by the person purporting to be the drawer, or by some person autho- 15th,Drawrized by him. If drawn and signed by an agent, it is usual to sign it er's name. as follows:-"A. B. per procuration C. D." and if he do not express for whom he signs, he may be personally liable. If signed by one person for himself and partners, it is usual and advisable to subscribe the name of the firm, or at least to sign it as follows:-"A. B. for A. B. and Company," or to the effect; but it is sufficient if it purport in any way to have been signed on behalf of the firm." If a bill purport to be drawn in the name of a firm as consisting of several persons, in an action by the indorsee against the acceptor, the declaration may aver in the plural, that certain persons using that firm, drew the bill, although, in point of fact, the bill were drawn by a single person using the name of that firm; and where money was deposited in the Bank of England, in the names of three assignees, it was ordered by the Chancellor to be paid to the checks of the two. It is not usual, nor indeed prudent, for the drawer of a bill or check to sign his name before it is filled up in every respect; for if a person sign his name upon blank paper, stamped with a bill stamp, and deliver it to another to draw above the signature, he will be liable to pay to a bona fide holder, any sum warranted by the stamp. * (16)-A bill of exchange being in its nature an open letter of request 16th, Difrom the maker to a third person, should regularly be properly addressed rection to to that person. But if a bill be drawn payable to the order of the the drawee. drawer at a particular place, without being addressed to any person, [91] and a party afterwards accepts it, the want of the address of the bill to any particular party by name, is cured. The address of the bill, it is said, is usually made by the Italians and Dutch on the back of the bill, but the French and the English uniformly subscribe the direction in the form to which this paragraph refers; and this latter mode is recommended as preferable to the other, because, as the paper on which a bill is usually written is but small, if the direction were on the back of it, there would be very little room left for indorsements, which frequently are very numerous; nor would there be any space on which to Erskine v. Murray, Ld. Raym. 1542. In an action on a bill, it was alleged, that the plaintiff made his bill in writing, and thereby required the defendant to pay. It was objected on error, that it did not appear that the plaintiff signed the bill; but it was answered that the allegation that he made it, and required the defendant to pay, implied that his name was in it, (otherwise he could not request,) and that he or somebody wrote it for him. Judgment for the plaintiff was affirmed. Taylor v. Dobbins, 1 Stra. 399. The declaration upon a note stated that the defendant wrote it with his own hand, but did not allege that he signed it, and an exception was taken upon that ground. Sed per cur. If the, defendant wrote it, his subscription to it was unnecessary; it is sufficient if his name appeared in any part. I "J. S. promise to pay," is as good as "I promise to pay," subscribed J. S. See also Saunderson v. Jackson, 2 Bos. & Pul. 238. 16th, Di- write the receipt for payment. A bill directed to A., or in his absence rection to to B., and beginning" pray, gentlemen, pay, &c." being accepted only the drawee. by A., may be declared upon without noticing B. If a bill be inten Place ded to be accepted by two or more persons, it should be addressed accordingly, for where a bill was drawn upon one person, and was accepted by him and another, it was decided that only the first party was liable as acceptor. 17th, 18th, (17, 18)—It is said that the place where the payment is to be made of should be fully expressed in the subscription or body of the bill; and, payment. that if a bill be drawn upon a person not resident at the place where the drawer intends the bill to be payable, the place where the drawee resides, as well as the place where payment is to be made, should be mentioned in the subscription. In general, however, the drawer merely states the address of the drawee, without pointing out the place of payment. When it is intended that the bill should be payable at a particular place, it is advisable to insert such place in the body of the bill, as Two months after date pay to my order in London," &c. but it will suffice to insert such direction in the address to the drawee, as "To Messrs. A and B., Plymouth, payable in London." In these cases the place of payment forms part of the contract; and in pleading, the bill must be described accordingly; and though in the case of a note, where [92]the place of payment was merely inserted as a memorandum at the bottom, and not in the body, it was decided that this formed no part of the contract, and need not be stated in the declaration. We shall hereafter find, that if a place be stated in any part of the note or bill, with intent to qualify the contract, is must be so described in pleading. In general, no witness is essential to the validity of a bill of exchange or promissory note;1 but in the case of bills drawn for a less sum than five pounds, a witness is necessary, and in other cases, if there be a subscribing witness, the instrument must be proved by subpœnaing him. BILLS OF EXCHANGE, like every other contract, are to be construed © Mar. 44. Com. Dig. tit. Merchant, F. 5. Anonymous, 12 Mod. 447. Jackson v. Hudson, 2 Campb. 447. f Mar. 107, 8. Beawes, pl. 3. Hodge v. Fillis and another, 3 Campb. 463. This was an action by the indorsee of a bill of exchange, drawn by Messrs. W. and A. Maxwell, at Cork, upon the defendants, and directed to them as follows: «To Messrs. Fillis and Co. Plymouth, payable in London." The bill was accepted by the defendants, payable at Sir John Perring's and Co. bankers, London. The plaintiff proved the hand-writing of the acceptors and indorsers. It was contended for the defendant, that the plaintiff could not upon this evidence be entitled to a verdict, as there could be no doubt that where a particular place of payment is denoted both by drawers and acceptors, it becomes a term of the contract between the parties, and an averment that the bill was presented for payment there, could not possibly be rejected as irrelavant. Lord Ellenborough, before whom the cause was tried, expressed himself to be of this opinion. The plaintiff had a verdict on another ground. i Price v. Mithell, 4 Campb. 200.-Exon v. Russel, 4 M. & S. 505. Post, and Hardy v. Woodroofe, 2 Stark. 319. I Marius, 14. m Ante, 51. 17 Geo. 3. c. 30. sect. 1; and post, Appendix. are in such a manner as, if possible, to give effect to the intention of the How bills, contracting parties; and, indeed, our courts, sensible how peculiarly &c. conducive the negotiability of these instruments is to the ease and increase of trade, adopt a still more liberal mode of construing them than effect to. any other instrument. " 66 construed and given It has been observed by a celebrated writer on moral philosophy," that every contract should be construed and enforced according to the sense in which the person making it apprehended the person, in whose favour it was made, understood it; which mode of interpretation will exclude evasion, in cases in which the popular meaning of a phrase, and the strict grammatical signification of words differ, or in general whenever the contracting party attempts to make his escape through some ambiguity in the expression which he used." These observations are applicable to the mode of construing a bill of exchange; thus, in a case before Lord Macclesfield, where a man for a past consideration gave a person a promissory note, in the beginning of which it was mentioned to be given for twenty pounds borrowed and received," but at the latter end were the words, which I promise never to pay ;" it was decided that the payee might recover on it, because the person making the note had intentionally excited expectations which he ought to satisfy; so if a bill be drawn payable to the order of a fictitious person, it may ut res magis valeat quam pereat be recovered upon against all[93] the parties privy to the transaction, as a bill payable to bearer, on the principle, that as they gave currency to the instrument, which they knew could never be paid to the order of the fictitious payee, the law will presume they intended that the formality of indorsement should be waived. Effect is also to be given to the intention of the parties according to the law of the country where the contract is made, and in which it is to be performed, and not according to the law of the country into which either or all of them may remove; for what is not an obligation in one place, cannot, by the laws of another country, become such in another place; and therefore where the defendant gave the plaintiff in a foreign country, where both were resident, a bill of exchange drawn by the defendant upon a person in England, which bill was afterwards protested here for non-acceptance, and the defendant afterwards, while still resident abroad, became bankrupt there, and obtained a certificate of discharge by the law of that state, it was held, that such certificate was a bar to an action here, upon an implied assumpsit to pay the amount of the bill in consequence of such nonacceptance in England. The time of payment, is, however, in general to be calculated according to the laws of the country where the bill is made payable;" thus upon a bill drawn at a place using one style, and payable at a place using the other, if the time is to be reckoned from the date, it shall be computed according to the style of the place at which it is drawn, otherwise according to the style of the place where Melan v. DeFitzjames, IBos. & Pul.141. Potter v. Brown, 5 East, 124. Da &c. Construc-it is payable, and in the former case, the date must be reduced or tion of bills, carried forward to the style of the place where the bill is payable, and the time reckoned from thence. It has been observed, that this is contrary to the reason and the nature of the thing; yet, other writers entertain a different opinion; and it is said, that a bill of exchange is considered in this respect as having been made at the place where it is payable, according to the maxim, contraxisse unusquisque in eo loco intelligitur in quo ut solveret se obligavit, and that consequently the contract should be construed and regulated according to the laws and usage of that place to which the contracting parties have understood themselves subject, following the other rule, in contractibus veniunt ea quæ sunt moris et consuetudinis in regione in qua contrahitur. It further ap [94]pears, that although the form of the remedy must depend on the laws of the country in which the creditor proceeds, it will, in respect of the extent of it, be subject to the same regulations and restrictions as if it had been pursued in the country where the contract was made; and therefore if a man in a foreign country enter into a contract to be there performed, the fulfilment of which cannot in that country be enforced by arrest, he cannot in this country be holden to bail. (121) See Bayl. 112, 113. Mar. 75, 89 to 92. 101 to 103. y Kyd. 8. Poth. pl. 155. Bayl. 68. Melan v. De Fitzjames, 1 Bos. & Pul. 141. Pedder v. Mac Master, 8 T. R. 609. Potter v. Brown, 5 East, 124; but see Imlay v. Ellefsen, 2 East, 255. Tidd, 6th ed. 218. 188. (121) Many cases have occurred in the courts of the United States, which have drawn in question the operation of the lex loci contractus. The rule is well settled, that the law of a place where a contract is made, is to govern as to the nature, validity, and construction of such contract; and that being valid in such place, it is to be considered equally valid, and to be enforced every where, with the exception of cases in which the contract is immoral or unjust, or in which the enforcing it in a state would be injurious to the rights, the interest, or the convenience of such state, or its citizens. This doctrine is explicitly avowed in Huberus de Conflictu Legum, and has become incorporated into the code of national law in all civilized countries. Pearsall v. Dwight, 2 Mass. Rep. 84. Lodge v. Phelps, 1 John. Cas. 139. Smith v. Smith, 2 John. Rep. 235. Ruggles v. Keeler, 3 John. Rep. 263. Thompson v.Ketcham, 4 John. Rep. 285. 8 John. Rep. Van Rough v. Van Arsdaln, 3 Caines' Rep. 154. Warder v. Arell, 2 Wash. Rep. 282. and the cases cited in Van Reimsdyk v. Kane, 1 Gallis. Rep. 371. 375. It seems to follow, that if a contract be void by the law of the place where it is made, it is void every where; and that a discharge of a contract in the place where it is made, shall be of equal avail in every other place. Van Schaick v. Edwards, 2 John. Cas. 355. Baker v. Wheaton, 5 Mass. Rep. 509. Thompson v. Ketcham. Smith v. Smith.; and the cases cited in 1 Gallis. Rep. 371. 371. A discharge, therefore, under the insolvent or bankrupt law of a state, (supposing it to be conditional) is a good discharge of a contract made there, in every other state where a suit may be brought to recover on such contract. James v. Allen, 1 Dall. Rep. 188. Miller v. Hall, 1 Dall. Rep. 229. But it seems to have been held that this doctrine only applies where both of the parties are citizens of, or individuals in, the state at the time when the contract was made. Harris v. Mandeville, 2 Dail. Rep. 256. Proctor v. Moore, 1 Mass. Rep. 198. Baker v. Wheaton, Smith v. Smith. But see Hicks v. Brown, 12 John. Rep. 142. And such a discharge will not be valid against a suit upon a contract made, or to be executed in another state, whether it be a foreign state, or the state where the suit is brought. Van Rough v. Van Arsdaln, 3 Caines' Rep. 154. Smith v. Smith, Thompson v. Ketcham, 4 John. Rep. 285. 8 John. Rep. 189. Van Reimsdyk v. Kane. Shieffelin v. Wheaton, 1 Gallis. Rep. 441. However, in Connecticut a discharge under the insolvent laws of that state, has been held a good discharge of a contract entered into another state with the citizens of another state. Burber v. Minturn, 1 Day's Rep. 136. As to the form of the action or remedy by which a contract is to be enforced, a different rule prevails, for the recovery must be sought, and the remedy pursued according to the lex fori, not the lex loci contractus. Dixon's Ex. v. Ramsay's Ex. 3 Cranch Rep. 324. Nash v. Tupper, 1 Caines' Rep. 402. Ruggles v. Keeler, 3 John. Rep. 268. Pearsall v. Dwight, 2 Mass. Rep. 84. Smith v. Spinola, 2 John. Rep. 198.; and the cases cited 1 Gallis. Rep. 371. 376. Bird v. Caritat, 2 John. Rep. 342. Sicard v. Whale, tion of bills, &c. It has been observed by a celebrated writer on the law of nations,b Construc that it is the first general maxim of interpretation, that it is not allowable to interpret what has no need of interpretation ;" and that when a deed is worded in clear and precise terms, when its meaning is evident, and leads to no absurd conclusion, there can be no reason for refusing to admit the meaning which such a deed naturally presents; to go elsewhere in search of conjectures, in order to restrict or extend it, is but an attempt to elude it, and if this dangerous method were once admitted, every deed might be rendered useless. It seems that on similar principles, our counts, notwithstanding their anxiety to give effect to the intentions of the contracting parties, have laid down as a general rule, that all latitude of construction must submit to this restriction, namely, that the words and language of the deed bear the sense which is attempted to be put upon them. However, in the case of bills, 168. Hotham v. East India Company, Dougl. 277. Burnet v. Kensington, 7 R. R. 214. Vattel, 224; et vide Powell on Contracts, tit. Construction. ⚫ Anderson v. Pitcher, 2 Bos. & Pul. C 11 John. Rep. 194. Therefore the statute of limitations of the state where the contract is made, has been held to be no bar to an action in another state, for it is only a modification of the remedy. Pearsall v. Dwight, Ruggles v Keeler. But the sta tute of limitations of the state where the suit is brought is a good bar. Nash v. Tupper, Ruggles v. Keeley, Hubbell v. Cowdrey, 5 John. Rep. 132.; and if a note be negotiable by the law of the place, where the suit is brought, but not by that of the place where it was made, an action may be maintained by the indorsee in his own name. Lodge v. Phelps, 1 John. Cas. 139. S. C. 2 Caines' Cas. in Err. 321. And a discharge under an insolvent law of a state which simply protects the debtor from arrest or imprisonment is no bar to a suit in another state, for it is held to be limited to the person only, without discharging the debt, and local in its effects. White v. Canfield, 7 John. Rep. 117. Whether a state can, since the constitution of the United States, pass an insolvent act, which shall discharge the obligation of a contract, has been finally settled. Mr. Justice Washington, in the circuit court of the United States in Pennsylvania, in a very learned and elaborate opinion maintained the negative. Golden v Prince, April term, 1814, 5 Hall's Law Journal, 502. and the question being brought before the supreme court, it was decided that a state may pass a bankrupt law, provided such law does not impair the obligation of a contract, and provided there be no act of Congress in force to establish a uniform system of bankruptcy conflicting with such law. Sturgis v. Crownin shield, 4 Wheaton, 122. M'Millan v. M'Neill, 4 Wheaton, 209. It has been held that a tender of payment of bills of credit, which would be good by the law of the place where the contract was made, would be a good bar in every other state, where a suit should be brought. Warder v. Arell, 2 Wash. 282. And it seems to have been thought that a stay of execution upon a foreign judgment, by the law of the place where the judgment was recovered, would be so far recognized here, as to exempt the party from arrest for the debt, and if arrested would entitle him to a discharge on common bail. Conframpv. Burel, 4 Dall. Rep. 419. and see Melan v. Fitzjames, 1 Bos. & Pul. 138. But the contrary seems asserted by Lord Ellenborough in Imlay v. Ellesfen, 2 East's Rep. 455. and see Sicard v. Whale, 11 John. Rep. 194. And as the law of the place where the contract is made, regulates the rights and duties of the parties, if a bill be drawn and indorsed in a place, by a person resident there, he is answerable upon such indorsement only so far as the laws of that country bind him upon a bill so drawn and indorsed. Powers v. Lynch, 3 Mass. Rep. 77. See also Hicks v. Brown, 12 John. Rep. 142. And upon a bill drawn payable in a foreign country, whether payment in the current money of that country be good or not, depends upon the intention of the parties, and their reference in the contract to the lex loci. Seabright v. Calbraith, 4 Dall. Rep. 325. For where it appears that the performance of the contract in the contemplation of the parties, has relation to the laws of another country, the contract must be interpreted according to those laws. Powers v. Lynch. Hicks v. Brown. The indorsement of a bill is deemed a new substantive contract; and therefore the indorser will be liable to damages on non-payment of a bill, according to the law of the place where the indorsement was made. Semb. Slacum v. Pomeroy, 6 Cranch, 221. For other cases respecting the operation of the lex loci, see Van Schaick v. Edwards, 2 John. Cas, 355. Harrison v. Sterry, 5 Craneh, 289. Ludlow v. Van Renssellaer, 1 John. Rep. 94. Winthrop v. Pepont, 1 Bay's Rep. 468. Green v. Sarmiento, 1 Peters' Rep. 74. |