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been brought upon such notes without exception, and 48 G. 3. c. 149. s. 21. prohibited the negotiation or payment of such notes unless they were stamped, and this prohibition is still continued by 55 G. 3. c. 184. s. 29. as to notes payable to the bearer on demand.
And it is no objection to a bill or note that it was made by a British subject in an enemy's country in time of war, if it do not appear to have been made for any illegal purpose, and was made payable to a neutral. (53)
Or, if made by a British prisoner of war, if made payable or indorsed to an alien enemy. (54)
Inland bills and notes seldom consist of more than one part foreign bills in general consist of several.
The several parts of a bill are called a set.
Each part contains a condition that it shall be payable only so long as all the others remain unpaid in other respects all are of the same tenor.
(53) Houriet v. Morris, 3 Campb. 303. Payees against maker on note made at Paris in time of war: defendant was a British subject, plaintiffs neutral merchants in Switzerland: the note was given by defendant for watches bought by him in Paris of plaintiffs it was objected that this was a trading in an enemy's country in time of war, and that a note founded on such trading was not valid: but Lord Ellenborough said, plaintiffs were not enemies, and might legally sell their goods in an enemy's country, and defendant did not appear to have bought them for any illegal purpose. Plaintiffs had a verdict.
(54) See Antoine v. Morshead, and Daubuz v. Morshead, post.
This condition should be inserted in each part, and should in each mention every other part of the set, for if a man with an intention to make a set of three parts should omit the condition in the first, and make the second with a condition mentioning the first only, and in the third alone take notice of the other two (which, by the way, is the mode pointed out by (55) Molloy, (56) Malynes, and (57) Marius) he might perhaps in some cases be obliged to pay each; for it might be questionable if it would be any defence to an action on the second that he had paid the third, or to an action on the first that he had paid either of the others.
But an omission is not, perhaps, material, which upon the face of the condition must necessarily have arisen from a mistake, as if in the enumeration of the several parts one of the intermediate ones were to be omitted, for instance, Pay this my first of exchange, second and fourth not paid."
Where a bill consists of several parts, each ought to be delivered to the person in whose favour it is made, (unless one is forwarded to the drawee for acceptance,) otherwise there may be difficulties in negotiating the bill, or obtaining payment.
Sect. 7.- A bill or note may fix a particular place for payment.
And where this is what is to be considered as part of the bill or note, it is a variance to omit stating it; (58)
And in an action against the maker of the note, or acceptor of the bill, may make it necessary to allege and prove presentment at that place. (59)
The place is considered part of the instrument where it is incorporated in the body of the bill or note; where it is detached from the body as a memorandum only, not.
Sect. 8.-Bills and notes are made payable to order, or to bearer, or to specified individuals.
A bill or note payable to J. S. or order, is payable to the order of J. S. and negotiable by indorsement. A bill or note payable to J. S. or bearer, is (60) payable to the bearer and negotiable by
(58) Hodge v. Fillis. See post.
(59) Roche v. Campbell. See post.
(60) Grant v. Vaughan Burr. 1516. Vaughan gave Bicknell a draught upon his banker payable "to ship Fortune or bearer." The draught came to the hands of Grant, who sued Vaughan upon it. The defendant contended that this draught was a mere authority to receive the money, and not negotiable, and that point and another being left to the jury, they found for the defendant; but upon an application for a new trial, and cause shewn, the court held clearly that it was negotiable, and a new trial was granted, in which the plaintiff recovered,
delivery; and in the latter case J. S. is a mere cypher.
If a bill or note import to be payable to a person not in esse, or his order, and is issued with an indorsement in blank, purporting to be made by him thereon, it is as against the drawer or maker to be considered as a bill or note (61) payable to
(61) This point has been repeatedly discussed within a few years upon several bills drawn in 1788. A case of the kind had occurred at the London Sittings after Easter Term 1769; Stone v. Freeland, cited 1 H. Bl. 316. in the notes: a bill drawn by Cox on the defendant was made payable to Butler and Co. or their order, and indorsed in their name, and instead of proving that this indorsement was made by Butler and Co., the plaintiff's own witnesses said, they believed it was made by Cox, and though there was a house under the firm of Butler and Co. with which Cox had dealings, it was proved that the bill had never been in their hands, upon which it was contended that the indorsement being fictitious, the plaintiff could not recover; but by Lord Mansfield, "the intent of the bill was only to enable Cox to raise money, and the reason why it was not made payable to his order was, that there would then have been too many payable to his order in circulation at the same time, which would have had the appearance of fictitious credit; names are often used of persons who never existed ;" and it appearing that the defendant promised to pay the bill at the time the plaintiff discounted it, the jury upon the footing of that undertaking found a verdict for the plaintiff. As this case however was distinguishable from those on the bills drawn in 1788, on account of the express undertaking to pay the plaintiff, which (as was admitted by Mr. J. Ashhurst, who held a brief in the cause, in 3 Term Rep. 176.) was the ground of the determination, as this was a nisi prius decision only, and as the amount of the bills in 1788 was very considerable, the point was very strongly contested in the actions on those bills. The first case that came before the court was Tatlock v. Harris, 3 Term Rep. 174. It was an action brought upon a bill drawn by the defendant, as
bearer; and so is a bill as against the acceptor, if he knew at the time of his acceptance, that the payee was a fictitious person.
one of several partners in a house at Nottingham upon himself in London, payable to Grigson and Co. or order, and purporting to be indorsed by Grigson and Co. and Lewis and Potter ; the defendant was sued upon the bill, and the declaration contained counts upon the bill, and counts for money paid and money had and received. It appeared in evidence that there was no such house as that of Grigson and Co.; that the defendant paid the bill to Lewis and Potter, to whom he was indebted, and they gave him credit in account; and that the plaintiffs discounted it for Lewis and Potter: to this evidence the defendant demurred; and after argument and time taken to consider, the court intimated a strong opinion that the plaintiffs might recover on the counts upon the bill; but the ground of their decision was, that he was entitled to recover on the counts for money paid, and money had and received, because the giving the bill was an appropriation of so much money to be paid to the person who should become holder of the bill, and therefore when the plaintiffs discounted it, they paid the money to the use of the defendant, and when Lewis and Potter gave the defendant credit for the value of the bill, that was money had and received to the use of such persons as should afterwards be the holders of the bill.
The next case was that of Vere v, Lewis, 3 Term Rep. 182. which was brought against the defendant as acceptor, and the only difference between that and Tatlock v. Harris was, that there was no evidence to shew that the defendant had received any value for the bill, and that there was strong evidence to shew that the indorsement, in the name of the payee, was made by the defendant; but the court held that the latter circumstance did not vary the question, and that the acceptance was evidence that the defendant had received value from the drawers, and therefore they gave judgment for the plaintiffs without argument. Lord Kenyon, Mr. J. Ashhurst, and Mr. J. Buller, thought also that he was entitled to recover on one of the