If A lives in Jamaica, and owes B who lives in England 1000l. now if C be going from England to Jamaica, he may pay B this 1000l. and take a bill of exchange drawn by Bin England upon A in Jamaica, and receive it when he comes thither. Thus does B receive his debt, at any distance of place, by transferring it to C; who carries over his money in paper credit, without danger of robbery or lofs. This [467] method is faid to have been brought into general use by the Jews and Lombards, when banished for their ufury and other vices; in order the more easily to draw their effects out of France and England, intò thofe countries in which they had chofen to refide. But the invention of it was a little earlier: for the Jews were banished out of Guienne in 1287, and out of England in 1290; and in 1236 the use of paper credit was introduced into the Mogul empire in China'. In common fpeech fuch a bill is frequently called a draft, but a bill of exchange is the more legal as well as mercantile expreffion. The perfon however, who writes this letter, is called in law the drawer, and he to whom it is written the drawee; and the third perfon, or negotiator, to whom it is payable (whether specially named, or the bearer generally) is called the payee. THESE bills are either foreign, or inland; foreign, when drawn by a merchant refiding abroad upon his correspondent in England, or vice verfa; and inland when both the drawer and the drawee refide within the kingdom. Formerly foreign bills of exchange were much more regarded in the eye of the law than inland ones, as being thought of more public concern in the advancement of trade and commerce. But now by two ftatutes, the one 9 & 10 W. III. c. 17. the other 3 & 4 Ann. c. 9. inland bills of exchange are put upon the fame footing as foreign ones; what was the law and custom of merchants with regard to the one, and taken notice of merely as fuch', being by thofe ftatutes exprefsly enacted 2 Carte. Hift. Eng. 203. 206 1 Rol. Abr. 6. with regard to the other. So that now there is not in law any manner of difference between them (21). PROMISSORY Notes, or notes of hand, are a plain and direct engagement in writing, to pay a fum fpecified at the time therein limited to a perfon therein named, or fometimes to his order, or often to the bearer at large. Thefe alfo, by the fame ftatute 3 & 4 Ann. c. 9. are made affignable and indorfable in like manner as bills of exchange. But, by fatute 15 Geo. III. c. 51. all promiffory or other notes, [468] bills of exchange, drafts, and undertakings in writing, being negotiable or transferable, for the payment of less than twenty fhillings, are declared to be null and void; and it is made penal to utter or publish any fuch; they being deemed prejudicial to trade and public credit. And, by 17 Geo. III. c. 30. all fuch notes, bills, drafts, and undertakings, to the amount of twenty fhillings, and lefs than five pounds, are subjected to many other regulations and formalities; the omiffion of any one of which vacates the fecurity, and is penal to him that utters it (22). (21) One very important diftinction between foreign and inland bills of exchange ftill remains unaltered by the ftatutes; viz. in a foreign bill, in order to recover against the drawer or indorfers, it is neceflary that the bill fhould be protested for non-acceptance or non-payment, 5 T. R. 239; but a proteit is not neceffary upon an inland bill, to enable the holder to recover the amount of it against the drawer or indorfers; and the only advantage of a proteft upon an inland bill is to give the holder a right to recover intereft and expences incurred by the non-acceptance or non-payment." Ld. Raym. 993. No inland bill, payable at or after fight, can be protefted; or which is not drawn payable at fome time after date. 4 T. R. 170. (22) Every note or bill of that value fhall fpecify the name and place of abode of the payee; it fhall not be antedated, and shall be made payable within twenty-one days after date; and every indorfement fhall be made within that time, and shall be dated when and where made, and shall contain the name and place of abode of the THE payee, we may obferve, either of a bill of exchange. or promiffory note, has clearly a property vested in him (not indeed in poffeffion but in action) by the express contract of the drawer in the cafe of a promiffory note, and, in the case of a bill of exchange, by his implied contract, viz. that, provided the drawee does not pay the bill, the drawer will: for which reafon it is ufual, in bills of exchange, to exprefs that the value thereof hath been received by the drawer "; in order to thew the confideration, upon which the implied contract of repayment arifes. And this property, fo vefted, may be transferred and affigned from the payee to any other man; contrary to the general rule of the common law, that no chofe in action is affignable: which affignment is the life of paper credit. It may therefore be of fome ufe, to mention a few of the principal incidents attending this transfer or affignment, in order to make it regular, and thereby to charge the drawer with the payment of the debt to other persons than those with whom he originally contracted. In the first place then, the payee, or perfon to whom or whofe order fuch bill of exchange or promiffory note is payable, may by indorfement, or writing his name in dorfo or on the back of it, affign over his whole property to the Stra. 1212. the indorfee. The penalty for not complying with the ftatute is from 5 to 20%. at the difcretion of a magistrate. But by the 37 Geo. III. c. 32. thefe two ftatutes, with respect to promiflory notes and drafts, payable on demand to bearer are fufpended. And by 37 Geo. III. c. 61. if any perfon fhall iffue fuch notes or drafts for less than five pounds, and fhall fail to difcharge them within feven days after payment is demanded by the holder, then a complaint may be made to a juftice of peace, who may order what is due to be paid with costs, and upon failure of compliance with his order, he may by his warrant cause the fame to be levied by diftrefs of the parties goods. The Bank of England was enabled to iffue fmall notes by the 37 Geo. III. c. 28. bearer, bearer, or else to another perfon by name, either of whom is then called the indorfee; and he may affign the fame to [469] another, and fo on in infinitum. And a promissory note, payable to A or bearer, is negotiable without any indorfement, and payment thereof may be demanded by any bearer of it. But, in cafe of a bill of exchange, the payee, or the indorfee, (whether it be a general or particular indorfeanent,) is to go to the drawee, and offer his bill for acceptance; which acceptance (fo as to charge the drawer with cofis) must be in writing, under or on the back of the bill (23). If the drawee accepts the bill, either verbally or in writing, he then makes himself liable to pay it; this being now a contract on his fide, grounded on an acknowlegement that the drawer has effects in his hands, or at leaft credit fufficient to warrant the payment. If the drawee refufes to accept the bill, and it be of the value of 201. or upwards, and expressed to be for value received, the payee or indorfee may protest it for non-acceptance; which proteft must be made in writing, under a copy of fuch bill of exchange, by fome notary public; or, if no fuch notary be refident in the place, then by any other substantial inhabitant in the prefence of two credible witneffes; and notice of fuch proteft muft, within fourteen days after (24), be given to the drawer, BUT, in cafe fuch bill be accepted by the drawee, and after acceptance he fails or refufes to pay it within three days (23) It is fully fettled, that a verbal acceptance will bind the drawee. Str. 1000, Yet it appears from the ftatutes, which are very far from being fo intelligible as the importance of the subject demanded, that if the drawee refuses to accept in writing, the bill may be protefted for non-acceptance. 3 & 4 Ann. c. 9. f. 4. But if a verbal acceptance is received by the holder, the bill cannot afterwards be protested for non-payment, fo as to charge the drawer with cofts, damages, and intereft, in confequence of the proteft. f. 5. (24) See note 26. after after it becomes due (25), (which three days are called days of grace,) the payee or indorfee is then to get it protested for non-payment, in the fame manner, and by the fame perfons who are to proteft it in cafe of non-acceptance, and fuch protest must also be notified, within fourteen days after, to the drawer. And he, on producing fuch proteft, either of non-acceptance, or non-payment, is bound to make good to the payee, or indorfee, not only the amount of the faid bills, (which he is bound to do within a reasonable time after nonpayment, without any proteft, by the rules of the common law) but also intereft and all charges, to be computed from the time of making fuch proteft. But if no protest be made or notified to the drawer, and any damage accrues by fuch neglect, it fhall fall on the holder of the bill. The bill, [ 470 1 when refused, must be demanded of the drawer as foon as conveniently may be: for though, when one draws a bill of exchange, he subjects himself to the payment, if the perfon on whom it is drawn refufes either to accept or pay, yet that is with this limitation, that if the bill be not paid, when due, the perfon to whom it is payable, fhall in convenient time give the drawer notice thereof; for otherwife the law will imply it paid: fince it would be prejudicial to commerce, if a bill might rife up to charge the drawer at any distance of time: * Lord Raym. 993. (25) A bill or note is not now confidered due or demandable till the last day of the three days grace; as if a bill or note is dated on the 12th of any month, and made payable ten days, one week, or one month after date, payment must be demanded on the 25th, the 22d of the fame, and on the 15th of the next month respectively. But if the third day of grace falls on a Sunday the bill or note is payable and due on the Saturday preceding. Days of grace are allowed upon promiffory notes, in like manner as upon bills of exchange. 4 T. R. 148. A promiffory note made payable to A, without adding or to his order, or to bearer, though not negotiable, is a note within the ftatute, and the three days of grace must be allowed upon it. GT. R. 123. |