« AnteriorContinuar »
Drawee, and the person in whose favour it is made the Payee.
If the Drawee accepts the bill, he is called the Acceptor.
The person who makes a note is called the Maker, and the person to whom it is payable the Payee.
When a bill or note is indorsed, the person indorsing it, is called the Indorser, the person to whom it is indorsed the Indorsee.
A note while in the hands of the payee, has this resemblance to a bill, that it is for the payment of money absolutely and at all events, and when transferred it is exactly similar to a bill of exchange (2).
in the same manner as inland bills of exchange are or may be, according to the custom of merchants; and that the person and persons, body politic and corporate, to whom such sum of money is or shall be by such note made payable, shall and may maintain an action for the same, in such manner as he, she or they might do, upon any inland bill of exchange, made or drawn according to the custom of merchants, against the person or persons, body politic and corporate, who, or whose servant or agent as aforesaid, signed the same; and that any person or persons, body politic and corporate, to whom such note, that is payable to any person or persons, body politic and corporate, his, her or their order, is indorsed or assigned, or the money therein mentioned ordered to be paid by indorsement thereon, shall and may maintain his, her or their action for such sum of money, either against the person or persons, body politic and corporate, who, or whose servant or agent as aforesaid, signed such note, or against any of the persons who indorsed the same, in like manner as in cases of inland bills of exchange.
(2) In Heylin v. Adamson, Burr. 669. The question was, whether the indorsee of a bill was bound to make a demand
Sect. 2. No particular (3) words are necessary to make a bill or note; any order or promise which from the time of making it cannot be complied with or performed without the payment of money, is a bill or note.
upon the drawer as the indorsee of a note must upon the maker, per Lord Mansfield, "while a note continues in its original shape of a promise from one man to another, it bears no "similitude to a bill; but when it is indorsed, the resemblance "begins; for then it is an order by the indorser upon the "maker to pay the indorsee, which is the very definition of a "bill the indorser is the drawer, the maker of the note the "acceptor; and the indorsee, the person to whom it is made "payable; and all the authorities, and particularly Lord Hard"wicke, in a case of Hamerton v. Mackarell, M. 10 Geo. II.
put promissory notes on the same footing with bills of ex"change." And in Brown v. Harraden, 4 Term Rep. 148. where the court decided that three days grace should be allowed on promissory notes, Lord Kenyon observed, that the effect of the statute was, that notes were wholly to assume the shape of bills; and Buller J. added, that the cases cited in the argument showed clearly, that the Courts of Westminster had thought the analogy between bills and notes so strong, that the rules established with respect to the one, ought also to prevail as to the other; that the language of the preamble of the Act was express, that it was the object of the legislature to put notes exactly on the same footing with bills, and that the enacting part pursued that intention. The same doctrine is to be found in Carlos v. Fancourt, 5 Term Rep. 482. Edie v. East India Company, Burr. 1224.
(3) D. Lord Raym. 1397. Str. 629. 8 Mod. 364.
Chadwick v. Allen, Str. 706. A note was in these words: "I do acknowledge that Sir Andrew Chadwick has delivered me all the bonds and notes, for which 400l. were paid him on account of Col. Synge, and that Sir Andrew delivered me "Major Graham's receipt and bill on me for 10%. which 107.
Thus an order or promise to (4) deliver, or that I. S. (5) shall receive money, or to be (6) accountable or (7) responsible for it to him or order, is a good bill or note.
But a mere (8) acknowledgment of a debt without any promise to pay, is not a bill or note,
" and 15l. 5s. balance due to Sir Andrew I am still indebted, "and do promise to pay," and upon demurrer to the declaration, the court held it a note within the statute,
(4) D. acc. Lord Raym. 1397,
(5) D. 8 Mod. 364.
(6) Morris v. Lea, Lord Raym. 1396. Str. 629. 8 Mod. 326. Plaintiff sued as indorsee upon a note by which the defendant promised to be accountable to A. or order for 100%. value received; and after verdict for the plaintiff it was insisted in arrest of judgment, that this was not a negotiable note: sed per cur., no precise words are necessary to be used in a bill or note: Deliver such a sum makes a good bill; by receiving the value the defendant becomes a debtor, and when he promises to be accountable for it to A. it is the same as a promise to pay to A. and it is the stronger, because it is to be accountable to A. or order, and it would be an odd construction to expound the word accountable, to give an account, when there may be several indorsees. Judgment for plaintiff,
(7) D. 8 Mod. 364,
(8) Fisher v. Leslie, 1 Esp. N. P. C. 426. An unstamped slip of paper with "I. O. U. eight guineas," written upon it, and signed by the defendant, was offered in evidence under the money counts, and objected to as being either a promissory note, or a receipt, and therefore requiring a stamp; but Lord Kenyon held that it was neither a promissory note nor a receipt, and received it in evidence. But see Guy v. Harris, sittings after Easter Term, 1800, cor. Lord Eldon, C. J, contra, Chitty 243, n,
A note was (9) in these words, "borrowed of I. S. 50l. which I promise not to pay:" and per Lord Macclesfield, the word not shall be rejected, for a man shall never say, I am a cheat and have defrauded.
An order to pay money will be a bill, though instead of the ordinary direction to the drawers, the word "at" is prefixed to their names. (10)
Especially if from fraud it is written in such a manner as to be intended to escape observation, and to make the instrument pass as a bill. (11)
The order may be addressed to the person making it, in other words, a man may draw upon him
(9) Cited per Lord Mansfield in Russell v. Langstaffe. B. R. M. 21 Geo. III. and in Peach v. Kay, sittings after Tr. 1781. and per Lord Harwicke, 2 Atk. 32.
(10) Shuttleworth v. Stephens, 1 Campb. 407. In an action against defendant as drawer of a bill, the instrument was in this form: "Two months after date pay to the order of J. J. 787, 11ș. value received, T. S.-at Messrs. John Morson and Co." Lord Ellenborough held this was properly declared on as a bill of exchange, and plaintiff had a verdict.
(11) Allan v. Mawson, 4 Campb. 115. In an action against defendant as drawer of a bill, the instrument was as follows. "Two months after date pay L. H. or order 401. value received, G. M. Jno. Perring and Co's." The "at" was in very small letters in the hook of the S. Plaintiff presented it for acceptance, and on refusal brought this action within the two months: the question was, whether plaintiff was intitled to treat this as a bill of exchange, and Gibbs, C. J. thought he would have been on the authority of Shuttleworth v. Stephens, 1 Campb. 407. had the word "at" been distinctly written; but he left it to the jury whether it was not fraudulently written to escape detection, and to induce a belief that the instrument was a bill, the jury thought it was, and found for plaintiff.
self; but in legal operation it is rather a note than a bill. (12)
Sect. 3.-Bills and notes must be for the payment of money only; an order or promise to pay money and do some other act is not a bill or (13) note,
And they must be for the payment of money in specie an order or (14) promise to pay money in good East India Bonds, or in cash, or Bank of England Notes, (15) is not a bill or note.
(12) Starke v. Cheeseman, Tr. 11 W. III. Carth. 509. Christopher Cheeseman being in Virginia, drew upon Christopher Cheeseman in Ratcliffe, which in truth was himself; and an action being brought against him upon the bill, he suffered judgment by default, without taking any objection on this ground, though he did upon others, and the plaintiff had judgment.
Dehers v. Harriot, Tr. 2 W. and M. 1 Show. 163. A. drew a bill payable by himself in Dublin; an action was afterwards brought thereon, and the plaintiff recovered.
The defendant being at
Robinson v. Bland, Burr. 1077. Paris drew a bill for 6721. on himself in London; the consideration was partly money lost at play in Paris, and partly money lent at the time and place of play, and upon that ground a case was reserved for the opinion of the court; but no objection was made that the defendant drew the bill upon himself.
Joselyn v. Laserre, Fort. 282. A man may draw a bill upon himself. See also Mar. 3.
(13) Martin v. Chauntry, Str. 1271. on error from the court of Common Pleas, the court of King's Bench held that a note to deliver up horses and a wharf, and pay money at a particular day, was not a note within the statute, and reversed the judgment which had considered it as such.
(14) Anon. Buller's Ni. Pr. 272. a written promise to pay 300l. to B. or order, in three good East India Bonds, was held not to be a note within the statute.
(15) Ex parte Imeson, Hil. 1815.
Case from Chancery,