Page images

the express authority, A. was not bound. Greenslade v. Dower, 7 B. &C. 635.

Several persons, not partners.] Several persons, not partners, may together become parties to a bill or note, which will be joint or several, according to the terms of it, Thus, where a note beginning “I promise to pay,” &c., was signed by two persons, it was ruled to be either joint or several. March v. Ward, Peake, 130. Clerk v. Blackstock, Holt, 474. ante, p. 18. Such a note requires only one stamp, if it were the bargain before it was issued that all should join. Clerk v. Blackstock, Holt, 474. Where a bill or note is payable to several, the right to transfer it is in the whole number, and one of them alone cannot transfer it. Thus, where a bill was drawn by father and son, not partners, payable to their own order, and the son alone indorsed it, Lord Mansfield thought such indorsement insufficient. A new trial, however, was granted, the court thinking that the father and son had made themselves partners as to this transaction. On the second trial, Lord Mansfield received evidence of the usage and understanding of the merchants and bankers of London, that the indorsement was bad, and the jury found a verdict for the defendant. Carvick v. Vickery, Dougl. 653. So where a bill is drawn upon several, an acceptance by one binds himself only. B. N. P. 270.





Liability of drawer.

How discharged.

By indulgence.
By taking substituted bill, or collateral security.
By compounding with the acceptor.
By holder making the acceptor his executor.
Not by time given to an accommodation acceptor.
Not by receiving part payment from the acceptor, or

Not by indulgence to acceptor, with his assent, or after

promise to pay Liability of acceptor:

How discharged.

By release.
By waiver.
By substituted bill, or security, or giving time.
By giving time to drawer of accommodation bill.
By neglect to present the bill for payment.

By discharge in a foreign country.
Liability of the drawee, or other person, in consequence of a pro-
Liability of the indorser, or party transferring a bill or note.

În general.
Of person transferring bill by delivery, without indorse-

Of person delivering over bill by way of discount.
How discharged.

By indulgence.

mise to pay:

In the present chapter, the liabilities of the drawer, acceptor, and indorser of a bill of exchange will be considered.

this country

Liability of drawer.]— By the act of drawing a bill of exchange, the drawer undertakes that the bill, when presented to the drawee for acceptance, shall be accepted ; when presented for payment, shall be paid. See Dunn v. O'Keefe, 5 M. and S. 290. In default of either of these events, he is liable immediately to pay, to the holder, the amount of the bill, and the expences incurred in consequence of such default. As one of the consequences of non-payment, the drawer is liable for re-exchange ; and it is no defence, that, by the law of the country, where the drawee resides, payment of the bill is prohibited. Mellish v. Simeon, 2 H. Bi. 378. But it would be otherwise, if payment were prohibited by the laws of

See Pollard v. Herries, 3 B. & P. 340. Touting v. Hubbard, Id. 301. and set post, Chap. XIII.

The drawer of a bill, on the refusal of the acceptor to pay it, is only liable to pay interest from the period when he received notice of dishonor. Walker v. Barnes, 5 Taunt. 240. 1 Marsh. 36. S. C. To entitle the holder of an inland bill to recover the interest, it is not necessary for him to protest the bill. Windle v. Andrews, 2 B. & A. 696. See post, Chap. IX.

On the refusal of the drawee to accept, the drawer is liable to be sued immediately, before the bill becomes due. Bright v. Purrier, B. N. P. 269. 3 East, 483. Melford v. Meyor, Dougl. 54. But he has a reasonable time for payment of the bill, after notice of dishonor, and, therefore, when a bill was presented for payment on the 11th,a nd dishonoured, and on the 12th the drawer received notice of dishonor, and on the morning of the 13th tendered the amount of the bill, it was held that such tender was good. Per Mansfield, C. J.-" If the acceptor does not pay the bill when it is due, the drawer cannot find out by inspiration who is the holder, and, till he finds out that, he cannot pay the bill; when he has found out who is the holder, he is bound to pay the bill within a reasonable time ; if he does not, he is liable to damages for not performing his contract : those damages are the interest on the bill." Walker v. Barnes, 5 Taunt. 240. 1 Marsh. 36. S. C.

By drawing a bill in blank, the party drawing it becomes liable, when the bill is filled up, to a bona fide holder, to any amount which the stamp will warrant. Usher v. Dauncey, 4 Campb. 97.

By drawing a bill, the drawer contracts a present debt, to be paid at a future time, and therefore a bill constitutes a good petitioning creditor's debt, though not due, and not indorsed to the creditor till after the bankruptcy. Anon. 2 Wils. 135. Ex parte Thomas, 1 Atk. 73. post, Chap. XIV. And so, though not indorsed till after the bankruptcy, it is proveable against the drawer. Ex parte Deey, 2 Cox, 423. Macarty v. Barrow, 2 Str. 949. 3 Wils. 16. 7 East 437 (n) S. C. post, Chap. XV.

If the holder accept a smaller sum from a third person, in


satisfaction of the debt of the drawer, it is a discharge of the latter. Welby v. Drake, 1 C. & P. 557.

Of drawer, how discharged--indulgence. ]-Discharging, or giving time, to any of the parties to a bill, or note, is a discharge of every other party, who, upon paying the bill, or note, would be entitled to sue the party to whom such discharge, or time, has been given, unless the right to sue in such case resulted from facts out of ordinary course, as from the signatures being accommodation signatures. Bayley, 270. But å mere offer to give time to the acceptor, not acted upon, will not discharge the drawer. Hewet v. Goodrich, 2 C. & P. 468. And where the holder of a bill proposed to the acceptor, to give time for the payment of the residue, on receiving 1001. and the acceptor paid only 801., it was held, that this being a proposal to give time not complied with, did not discharge the other parties. Badnall v. Samuel, 3 Price, 521. Giving time to the acceptor, will discharge the drawer or indorser. În an action by the indorsee against the indorser of a bill, it appeared that payment having been refused, the plaintiff had commence actions against the present defendant, and also against the acceptor, and having sued the latter to judgment, took out execution thereon ; but, although the acceptor had sufficient to answer the execution, the plaintiff, at his instance, received 1001. in part payment of the bill, and took his bond, and warrant of attorney, as a security for the payment of the remainder by instalments, together with interest and costs. The plaintiff having been nonsuited, the court of C.P. refused a new trial. English v. Darley, 2 Bos. & Pul. 61, 3 Esp. 49, S.C. So, with regard to notes, in no case has it been determined, that the indorser is liable after the holder of the note has given time to the maker. Per Buller J. Tindal v. Brown, 1 T. R. 169. So, it is said by Lord Alvanley, that if the holder of a bill, without the knowledge of the other parties, give time to the acceptor, he cannot afterwards call on the other parties, without an injury to those to whom he has given time; in such case, therefore, those parties will be discharged. Clark v. Devlin, 3 B. P. 365. Where notes, drawn by one Canning, to the order of the defendant, were indorsed by the latter for the accommodation of Canning, who deposited them with his bankers, as a security for advances, which were afterwards renewed without any communication with the defendant, the court of K. B. were of opinion, that the defendant was discharged ; for, if notice had been given by the bankers, that they would not trust Canning any longer, the defendant might have taken measures for his own security. Smith v. Becket, 13 East, 187.

It seems, that the taking a cognovit from the acceptor, by which execution may be had within the same time in which it might have been obtained, had no cognovit been given, will not discharge the drawer or indorser. Thus, in an action against the indorser of a bill, where the defence was, that the plaintiff had given time to the acceptor, by taking a cognovit, which

gave three weeks' time, Abbott, C. J. said, “ If this cognovit is put in and read, is that a giving time, within the meaning of the rule, because the party has brought his action against the acceptor, and by these means obtains judgment against him? Is there any decision which lays down, that if, after action brought, the party take a cognovit, that is a giving of time? As at present advised, I think this cognovit admissible in evidence without a stamp, but I am of opinion, that it is no answer to this action. The mischief of holding, that this discharged the other parties to a bill, would be infinite. Suppose the indorsee of a bill brought an action against the acceptor, who appeared and pleaded : if the indorsee did not file his replication so soon as he might do, it would be said that he gave time to the acceptor. The defence cannot be sustained.” Jay v. Warren, 1 C. & P. 532. In an action by the indorsee against the indorser of a bill, the defendant pleaded the general issue, and, at the trial, it appeared, that after the action commenced, the plaintiff, who had sued the acceptor, took from him a warrant of attorney for the debt and costs, payable by instalments. It was contended for the plaintiff, that as the warrant of attorney was taken after action brought against the acceptor, and the defeazance was to pay by instalments, all of which would become due before the time when judgment could, according to the common course, be obtained, the defendant had sustained no injury, and, that, as the matter of defence arose after action brought, it could not be received in evidence under the general issue. Abbott, C. J. received the evidence, but reserved the point. The plaintiff attempted to prove, that the defendant knew, and assented to, the taking of the warrant of attorney. Upon that point, the evidence was contradictory, and the Lord Chief Justice left it to the jury to find for the plaintiff, if they believed that the defendant concurred or assented to the taking of the warrant of attorney ; otherwise for the defendant. The jury found for the defendant, but on motion to enter a verdict for the plaintiff, the court of K. B. granted the rule, on the ground that the defence set up was not admissible under the general issue. Lee v. Levy, 4 B. & C. 390. 1 C. & P. 553. S.C.

With regard to what shall amount to indulgence or giving time, it is said by Lord Eldon, C.J., that as long as the holder is passive, all his remedies remain. English v. Darley, 2 B. & P. 62. So it is said by Lord Alvanley, C. J., that a man is not bound to seek his remedy against the acceptor, and if he

« PreviousContinue »