CHAP. IX. BILLS OF EXCHANGE AND PROMISSORY NOTES. I. Of the Nature of a Bill of Exchange. II. Of the Capacity of the contracting Parties to a Bill of Exchange. III. Of the Requisites in a Bill of Exchange, and herein of the Stamp, Date, and Consideration. IV. Of Presentment for Acceptance---Acceptance--qualified Acceptance---Liability of the Acceptor---Non-acceptance, and Notice thereof--Protest---Liability of the Drawer on Nonacceptance. V. Of the Transfer of Bills of Exchange---Of the Party in whom the Right of Transfer is vested. VI. Of Presentment for Payment, and herein of the Days of Grace---Non-payment and Notice thereof---Protest. VII. Of the Acts of the Holder whereby the Parties to the Bill may be discharged. VIII. Of the Action on a Bill of Exchange---Evidence ---Recovery of Interest. IX. Of the Nature of a Promissory Note---Stat. 3 and 4 Ann. c. 9. s. 1. placing Promissory Notes on the footing of Inland Bills of Exchange---What are negotiable Notes within the Statute---Of Bankers' Notes---Joint and several Notes---Consideration---Stamp. X. Of the Time when a Note ought to be presented for Payment. XI. Of the Declaration---Pleadings---Evidence--Conclusion. I. Of the Nature of a Bill of Exchange. A BILL of exchange is a written order from A. to B. directing B. (who has, or is supposed to have, in his hands sufficient effects belonging to A.) to pay a sum of money to C. or order, or to C. or bearer, either at sight, or a certain number of days after sight, or after date, or at single, double, or treble usance, or on demand. The peculiar properties of a bill of exchange are these: First-It is assignable to a third person not named in the bill, or party to the contract, so as to vest in the assignee a right of action in his own name; contrary to the general rule of law, that choses in action are not so assignable. Secondly-Although a bill of exchange be merely a simple contract, and not a specialty, yet it will be presumed that it has been originally given for a good and valuable consider ation. Bills of exchange are either foreign or inland; foreign bills of exchange have long been considered as the most convenient paper security among merchants", in conformity to the universal usages and customs established among traders, by unanimous concurrence, for facilitating a general commerce throughout the world. The person making the bill is called the drawer, the person to whom it is directed the drawee, and the person in whose favour it is made the payee. When the drawee has undertaken to pay the bill, he is stiled the acceptor, and his undertaking to pay the bill is called an acceptance. Bills of exchange payable to order are assignable by endorsement. The person making an endorsement is called the endorser; the person, in whose favour it is made, the endorsee, the party in possession of the bill, and entitled to receive its contents, the holder. Bills payable to bearer are transferrable by delivery without endorsement. Where the drawee refuses to accept, a stranger, after protest for non-acceptance, may accept for the honour of the drawer, and thereby such stranger acquires certain rights, and subjects himself to the same obligations as if the bill had been directed to him. So a stranger may become a party to a bill, paying it after protest for non-payment, either for the honour of the drawer or endorsers. a Postleth. Dict. b Grant v. Vaughan, & Bur. 1516. Although regularly there ought to be three persons concerned in a bill of exchange, viz. drawer, drawee, and payee, yet there may be only two; that is, the characters of drawer and payee may be sustained by the same person, as if A. draw a bill in this manner, "Pay to me or my order £ Value received by myself." A bill of exchange is a simple contract, and consequently is within the statute of limitations; and must be sued for within six years after it becomes payable. Bills of exchange for value received, are not such matters of account as are intended by the exception in the statute of limitations concerning merchants' accounts. A bill of exchange is to be considered as a simple contract debt in a course of administration, which an executor or administrator cannot discharge before debts by bond, without being guilty of a devastavit. If a merchant in London draws a bill of exchange on his correspondent in Newcastle, in favour of J. S., and the bill is refused, and J. S. dies intestate, his administrator, on letters of administration taken out at Durham, cannot bring an action on the custom of merchants against the drawer, and lay the same in London, because a bill of exchange is not equal to a bond or specialty, which are the deceased's goods where they happen to be at his death, but is a simple contract which follows the person of the debtor, and makes bona notabilia where the debtor resides, and therefore administration ought to be taken out in London. II. Of the Capacity of the contracting Parties to a Bill of Exchange. ALL persons, whether merchants or not, if they have capacity to contract, may be parties to a bill of exchange. This appears from the case of Sarsfield v. Witherly, Carth. 82. in which it was decided, that the act of drawing a bill of exchange constituted the drawer a merchant, within the custom of merchants, so as to make him responsible to the holder upon non-payment. Corporations, by the intervention of their agents, may be e Per Holt C. J. in Buller v. Cripps, 6 Mod. 30. d Renew v. Axton, Carth. 3. e Chevely v. Bond, Carth 226. parties to a bill of exchange; but by stat. 6 Ann. c. 22. 8. 9. and 15 Geo. 2. c. 15. s. 5. it shall not be lawful for any body politic or corporate, other than the governor and company of the Bank of England, or for any other persons, united in covenants or partnership, exceeding the number of six persons, in England, to borrow or take up any sums of money on their bills or notes, payable at demand, or at any less time than six months from the borrowing thereof, during the continuance of the privilege of exclusive banking granted to the governor and company of the Bank of England. Infant.-An infant cannot bind himself by a bill drawn in the course of trade, or even for necessaries. But infancy is a personal privilege, of which the infant alone can avail himself. Hence it has been holden, that the drawer of a bill of exchange cannot set up the infancy of the payee and indorser as a defence to the action1(1). A feme covert cannot bind herself by drawing a bill of exchange. This proposition falls within the general rule of law, which permits married women to avoid all contracts made by them during their coverture. To this rule there are some exceptions, which are stated under title Baron and Feme, Sect. II. The interest in a bill of exchange or note given to a feme covert, vests in her husband, and he must endorse it. An action was brought by the endorsee against the maker of a promissory note*. The first count of the declaration was upon the note, to which were added the money counts. It appeared that the note had been given by the defendant to a married woman, with knowledge of her coverture, to the intent that she should endorse it to the plaintiff, which was done accordingly, in payment of a debt which she owed him (in the course of carrying on trade in her own name MS. g Williams v. W. Harrison & R. Har- i Grey v. Cowper, B. R. E. 22 Geo. 3. rison, Carth. 160. ↳ Williamson v. Watts, 1 Camp. N. k Barlow v. Bishop, 1 East's R. 432P. C.552. Sir J. Mansfield C.J. (1) In like manner the acceptor of a bill of exchange cannot set up the infancy of the drawer as a defence to an action brought at the suit of the endorsee. Taylor v. Croker, 4 Esp. N. P. C. 187. and per Lord Hardwicke in Haly v. Lane, 2 Atk. 181-2 S. P. So, though a note given by a wife to a husband is void; yet if it is endorse over by the husband, as between him and the endorsee, it is certainly good. Ibid. with the consent of her husband). The plaintiff had dealt with her as a feme sole. It was holden, that the property in the note vested in the husband by the delivery to the wife, and that her endorsement did not transfer any interest to the plaintiff'; consequently he was not entitled to recover on the special count; nor on the money counts, because no money had passed between the plaintiff and defendant. But if a promissory note is made payable to a married woman, and she endorses it for value in her own name, and the maker afterwards promises to pay it, in an action against him by the endorsce, it will be presumed, that the nominal payee had authority from her husband to endorse the note in that form, and the endorsement will be considered as vesting a legal title to the note in the plaintiff. Bills of exchange may be drawn, accepted, or endorsed, by means of the agent or attorney of the party (2). An agent or attorney for this purpose may be constituted by parol (3). In such case the principal is said to draw, accept, or endorse by procuration. Agents should be cautious how they accept bills directed to them personally, and not to their princi pals, although such direction describe them in their official characters; for in such case, if they accept in their own name, they will become personally responsible, as appears from the following case: The plaintiff was endorsee of a bill of exchange, drawn from Scotland upon the defendant in these words," At thirty days sight pay to J. S. or order 2007. value received of him, and place the same to account of the York Buildings' Company, as per advice from Charles Mildmay. To Mr. Humphrey Bishop, cashier of the York Buildings' Company, at their house in Winchester Street, London. Accepted per H. Bishop." The bill not having been paid, an action was brought against defendant upon his acceptance; at the trial he proved, that the letter of advice was addressed to the company; and that, the bill having been brought to their house, defendant was ordered to accept it, which he did in the same manner 1 Cotes v. Davis, 1 Camp. N. P. C. 485. m Thomas v. Bishop, Str. 955. Ca, Temp. Hardw. 1. S. C. 1 (2) Many persons, under disabilities in other respects, may act as private attornies, such as infants, femes covert, persons attainted, outlawed, excommunicated, aliens, &c. 1 Inst. 52 a. (3) The holder of a bill may authorise another person to endorse bis name on it, by parol, per Holt C. J. at N. P. 12 Mod. 564. T |