210. NAUMBOURG holds a very considerable fair yearly on the feast of St. Peter and St. Paul, which is commonly reckoned as the fourth of Leipzic, because the generality of the merchants attending the one have recourse to the other. This fair begins on the festival of the two saints, being always the 29th of June, and it only lasts eight days; bills are accepted on the first and second days of the fair, and ought to be paid on the 3d of July at furthest, or protested for non-payment; but it is not customary to return them with the protest till after the fifth of the said month, on which day the fair ends; and if the bills are not then paid, the holder may send them back by the first post. 211. As the preceding exchanges differ from all others, I shall here add a few necessary observations for the government of those who engage therein; as it is certain that the greatest part of those who take bills on fairs do it with the lucrative view of employing their money to greater advantage than common, either by negociating the said bills when the time of the fairs or payments approaches, or by sending them to the places drawn on to be recovered and remitted them, which is commonly done with a considerable profit; but as there is indisputably a much greater risk in taking bills on fairs, than on places where their goodness or validity must be immediately known, those who take them on the former cannot act with too much caution in regard of the drawers. 212. And the reason is very apparent to any one who seriously reflects on such negociations; for suppose I take a bill of exchange upon Lyons, payable at three usances, dated the 22d of April, I can immediately send it forward, and in a little time have the advice of its acceptance, when I have two debtors or securities, viz. the drawer and acceptant; whereas if I take a bill of the same date, payable in the payment of Easter fair, which finishes the 31st of July, and is the same day, as the last of grace or respite to the above-mentioned bill taken at three usances, and whose success, whether it will be accepted or not, I cannot learn till about the 13th or 14th of July, because, as I have before observed, the bills drawn upon the payments of Lyons are only accepted during the first six days of payment; now if from the 22d of April to the beginning of July the drawer of my bill fails, I have great reason to believe it will neither be accepted nor paid; whereas if that drawn at the three uso's is not accepted, I shall know towards the 8th or 9th of May; and may have my recourse against the drawer, who may be in a better condition then to give me satisfaction or security than on the 13th or 14th of July, or the 10th or 11th of August, after getting my bill with protest for non-payment; and this may suffice for what regards the payments and exchanges on fairs. 213. I have already quoted sundry acts of Parliament in force, relative to inland bills of exchange, which have greatly altered their nature from what it was before their existence; I shall now introduce some new cases which have been tried in our courts of law, in which very singular and unprecedented circumstances have occurred; and have so greatly perplexed not only the gentlemen at the bar, but even the learned judges on the bench, that final decisions will be solicited, upon cases made out expressly for that purpose, from the supreme tribunal of the kingdom, the House of Lords. But before we proceed to these recent trials, it will be necessary to notice, in their order, a few decisions prior to them; and which are nevertheless of the first authority, and of unshaken validity. 214. A writ of error was brought on a judgment by nil dicit in an action against the drawer of an inland bill of exchange, and it was objected that since the act of 9 Will. III. no damage shall be recovered against the drawer upon a bill of exchange, without a protest, and therefore the action lies not, there being no protest. But Holt C. J. the statute never intended to destroy the action for want of a protest, See Holt' 4 G VOL. I. Rep. 121. Harris v. Boulager rand, 2 Esp. 6 Mod. 80. Ld. Raym. Boroughs but only to deprive the party of recovering interest and cost upon an inland bill against Perkins, the drawer without notice of non-payment by protest: for before the statute, there was Benson, this difference between foreign and inland bills of exchange; if a bill was foreign, one 2 Stra.910. could not resort to the drawer for non-acceptance or non-payment without a protest, v. Talley and reasonable notice thereof: but in case of an inland bill, there was no occasion for a protest; but if any prejudice happened to the drawer, by the non-payment of the perRep. 550. son drawn upon, and that for want of notice of non-payment, which he to whom the 1 Salk. 131. bill is made ought to give, the drawer was not liable; and the word damages in the Salk. 69. statute, was meant only of damages that the party is at of being longer out of his money 992. S. C. by the non-payment of the drawer, than the tenor of the bill purported, and not of damages for the original debt: and the protest was ordered for the benefit of the drawer; for if any damages accrue to the drawer for want of protest, they shall be borne by him to whom the bill is made; and if no damage accrue to him, then there is no harm done him, and a protest is only to give a formal notice that the bill is not accepted, or is accepted and not paid; and if in such case the damage amount to the value of the bill, there shall be no recovery, but otherwise he ought not to lose his debt; but that ought either to appear by evidence upon non assumpsit, or by special pleading; and the act is very obscurely and doubtfully penned, and we ought not by construction upon such an act to take away a man's right. And the judgment was affirmed per totam Salk. 125. Ld. Raym. 364, 474. Trin. 20. curiam. 215. In an action on the case on an inland bill of exchange brought by the indorser against the drawer, it was objected, that there was no averment of the defendant's being a merchant; but it was answered and resolved by the court, that the drawing of the bill was a sufficient merchandising and negociating to this purpose. 216. Acceptance of a bill of exchange after the day of payment past is usual. 217. To intitle the party to an action at law in England against the acceptor of a bill, it matters not whether there be a protest; but to intitle the party to a recovery against the drawer beyond the seas or elsewhere, there must be a protest before a notary public. 218. A bill may be accepted for part, when the party on whom it was drawn had no more effects of the drawer's in his hands; though whenever this happens, there must be a protest for non-acceptance, if not for the whole sum, yet at least for the residue; and after payment of such part there must be a protest for the remainder, as the receiving part of the money upon a bill does no ways weaken it. 219. It is asserted by Marius, Scarlet, Molloy, and others that have treated of bills of exchange, that any time before the money comes due, the drawer of a bill may countermand the payment although it hath been accepted, and this is usually made before a notary, though if it comes only under the party's hand, they allow it to be sufficient, and in case of discount, or payment before it is due, they suppose the acceptor liable to pay it again in case of a countermand; from all which I must dissent, as this absolutely oversets the validity of all acceptances. 220. When a bill beyond seas is accepted, and not complied with when due, the protest for non-payment by a notary is sufficient to shew in court here, without producing the bill itself; but if a bill in England be accepted, and a special action grounded on the custom be brought against the acceptor, at the trial the plaintiff must produce the bill accepted, and not the protest, otherwise he will fail in his action at that time; therefore it is most secure that a bill once accepted be kept, and only the protest for non-payment be remitted abroad. 221. If a bill is not accepted to be paid when due, but for a longer time, the person to whom the bill is made payable must protest the same for not being accepted accord ing to the tenor, yet he may however admit the acceptance; nor can the acceptor, if he once subscribes the bill for a longer time, revoke his acceptance, or blot out his name, although it is not according to the tenor of the bill; for by this act he hath made himself debtor, and owns the draught made by his friend upon him, whose right another man cannot give away, and therefore cannot discharge the acceptance; and this case will admit of two protests, if not three, viz. 1. One protest must be made for non-acceptance, according to the time the bill is payable at. 2. For non-payment when due according to the bill's tenor. 3. If the money be not paid according to the time that the acceptor subscribed for. Pemberton Pasc. 33 222. A bill was drawn payable on the 1st of January, and the person to whom it was Per L.C.J. directed accepts it to pay on the 1st of March, with which the servant returns to his inter Price master, who, perceiving this enlarged acceptance, strikes out the 1st of March, and and Shute. puts in the 1st of January, and at that time sends the bill for payment, which the ac- Car. 2. in ceptor refuses; whereupon the possessor strikes out the 1st of January, and inserts the B. R. 1st of March again. In an action brought on this bill, the question was, Whether these alterations did not destroy the bill? and ruled, that it did not. 223. A bill of exchange, payable to a person or bearer, is not assignable, so as to 1 Salk.126, enable the indorsee to bring an action, if payment be refused; but when it is made payable to a person or order, an express power is given thereby to assign, and the indorsee may maintain an action; and the first is a good bill between the indorser and indorsee. 224. The acceptance of a bill, although after it is become due, is binding to the ac- Carthew's ceptants, an action is maintainable thereon; the effect of the bill being the payment of Rep. 460. the money, and not the day of payment. 225. When a bill of exchange is accepted, it is good ground for a special action upon 2 Show. 1. the case, but it doth not make a debt, &c. 226. Indebitatus assumpsit doth not lie against the acceptor of a bill of exchange, 1 Salk. 23. because his acceptance is a collateral engagement, though it will lie against the drawer; and a general indebitatus assumpsit will not lie on a bill of exchange for want of a con- Ibid, 125, sideration; and therefore there must be a special action upon the custom of merchants, or an indebitatus assumpsit against the drawer for money by him received to the plaintiff's use. 227. In the case of Bromwich and Lades, it was said by the Chief Justice Treeby, that bills of exchange were of such general use and benefit, that upon an indebitatus assumpsit, a bill of exchange may be given in evidence to maintain the action; and by Mr. Justice Powel, that upon a general indebitatus assumpsit, for monies received to the use of the plaintiff, such bill may be left to the jury to determine whether this was for value received or not. In this case the declaration was on the custom of merchants, and a general indebitatus assumpsit thereon. See the declarations and exceptions to it, in case of Bellasis and Hester, in 1 Lutwich, 1589. 228. If a bill of exchange is drawn on two or more persons in these terms" To Mr. A. B. and C. D. merchants, in London," they ought both to accept the bill; for the acceptance of only one is not complying with its tenor, and it should be protested; but if it come directed "To A. B. and C. D." or to either of them; or thus, "To A. B." or in his absence" To C. D." in this case, the bill being accepted by either, it is sufficient. 229. Bankers' or goldsmiths' notes are not to be accounted cash till received. As Luc. 109. for example, A. draws a note upon a goldsmith, and sends a servant to receive the money, and to invest it in Exchequer bills; the servant got B. to give him money for p. 58. Dougl.515. 1 Bla. Rep. I. the note, with which he purchased the Exchequer bills ordered; and two days afterwards the goldsmith failed; it was adjudged that A. must answer the money to B. as the property of the note was not transferred to B. there being no indorsement; and he could not have sued upon it, it being only in the nature of a pledge or security to him. It was the received opinion, and certainly founded on the custom of merchants in the city of London, that draughts on bankers, payable to A. B. or bearer on demand, ought to be carried for payment on the very day they are received, and when it is considered that great part of the payments for the purchase of shares in the public funds or stocks are paid by the purchasers in draughts upon their bankers at the instant of making the transfer of the stock, I still think it advisable to take the draughts for payment without delay, and not to part with the receipt for the transfer till the banker has honoured the draught. But in point of law, it has been lately said from the bench, that if the possessor of a draught on a banker does not keep it longer than twenty-four hours after he receives it, before he tenders it for payment, and within that time the banker stops payment, the See 1 Esp. drawer is obliged to pay the money. The case was as follows: The plaintiff took the Russel v. defendant's draught on his bankers, Brown and Collinson; the next morning they Langstaffe stoped payment, and the defendant refused to give cash for his draught, alleging, that Hankey v. if the plaintiff had presented it for payment as soon as possible after he received it, the Trotman, bankers would have paid it. Earl Mansfield observed, that the whole rested upon custom; and the question to be determined was, Whether the plaintiff was obliged to go to the bankers on the day he received the draught, for if he had, it appeared he would have been paid? His Lordship said, it was unreasonable to suppose, that a tradesman should be compelled to run about the town with half a dozen draughts from Charing Cross to Lombard-street, and other places, on the same day. The jury were to consider that twenty-four hours was the usual time allowed, and the plaintiff kept it no longer from being paid, for the next morning the town was alarmed by the bankers stopping payment. The jury however found for the defendant.-Sittings at Guildhall after Easter Term, 1782. And upon a new trial, the Court of King's Bench confirmed the verdict. Ann. 3-Salk,118, Mich. 230. A note is no payment where there was an original and precedent debt due, but 3118, shall be intended to be taken upon condition that the money be paid in a convenient time; but the taking a note in writing for goods sold may amount to payment of the money, because it is part of the original contract. 2 Vent. 310. Witherley v. Sarsfield. IShow.125. quon 231. A servant of Sir Robert Clayton and Mr. Alderman Morris, but at that time actually gone from their service, took up two hundred guineas of Mr. Monck, a goldsmith (who knew nothing of his being discarded), without any authority from his dam masters, who refusing to satisfy Mr. Monck for the same, he brought an action against Sir Robert and Mr. Morris, and being tried at Guildhall, it was ruled per Keeling Chief Justice, that they should answer, and there was a verdict for the plaintiff; and though there were great endeavours used to obtain a new trial, yet it was denied the Courts at Westminster being fully satisfied that they ought to answer, for this servant had frequently received and paid cash for them; and they were obliged to comply, and paid the money. ; 232. A person who is no merchant, drawing a bill of exchange, makes him within the custom of merchants as to that bill. 233. If the drawer mentions, " for value received," he is chargeable at common law; but if no such mention, then you must come upon the custom of merchants only. 234. Concerning a bill of exchange being extended for the King, judgment for the Carth. 5. plaintiff notwithstanding. Evans v. Cramlington. 2 Vent. 310. Show. 264, 235. Part of a bill of exchange cannot be assigned so as to intitle the indorsee to an Hawkins action; if it were otherwise the party might be vexed with as many actions as the v. Gardner, holder of the bill should think fit. Carth. 466. -Cases B. R. 236. It is not necessary to prove a protest made by a public notary, for that would 213. tend to destroy commerce, and public transactions of that nature. 3 Sal. 70. 237. "I promise to pay the bearer so much money on demand," is no bill of ex- Cases B. R. change, and declaring on the custom will not make it so. 346. Cases B. R. Ditto 517. 238. A goldsmith or banker's note, accepted in payment, shall not be a payment, if 380. the party who gave it knew the goldsmith to be in a failing condition, for such knowledge makes it a fraud. 239. Infancy pleaded by the drawer of a bill of exchange and held a good bar, being Williams v. drawn in the course of trade, and not for necessaries. Harrison, But an infant cannot be a party to a bill of exchange so as to subject himself to an 3 Salk,197. action on it, even for necessaries. Co. Lit. 172. a. n. 2. Trueman v. Hurst. 1 Term Rep. 41.; and an acceptance of a bill for necessaries is therefore not binding on an infant. See Williamson v. Watts, 1 Campb. C. N. P. 552.-though as the contract of an infant is only voidable and not absolutely void; he may, by a promise to pay the bill made after he attains twenty-one, render it as operative against him as if he had been of age at the time it was made. Taylor v. Croker, 4 Esp. Rep. 187; but such promise must be express. 2 Esp. Rep. 481. 2 Esp. Rep. 628. Garret, 240. An action was brought upon a note, for the payment of sixty guineas when the Pearson v. defendant should marry such a person, in which the plaintiff declared as upon a bill of 4 Mod.242. exchange, setting forth the custom of merchants; and it was held, that to pay money Comb. 227. upon such a contingency cannot be called trading, and therefore not within the custom of merchants; and judgment was given for the defendant. Skin. 398. Crips. 241. A note was in this form: "I promise to pay J. S. or order, the sum of one hun- Buller v. dred pounds, on account of wine had of him." J. S. indorsed it, and the indorsee C God. 29. brings an action against the drawer, and declares upon the custom of merchants; and doubted by Holt whether action would lie, and advised with merchants, who declared that such notes had been in use thirty years, and that they looked upon them as bills of exchange, but Cur. advisare vult. Ibid. Williams. Holt declared he remembered when actions on bills of exchange first began. 242. A note drawn by J. P. whereby he promised to pay 121. 10s. to J. W. on a day Williams. certain; and he indorsed the note for value received to D. F. who indorsed it to the Carth, 269. plaintiff for value received, who brought an action against J. W. setting forth the custom of merchants; and held the action lay. 243. By this statute it is enacted, that if any person shall forge, or procure to be 2 Geo. 2. forged, or assist in forging, any (inter alia) bill of exchange, promissory note for pay. cap. 25.5.1. ment of money, indorsement, or assignment of any bill of exchange, or promissory note for payment of money, or any acquittance, or receipt for money or goods; or shall utter or publish, as true, any such forged bill, &c. knowing the same to be forged, with an intent to defraud any person, every such offender shall be guilty of felony without benefit of clergy. And, 244. By this statute, if any person shall falsely make, alter, forge, or procure to be 7 Geo. 2. falsely made, &c. or assist in falsely making, &c. any acceptance of any bill of exchange, cap. 22. or the number or principal sum of any accountable receipt for any note, bill, &c. or any warrant, or order for payment of money, or delivery of goods, or shall utter or publish any such false acceptance, bills, &c. with intent to defraud any person; every such offender shall suffer as a felon, without benefit of clergy. Notwithstanding these positive laws, the absurd and mischievous custom of making inland bills payable to fictitious persons; that of one person indorsing another's name; and even drawing in feigned names had prevailed so generally, and got to such a height, |