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11.M. R. 309

bill or note, and every bill or note must be written or signed by the person making it, or some one authorized by him for that purpose.

The clerk, who signs bank notes, need not have authority for that purpose under the common seal. (68)

And now by 1 Geo. 4. c. 92. s. 3. his signature may be impressed by machinery.

The signature to a bill or note must import to bind at all events each person who signs it. A note signed A. B. or else C. D. is not as against C. D. binding as a note. (69)

If a person signs his name upon a blank paper, stamped with a bill-stamp, and delivers it to another person to draw such bill as he may choose thereon, he (70) is the drawer of any bill such person shall draw thereon, to which the stamp is applicable.

Sect. 10.—If there be a subscribing witness to a bill or note, the bill or note cannot be read in evidence unless such witness is produced, or his absence properly accounted for.

Sect. 11. It was for some time matter of controversy whether it was not necessary that a bill or note should im

(68) Rex v. Bigg, 3 P. Will. 419. On an indictment under 8 & 9 W. III. c. 20. s. 36. for altering and erasing a genuine bank note, it was found upon a special verdict that the person who signed the note was employed by the company to sign notes, but that he had no authority under their common seal: and objection was taken that an authority under their common seal was necessary; many other objections were taken, and what was the opinion of the judges upon each is not stated; but Mr. P. Williams, who argued for the prisoner, says the judges were divided, but the majority of the judges held it to be felony, and the prisoner was transported, not executed.

(69) Ferris v. Bond, ante, p. 9.

(70) Collis v. Emett, 1 H. Bl. 313. Emett signed his name upon a blank paper stamped with a shilling bill-stamp, (the highest stamp then in force for bills,) and delivered it to Livesay and Co. that they might draw thereon such bill as they should please. They drew one for £1551 at three month's date, which was duly transferred to Collis and Co., and Collis and Co. sued Emett thereon. A special verdict was found, principally with a view to another point; the court held Emett answerable, and the plaintiffs had judgment. See Russell v. Langstaffe, post. Pasmore v. North, post. Usher v. Dauncey, post.

port to be for value received, but it is now settled (71) that it need not.

But notes for coals in ships in the port of London must by 3 G. 2. c. 26. s. 7, 8. import to be for value received in coals, and a refusal to insert words to that effect, or taking a note without such words, subjects the buyer and master of the ship to a penalty of £100. (72)

The note however is not, for want of those words, void. (73)

Sect. 12.-A memorandum on a bill or note before it is issued, may, in some instances, be considered as part of the bill or note, and control its operation. (a)

As a memorandum, that if any dispute shall arise respecting the consideration, the bill or note shall be void. (74) But a memorandum upon a note to state where it shall be payable, is not. (75)

Nor a memorandum of acceptance on a note payable after sight. (76)

(71) White v. Ledwich, B. R. H. 25 G. III. A declaration upon a bill of exchange was demurred to, because it was not stated to have been given for value received, but the court said, it was a settled point, that it was not necessary, and gave judgment for the plaintiff. same point is ruled in Macleod v. Snec, Lord Raym. 1481. See also Fort. 282. 8 Mod. 267. 1 Barnard. 88. Lutw. 889. 1 Mod. Ent. 310. 1 Show. 497.

The

[See also Goshen Turnpike Co. v. Hurtin, 9 Johns R. 217; Dutchess Cotton Manufactory v. Davis, 14 Johns. R. 238.]

(72) 3 G. 2. c. 26. s. 7. s. 8.

(73) Per Holroyd J. 1. Stark. 463.

[(a) As to the effect of a memorandum, see Sanders v. Bacon, post, p. 26.]

(74) See Hartley v. Wilkinson, ante, p. 12.

(75) Exon v. Russell, 4 Maule, 505. At the bottom of a promissory note was written "At Messrs. Brown and Co.'s, bankers, London." In an action against the maker the declaration alleged that defendant made the note, and thereby promised to pay, &c. and made the same payable and to be paid at the house of certain persons described, as Messrs. Brown and Co.'s: there was no averment or proof of presentation at Brown and Co.'s; and on a rule nisi for a nonsuit for want of such proof, and cause shown, the court held that as the "At Messsrs. Brown and Co.'s" was a memorandum only and no part of the note, it was a misdescription to state it as part of the legal effect of the note itself to make it payable there, and on that account the rule was made absolute.

(76) Splitgerber v. Kohn, 1 Stark. 125. Endorsee against maker on

Nor is a memorandum by way of direction to the payee's executors, in case of his death. (77)

Nor a memorandum which cannot be read for want of an agreement stamp. (77)

Nor one which has an attesting witness, and cannot be read on account of his absence. (77)

[The words, "for renewal," written at the foot of a note, do not affect its negotiable quality. (a)]

[ And a note, with an endorsement upon it, stating the consideration for which it is given, is still a promissory note within the statute. (b)]

a note made in Prussia, and payable seven days after sight: in the margin were these words, "Accepted on myself, payable every where" [and these words were on the note when it issued]; it was urged that they altered the nature of the note, and should have been noticed in the declaration; but Lord Ellenborough said they constituted no part of the original instrument; they were merely an acknowledgment of a sight of the note; and though they were contemporaneous with the note, their effect was in point of law subsequent.

(77) Stone v. Metcalfe, 1 Stark. 53. 4 Campb. 217. In an action by payee against maker on a note for £1000 and interest, payable months after date, there appeared to be a memorandum endorsed upon the note, but that memorandum was attested by J. S.: it was urged for defendant that he had a right to have the memorandum read as well as the note: but per Lord Ellenborough, "Plaintiff is entitled to have the "note read, having proved defendant's hand-writing; but the endorse"ment may be an unconnected instrument," J. S. was then called, and proved the endorsemeut, which was as follows: "Although the within note is payable in months, my will and desire is that it shall not then be called in, and if defendant shall wish for further time, he shall have it without suit at law until three years after my decease:" it was urged that this endorsement made part of the note, and that neither of them could be read, because, taken together, they required an agreementstamp. Sed per Lord Ellenborough: "I have on one side a perfect "note, and on the other that which, if stamped, might have operated as "a defeasance, but at which, for want of a stamp, I cannot look: but if "the words were incorporated, they are words of mere indulgence and "favour. As to the executors, the case might be different." The plaintiff had a verdict.

[(a) In an action by the endorsee against the endorser of a note the words, "for renewal," appeared written near the bottom of the note. These words were proved to be generally understood to mean that the note was intended to meet, or be substituted for, some preceding note; and it was contended that the plaintiff ought therefore to prove himself a bona fide holder. But the Court said, "we are of opinion that the words, for renewal, did not destroy the negotiable quality of the note.” Peirce v. Butler, 14 Mass. R. 303.]

[(b) On a note made by the defendants in the common form, payable to Sanders and Ogden, the plaintiffs, was an endorsement signed by the

[The words " ne varietur" written upon a note by a notary at the time it is made, as appears to be customary in countries where the civil law is adopted, does not restrain the negotiability of the instrument. (a)]

Sect. 13.-The act of drawing a bill implies an undertaking from the drawer to the payee, and every other person to whom the bill may afterwards be transferred, that the drawee is a person capable of making himself responsible for its payment, that he shall, if applied to for the purpose express in writing upon the bill an undertaking to pay it when it shall become payable, and that he shall then pay it: and subjects the drawer on a failure in any of these particulars to an action at the suit of the payee or holder. (b)

The making of a note is an express engagement to the payee, or person to whom it shall be transferred, to pay the money mentioned therein, according to its tenor.

defendants, saying that the note "is to be delivered" to Sanders and Ogden in consideration of a judgment and execution in favor of S. & O. against S. Tryon "to be assigned to the subscribers." A question was made whether this note could be declared on as a note within the statute. Per Curiam. "The note was well declared upon, as a promissory note within the statute. The endorsement was no part of the note, the effect of it was only to show the consideration, and to operate as a notice to any person who might purchase the note. The delivery of the note was presumptive evidence of an assignment of the judgment, and it stood good, until overthrown by proof on the part of the defendants to the contrary." Sanders v. Bacon, 8 Johns. R. 379.]

[(a) Fleckner in Louisiana gave notes for the purchase money of an estate, payable to the vender or order. The notary before whom the contract of sale was executed wrote on each of the notes the words, "ne varietur." In an action by an endorsee of one of the notes, Story J. delivered the opinion of the Court. "There is not the slightest evidence, that by the law or custom of Louisiana the introduction of these words affects the negotiability of these notes: without proof of such law or usage this court certainly cannot infer the existence of such an extraordinary and inconvenient doctrine." Fleckner v. U. S. Bank, 8 Wheat. R. 338.]

[(b) A bill of exchange after acceptance may be considered as an assignment of the drawer's funds in the hands of the drawee. "In cases also where an order is drawn for the whole of a particular fund, it amounts to an equitable assignment of that fund; and after notice to the drawee it binds the fund in his hands." "But where the order is drawn either on a general or a particular fund, for a part only, it does not amount to an assignment of that part, or give a lien as against the drawee, unless he consents to the appropriation by an acceptance of the draft." Mandeville v. Welch, 5 Wheaton, 277.]

CHAP. A.

Doctrine of the LEX LocI, or by the Laws of what place the Liability of the Parties to a Bill or Note is regulated.

It is a general rule that "the law of the place where a contract is made, is to govern, as to the nature, validity, and construction of such contract. This doctrine has become incorporated into the code of national law in all civilized countries." (a) But this rule supposes that the contract is to be executed where it is made; "the law of the place," says Lord Mansfield, "can never be the rule where the transaction is entered into with an express view to the law of another country as the rule by which it is to be governed." (b) A bill of exchange is made in one place, payable in another, and ́often endorsed at divers others; and the question arises how far the rights, obligations, and liabilities of the several parties to the bill, are determined by the distinct laws of these places. According to the expression of Lord Mansfield, the rights and obligations of the parties will be governed by the laws of the place to which they had reference in their contract. The validity, and to some purposes the construction, of the contract of the maker, and of each endorser, will be governed by the laws of the place of making or endorsing the bill; but as each of these in effect undertakes that another person, namely the drawee, shall accept and pay the bill on its being duly presented for these purposes; reference is necessarily had to the laws of the place on which the bill is drawn, to determine what must be done by the holder of the bill, and what will be a fulfilment, on the part of the drawee, of the undertaking of the drawer and endors

(a) Per Story J. Van Reimsdyk v. Kane & al. 1 Gallis. 375, who cites Hub. de Conflictu Legum, tom. 2. l. 1. t. 3. Emerigon des Assur. tom. 1. c. 4. s. 8. Dig. L. 6 de evictionibus; Casar. Disc. 179, s. 57, Disc. 43. s. 19; Disc. 130. s. 28, 33. 34; Decis Rot. Genuæ 38; Straccha, 147. See also Robinson v. Bland. Burr. 1077. Wm. Bl. 256; Smith v. Smith, 2 Johns. 282, and 8 Johns. 146.

(b) Robinson v. Bland, Burr. 1077.

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