Imágenes de páginas
PDF
EPUB

terwards be transferred, exactly similar to that which is implied by drawing a bill, except that in the case of a note, the stipulations with respect to the drawer's responsibility and undertaking do not apply; and a transfer by delivery only, if made on account of an antecedent debt, implies a similar undertaking from the person making it, to the person in whose favor it was made.

And a transfer by delivery, where the bill or note is sold, may imply that it is a genuine bill. (60)

[The endorsement is a new contract by the endorser with the endorsee. (a)

And therefore in an action by an endorsee against an endorser, it is no defence that the note as between the maker and payee, is void, or that the name of the maker is forged. (b)

Where A. being in possession of a note to which he was not a party, and which had not been endorsed by the payee, endorsed it to B. for a valuable consideration, it was held

(60) Jones v. Ryde, 5 Taunt. 488. 1 Marshall, 157. Defendant sold plaintiff a navy bill as and for a bill of £1800, which it imported to be : it turned out that the bill was issued for £800 only, and had afterwards been altered. Government paid the £800 only, and plaintiff who had parted with the bill, paid his vendee the £1000 and called upon defendant to reimburse him; defendant refused, and plaintiff sued him: it was urged for defendant, that both parties were equally innocent; but the court held, that as defendant took upon himself to sell as a bill for £1800 what in fact was a bill for £800, the consideration pro tanto had failed, and plaintiff was entitled to recover it back. In Bruce v. Bruce, 1 Marshall, 165. the same point was decided upon a victualling bill.

[In a case in Massachusetts, it was held, that if a note was sold, the buyer could maintain no action against the seller, though an endorsement upon it proved to be forged, both parties being ignorant of the forgery at the time of the sale. But it was held in the same case, that if the holder of the note intended to purchase merchandize, and the payment by the note was not a part of the original stipulation, but merely an accommodation to him, then the forged note was not a payment, and its amount might be recovered back from him on the original contract for goods sold. Ellis v. Wild, 6 Mass. R. 321.

Payment of a debt by a counterfeit bank note, is no payment, and the amount of the note may be recovered back, from the person paying it. Young v. Adams, 6 Mass. R. 182. See also Markle v. Hatfield, post.]

[(a) See Young v. Bryan, 6 Wheat. R. 146. ] [(b) Codwise v. Gleason, 3 Day, 12.]

that B. could maintain no action against A. without proof of some special contract between A. and B. (a)

A person endorsing a bill or note for the accommodation of the drawer or maker, is liable to the holder in the same manner as any other endorser, although the holder when he received the bill or note knew him to be merely an accommodation endorser. (b)

But if an endorsement specifies that there is to be no recourse to the endorser, or that it is at the risk of the endorsee, the endorser is not liable to any action by the endorsee. (c)

So the liability of the endorser may be varied by a written agreement of the endorsee. (d)

Where the endorsee of a bill resides in the country where the bill is drawn, and endorses it there, he is liable only according to the laws of that country. (e)

But where a bill is drawn in one country and endorsed in another, it does not seem fully settled whether the liability of the endorser is to be regulated by the laws of the place of drawing, or of the place of endorsing. (ƒ)

If the payee of a note and another person endorse it, they are not joint sureties to the holder, but the payee is liable as first endorser, and the other person as second endorser, and the latter may recover of the former any sum paid by him to the holder of the note. (g)]

[(a) Birchard v. Bartlett, 14 Mass. R. 279.]

[(b) Yeaton v. Bank of Alexandria, 5 Cranch, 49; Violett v. Patton, 5 Cranch, 142; Brown v. Mott, 7 Johns. R. 361.]

[(c) Rice v. Stearns, 3 Mass. R. 225; Welch v. Lindo, 7 Cranch, 159.]

[(d) In an action against the endorser of a note, the defendant offered in evidence a writing signed by the plaintiff acknowledging an agreement between them that the plaintiff should sue a special writ against the maker, and direct the officer to secure the debt if possible; it was held that the evidence was admissible; and that the defendant might prove that the maker of the note had land conveyed to him, while the execution upon the note was in force against him, which land might have been taken upon the execution. Phelps v. Foot, 1 Conn. R. 387.] [(e) See Powers v. Lynch, ante p. 32.]

[See Slacum v. Pomery, and Schermerhorn v. Pelham, aute p. 32 and Van Raugh v. Van Arsdaln, ante, p. 31.]

[(g) See Talcott v. Cogswell, 3 Day, 512. ]

CHAP. VI.

Acceptance of Bills or Notes.

THE doctrine of acceptances applies chiefly to bills; for a note may (1) in general be considered, on comparison with a bill, as accepted when it issues.

But on notes payable a limited time after sight, an acceptance is necessary to fix the time of their becoming due.

An acceptance is an engagement to pay a bill according to the tenor of the acceptance, and a general acceptance is an engagement to pay according to the tenor of the bill.

This engagement is made by the drawee of the bill or some (2) other person, to the (3) drawer or some of the

(1) D. acc. 2 Bl. Comm. 470.

(2) Mutford v. Walcott, Lord Raym. 575. 12 Mod. 410. Com. 76. per Holt C. J. "If A. draws a bill on B and B. will not accept, and C. offers to accept for the honor of the drawer, the holder need not acquiesce, but if he does, C. is bound." And per Lord Mansfield and Yates J., in Pillans v. Van Mierop, Burr. 1672, 1674, an acceptance for the honor of the drawer will bind the acceptor.

(3) Pillans and another v. Van Mierop, Burr. 1663. White drew on the plaintiffs at Rotterdam for £800, and proposed to give them credit upon the defendants' house in London; the plaintiffs paid White's bill, and wrote to the defendants to know, "Whether they would accept such bills as they, the plaintiffs, should draw in about a month upon them for £800, on White's credit." The defendants answered, that they would, but White having failed before the month elapsed, the defendants wrote to the plaintiffs not to draw. The plaintiffs did however draw, and on the defendants' refusal to pay the bills, brought this action." The jury found a verdict for the defendants, but upon an application for a new trial, as upon a verdict against evidence, and two arguments upon it, the court was unanimous that the defendants' letter was a virtual acceptance of such bills as the plaintiff should draw to the amount of £800, and the rule was made absolute. See Johnson v. Collings, post, p. 104.

Pierson v. Dunlop and others, Cowp. 571. M'Lintot drew upon the defendants in favor of Nicholl, and gave Nicholl a navy bill assigned to the defendants as a security till the bill of exchange should be accepted; both bills were sent by Nicholl to the defendants, who said, the bill of exchange would not be accepted till the navy bill was paid, but they would receive the money on the navy bill; and they wrote to M'Lintot, saying his bill would receive due honor, but it was drawn too short, being payable before the navy bill: they afterwards received the money on the navy bill, but refused to pay the bill of exchange, upon which this action was brought: the plaintiff obtained a verdict, but the defend

other parties, and might heretofore have been made upon any bill foreign or inland, before the (4) bill was drawn or (5) afterwards, and either verbally (6) or in writing: but

ants had a rule to shew cause why there should not be a new trial, and insisted that the letter to M'Lintot, upon which the jury had in some measure relied, was no acceptance; but on cause shown, Lord Mansfield said, "I consider what the defendants did as an acceptance; it has been truly said, as a general rule, that the mere answer of a merchant to the drawer of a bill, saying he will duly honor it, is no acceptance, unless accompanied with circumstances which may induce a third person to take the bill by endorsement, if there are any such circumstances, it may amount to an acceptance, though contained in a letter to the drawer; in this case, there is great reason to say, that what the defendants did was equivalent to an acceptance; there may be a conditional as well as an absolute acceptance, what then is the declaration by the defendants, but an undertaking that the bill should be accepted when the navy bill was paid; afterwards he writes this letter, which is an admission he looked to the navy bill as the fund out of which the bill of exchange was to be paid." A new trial was refused.

Mason v. Hunt, Dougl. 284. 297. Rowland Hunt in Dominica, wrote a letter to his partner Thomas Hunt in London, stating that he had agreed that Thomas should accept bills for £3600, upon certain conditions; it was doubtful whether those conditions had been performed, but at all events it was clear that the obligation created by this letter was waived; an action was however brought against the Hunts, and after a verdict for the defendants, and an application for a new trial, upon which the court took time to consider, Lord Mansfield said, "There is no doubt but an agreement to accept may amount to an acceptance, and it may be couched in such terms as to put a third person in a better situation than the drawer."

Powell v. Monnier, 1 Atk. 611. Newburgh drew upon Monnier for £50, and sent him a letter of advice, and Monnier wrote for answer that the bill should be duly honored and placed to Newburgh's debit. A bill in chancery was afterwards filed against Monnier's executrix, upon the ground that this letter amounted to an acceptance; and Lord Hardwicke thought it clear that it did, and decreed payment. (See Wynne v. Raikes, post, p. 145. n. (34.)

(4) Vide Pillans v. Van Mierop, and Mason v. Hunt, ante, p. 96, 97. But see also Johnson v. Collings, post, p. 104.

[It is well settled in the United States that an acceptance may be made before the bill is drawn. See Wilson v. Clements, Storer v. Logan, M'Evers v. Mason, Goodrich v. Gordon, and Coolidge v. Payson, post.]

(5) Vide Powell v. Monnier, supra.

(6) Cox v. Coleman, M. 6 Geo. 2. cited arguendo Ann. 75. A foreign bill drawn on defendant was protested for non-acceptance and returned, and afterwards defendant told the plaintiff, "If the bill comes back, I will pay it;" and this was held a good acceptance.

Lumley v. Palmer, Str. 1000. Ann. 74. In an action against the defendant as acceptor of a bill, the acceptance appeared to be by parol only, which Lord Hardwicke C. J. ruled to be sufficient; but Eyre, C. J. of Common Pleas, having ruled it otherwise in Rex v. Meggott,

now by 1 & 2 Geo. 4. c. 78. s. 2., which operates from 1st August, 1821, every acceptance of an inland bill must be in writing upon the bill, or if there be several parts of the bill, on one of such parts. (7)

An acceptance is also either absolute or (8) conditional, and either according to, or (9) varying from, the tenor of the bill.

H. 7. Geo. 2. because of the proviso in 3 & 4 Ann. c. 9. s. 5. " that no acceptance of any inland bill shall be sufficient to charge any person whatsoever, unless the same be under-written or endorsed in writing thereupon," an application was made for a new trial, and the court to settle the point, ordered it to be argued; upon the argument the court held Lord Hardwicke's direction right, on the ground that the statute of Anne was intended to give a holder additional remedies, not to deprive him of any he before had; and Eyre C. J. waived his opinion, and agreed with the court of King's Bench; and this determination is referred to and approved of in Julian v. Shobrooke, 2 Wils. 9. Powell v. Monnier, 1 Atk. 612, and in Pillans v. Van Mierop, Burr. 1662, Lord Mansfield says, a verbal acceptance is binding; and in Sproat v. Matthews, 1 Term Rep. 182, it was taken for granted by the court and bar that a parol acceptance was good. See also Str. 817.

[Ridgway and Balch drew on Shaw, he refused to accept; and the bill was protested for non-acceptance, and at maturity for non-payment. Afterwards on receiving bills of lading of a consignment from Ridgway and Balch, he called on Gilbert and Dean, who held the bill and offered to pay it. They said it had been returned to Philadelphia. He then said that if they would send for it, he would pay it. When the bill was again presented to him, he refused to pay it, having been in the mean time summoned as trustee of Ridgway and Balch. Parker C. J. delivered the opinion of the Court. "The defendant promised Gilbert and Dean, if they would get the bill back, he would accept and pay it; and they obtained the bill. This promise was binding on him.” And on the ground of Shaw's liability as acceptor, he was discharged as trustee. Grant v. Shaw, 16 Mass. R. 341.]

(7) By 1 & 2 Geo. 4. c. 78. s. 2. After 1st August, 1821, no acceptance of any inland bill of exchange shall be sufficient to charge any person, unless such acceptance be in writing on such bill; or, if there be more than one part of such bill, on one of the said parts.

(8) Smith v. Abbott, Str. 1152. Defendant accepted a bill to pay when goods consigned to him were sold; he sold the goods, and on being sued upon his acceptance, insisted in arrest of judgment that it was not binding, because it was conditional; but the court, on consideration, held, that though the plaintiff might have refused to take it, and have protested the bill, yet as he did take it, it was binding on the defendant. Julian v. Shobrooke, 2 Wils. 9. The defendant accepted a bill to pay, when in cash for the cargo of the ship Thetis; and on being sued, moved in arrest of judgment that a conditional acceptance was not good; but the court held otherwise, and overruled the objection.

Pierson v. Dunlop, Cowp. 571. ante, p. 96. An answer that the bill would not be accepted till a navy bill was paid, was held a conditional acceptance, to pay when the navy bill should be discharged.

(9) Wegerstoffe v. Keene, Str. 214. A foreign bill for £127 18s. 4d.

« AnteriorContinuar »