ment, and sent back undischarged by him, is only obliged to pay the exchange and reexchange, provisions, and postage, without other charges.

79. And the exchange is reckoned according to the course at sight, at that time and place where the protest is made, to the place where the payment should be made by the drawer; but if it is not complied with there, then the sum is again increased, by the commission and postage being added, and the course is now reckoned upon the whole sum, according as it shall govern at that time and place upon sight, to the place where the bill is to be paid, and the acceptor is obliged to pay the re-exchange and all the charges, although the parcel was not effectually negociated and redrawn, i. e. rechange, provision, and postage must be twice paid, &c. as provision twice for the exchange and re-exchange; the charges being only for postage, and protests, unless the acceptor, by delays and excuses, forces the possessor upon some necessary charges to recover, which the acceptor is obliged to pay; but no extraordinary ones, such as travelling, &c. will be allowed.

80. And if the acceptor under the afore-mentioned circumstances refuse immediate payment to the returned bill, a legal interest may be charged him, from the day that the bill was due to the time of its discharge; though he shall not be obliged to make good any other losses or damage than those before-mentioned, notwithstanding the expressions used in the protest, as these are not to be construed as obligatory on the acceptor, to satisfy any loss or damage which the possessor may pretend he has suffered from a want of punctual payment, and by this means frustrating his designs of some beneficial engagement, or a loss of a convenient opportunity for advantageously employing the sum detained.

81. When a drawer is not of an established credit in the commerce of the place he is settled at, it is common for some merchant, who inclines to forward and protect, at first to indorse his bills, till time and opportunity have rendered him and his dealings better known; but if any such friend excuses to indorse his bills, and yet has a mind to serve him, it is frequent on such occasions for that friend to subscribe the second or third bill, which is done by the sole setting his name under that of the drawer, without adding a single syllable thereto, as this doth as fully and amply oblige him as it does the drawer, though the obligation only extends to the bill so subscribed, for which the underwriter is answerable to the remitter, or any other this latter negociates it with; but if the remitter keeps the subscribed bill himself, and the possessor of the other two unsubscribed would seek any redress against the security, he cannot for want of the bill that is subscribed; but as such negociations are only practised for the safety and satisfaction of the deliverer, without an intention in any shape to discredit the drawer, they are usually concealed, and the subscribed bill seldom sent away.

82. And when such subscribed bills are satisfied, they should be returned to the principal drawer, as he in the first bill acknowledges to have received the value, and the remitter would be very imprudent if he paid it to the subscriber, though he contracted with him, and regards his firm more than that of the drawer's; but the subscribed should take care to inquire of the remitter or possessor, whether the bill was punctually complied with when due, that he may for his security have that which bears his firm cancelled.

83. Exchange is made in the name, and for the account of a third person, when any one acts therein by the order, full power and authority of another, which is commonly called Procuration; and these bills may be drawn, subscribed, indorsed, accepted, and negociated, not in the name or for the account of the manager or transacter of any or all of these branches of remittances, but in the name and for the account of the person who authorized him.

84. And as such an unlimited power, if abused, may be of the most fatal conse

quence to the giver of it, who certainly puts his welfare and fortune in his procurator's hands, it ought not lightly to be granted, nor till the most sedate reflections and thorough knowledge of the person will justify the step, and bring it within the limits of prudence; therefore a discreet man will not hazard his substance by such a substitution, except through mere necessity, and then will act with all the circumspection possible in his choice; and when he has passed his nomination, and authentically substituted his agent, he must advise those correspondents on whom his procurator may occasionally want to draw, &c. with his having given such a power, and desire them to honour the firm of his substitute, whenever made use of for his account.

85. And he that by such a procuration does either negociate, draw, indorse, subscribe, or accept bills of exchange, by subscribing his own name and quality, that is, the attorney of his employer, does thereby as effectually oblige his principal as if he himself affirmed, whilst the procurator is not in the least obligated; but if any one, under the pretence of having a full power from a person of credit, transacts any business for his own account, he is not only obliged to perform all that he hath negociated in the name of another person, but is likewise liable to be punished severely for the deceit; and such a pretence no way obliges the person whose name is made use of therein.

36. It will therefore be prudent in every remitter or possessor of bills to refuse any drawings or acceptance by the wife, servant, &c. of those they pretend to represent, unless they first produce the power they say they act under, and this be in every respect full and satisfactory, and neither antiquated, recalled, or cancelled; and it is asserted by Marius and others, that a merchant's letter to his wife, friend, servant, or any other, to accept bills of exchange, is not sufficient without a power of attorney in form; though if there should be no such instrument made to either of the afore-mentioned persons, yet if either of them have formerly in the principal's absence usually accepted his bills, and he approved thereof at his return, I believe, on proof of this, it would always be construed as his intention, and be as valid and binding as a legal and formal

instrument.

87. In negociations of bills, the procurator should, before he concludes any, advise the person treating with him of the quality in which he acts, that he may be satisfied of the validity of his deputations; for if without mentioning any thing thereof previous to his contracting, either by himself or a broker, the other party is not obliged to stand to the agreement, or pay him any money if he has acted as a drawer, but may refuse to have any thing to do with him; though, on the contrary, the possessor of a bill must admit the acceptance of a procurator, provided his letter of attorney be general, or expressly declaring that all bills by him accepted, are for account of the principal, or limited only to the acceptance of those bills that the possessor has; but, if the procurator be not clear and express in these particulars, then the holder is not obliged to admit the acceptance of one whose power to perform it is doubtful or insufficient.

88. When bills of exchange are drawn on one place, and made payable in another, the intention of such a draught should be mentioned at the time of agreement, otherwise it is not binding; and when bills are drawn in this manner, it is customary for the acceptor to mention the house they are to be paid at. As for example; A. B. of London draws 500 dollars on C. D. of Bilboa, payable at Madrid, which the remitter sends to his correspondent there, and he to his at Bilboa, where being presented to the said C. D. he accepts it to be paid by E. F. [or in the house of E. F.] of Madrid, and takes care to furnish the necessary fund in time for its discharge, otherwise the bill will be protested for non-payment in Madrid, as E. F. lies under no obligation to pay it, if he has not effects of the acceptor's in his hands, neither is he obliged to declare whether he will pay it or not, before it is due.

89. It is sometimes customary in cases like the above, for the remitter, if he has no correspondent at the place the bill is drawn on, to desire the drawer to send the first for acceptance, and to return it accepted to him, or elsewhere as he shall direct, which the drawer cannot well refuse, though he is not strictly obliged to a compliance; however when once consented to, and he does not return the bill accepted in a convenient time to the remitter, or forward it according to his order, this latter should send the second bill to some other person to procure acceptance, as he cannot oblige the drawer to give him any further satisfaction, in case this has not been done to the first, and if refused, to enter a protest.

90. If the acceptor of a bill does not live in the place where it is payable, as in the foregoing cases, and in order to discharge it, remits the holder other bills due at the same time as his, the said holder is not obliged to admit them in payment, and if he consents to it may justly demand his commission on them, as he has a double trouble in the recovery of his money; and on the contrary, if the possessor desires the acceptor to send him the value of the bill in others, or in specie, the acceptor is under no obliga tion to comply, unless he has an allowance of a provision for his pains.

91. If the person to whom the bill is addressed will not accept it, a protest must be entered against him for non-acceptance, but that for non-payment is properly made, as before observed, at the place where the bill is payable; and though the possessor is under no obligation to seek elsewhere for payment, yet he may, in case of its not being punctually discharged, proceed against the acceptor wherever he finds him.

92. Besides the afore-mentioned method of drawing on one place and paying in another, there is yet a different manner of executing such negociations, as when bills are not made payable or remitted to the place directly where the money is, but to some other place, from whence the value is to be redrawn or remitted to the place where the payment must be made. As for example: a person has money lying at London, which he would willingly have at Dantzick, but as the Dantzicker cannot draw directly on London, he first passes his bill on Hamburgh or Amsterdam, and orders his correspondent there, to reimburse himself on London; and the motives to this sort of exchanging are either, first, because there is no course settled directly; or else, secondly, where there is, it may be more advantageous not to make use of it, but to negociate otherwise.

93. When any one draws by commission, it must be either for the account of him on whom he draws, or else for that of a third person; if for the former, the drawer should punctually advise him of the sum drawn, and distinctly in how many bills, what date, to whom, and when payable, from whom the value, and at what exchange, and indeed the same exactness should be always observed in regard to advising whenever bills are drawn, and no draughts should be passed for the account of a third person without special order from him; and it is customary on such occasions for the acceptor to advise that he will honour such draughts, whenever they appear, previous to the drawer's making them; and the drawer on his part should give punctual advice both to his principal and the acceptor, whenever he executes his commission; and it is usual in such cases for the drawer to mention in the bill for whom he draws, by concluding it with these words, and place it to the account of A. B. as per advice from, naming the person, or the two initial letters of his name, which may prevent and obviate an exception sometimes made by an acceptor, that he did not accept nor satisfy the bill for such an account, but on the drawer's only.

94. Bills may be, and many times are, drawn upon a third person's account, who yet remains incog. to the acceptor. As for example: A. B. is straitened for cash, and C. D. his friend has none to spare him, yet willing to serve him, he makes his credit supply what his purse denies, and passes his bill on E. F.o f Amsterdam for the sum that

A. B. wants, with orders to redraw the same on him [C. D.] which A. B. pays in due time. And sometimes bills are drawn for account of a third, by order of a fourth, viz. A. B. of Antwerp receives orders from C. D. of Madrid, to draw for his account on E. F. of Hamburgh, but A. B. finding no opportunity of effecting it, directs G. H. of Amsterdam to value for the sum ordered on Hamburgh for the account of C. D. of Madrid, and to remit it afterwards to him the said A. B. Or else A. draws on B. with orders to reimburse himself by draughts on C. for the account of D.; but B. should refuse such a commission, unless A. be his security; and when he draws on C. he ought to advise him that he draws by order of A. for the account of D. and also give advice to A. with all the particulars of the negociation, though it is unnecessary to correspond with D. about it, this being A's obligation.

95. He that hath orders to draw on one place, and remit to another, or vice verså, for the account of a third person, should not remit before he knows he can draw, nor draw before he knows he can remit, as by the doing one he may be in disburse, and by the other have his principal's cash lie by longer than may be pleasing; and when he hath an opportunity to do both, he should, before concluding, make his calculation whether he can execute his commission within limits, if limited, according to the terms and exchanges offered him.

96. When a remitter by commission hath sent his bill to a third person by order of his principal, and in his letter of advice hath clearly expressed for whose account it is, then neither he nor his employer can alter or recal the same, to the prejudice of him to whom the remittances are made.

97. If a remitter in commission stands del credere, as creditor, for the remittances, he acts indiscreetly if he has the bills made payable to himself or order that he may indorse them; for though this is frequently practised by the chief bankers and exchangers, with a view to conceal from the drawer the person to whom they remit it, it does not take off from the imprudence of the action, as the following reason will evince, viz.

1st, The indorser may be forgotten, and from this omission may arise endless disputes and contests; 2dly, the remitter by this means makes himself liable not only to answer all damages, &c. to his principal, but also to every possessor and indorser of the bill after him; for,

3dly, By indorsing the bill, he makes it his own bill, and obliges himself on the account of his principal, not only for the value by him received, but for all other charges and re-exchanges.

98. And though a remitter by commission does not stand del credere, he acts with equal imprudence, in having the bills, as aforesaid, made payable to himself or order, and then indorsing them, for thereby he effectually engages himself to stand del credere, without reaping any advantage therefrom.

99. Any remitter on commission that stands del credere, may, upon the return of a bill for non-acceptance, contract with the drawer for the re-exchange and charges, and on his receiving satisfaction, not only be compelled to remit, if he hath not indorsed the bill, the same value for a timely discharge, but also to give his principal the advance of the re-exchange, &c. but in case he hath indorsed the bill, he may absolutely refuse to give away those advantages, as by his indorsement he made it his own bill, and he, as well as any other drawer or indorser, may have the bill discharged when due, and appropriate the gains of re-exchange to himself.

100. A remitter by commission that stands del credere is not obliged to make good to his principal any more than the value he paid for the bill, in case it should be returned with protest, and the drawer is not able to make satisfaction, as the re-exchange and charges must be the principal's loss, if they are lost, because the remitter had pro

vision only on the value paid; but if he obtain satisfaction from the drawer for the reexchange and charges, he is obliged to make the same good to his principal, though the commissions he receives from the drawer are his own, unless the just sum, with the provision and charges, be effectually redrawn on him; and in this case, he may place a commission to his principal's account, for the trouble of accepting and paying the bill. 101. And a remitter by commission with del credere is obliged, on a bill's being returned with protest for non-payment, immediately to make good its value, or to suffer it to be drawn on him, because his standing del credere obliges him not only for the drawer's sufficiency, but for its punctual discharge; though in this case the interest, re-exchange, &c. is all for his own benefit, notwithstanding the drawer, incapable to make present payment, should yet give security to make a future satisfaction; and the remitter if he gives orders for the payment of the bill, may charge his employer with what he effectually pays more than the bill was for, or what his disbursements exceed the value he paid, provided he remits the principal to recover the loss and charges he sustains from the drawer.

102. When a remitter in commission, standing security, has made bills payable to the order of his principal, or to any other person, that are returned protested, and they have been indorsed several times in different places, and consequently the advice of the protest must be for a considerable time retarded in reaching the remitter, he is notwithstanding obliged to make good to his principal the value by him paid, and that though the drawer was for a considerable time in credit after the advice thereof might have come to his hands, if it had been sent directly. And in case any one under the above circumstances executes his commission on his own bills, and they return protested, he is then obliged, both as drawer and security, to make good to his principal the re-exchange and charges, as if he had not been the drawer himself, but a stranger.

103. If any one remitting by commission with del credere, makes the bills for the account of him to whom he remits, then the risk of standing security finishes with the day of payment: so that in case the acceptor, supposing him to be the person to whom the remittance was made, should fail the very next day after the bills became due, and though a formal protest for non-payment be not entered, the loss will fall on the principal, and not on him that remits by commission; but if the acceptor fails before the day of payment, or does timely protest against himself for non-payment, then the loss is the remitter's, because he also is the drawer to him, for whose account the draught

was made.

104. When a remitter by commission hath orders from his employer to make remittances to some of his correspondents, that he supposes to be substantial men, under the remitter's security, and there to wait the principal's directions, if the said remitter advise him that he has complied with his orders, and mentions to whom he remitted, and the exact sums he paid, he is not obliged to his principal, though the remitted should fail, because the del credere hath only respect to the goodness of the bills, and not to the solvency of him to whom they are sent; as the money, from the moment of his receiving it, was at the order and disposal of the principal, and this latter, if he trusted the other with it, it was a matter of choice, and at his own risk.

105. If a factor has orders to draw on one place, and remit to another with his del credere, and cannot recover for his draughts, he must suffer the loss, as his security is for the whole negociation, and not for the remittances only; and if the bills a remitter takes be returned with protest, and he cannot procure immediate satisfaction from the drawer, he may charge him an interest on the money advanced, although he then gives him security for the payment.

106. It is the duty of every one drawn on by commission to advise the drawer, immediately on hearing of the draught, whether he will accept it or not, on the conditions, 4 E

VOL. I.