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BILLS OF EXCHANGE AND STAMP DUTIES.
Of Bills of Exchange. A Bill of exchange is an order given by a banker, &c., for paying to a person, or his order, a certain sum of money, at an appointed time.
In order to understand this subject, it will be necessary to explain the terms used in bills of exchange.
The drawer is the person who draws the bill of exchange.
The drawee is the person upon whom it is drawn; but after he has accepted, he is then called the acceplor.
An endorser.-Every person, before he can pay away, or pass, a bill of exchange, must, if it be made payable to his order, write his name ou the back of the bill; and he is therefore called an endorser.
An endorsee is any person who is in possession of a bill of exchange, in consequence of its having been endorsed to him.
The payee is the person in whose favour a bill is drawn; as, if A. draws upon B., directing him " to pay to C. or order,” C. is the payee, and before he can pass away the same, must endorse it.
If the drawee refuse to accept or pay the bill, the payee must cause it to be protested.
The object of the protest is to signify to the drawer, that the party upon whom he drew his bill was unwilling; not to be found ; or insolvent; and to let him (the drawer) have timely notice thereof; and also to enable the party to recover against the drawer; and also against the acceptor, as far as he can pay, if the bill be accepted.
A foreign bill must be protested on the last day of the three days of grace allowed ; (after the time expressed upon the bill ;) and if not paid upon the last of the three days, the party ought immediately to protest the bill and return it ; but, if the last of the three days be a great holiday, the day before is the day of payment.
Bills of exchange must be sued for within six years after due.
If two or three bills are drawn for the same sum, they shall carry a condition with them that only one should be paid ; and, in a declaration on one of them, it is not necessary to aver that the other bills were not paid.
INLAND Bills of exchange are those drawn by one banker, merchant, or tradesman, residing in one part of the kingdom, on another, residing in some city or town in the same kingdom.
The possessor should present it for acceptance as soon as it comes to his hands, though the time expressed be not expired.
Acceptance is made by the drawee, or his partner or clerk, in writing, upon the bill.
If the bill be not paid within three days after the time expressed thereon be elapsed, it must be protested; which protest, or notice thereof, shall be sent within fourteen days to the drawer. Protests to be made by a notary-public; or by any other substantial person, of the city, town, or place, in the presence of two or more credible witnesses; refusal or neglect being first made of due payment of the same; which protest shall be made, and written under a fair copy of the said bill of exchange, in the words or form following:
Know all men, that I, A. B., on the day of the usual place of abode of the said
, hare demanded the payment of the bill of which this is a copy, which the said did not pay: wherefore I, the said
do hereby protest the said bill, dated at
day of If the bill he not accepted, it has been considered that the drawer shall not be liable to damages and interest, unless protest, or notice of such non-acceptance, be sent to the drawer in fourteen days, but in practice the plaintiff recovers interest against a drawer or endorser of an inland bill on proof of due notice, without proving a protest
A person accepting of a bill in satisfaction of a debt, must get i protested, if not paid in course, or lose such debt.
If A. sell goods to B., and B. is to give a bill in satisfaction, B. is so far discharred, that he cannot be sued for the goods, without the plaintiff showing that he has used due diligence to obtain acceptance or payment, and that the defendant had due notice of the dishonour
A note or bill is no absolute payment, though agreed to be such, if the giver of it know the person upon whom it is drawn to be in a failing condition.
Of what shall be deemed a Bill of Erchange. A bill of exchange is, in its nature, a mere open letter of request; but since these instruments have become the common mode of remittances in trade, custom prescribes the form of such bills, and raises a contract; but it is not requisite to observe the same nicety in the form of a bill of exchange, as in deeds, wills, &c.
A bill, payable out of a particular fund, is no biil of exchange :
So, pray pay out of my growing subsistence,-makes no bill of exchange:
And a bill, payable out of the fifth payment, as it shall become due, is not good : because, in all these cases, the payment is uncertain, and depends on a contingency: and it is of the essence of a good bill of exchange, that it should be payable at all events. For which reason, an order from the owner of a ship to the freighter, to pay money on account of freight, has been determined to be no bill; because the quantum due for freight may be open to litigation. But such an orler from the freighter would be good, because it is an admission that so much is due.
But, pray pay J. S. or order, at my quarterly half-pay per adrance, is a negotiable bill.
Bill, without the words ralue received, was long held to be no bill o. exchange; but it is holden otherwise now.
Bill, payable to me, or my order, is a good bill, if accepted; but it must be endorsed in that case by the drawer, to make it negotiable. If any one sign his name upon a blank paper properly stamped, and deliver it to another person to draw such bill as he may please thereon, he is in law the drawer of such bill so written by the person whom he authorized to draw it, and liable thereto.
of the Acceptance. The acceptance of a bill of exchange is such an act, by the drawee, as will make him liable to pay
It is usually made by signing his name or initials at the bottom of the bill, when it is presented to him by the bearer.
By 1 & 2 Geo. IV. c. 78. s. 1, it is enacted, that if any person shall accept a bill of exchange payable at the house of a banker or other place, without further expression in his acceptance, such acceptance shall be deemed to be a general acceptance of such bill : but if the acceptor shall in his acceptance express that he accepts the bill payable at a banker's house or other place only, and not otherwise or elsewhere, such acceptance shall be deemed a qualified acceptance of such bill, and the acceptor shall not be liable to pay the bill, except in default of payment, when duly demanded at such banker's house or other place.
And by the 2d section of the same act, no acceptance of any inland bill of exchange shall be sufficient to charge any person, unless such acceptance be in writing on such bill, or if more than one part of such bill, on one of the said parts.
When a defendant, having once written his acceptance, with the intention of accepting a bill, afterwards changes his mind, and before it is communicated to the holder, or the bill delivered back to him, obliterates his acceptance; held, that he is not bound as acceptor. Cor and others v. Troy, 5 Barn. & Ald. 474.
Acceptance, to pay when the goods are sold, is a good acceptance.
Acceptance, to pay according to the tenour of the bill, after the day of payment is past, is good.
A bill may be accepted for part, and the sum for which it is so accepted, is a good acceptance for so much against the acceptor.
Acceptance of a bill, drawn upon two partners, by one of them, binds both, if it concern the joint trade; otherwise, it only binds the individual.
Acceptance of a servant, usually transacting business for his master, is good; yet the servant should express such acceptance to be for his master, or he is liable himself.
An acceptance is seldom made, before the bill is drawn, by any other person than the drawee : afterwards, for the purpose either of promoting the negotiation of a bill, when the drawee's credit is suspected, or to save the reputation, and prevent the prosecution of some of the parties, where the drawee cannot be found, is not capable of making himself responsible, or refuses acceptance, it is not uncommon; and it is called an acceptance for the honour of the person on whose account it is made, and enures to the benefit of all the parties subsequent to such person.
If a man intend to make a conditional acceptance only, and gives that acceptance in writing, he should be careful to express the conditions therein, for, of any verbal condition he may annex to the acceptance, he will not be at liberty to avail himself against any subsequent party, if either such party, or any intermediate one, between him and the person to whom the acceptance was given, took the bill without notice of such condition, and gave a valuable consideration for it; and at all events, the onus of proving such condition will be upon the acceptor. The holder of the bill is not bound to receive such
acceptance; but if he do, he must observe its terms. He should give immediate notiee to the other parties to the bill, of the nature of the acceptance offered ; by which means they will not be discharged in case the bill be returned.
But if an agreement to accept be conditional, and a third persoa take the bill, knowing of the conditions, he takes it subject to them.
A conditional acceptance becomes absolute, as soon as its condtions are performed. But if the drawee says he cannot accept without further directions from J. S., and J. S. afterwards desire him to accept, and draw upon A. B. for the amount, the mere drawing upon A. B. will not make this an acceptance, although the actual payment of the bill on him may.
The obligation of a complete acceptance may be waved, and this waver may be either express or implied.
Presentment of Bills. A party taking a bill or note, impliedly undertakes to the antecedent parties, who would be entitled to bring an action on paying it, to present in proper time, the one, where necessary, for acceptance, and each for payment: to allow no extra time for payment, and to give notice without delay to such persons, of a failure in the attempt to procure a proper acceptance, or payment, and a default in any of these respects will discharge such persons from all responsibility
, on account of a non-acceptance, or non-payment, and make the bill of note operate as a satisfaction of any debt or demand for which it was given.
And by 3 & 4 Ann, c. 9. s. 7. (which also places promissory notes on the same footing as bills of exchange, s. 1.) it is enacted, that “ if any person doth accept any such bill of exchange, for and in satisfaction of any former debt, the same shall be esteemed complete pas. ment of such debt , if such person, accepting of any such bill for his debt
, doth not take his due course to obtain payment thereof, by endeavouring to get the same accepted and paid, and make his protest either for non-acceptance or non-payment."
The presentment is to be made where the bill or note is payable And if the drawee or maker cannot be found at the place where the bill or note is payable, and it appears that he never lived there
, or has absconded, the bill or note is to be considered as dishonoured. If he has only removed, the holder must endeavour to find out to what place he has removed, and make his presentment there. A presentment should be made at a seasonable time, Bayl
. 59, and if by the known custom of any place, bills and notes are only payable within limited hours, a presentment there out of those hours is unreasonable. Ibid. And so is a presentment out of the hours of business to a person of a particular description, in a place, where, by the known custom of that place, all persons of his description begin and leave off business at stated hours.
A presentment for acceptance is not absolutely necessary, except upon bills payable within a limited time after sight.
No certain time is fixed, within which this presentment must be made, but it should be made within a reasonable time. And what shall be deemed a reasonable time, must depend upon the particular circumstances of each case, and it must always be left to the jury to say' whether there has been an improper delay.
No delay warranted by the common course of business is improper, nor is any delay, which is occasioned by keeping the bill in circulation, at a great distance from the place where it is payable; but a delay, by locking it up for any length of time, is.
If a bill payable abroad at a certain time after sight, be taken in a course of negotiation, it is not necessary to send it by the first opportunity, to the place where it is payable: and if a bill be payable in India 60 days after sight, it is not necessarily a neglect, to omit presenting it for acceptance for 26 days after its arrival.
Upon a presentment for acceptance, the bill should be left with the drawee 24 hours, unless in the interim he either accepts or declares a resolution not to accept. Ld. Raym. 281. But a bill or note must not be left (unless it is paid) on a presentment for payment; if it be, the presentment is not considered as made until the money is called for.
A bill or note payable on demand, is payable immediately on presentment; and a bill payable at sight, is either payable immediately upon presentment, or within the days of grace afterwards; but the point is unsettled : and each must be presented within a reasonable time after the receipt, or put into a course of negotiation.
Thus, where a note of this kind, payable in London, was given there in the morning, a presentment the next morning was held sufficiently early: a presentment at two the next afternoon, too late.
But in one case, where a similat note was given at one, and not presented till the next morning, two juries held the delay unreasonable ; this, however, was against the opinion of the court, but being a second verdict upon a new trial, they refused to interfere.
A bill or note of this kind given by way of payment to a banker, must be presented by him as soon as if it had been paid into his hands by a customer. And a bill or note of this kind paid into a banker's, if payable at the place where the banker lives, must be presented the next time the banker's clerk goes his rounds.
By 39 and 40 Geo. III. c. 42. when bills and notes become due on Good Friday,* the same shall be payable the day before, and the holders thereof may protest the same for non payment on such preceding day. A presentment on the second day, when the third is not a day of rest, is a nullity.
of Endorsements. Bills or notes, payable to order, or to bearer, or containing any words to make them transferable, may be endorsed or assigned over, so as to give the assignee a right against all the antecedent parties, whose names appear upon the bill or note: and bills or notes containing no words to make them negotiable, may be endorsed or assigned over, so as to give such endorsee or assignee a right upon them against the immediate endorser, but not so as to give hiin a right against any of the antecedent parties.
Bills and notes are passed, either by delivery only, or by indorsement and delivery: bills and notes payable to order are transferable by the latter mode only: bills and notes payable to bearer, and bills and notes originally payable to order, and endorsed, as they may be, so as to be payable to bearer, by either.
On a transfer by delivery, the person making it ceases to be a party to the bill or note: but on a transfer by endorsement, he is, to all intents and purposes, chargeable as a new drawer.
* See 7 and 8 Geo. IV. c. 15. post.