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of the transfer, if the bill were transferred in good faith, in ex. change for money or goods; for such transfer would be held to be a sale of the bill or note, and the purchaser takes it with all risk.
An indorsement may be made on the paper before the bill or note is drawn; and such indorsement, says Lord Mansfield," is a letter of credit for an indefinite sum, and it will not lie in the indorser's mouth to say that the indorsements were not regular.” The same rule applies to an acceptance on blank paper. So an indorsement may be made after or before acceptance, though strictly proper only after.
A bill or note, once paid at or after maturity, ceases to be negotiable, in reference to all who had been discharged by the payment. If issued again, it is like a new note without their names. If a bill or note is paid before it is due, it is valid in the hands of a subsequent bona fide indorsee, and must be paid to him.
A portion of a negotiable bill or note cannot be transferred so as to give the transferee a right of action for that portion in his own
But if the bill or note be partly paid, it may be indorsed over for the balance.
After the death of a holder of a bill or note, his executor or administrator may transfer it by his indorsement. The husband who acquires a right to a bill or a note which was given to the wife, either before or after marriage, may indorse it.
If the rule, that the same party cannot be plaintiff and defendant, prevents the action, as where A, B, & Co. hold the note of A, C, & Co., so that if a suit were brought A would be one of the plaintiffs and one of the defendants also, which cannot be, A, B, & Co. may indorse the note to D, who may then suo A, C, & Co.
THE RIGHTS AND DUTIES OF THE ACCEPTOR.
Acceptance applies to bills, and not to notes. It is an engagoment of the person on whom the bill is drawn to pay it according to its tenor. The usual way of entering into this agreement, or of accepting, is by the drawee’s writing his name across the face of the bill, and writing over it the word “accepted.” But any other word of equivalent meaning may be used; and it may be written elsewhere, and it need not be signed, or the drawee's name alone on the bill may be enough. A written promise to accept a future bill, if it distinctly define and describe that very bill, has been held in this
country as the equivalent of an acceptance, if the bill was taken on the credit of such promise.
A banker is liable to his depositor without acceptance of his checks, if he refuses to pay checks drawn against funds in his hands.
If a bill is accepted by a part only of those jointly responsible, or joint drawees, it may be treated by the holder as dishonored; but if not so treated, the parties accepting will be bound.
An acceptance may be made after maturity, and will be treated as an acceptance to pay on demand.
The acceptance may be cancelled by the holder; and if this cancelling be voluntary and intended, it is complete and effectual; but if made by mistake, by him or other parties, and this mistake can be shown, the acceptor is not discharged. And if the cancelling be by a third party, it is for the jury to say whether the holder authorized or assented to it.
If a qualified acceptance be offered, the holder may receive or refuse it. If he refuses it, he may treat the bill as dishonored; if he receives it, he should notify antecedent parties, and obtain their consent, without which they are not liable. But if he protests the bill as dishonored, for this reason, he cannot hold the acceptor upon his qualified acceptance.
A bill drawn on one incompetent to contract, as from infancy, marriage, or lunacy, may be treated by the holder as dishonored.
A bill can be accepted only by the drawee, – in person or by his wuthorized agent, — or by some one who accepts for honor.
ACCEPTANCE OR PAYMENT FOR HONOR.
If a bill be protested for non-acceptance or for non-payment, any person may accept it, or pay it for the honor either of the drawer or of any indorser. This he usually does by going with the bill before the notary public who protested the bill, and there declaring that he accepts or pays the bill for honor ; and he should designate for whose honor he accepts or pays it, at the time, before the notary public, and it should be noted by him.
A general acceptance supra protest (which is the phrase used both by merchants and in law, meaning upon or after protest) for honor, is taken to be for honor of the drawer. The drawee himself, refusing to accept it generally, may thus accept for the honor of the drawer or an indorser. And after a bill is accepted for honor of one party, it may be accepted by another person for honor of another party. And an acceptance for honor may be made at the intervention and request of the drawee.
No holder is obliged to receive an acceptance for honor; he may refuse it wholly. If he receive it, he should, at the maturity of the bill, present it for payment to the drawee, who may have been supplied with funds in the mean time. If not paid, the bill should be protested for non-payment, and then presented for payment to the acceptor for bonor.
The undertaking of the acceptor for honor is collateral only, being an engagement to pay if the drawee does not. It can only be made for some party who will certainly be liable if the bill be not paid; because, by an acceptance or by a payment, properly made, for honor, supra protest, such acceptor or payer acquires an absolute claim against the party for whom he accepts or pays, and against all parties to the bill antecedent to him, for all his lawful costs, payments, and damages, by reason of such acceptance or payment. This is an entire exception to the rule that no person can make himself the creditor of another without the request or consent of that other; but it is an exception established by the law-merchant.
The reason why bills of exchange are sometimes accepted or paid for honor is to save the party for whose honor this is done from the very heavy damages of a protested bill.
In many of our States it is a common practice to give a promissory note, and include in it a confession of judgment, for the amount. A suit may then be brought on the note as soon as it is due and unpaid, and a judgment taken out at once without the delay of a trial; and execution may issue on the judgment. Sometimes by the same note the promisor waives or renounces the benefit or prosection of all exemption laws; and then the execution may be satisfied from any of his property that the sheriff can find
FORM OF A JUDGMENT NOTE WITH WAIVER.
after date, for value received, promise to pay
dollars, with interest, and without defalcation or stay of execution. And
do hereby confess judgment for the above sum, with interest and costs of suit, a release of all errors, and waiver of all rights to inquisition and appeal, and to the benefit of al laws exempting real or personal property from levy and sale.
(Signature) Sometimes, in addition to the above, the same note has below it a power of attorney, authorizing the attorney whose name is put into the blank left for that purpose to appear in court for the promisor, and confess judgment. Sometimes the power is given to an attorney whom the parties agree upon, and then no other attorney can confess the judgment. It is, however, far more usual, and better, to insert the name of an attorney, and add, as in the follow. ing form, " or any attorney of any court of record.”
JUDGMENT NOTE WITH WAIVER, AND POWER OF ATTORNEY.
186 after date the subscriber
of county of
promise to pay to the National Bank of
dollars, at their office, value received, with interest, at
per cent per annum after due.
KNOW ALL MEN BY THESE PRESENTS, That
the subscriber justly indebted to the
National Bank of upon a certain promissory note, bearing even date herewith, for the sum of
dollars, with interest, at the rate of per cent per annum, after due, and due
day after date. Now, THEREFORE, In consideration of the premises
do nereby make, constitute, and appoint
or any attorney of any court of record, to be
true and lawful attorney, irrevocably for and in
place, and stead, to appear in any court of record, in term time or in vacation, in any of the States or Territories of the United States, at any time after the said note becomes due, to waive the service of process, and confess a judgment in favor of the said National Bank of
or their assigns or assignees, upon the said note for the above sum and interest thereon, to the day of the entry of the said judgment, together with costs, and twenty dollars, attorney's fees, and also to file a cognovit for the amount thereof, with an agreement therein that no writ of error or appeal shall be prosecuted upon the judgment entered by virtue hereof, nor any bill in equity filed to interfere in any manner with the operation of said judgment, and to release all errors that may intervene in the entering up of said judgment, or issuing the execution thereon; and also to waive all benefit of advantage to which
may be entitled by virtue of any homestead or other exemption law, now, or hereafter in force, in this or any other State oz Territory, where judgment may be entered by virtue hereof. said attorney may do
Hereby ratifying and confirming all that
band and seal, this 4.D. 186
In presence of
Sometimes the note is followed on the same paper by a power to confess judgment, and a waiver of all right of exemption; both the power and the waiver extending beyond the above-written note, and covering other notes and bonds and other evidence of debt.
(158.) JUDGMENT NOTE WITH FULLER WAIVER, AND POWER OF ATTORNEY.
for value received,
promise to pay to the order of the sum of dollars, with interest, in (time).
(Signature.) KNOW ALL MEN BY THESE PRESENTS, That whereas,
the subscriber, now justly indebted to
upon a certain promissory note, bearing even date herewith, for the sum of dollars, and cents, made payable to the order of the said and due
and may from time to time hereafter become further or otherwise justly indebted to the said
upon bonds, promissory notes, due bills, and other written evidences of debt, made, or to be made, indorsed or accepted by
and held or owned by the said assignee or assignees hereof. Now, THEREFORE, In consideration of the premises, and of the sum of one dollar to paid by the said
the receipt whereof is hereby acknowledged,
do hereby make, constitute, and appoint
or any attorney of any court of record, to be true and lawful attorney, irrevocable, for
and in place and stead, to appear in and before any court of record, either in term time or in vacation, in any of the States or Territories of the United States, at any time after the
of said note, or of any such bond, promissory note, due bill, or other written evidence of debt, 80 already made or to be made, indorsed, or accepted by aforesaid, respectively, to waive service of process, and confess a judgment in favor of the said
executors, administrators, assignee, or assignees, or the legal holder or holders of said note or of any one or more of such bonds, promissory notes, due bills, or other written evidences of debt, as aforesaid, for so much money as shall by the same appear to be due or owing thereon, with interest thereon according to the tenor and effect thereof respectively, together with costs; also, for
dollars, attorney's fees, to be added to the amount due or owing on entering up