their own elasticity against it without disadvantage to the latter. They seem to be throwing out to their pursuers some such challenge as this: "Put out your best tricks, if you would have nice fat fish and plenty of them; we will agree to be split and salted, and branded 'Mess' and 'No. 1' if we don't baffle your handsomest skill." The whole habits of the fish, at this time, seem changed from what they were in the year of great plenty and great slaughter. This change may continue for the whole season, or it may, as is more commonly the case, last only for a part of the season. Sometimes, after waiting till near the close, ineffectually, and just as the fleet is about to depart, the reaction occurs, and the whole fleet is pretty well loaded in a few days. Sometimes it occurs after they have nearly all given up, and only a few vessels are on the ground to avail themselves of the opportunity. The cause of these differences of habit is of course mainly attributable to the abundance or deficiency, and perhaps in part to the good or bad quality of their food. The condition of the mackerel is, of course, decisive evidence on that point. Another year, and perhaps the very next to one of these years of plenty, the fish may hardly be found at all. They have sought out some new resort, or revisited an old one from which they have lately been absent. Whichever way it is, they elude all search, and spend the whole or a good part of the season in security, while their baffled hunters are vainly ranging the ocean in quest of them-sailing hither and thither, up and down, over and back, visiting this place and departing for that, lying idly at some defile in hope to intercept the advance of the finny army, or giving all sail to the breeze, and making a long sweep in hope to fetch a compass around them; a thousand times throwing bait, and finding never a response to the call. Their new haunts may be accidentally hit by a few, who make out well, while the great mass come home with lean fares, and dispirited with the heavy losses incurred in addition to throwing away a season's work. Sometimes, when taken in good numbers, the fish are fat and large; and sometimes so poor and small that it is impossible to make a good market of them. Sometimes, again, when scarce, they are so fat as to pay good profits on a comparatively small catch; and sometimes, when scarcest, they may be very poor. With all these unavoidable contingencies, joined to all the irregularities of the market, it is easy to see how the fishing business must be subject to frequent and heavy fluctuations. The man who in any year sent one vessel in the fishery, if she did well, will be pretty sure to send her again the next year, and, if he is able, his luck may induce him to build or purchase another vessel, to employ in the same manner. His good fortune will also pretty certainly induce some other to embark in the same business who has not before tried it. If, on the other hand, he does badly the first year, he may have perseverance to send his single vessel a second and a third year; but the heavy losses of one year are often sufficient to frighten out an adventurer who would not yet own up to a charge of excessive timidity; and the losses of a series of years often daunt the courage of men of shrewd intellect and hopeful temperament. The variation in the amount of tonnage in the two fisheries would appear much larger, as the real variation of success and change of individuals is much greater, were it not for the fact that many of the causes which affect one fishery do not affect the other, and those which are common may not happen to both at one time. Codfish may be scarce while Mackerel are plenty, and Mackerel plenty while Cod are scarce. One may be fat while the ever, is so much nearer right than the argument, that we dismiss the error with the remark, that, if Mr. Johnson uses in his banking operations the same interest tables from which these calculations are drawn, his house is in a prosperous way, and the "foot-prints should admonish those who are entering, that the current inwards exceeds greatly the current outwards." Mr. Johnson tells us a doleful story of a woman hastening, by neglect, the death of her husband, in order to secure the avails of a life policy. Improbable as the story is, will he deny that the same woman would as readily have suffered her husband to die, could she thereby hasten the possession of a clever sum lying in a savings bank? Again, Mr. J. avers that life and health and other mutual benefit associations are immoral in their tendency, making the several parties careless of the future. It may be urged on the same principle that fire insurance is immoral, because the selfish unprincipled policy holder says, "Let the house or goods burn, I am insured." Why provide hospitals and other benevolent institutions, as a resource in case of inevitable sickness, or other misfortune, "Let each party look out for himself." But no, Mr. Editor, Mr. Johnson has wholly mistaken his vocation in attempting to decry life insurance. So far from promoting thriftlessness, or immorality, it will be found on a scrutinizing inquiry, that life insurance, no less than deposits in savings banks, is sought by the reflecting, prudent husband and father, the affectionate care-taker of his dependent family. Life insurance is one of the happiest and most beneficent results of philosophical observation and mathematical deduction. Subject, as is our race, to a thousand contingencies, in this age of intense activity and energy, by which multitudes of families are exposed to sufferings resulting from death and poverty, with its attendant ills; but for the suggestions of this benevolent invention, these sufferings would in vain seek relief. And among those happy thoughts, none has accomplished so great good, at so little sacrifice, as life insurance. It was very emphatically declared, by a policy-holder, "But for a policy on my life I should have died long ago. When tossing on my uneasy pillow with fevered pulse and throbbing temples, the consciousness that while yet in health I had secured my loved ones from penury, by procuring a poliey on my life, diminished that fever, and calmed that pulse, and through the blessing of an over-ruling Providence I am restored to health, and am again able to exert myself for my endeared relatives." We might here, perhaps, close our strictures upon Mr. Johnson's assault upon life insurance, but there is one more objection that may seem to call for reply. He most disingenuously insinuates that it is no uncommon occurrence for a life company to wrest from a surviving family its just due, by a "quibble." Let him point out the company or the case. We profess to know the operations of a number of life companies, and we have never known a just claim resisted, or a "quibble" resorted to as a defense. We appeal to the grateful hearts of ten thousand widows, and their dependent children, to disprove this groundless imputing charge. We should regret, exceedingly, to impute, or even suspect unworthy motives in any one, but we are wholly unable to account for so uncalled for, so unnecessary, so harsh a denunciation of life insurance companies, upon any general principles. We hope-shall be glad to believe that public good alone has been the prompter, but we do earnestly desire, that when he again wields the pen he will write on subjects that he understands, and is disposed to treat fairly. J. B. C. JOURNAL OF MERCANTILE LAW. THE LAW OF BANK CHECKS, AND THE LEGAL DISTINCTIONS BETWEEN CHECKS AND BILLS OF EXCHANGE.* Bills of Exchange, Promissory Notes, and Bank Checks are three classes of mercantile instruments very similar in some, very unlike in other, respects. From their similarity, law writers have frequently treated of Bills and Notes together, without the necessary attention to those points where the analogy between them failed. This very similarity, and the danger of confusion arising from it, is the best reason for considering them separately. "There is so much analogy be tween Cheeks and Bills of Exchange, and Negotiable Notes," says Chancellor Kent, “that they are frequently spoken of without discrimination." Thus the earlier treatises, such as Chitty on Bills, are also treatises on Notes, the remarks relating to each being mixed up in the same page, and even in the same sentence. The late Judge Story was the first, we believe, to point out the propriety of treating these subjects separately; he devotes an entire work to each. At the close of the work on Notes he gives a chapter on Checks, in which the English and American law is stated with his usual fullness and carefulness. In connection with Judge Story's chapter, the little treatise by Mr. Shaw will be found of use to the American merchant, although much space is necessarily taken up with the rules and decisions growing out of the English Stamp Acts, which are of no use in America. Mr. Shaw's "practical treatise" is prepared on the plan frequently adopted by English law writers, of bringing together under appropiate heads detailed statements of decided cases. In the present instance this work seems to have been carefully done, and the arrangement of topics is appropriate and convenient. In making general statements of principles the author is, perhaps, not sufficiently careful to point out the qualifications of his rules. Mr. Shaw's work is dedicated, with great propriety, to a gentleman who has not only made numerous and valuable contributions to the literature of Banking, but is in his own person a noble illustration of what a correct practical banker should be. It is inscribed to James William Gilbart, Esq., General Manager of the London and Westminster Bank. FORM OF CHECK. The prevalence of private banking in England leads to a difference between the form of English checks and that of the American check. Mr. Shaw gives the following form of an English check : LONDON, 1st January, 184. Messrs. Smith, Payne and Smith, 1 Lombard-street,-Pay Mr. Wood or bearer fifty pounds. £50. EDMUND BRIGHT. In America a bank check is usually addressed to the Cashier. The following is the form used in New York : * A Practical Treatise on the law of Bankers' Checks, Letters of Credit, and Drafts, comprising the statutes and cases relative thereto, with observations. By GEORGE JOHN SHAW. London: 1850, + 4 Kent, Commentaries, p. 549, note. No. 3025. MERCHANTS' EXCHANGE BANK IN THE CITY OF NEW YORK. NEW YORK, January 1, 1852. Pay to David R. Jaques or bearer fifteen hundred and thirty-five 50-100 dollars. $1,535 50-100. FREEMAN HUNT. At first glance the similarity of a mercantile instrument of this form and a Bill of Exchange is very striking. But moreover a bank check may also be made payable to order, it may be indorsed and negotiated. Whether expressed or not, a check is always deemed payable on demand, but it is not usually so worded. Now the difference between an inland bill on demand, payable to order, and a check payable to order is not very great. It has been said that one of the differences is that checks are not entitled to days of grace. Yet a bill of exchange payable on demand is not entitled to days of grace. Another point of difference which Judge Story points out is that checks are "always supposed to be drawn upon a previous deposit of funds." Yet it is frequently the case that they are drawn previous to a deposit, and are equally good if the funds are deposited any time before presentment. There is therefore some plausibility in Mr. Justice Cowen's opinion (in the case of Harker vs. Anderson, 21 Wendell's Reports, 372) that Checks are Bills of Exchange payable on demand. But bills payable on demand are but one form of bills, the only kind not entitled to grace. The rule that drafts at sight are entitled to grace is now, we believe, after some controversy in the Courts, pretty well settled. All other bills are allowed days of grace. Now it is going very far to pronounce bills and checks identical, because some bills are very like checks.f In stating briefly the rules of law regulating checks, we shall do so in reference to the circumstances in which they differ from bills of exchange. We shall follow Mr. Shaw's order, and consider the points of difference as they relate to— 1st. The Drawer; 2d. The Holder; 3d. The Bank, or Drawee. I. THE DRAWER OF A CHECK. A check may be defined (or described) as an instrument in writing, appropriating a sum of money belonging to one person, in the hands of another, to a third person. Adopting the terms applied to bills (the use of which is perhaps the source of some confusion), the party appropriating is the drawer. The person in whose hands the money is on deposit is the drawee; and the party to whom it is appropriated, is the holder, or payee. Now the moment the proper evidence is furnished to the bank of the intention to appropriate, from that moment the money is to be considered as set apart. The proper evidence is the check, which, says Mr. Shaw, it is the first duty of the drawer to draw in a business-like manner, so that frauds may not be perpetrated by the insertion of words and sums. According to the definition, a check being an appropriation of money, it implies of course that there is money on deposit with the drawee. A presentment of the check is only necessary as furnishing the evidence of the intention of the drawer to appropriate. On the contrary, a bill of exchange is a request which has to be presented for acceptance as well as payment, and both presentments are necessary to make the holder liable in case of non-payment. For the assent of a third party is necessary to the transaction. But in Story, Prom. Notes, § 489. See Little vs. Phoenix Bank, 2 Hill's New York Reports, 424. the case of a check, the banker can have no option, or rather his consent has preceded, being implied in his acceptance of the deposit. The transaction is one entirely between the maker and holder. And as between them there is no reason why the holder should be bound down to a particular time for presenting the check, unless the drawer actually suffers loss by the delay. The check is good against the drawer until barred by the Statute of Limitations. "The drawer of a check is not discharged," says Mr. Shaw, "by any delay in presenting it short of the six years fixed by the statute of limitations, unless he has been no party to the delay, and has sustained loss thereby. "In the following case an action was brought by the plaintiff upon a check dated 17th February, 1796, drawn by the defendants upon Messrs. Down, Thornton & Co., payable to bearer, for £2,444 14s., which was refused payment by the drawees. It appeared that the house of Muilman and Nantes having agreed to lend the defendants their acceptances, had, accordingly, on the 15th November, 1796, accepted a bill of exchange of that date, drawn on them by the defendants for £2,444 14s. at three months date, which would become due on the 18th of February, 1797, which bill the defendants negotiated; and, as a counter security for the purpose of enabling Muilman and Nantes to take up their acceptances when due, the defendants gave them the following check upon their bankers, upon which the present action was founded, and which bore date nine months before it was drawn. "BARTHOLOMEW LANE, LONDON, 17th February, 1796. "Messrs. Down, Thornton, Free and Cornwall, pay Mr. Dobson, or Bearer, £2, 444 15s. STERLING, HUNTERS & Co.' "Muilman died, and Nantes, his surviving partner, became a bankrupt before the day when their acceptance became due; in consequence of which, the defendants were obliged to take up their bill drawn upon that house. In the meantime, on the 20th January, 1797, before the death of Muilman, on the bankruptcy of Nantes, they had passed the defendants' draft on Down & Co. to the plaintiff's for a valuable consideration, namely, a precedent debt, the plaintiffs being at that time ignorant of the transaction between the defendants and Muilman and Nantes. The draft, when tendered at Down and Co.'s, was refused payment; and in subsequent conversation on the same day between an agent for the plaintiffs and one of the defendants, the latter said that it ought not to have been presented for payment, as they had paid it on a bill of Muilman and Nantes, meaning the acceptance above mentioned, but they should wish to pay this draft provided they could prove the bill under the commission against Nantes; and that he had sent, the night before, to the plaintiffs to desire a meeting in order to accommodate this business, and was sorry they had not met, as an accommodation might have taken place; and if the plaintiffs would prove under the estate of Nantes, they, the defendants, would endeavor to provide for the payment of this draft. The defendants afterwards refused to pay the draft. It was contended at the trial, on the part of the defendants, that this was like the common case where a person takes a bill of exchange from an indorser after it has become due, in which case the indorser must stand in the same situation, and subject to the same equities as the person from whom he received it. And that, as in this case, Muilman and Nantes could not have recovered against the defendants on this draft, because the consideration as between them had failed by the nonpayment of their acceptance, so neither could the plaintiff recover, who had taken the draft from Muilman and Nantes nine months after it was due, which circumstance alone should have induced them, in common prudence, to have made inquiry concerning the occasion of the draft being so long outstanding. Lord Kenyon, however, was of opinion, that it was a question for the jury to decide, whether the plaintiff's had received this draft bona fide, and without knowledge of the circumstances under which Muilman and Nantes held it; and if so, he thought, though not without some doubt, that the mere circumstance of its being so long outstanding at the time, was not sufficient to exonerate the defendants from their liability under the circumstances of this case, whereupon the jury found a verdict for the plaintiffs. |