Gambar halaman
PDF
ePub

&c.

Construc- and other negotiable instrument, our courts have relaxed this rule, and tion of bills, therefore in the case just alluded to, where an action was brought by an indorsee of a bill of exchange against the acceptor, and he could not prove an indorsement by the payee, evidence was admitted to prove that the payee was a fictitious person, and consequently could not indorse it; and it was adjudged, that as the drawer and acceptor knew of each fact, the bill should against them operate as a bill payable originally to bearer, and that the holder might recover thereon as such. The courts have always in mercantile affairs endeavoured to adapt the rules of law to the course and method of trade and commerce, in order to promote it, and when new cases have arisen on the mercantile law, they consult traders and merchants as to their usage in regard to bills. (122)

Gibson v. Minet, 1 Hen. Bla. 569; linson, Willes, 561. Barnes, 164. S. C.; and see ante, 64, 5. note but see 1 Holt C. N. P. page, 99, in

Per Willes, C. J. in Stone v. Raw

notes.

(122) It may be well to collect in this place a number of cases in which a legal construction has been put upon written contracts, which do not properly fall under any other head.

A note as follows, "Due the bearer hereof, 31. 18s. 10d. which I promise to pay to A. T. or order, on demand," is a note payable to A. T. or order, and not to the bearer, and therefore cannot be transferred but by indorsement. Cock v. Fellows, 1 John. Rep. 143.

Where a person adds at the bottom of a note of another, that he acknowledges himself to be holden as a surety for the note, he is in law deemed an original joint promissor. Hunt v. Adams, 6 Mass. Rep. 519. Leonard v. Vredenburgh, 8 John. 29.

If a person write his name on the back of a note in blank, as guarantor, and authorize another person to write a guaranty over his name, it is good and may be filled up accordingly. Ulen v Kittredge, 7 Mass. Rep. 233. Moies v. Bird, 11 Mass. Rep. 436. If a note be made payable to A. or order, and a person who had previously intended to have become indorser thereon, write on the back of the note, "for value received, I undertake to pay the money within mentioned to A. ;" he will be held as an original promissor. White v. Howland, 9 Mass. Rep. 314. Leonard v. Vredenburgh, Bailey v. Freeman, 11 John Rep 221.

The payee of an accommodation note not negotiable, indorsed it in blank to a creditor of the maker, intending thereby to become security for the debt of the maker to the creditor; it was held that the creditor might lawfully write over the indorsement "for value received, I undertake to pay the money within mentioned to A. (the creditor ;") and so hold the payee as an original promissor. Joscelyn v. Ames, 3 Mass. Rep. 274.

And if a note be payable to the creditor only, and another person indorse his name in blank on the note as security for the payment, he may be treated as an original promisMoies v. Bird.

sor.

If a bill be drawn in England on a firm in Boston, payable to the drawer himself or order, and be accepted by one of the firm then in England, payable in London, it is a foreign bill of exchange, and on non-payment it is to be governed by the law of Massachusetts as to damages. Grimshaw v. Bender, 6 Mass. Rep. 157.

Where a note dated the 15th of July, was payable immediately with interest from the first day of June, it was held to mean the first day of the preceding June. Whitney v. Crosby, 3 Caines' Rep, 89.

Where the payee of a note payable to himself or order, indorsed on it, "I guarantee the payment of this note within six months," and signed his name thereto, such a signature was held to operate a transfer of the note to every subsequent holder, even supposing that the guaranty should be construed a mere contract between the payee and his immediate indorsee. Upham v. Prince, 12 Mass. Rep. 14. But see Tyler v. Binney, 7 Mass. Rep. 479.

Such a guaranty by a third person, made at the time of the execution of the note is an original collateral undertaking, and is sustained by the original consideration in the note. Leonard v Vredenburgh, 8 John. Rep. 29. Bailey v. Freeman, 11 John, Rep. 221.

Where the payee of a note payable to himself or order, indorsed on it upon a transfer, "I guarantee the payment of the within note in eighteen months, if it cannot be collected before that time;" the guaranty was construed not to mean to give an unlimited currency to the note, and no person other than an original party to the guaranty could maintain an action thereon. Tyler v. Binney, 7 Mass. Rep. 479.

a bill to the

payee; and

A BILL OF EXCHANGE, &c. in general, is delivered by the drawer Delivery of to the payee, and where it consists of several parts, as is usual in the case of foreign bills, each ought to be delivered to the person in whose effecttherefavour it is made, unless one part be forwarded to the drawee for ac-of. ceptance, and in that case the rest must be so delivered; were it otherwise, difficulties might arise in negotiating a bill, or obtaining payment of it, though a delivery is not essential to vest the legal interest in the payee.

b

In general one contract not under seal cannot be extinguished by another similar contract, and a mere promise to give time for the payment of a pre-existing debt, is not binding. But a person by taking a bill of exchange or promissory note, in satisfaction of a former debt, or of a debt created at the time, is precluded from afterwards waiving it, and suing the person who gave it him, for the original debt before the bill is due; for the taking of the bill amounts to an agreement to give the person delivering it credit for the length of time it has to run.< And even on behalf of the crown an extent in aid cannot be issued against a person from whom the principal debtor has taken a bill which is not due. But where an action having been brought against the ac

Ante, 62, 3. Bayl. 19.

The

# Smith v. M'Clure, 5 East, 477. plaintiff declared on a bill payable to his own order, and averred that he delivered it to the defendant, to whom it was addressed, and who accepted it according to the usage and custom, &c. and by reason of the premises, &c. the defendant became liable to pay. The defendant demurred specially, and assigned as cause, that it was not alleged that the defendant re-delivered the bill to the plaintiff. Per curiam, the acceptance of the bill, which was admitted by the demurrer, and must be taken to be a perfect acceptance vested a right in the drawer to sue upon it, and if, after such an acceptance, the acceptor improperly detained the bill in his hands, the drawer might nevertheless sue him on it, and give him notice to produce the bill, and on his default, give parol evidence of it.

b Story v. Atkins, Ld. Raym. 1430.— Scott v. Surman, Willes, 406. Taylor v. Wasteneys, 2 Stra. 1218.

De Symons v. Minchwick, 1 Esp. Rep. 430.

*Stedman v. Gooch, 1 Esp. 3. Assumpsit for goods sold; defence that plaintiff had taken three promissory notes of Finlay; it appeared that these notes had been returned to the defendant before they were payable, and it was insisted, that the plaintiff having taken them in discharge of her debt for goods sold could not maintain an action on her

original debt until an actual default in the payment of these notes, as the notes might be paid when they became due, nor should the plaintiff be allowed to judge of the probable or improbable ability of the party to pay at a future day.

Lord Kenyon said, that the law was clear, and that if in payment of a debt, the creditor is content to take a bill or note payable at a future day, he cannot legally commence an action on his original debt, until such bill or note becomes payable, or default is made in the payment; but that if such bill or note is of no value, as if, for example, drawn on a person who has no effects of the drawer's in his hands, and who therefore refuses it, in such case he may consider it as waste paper, and resort to his original demand, and sue the debtor on it.

The King v. Dawson, Wightw. 32. It was pleaded to an inquisition founded on an extent in aid, that the defendant had accepted a bill drawn upon him by J. C. (the original debtor) and which did not become due until after the inquisition was taken; the replication stated, that the bill was dishonoured, and that the original debtor to the crown, had been obliged to take it up; upon demurrer, that as the inquisition was executed before the bill became due, the bill could not, at that time, have been taken up by the said J. C. The court held, that as on the day of taking the inquisition, no action could have been maintained by

If a person indorse his name in blank on a negotiable note, but not at the time when the note was made, he not being a party to the note, and the same not having been indorsed by the payee; such indorser cannot be held as a joint promissor, nor will such indorsement be evidence in itself of any contract between him and the holder of the note. Birchard v. Bartlett, 14 Mass. 279. N

CHITTY ON BILLS.

bill payee.

to

Effect of ceptor of a bill of exchange, it was agreed between the parties, that the delivery of defendant should pay the costs, renew the bill, and give a warrant of attorney to secure the debt, and the defendant gave the warrant of attorney and renewed the bill, but did not pay the costs, it was held, that the plaintiff might bring a fresh action on the first bill, while the second was outstanding in the hands of an indorsee." And if the person delivering the bill knew that it was of no value, the holder, on discovering the fraud, will not be precluded from immediately suing such party on his original liability. We have already seen what conduct the holder may pursue, when a bill or note given in payment of a debt, is upon a wrong stamp. Where one of three joint covenantors gave a bill of exchange for part of a debt secured by the covenant, on which bill judgment was recovered, it was held, that such judgment was no bar to an action of covenant against the three, such bill, though stated to have been given for the payment and in satisfaction of the debt, not being averred to have been accepted as satisfaction nor to have produced it in fact. And the taking a bill or note does not prejudice a prior specialty security, so as to preclude the party taking them from recovering interest payable on the specialty. And it has been held, that a vendor does not waive his lien on the estate sold, by taking the promissory note or acceptance of the vendee, and receiving its amount by discount." Bills, in lieu of which other bills were given, if permitted to remain with the holder, may be sued upon in case the latter bills are not paid. [97] When an account for goods sold is settled, and the defendant gives a bill of exchange for the amount which remains unpaid, it has been holden, that the defendant cannot, in an action on the consideration of such bill, go into evidence to impeach the charges in the first account which has been settled, the giving of the bill being conclusive evidence of the same being due.t

J. C. against the defendant upon this bill
of exchange, the interest in the bill at
that time being in his indorsee, there was,
in fact, at that time, no right of action
against any person.

in Norris v. Aylett, 2 Campb. 329. Per
Lord Ellenborough. There was to be no
extinguishment of the bill, (until amongst
other things) the costs were paid. If they
had been paid this might have brought it
within the case of Kearslake v. Morgan,
but the agreement remaining unperformed
on the part of the defendant, the plaintiff
reserved to himself the power of rendering
the bill available; this is like accord with-
out satisfaction. Verdict for the plaintiff,
on his delivering up the substituted bill to
the defendant.

"Stedman v. Gooch, 1 Esp. Rep. 5.— Anonymous, 12 Mod. 517. Puckford v. Maxwell, 6 T. R. 52. Owenson v. Morse, 7 T. B. 64. Bishop v. Shilleto, 2 B. & A. 329, note a.

• Ante, 58.

P Drake v. Mitchel, 3 East, 251.

9 Curtis v. Rush, 2 Ves. & B. 416.
Ex parte Loaring, 2 Rose, 79. Grant
v. Mills, 2 Ves. & B. 306.

Ex parte Barclay, 7 Ves. 597. Bar-
clay was indorsee and holder of two bills
drawn by Kemp to Barclay; these bills
were dishonoured, and Clay drew two

other bills upon Sampson for the amount of the former bills, interest, and charges, and the former bills were permitted to remain with Barclay, one of the two last bills was paid by Sampson. Upon petition by Barclay to be allowed to prove these bills under a commission of bankrupt against Kemp, it was objected on the ground that the two latter bills were accepted in discharge of them. Lord Chancellor. If the two bills are dishonoured, and two others given “in lieu” of them, but the former allowed to stay in the hands of the holder, that fact will give a construction to the words "in lieu," and the meaning will be only in case they are paid. See also Bishop v. Rowe, 3 M. & S 363.

Knox v. Whalley, 1 Esp. Rep. 159.(Sed quære Trueman v. Hurst, 1 T. R. 40. Chandler v. Dorsett, Finch Rep. 431. Vin. Ab. Partner, E. 2.) The defendant was indebted to the plaintiff 74%, for clothes, &c. and gave him a bill of exchange for 841., and received the differ

[blocks in formation]

bill

Effect of

to

The effect of taking a bill of exchange or promissory note in satisfaction of a precedent debt, is, that the creditor cannot proceed in an delivery of action for such debt, without showing that he has used due diligence to payee. obtain acceptance or payment ;" and also showing if the defendant was a party thereto, or delivered it to the plaintiff, that the defendant had due notice of the dishonour; and it is a good plea in an action for the original debt, that the defendant delivered a bill or note in payment, or for or on account of such debt, and compels the plaintiff to reply that the bill or note has been dishonoured ; and in an action for the original demand, if it appear in evidence that a negotiable bill or note was given, [98] the plaintiff cannot recover without producing the instrument, or proving that it was destroyed, or showing that it was on a wrong stamp. It suffices, however, for the plaintiff, when the bill was received in satisfaction from a third person, and the original debtor, the defendant, was no party to it to prove the due presentment for acceptance or pay

for the plaintiff. Lord Kenyon ruled, that up to the time of the giving the bill of exchange, all matters must be considered as closed, and that the giving the bill must, to that effect, be taken as conclusive evidence of the sum due at that time.

Smith v. Wilson, Andr. 187. This was a special case for the opinion of the court. It appeared that the defendant being indebted to the plaintiff for goods sold, and money paid, had in part payment, indorsed to him a note for 1007., drawn by Jones, and payable to defendant or order; and at the foot of an account stated between the parties, plaintiff wrote, "received the contents, when the above mentioned bill is paid." Plaintiff indorsed over the note which became due, 28th, March 1735. Jones carried on business, and continued his payments till the 13th May following; one question therefore was, whether the plaintiff, by receiving this note, and not applying for the money due thereon, had lost his original debt? The court held, that where a note is taken for a precedent debt, it must be intended to be taken by way of payment, upon this condition, that the note is paid in a reasonable time, but if the person accepting it, doth not endeavour to procure such payment, and the money is lost by his default, it is but reasonable that he should bear the loss, see Ward v. Evans, 2 Ld. Raym. 928, 9, 30. Chamberlain v. Delarive, 2 Wils. 353.

Hebden v. Hartsink and another, 4 Esp. Ni. Pri. 46. Assumpsit by the plaintiff for wages as a clerk to the defendant. Pleas of non-assumpsit and a set-off. To prove payment of 1407., in part discharge of the plaintiff's demand, the defendants gave in evidence that they had given him bills of the house to that amount. It was contended for the plaintiff, that before this could be deemed a discharge to that amount, the defendants should prove the bills to have been paid. Lord Kenyon said, it was not necessary; that where a party took bills in payment of a debt, he

would presume the money was received, unless the contrary was shown.

* 4 Ann. c. 9. s. 7. Bridges v. Berry, 3 Taunt. 130. but see Bishop v. Rowe, 3 M. & S. 362.

y Kearslake v. Morgan, 5 T. R. 513. Assumpsit for goods sold and delivered, and for money lent. The defendant plead. ed the general issue, and that as to 41. 148. 6d. one W. P. made his promissory note for 102., payable to the defendant or order, at a time which elapsed before the commencement of the suit, and that the defendant, before the note became due, indorsed it to the plaintiff, for and on account of the said sum of 47. 148. 6d. and of the sum of 57. 58. 6d. paid by the plaintiff to the defendant, and that the defendant accepted the note, for and on account of those sums; to this plea there was a general demurrer, and it was urged, that the plea ought to have alleged that the note was received in satisfaction of the debt; but the court on argument, held the plea good, and advised the plaintiff to withdraw his demurrer and reply, which he did.

Dangerfield v. Wilby, 4 Esp. Ni. Pri. Ca. 159. The declaration contained a count upon a note made by the defendant payable to the plaintiff, and the money counts. At the trial the note was stated to be lost, but no evidence of the fact was offered. It was proved however, that on the money being demanded, the defendant had apologized for not having paid the money on account of the note. This was the whole of the plaintiff's case, and he contended that the note was only evidence of the consideration (which was stated to have been money lent) and that he might abandon the note, and go for the consideration. But Lord Ellenborough said, that as the note, for any thing that appeared in evidence was in existence it might be still in circulation, so that the defendant might be subjected twice to the payment of the same demand, without therefore proving the note lost, the plaintiff was not entitled to recover. Nonsuit.

bill

payee.

Effect of ment and the dishonour, without shewing that he gave notice thereof to delivery of the drawer of such bill, unless the defendant can prove that he sustained to some actual loss for want of such notice ; and if the defendant admit the refusal of the drawee to accept the bill, although he request the creditor to present it again for acceptance, this will be unnecessary, and the creditor may recover his original demand without further proof of the dishonour of the bill. We shall hereafter see that in general when the holder has been guilty of neglect, either in 'presenting a bill for acceptance, when necessary, or for payment, or in giving notice of nonacceptance, or of non-payment, or by giving time to the acceptor, this conduct will render the original delivery of the bill equivalent to a payment of the debt, and discharge such debtor from all liability.

In general when the bill is dishonoured, and the holder uses due diligence, not only the parties to the bill are liable to be sued thereon, but the first liability on the original consideration revives. Therefore [99] where A. sold goods to B. for which the latter was to pay in a bill at three months, and B. gave A. a check on his bankers, who were also bankers of A. requiring them to pay A. on demand in a bill at three months, and A. paid the check into the bankers and took no bill from them, but the amount was transferred in the banker's books from B's. account to A's. with the knowledge of both, and the bankers failed before the check became due, it was holden that A. could not recover the value of the goods against B., as A., instead of taking bills from his bankers, agreed to leave the check with them, it was as if he had discounted it with them and then deposited the money; but where the amount was not so transferred to A's. account, it was holden that B. was still liable for the goods. And where A., wishing to send goods to B.

Bishop v. Rowe, 3 M. & S. 362.
Swingend v. Bowes, 5 M. & S. 65. Post;
but see Bridges v. Berry, 3 Taunt. 130.
b Hicklin v. Hardy, 7 Taunt. 312.

4 Ann. c. 9. s. 7. Smith v. Wilson,
Andr. 187. Chamberlain v. Delarive,
2 Wils. 353. Ward v. Evans, 2 Ld. Raym.

930.

d Smith v. Wilson, Andr. 187. Popley v. Ashley, 6 Mod. 147. Ward v. Evans, 2 Ld. Raym. 928. Hickling v. Hardy, 7 Taunt. 312. Bishop v. Rowe, 3 M. & S. 362. Tempest v. Ord, 1 Madd. 89. The manager of a colliery paying a creditor on the colliery with a bill which was not paid, the colliery remains liable to the payment of the original debt. Per the Vice Chancellor: The justice of the case, independent of authorities is clear. Crowther has supplied goods, and received a bill, which turns out to be mere waste-paper, and ought not therefore to be considered as a payment. Where a bill of exchange is given in payment of a debt, and the bill is not paid, the creditor, unless he has purchased the bill out and out, has a right to resort to his original cause of action. So if before a bill becomes due, it is dishonoured, the creditor may resort to his original debt.

Ward v. Evans, Ld. Raym. 928. A banker's note was paid to plaintiff's servant at noon, and presented for payment the next morning, at which time the bank

er stopped payment. On a case reserved, the court held it was presented in time, and judgment was given for the plaintiff on the original consideration.

Puckford v. Maxwell, 6 T. R 52. The defendant having been arrested by the plaintiff for 801., gave a draft for 451., and promised in a few days to settle the remainder, on which the plaintiff consented to his being discharged out of custody The draft was dishonoured, and the defendant was again arrested upon the same affidavit. On a rule to show cause why he should not be discharged out of custody, it was urged, that the draft having been accepted as part payment, could not be treated as a nullity. But per Lord Kenyon, in cases of this kind, if the bill which is given in payment, do not turn out to be productive, it is not that which it purports to be, and which the party receiving it expects it to be, and therefore he may consider it as a nullity, and act as if no such bill had been given. These questions have frequently arisen at nisi prius, where they have always been determined in the same way. Rule discharged.

Bolton v. Richard, 6 T. R. 139 Vernon v. Boverie, 2 Show. 296. Ex parte Blackburne, 10 Ves. 204. 6

Brown v. Kewley, 2 Bos. & Pul. 518 Ex parte Dickson, in the matter of Parker, a bankrupt, cited 6 T. R. 142. Dickson sold sugars to Parker, for which the latter was to pay him in one month by a good bill

« SebelumnyaLanjutkan »