and com
But now, by two statutes, the one 9 & 10 W. III.
(r) 2 Carte. Hist. Eng. 203, 206.
($) Mod. Un. Hist. iv. 499.
c. 17, the other 3 & 4 Ann. c. 9 (28), inland bills of exchange are put upon the same footing as foreign ones; what was the law and custom of merchants with regard to the one, and taken notice of merely as such (0), being by those statutes expressly enacted with regard to the other. So that now there is not in law any manner of difference between themt.
Promissory notes, or notes of hand, are a plain and direct engagement in writing, to pay a sum specified at the time therein limited to a person therein named, or sometimes to his order, or often to the bearer at large. These also, by the same statute 3 & 4 Ann. c. 9, are made assignable and indorsable in like manner as bills of exchange. But, by statute 15 Geo. III. c. 51, all promissory or other notes, *bills of exchange, drafts, and undertakings in writing, being negotiable or transferable, for the payment of less than twenty shillings, are declared to be null and void; and
[ *468 ]
(1) 1 Rol. Abr. 6.
(28) The acts, which at first were temporary, were made perpetual by
7 Ann. c. 25.
+ Mr. Christian observes, that “one inland bill, payable at or after sight, very important distinction between fo- can be protested; or which is not drawn reign and inland bills of exchange still payable at some time after date. (4 T. remains unaltered by the statutes; viz. R. 170).” in a foreign bill, in order to recover [In Windle v. Andrews, (2 Barn. & against the drawer or indorsers, it is Ald. 701), it was decided, that, although necessary that the bill should be pro- the indorsee of an inland bill of extested for non-acceptance or non-pay- change has no remedy for interest unment; (5 T. R. 239); but a protest is not der the statute of Ann., unless the bill necessary upon an inland bill, to en- has been regularly protested; still, that able the holder to recover the amount statute does not take away any remedy of it against the drawer or indorsers; which the holder of a bill of exchange and the only advantage of a protest had previously; and the drawer of a upon an inland bill is to give the hold- bill of exchange, which is not duly paid, er a right to recover interest and ex- is liable at common law for interest, alpenses incurred by the non-acceptance though no protest was made.-Ed.] or non-payment. (Ld. Raym. 993). No
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| *4691 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) 2 Show. 235.-Grant v. Vaughan, T. 4 Geo. III. B. R.
(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, shail 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 discharge 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, has been held, in Ex 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
supfrom the acceptor, or any party to the posed that the holder intends to give bill: (Rosher v. Kiernan, 4 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. Levett, 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. (Ex in an action by his assignees, to prove parte Moline, 19 Ves. 217).