BILL OF EXCEPTION, prac- either side to have mistaken the tice, is the statement in writing, of law, the counsel against whom the the objection made by a party in a decision is made may tender an cause, to the decision of the court exception to his opinion, and require on a point of law, which, in confir- him to seal a bill of exceptions. 3 mation of its accuracy, is signed and Bl. Com. 372. See Salk. 284, pl. sealed by the judge or court who 16; 7 Serg. & Rawle, 178; Whart. made the decision. The object of Dig. Error, D, E; 1 Cowen, 622; the bill of exceptions, is to put the 2 Caines, 168; 2 Cowen, 479; 5 question of law on record for the Cowen, 243; 3 Cranch, 298; 4 information of the court of error Cranch, 62; 6 Cranch, 226; 17 having cognizance of such cause. Johns. R. 218; 3 Wend. 418; 9 The bill of exception is authorised Wend. 674. In criminal cases the by the statute of Westminster 2, 13 judges, it seems, are not required to Ed. 1, c. 31, the principles of which seal a bill of exceptions, 1 Chit. Cr. have been adopted in all the states Law, 622. In New York, it is proof the Union. It is thereby enacted vided by statute that on the trial of that "when one impleaded before any of the justices, alleges an exception praying they will allow it, and if they will not, if he that alleges the exception writes the same, and requires that the justices will put their seals, the justices shall so do, and if one will not, another shall; and if, upon complaint made of the justice the king cause the record to come before him, and the exception be not found in the roll, and the plaintiff show the written exception, with the seal of the justices thereto put, the justice shall be commanded to appear at a certain day, either to confess or deny his seal, and if he cannot deny his seal, they shall proceed to judgment according to the exception, as it ought to be allowed or disallowed." The statute extends to both plaintiff and defendant. Here will be considered, J, the cases in which a bill of exceptions may be had; 2, the time of making the exception; 3, the form of the bill; 4, the effect of the bill. any indictment, exceptions to any But 2. The bill of exceptions must be tendered at the time the decision complained of is made, or if the exception be to the charge of the court, it must be made before the jury have given their verdict. 8 S. & R. 216; 4 Dall. 249; S. C. 1 Binn. 38; 6 John. 279; 1 John. 312. In practice, however, the point is merely noted, at the time, and the bill is afterwards settled. 8 S. & R. 216. 3. The bill of exception must be signed by the judge who tried the cause, which is to be done upon notice of the time and place, when and where it is to be done. 3 Cowen, 32; 8 Cowen, 766; Bull. N. P. 1. In general a bill of exception can be had only in a civil case. When in the course of the trial of a 316; 3 Bl. Com. 372. When the cause the judge, either in his charge to the jury, or in deciding an interlocutory question, mistakes the law, or is supposed by the counsel on VOL. 1.-17. bill of exception is sealed, both parties are concluded by it. 3 Dall. 38; Bull. N. P. 316. 4. The bill of exceptions, being 2 part of the record, is evidence be- the fictitious payee, it is in effect a tween the parties, as to the facts bill to bearer, and a bona fide holder, therein stated. No notice can be ignorant of that fact, may recover taken of objections or exceptions not on it, against all prior parties, who appearing on the bill. 8 East, 280; 3 were privy to the transaction. Dall. 38, 422, n.; 2 Binn. 168. Vide H. Bl. 178-288; 3 T. R. 174, generally, Dunlap's Pr., Grah. 182, 481; 1 Camp. 130; 19 Ves. Pr., Tidd's Pr., Chit. Pr., Penna. 311. In a case where the drawer Pr., Archbold's Pr., Sellon's Pr., in and payee were fictitious persons, their several indexes, h. t.; Steph. the acceptor was held liable to a Pl. 111; 1 Bac. Ab. 527; 1 Phil. Ev. 214; 12 Vin. Ab. 262; Code of Pract. of Louisiana, art. 487, 8, 9. bona fide holder. 10 B. & C. 468 ; S. C. 11 E. C. L. R. 116. Vide as to parties to a bill, Chit. Bills, 15 to 76, (ed. of 1836.) BILL OF EXCHANGE, con- §2. The form of the bill. 1. tracts. A bill of exchange is de- The general requisites of a bill of fined to be an open letter of request exchange, are 1st, that it be in wrifrom, and order by, one person on ting. R. T. Hardw. 2; 2 Stra. another, to pay a sum of money 955; 1 Pardess. 344, 5.-2d, That therein mentioned to a third person, it be for the payment of money, and on demand or at a future time there- not for the payment of merchandise; in specified. 2 Bl. Com. 466; Bayl. 5 T. R. 485; 3 Wils. 213; 2 Bla. on Bills, 1; Chit. Bills, 1; 1 H. Rep. 782; 1 Burr. 325; 1 Dowl. & Bl. 586; 1 B. & P. 291, 654; Selw. Ry. N. P. C. 33; 1 Bibb's R. 502 ; N. P. 285; Leigh's N. P. 335; 3 Marsh. (Kty.) R. 184; 6 Cowen, Byles on Bills, 1. The subject will 108; 1 Caines's R. 381; 4 Mass. be considered with reference, 1, to 245; 10 S. & R. 94; 1 M'Cord, the parties to a bill; 2, the form; 115; 2 Nott & M Cord, 519. But 3, their different kinds; 4, the in- see 9 John. R. 120; and 19 John. dorsement and transfer; 5, the ac- R. 144, where it was held that a ceptance; 6, the protest. note payable in bank bills was a 1. The parties to a bill of ex-good negotiable note.—3d. That the change are the drawer, (q. v.) or he money be payable at all events, not who makes the order; the drawee, depending on any contingency, either (q. v.) or the person to whom it is with regard to event, or with regard addressed; the acceptor, (q. v.) or to the fund out of which payment is he who accepts the bill; the payee, to be made, or the parties by or to (q. v.) or the party to whom, or in whom payment is to be made. whose favour the bill is made. The Mod. 363; 4 Vin. Ab. 240, pl. 16; indorser, (q. v.) is he who writes 1 Burr. 323; 4 Dougl. 9; 4 Ves. his name on the back of a bill; the 372; Russ. & Ry. C. C. 193; 4 indorsee, (q. v.) is one to whom a Wend. R. 575 ; 2 Barn. & Ald. 417. bill is transferred by indorsement; -2. The particular requisites of a and the holder, (q. v.) is in general bill of exchange. It is proper here to any one of the parties who is in pos- remark that no particular form or session of the bill, and entitled to set of words is necessary to be receive the money therein mention- adopted. An order "to deliver ed. Some of the parties are some- money," or a promise that "A B shall times fictitious persons. When a receive money," or a promise "to bill is made payable to a fictitious be accountable," or "responsible" person, and indorsed in the name of for it, have been severally held to be 8 paid, provided the others remain unpaid. Ib. The whole set make but one bill.-8th. The bill ought to specify to whom it is to be paid; 2 Pardess. n. 338; 1 H. Bl. 608; Russ. & Ry. C. C. 195. When the name sufficient for a bill or note. 2 Ld. a bill. Pailliet, Manuel de Droit Raym. 1396; 8 Mod. 364. The Français, 841. The word pay is not several parts of a bill of exchange indispensable, for the word deliver are, 1st, that it be properly dated as is equally operative. Ld. Raym. to place.-2d, That it be properly 1397.-7th, Foreign bills of exdated as to the time of making; as change consist, generally, of several the time a bill becomes due is gene- parts; a party who has engaged to rally regulated by the time when it deliver a foreign bill, is bound to dewas made, the date of the instrument liver as many parts as may be reought to be clearly expressed. quested. 2 Pardess. n. 342. The Beawes, pl. 3; 1 B. & C. 398; 2 several parts of a bill of exchange Pardess. n. 333.-3d, The super- are called a set; each part should scription of the sum for which the contain a condition that it shall be bill is payable is not indispensable, but if it be not mentioned in the bill, the superscription will aid the omission. 2 East, P. C. 951.—4th, The time of payment ought to be expressed in the bill; if no time be mentioned, it is considered as pay-of the payee is in blank, and the bill able on demand. 7 T. R. 427; 2 has been negotiated by indorsement, Barn. & C. 157.-5th, Although it the holder may fill the blank with is proper for the drawer to name the his own name; 2 M. & S. 90; 4 place of payment, either in the body Campb. 97; it may, however, be or subscription of the bill, it is not drawn payable to bearer, and then essential, and it is the common prac- it is assignable by delivery. 3 Burr. tice, for the drawer merely to write 1526.-9th, To make a bill negothe address of the drawee, without tiable, it must be made payable to pointing out any place of payment; order, or bearer, or there must be in such case the bill is considered other operative and equivalent words payable, and to be presented at the of transfer. Beawes, pl. 3; Selw. residence of the drawee, where the N. P. 303, n. 16; Salk. 133. If, bill was made, or to him personally however, it is not intended to make any where. 2 Pardess. n. 337; 10 the bill negotiable, these words need B. & C. 4; Moody & M. 381; 4 not be inserted, and the instrument Car. & Paine, 35. It is at the option will nevertheless be valid as a bill of of the drawer whether or not to pre-exchange. 6 T. R. 123; 6 Taunt. scribe a particular place of payment, 328; Russ. & Ry. C. C. 300; 3 and make the payment there part of Caines's R. 137; 9 John. R. 217. the contract. Beawes, pl. 3. The In France a bill must be made paydrawee, unless restricted by the able to order; Code de Com. art. drawer, may also fix a place of pay-110; 2 Pardess. n. 339.-10th, The ment by his acceptance. Chit. Bills, sum for which the bill is drawn, 172.-6th, There must be an order must be clearly expressed in the or request to pay, and that must be body of it, in writing at length. The a matter of right, and not of favour; sum must be fixed and certain, and Mood. & M. 171; but it seems that not contingent. 2 Stark. R. 375; civility in the terms of request can- and it may be in the money of any not alter the legal effect of the in- country.-11th, It is usual to insert strument; "il vous plaira de payer," the words, value received, but it is is in France the proper language of implied that every bill and indorse usually in these words, placed in a at protêt," or "sans frais," in this case the omission of the holder to protest, having been induced by the drawer, he, and perhaps the indorsers, cannot resist the payment on that account, and thus the expense is avoided, Chit. Bills, 188.-19th, The drawer may also limit the amount of damages, by making a memorandum on the bill, that they shall be a definite sum, as, for example, "In case of non-acceptance or non-payment, re-exchange and expenses not to exceed dollars." Ib. ment has been made for value received, as much as if it had been ex-corner under the drawee's address; pressed in totidem verbis; 3 M. & Au besoin chez, Messrs. S. 352; Bayl. 40, n. 83.-12th, It -," in other words, "In case of is usual when the drawer of the bill need apply to Messrs. at is debtor to the drawee, to insert in 18th, The drawer may also add a the bill these words, "and put it to request or direction, that in case the my account;" but when the drawee bill should not be honoured by the or the person to whom it is directed drawee, it shall be returned without is debtor to the drawer, then he in-protest or without expense, by subserts these words, "and put it to scribing the words, "retour sans your account;" and sometimes where a third person is debtor to the drawee, it may be expressed thus, "and put it to the account of A B." Marius, 27; Com. Dig. Merchant, F 5; R. T. Hardw. 1, 2, 3; but it is altogether unnecessary to insert any of these words. 1 B. & C. 398; S. C. 8 E. C. L. R. 108.-13th, When the drawer is desirous to inform the drawee that he has drawn a bill, he inserts in it, the words, "as per advice," but when he wishes the bill paid without any advice from him, he writes, "without further advice." In the former case the drawee is not authorised to pay the bill till he has received the advice; in the latter, he may pay before he has received advice.-14th, The drawee must either subscribe the bill, or, it seems, his name may be simply inserted in the body of the instrument. Beawes, pl. 3; Ld. Raym. 1376; 1 Stra. 609.-15th, The bill being a letter of request from the maker to a third person, should be addressed to that person, by the christian name and sirname, or by the full style of their firm, 2 Pardess. n. 335; Beawes, pl. 3; Chit. Bills, 186, 7.-16th, The place of payment should be stated in the bill. 17th, As a matter of precaution, the drawer of a foreign bill, may, in order to prevent expenses, require the holder to apply to a third person, named in the bill for that purpose, when the drawee refuses to accept the bill; this requisition is § 3. Bills of exchange are either foreign or inland. Foreign, when drawn by a person out of, on another in, the United States, or vice versa, or by a person in a foreign country, on another person in another foreign country, or by a person in one state on another in another of the United States. 2 Pet. R. 589; 10 Pet. R. 572; 12 Pick. 483; 15 Wend. 527; 3 Marsh. (Kty.) R. 488; 1 Rep. Const. Ct. 100; 4 Leigh's R. 37; 4 Wash. C. C. Rep. 148; 1 Whart. Dig. tit. Bills of Exchange, pl. 78. But see 5 John. R. 384, where it is said by Van Ness, Justice, that a bill drawn in the United States, upon any place within the United States, is an inland bill. An inland bill, is one drawn by a person in a state, on another in the same state. The principal difference between foreign and inland bills is, that the former must be protested, and the latter need not. 6 Mod. 29; 2 B. & A. 656; Chit. Bills, (ed. of 1836,) p. against the mortgagor, for the purpose of having the estate sold, and 14. "The English rule requiring thereby to obtain the sum mortgaprotest and notice of non-acceptance ged on the premises with interest of foreign bills, has been adopted and costs. 1 Madd. Ch. Pr. 528. and followed as the true rule of mer- BILL OF GROSS ADVENcantile law in the states of Massa- TURE, a phrase used in French chusetts, Connecticut, New York, maritime law; it comprehends every Maryland, and South Carolina. 3 instrument of writing which contains a contract of bottomry, respondentia, and every species of maritime loan. We have no word of similar import. Hall on Mar. Loans, 182, n. See Bottomry, Gross adventure, Res Mass. R. 557; 1 Day's R. 11; 3 Com. 95. BILL OF HEALTH, in commercial law, is a certificate, properly authenticated, that a certain ship or vessel therein named, comes from a place wherein no contagious distempers prevail, and that none of the crew at the time of her departure were infected with any such distemper. It is generally found on board of ships coming from the Levant, or from the coast of Barbary, where the plague so frequently prevails. 1 Marsh. on Ins. 408. BILL OF INFORMATION, chancery practice. A bill of infor mation, is a bill instituted in behalf § 4. The indorsement. Vide arti- of the state, or those whose rights cles Indorsement, Indorser, Indorsee. are the objects of its care and pro § 5. The acceptance. Vide arti-tection. It is commenced by infor cle Acceptance. §6. The protest. Vide article Protest. Vide, generally, Chitty on Bills; Bailey on Bills; Byles on Bills; Marius on Bills; Kyd on Bills; Cunningham on Bills; Pothier, h. t.; Pardess. Index, Lettre de change; 4 Vin. Ab. 238; 4 Bac. Ab. 685; Com. Dig. Merchant; Dane's Ab. Index, h. t.; 1 Sup. to Ves. Jr. 86, 514; Smith on Mer. Law, Book 3, c. 1. mation exhibited in the name of the attorney general, and differs from other bills little more than in name. If the suit immediately concerns the rights of the state, the information is generally exhibited without a relator. If it does not immediately concern those rights, it is conducted at the instance and under the immediate direction of some person whose name is inserted in the information, and is termed the relator; the officers of the state in such or the like BILL OF FORECLOSURE, cases, are no further concerned than chancery practice. A bill of fore- as they are instructed and advised closure is one filed by a mortgagee by those whose rights the state is |