Of the Loss of Bills of Exchange, &c.

176. Bills of exchange are often lost by being mislaid, the post's miscarriage, or various other accidents; it is therefore customary to give three of the same tenor or date, as has been before observed, and sometimes four or more,, concerning which I shall mention some particulars, for my reader's government and information.

177. When a remitter declares to the drawer that the bills he received are lost, or so mislaid that he cannot find them, and desires him to repay their value, under a satisfactory indemnification from any future prejudice or demands about them; the drawer in this case, is not obliged to comply, though the negociation was for his own account; only, he must give other bills, and take care that these be exactly the same with the former, differing in nothing, but that, if he had given the first, second, or third before, he now adds the fourth and fifth, though this should not be done neither, after the bills are fallen due, unless the remitter give the drawer sufficient security to bear him harmless.

178. It is the duty of all possessors of bills to have a special care of them, that they may escape the afore-mentioned accidents; and it would be prudent in every merchant to fill up blank indorsements, as soon as he conveniently can, after receipt, lest he should lose them, and the finder do it for him.

179. Whenever a possessor discovers that he hath lost a bill, he ought instantly, or at least before the day of payment, to advise the acceptor thereof, with the precaution not pay it to any other than him, or his order, and in case another come to recover, to stop it, and advise him thereof.

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180. If the accepted bill be the first, and is made payable to the order of one at the place of its discharge, and he in whose favour it is, intends to draw in the second, but has lost the first that was accepted, and has no third or fourth, nor cannot procure them, as the drawer is dead, or absent, &c. he may yet draw in and negociate the sum, if the indorser, in case his firm be unknown to the acceptor, sends a full power, by letter of attorney, to him he would have it paid to, for receiving it; but if the indorser's hand be well known, and himself in good credit, then a written order to the acceptor for its payment, with an indemnification, will be sufficient.

181. But it should likewise be remarked as an act of imprudence in an acceptor, to satisfy a bill made payable to order, though by him accepted, if that, or another of the same tenor and date, be not indorsed in due form, and delivered up to him, with the accepted one, at the time of payment, though demanded by the person whom the remitter or indorser hath impowered for that purpose; but when the accepted bill is lost, and the second, unaccepted, is regularly indorsed till it come to him to whom it is payable, the acceptor, in such case, is obliged to pay the same when due, upon a sufficient security given him to deliver up the accepted bill if it again appeared, or to indemnify him from any future demands for its value.

182. When any one misses his accepted bill, whether payable directly to the possessor or to his order, or if such a one receive advice from his correspondent that he has remitted him such a sum, in such and such a bill, &c. though on opening his letter he finds the bill is not inclosed, or if the letter and bill have miscarried, of whose forwarding he has advice by the succeeding post, and finds that the day of payment draws so near, as to hinder his getting other bills in room of the lost one, he may when it comes due, demand payment upon his letter of advice, with the tender of security to free and discharge the acceptor from any future demands of that sum, by virtue of the lost bill; and if the acceptor will not pay on those terms, he may be protested against for re-exchange and charges,

183. When an accepted bill, protested for non-payment, is lost, the drawer is not obliged to make good the re-exchange and charges, unless he obtain sufficient security to indemnify and free him from all future demands, and engage a restoration of the sum with interest, which he shall have paid for the re-exchange and charges, in case it should appear that the bill, pretended to be lost, should afterwards be paid by the acceptor or any other supra protest.

184. When an accepted bill is lost or mislaid, the remitter or possessor cannot have immediate satisfaction from either the acceptor or drawer, but must proceed against them in the ordinary course of law, as if it was for some other kind of debt, as a protest cannot be made but upon an accepted bill, or the refused offers of indemnity.

285. Marius advises, that as soon as the possessor of a bill misses it, he should have immediate recourse to the acceptor, and in the presence of a notary and two witnesses, acquaint him with its being lost; and signify to him, that at his peril, he pay it to none but those with his order; and he adds, that no one should refuse payment of a bill hẹ has accepted because it is missing: as he asserts, that protest being made for non-payment, upon the offer of a sufficient security and indemnification, will oblige the acceptor to make good all losses, re-exchange and charges, as he wilfully occasioned them.* So, by the statute of 9 Will. III. sect. 3. "It is provided, that in case, any such in land bill or bills of exchange, as mentioned in the former part of the act, shall happen to be lost or miscarried within the time before limited for the payment of the same, then the drawer of the said bill or bills, is and shall be obliged to give another bill or bills of the same tenor with those first given, the person or persons to whom they are or shall be so delivered giving security, if demanded, to the said drawer, to indemnify him against all persons whatsoever, in case the said bill or bills of exchange, so alleged to be lost or miscarried, shall be found again."

186. If the first accepted lost bill was made payable to him that lost it, and the second, unaccepted, should be made payable to another man, then if the money be really paid when due to him, to whom the first accepted, though lost, bill was payable, such payment is warrantable and good, and the possessor of the second can have no demand on the acceptor.

187. And suppose the said first accepted bill should be found by a stranger, who demands the money in the name of him to whom it is made payable, or that the true possessor should have assigned it to another, and taken up the value, yet neither can have any demands on the acceptor, if previous thereto he has paid it to whom it was payable, though without the accepted bill, under a proper security and indemnification.

188. If a bill of exchange be lost by him, with whom it was left for acceptance, or that he hath by mistake given it to a wrong person, or by any other change or intention the possessor cannot obtain a return of his bill, neither accepted nor unaccepted, he that lost it is obliged to give the person to whom it was payable, or to his order, a note of hand for payment of its amount on the day it becomes due, upon delivery of the second, if it arrives in time, or if not, upon the said note, which in all cases is to have the law and privilege of a bill of exchange; and, if the acceptor refuse this, the holder must immediately protest for non-acceptance, and when due must demand the money, though he has neither note nor bill, which, if refused, a protest must be regularly made for non-payment.

Where an original bill is lost, and another cannot be had, of the drawer, a protest Kyd's Law

of Bil's of Exchange,

But if a bill, lost by the possessor, should afterwards come into the possession of any person, who shall have p. 88. paid a full and valuable consideration for it, without knowledge of the circumstance of its having been lost, the drawer and the acceptor, if the bill was accepted, or the drawer, if it was not accepted, must pay it, when due,, to such a fair possessor, so that Marius's law seems very doubtful, and the provision of the statute of Will, III. may in many cases be useless, to the loser of the bill.

may be made on a copy, especially where the refusal of payment is not for want of the original bill, but merely for another cause.

189. The possessor of a bill should be careful that it be sent to the place of payment in time for its recovery, and not detain it to the last moment, as the irregular arrival of the post may hinder it from getting there till after due, in which case, a protest will be insignificant in regard to its recovery of the drawer, as this was not timely demanded; and therefore he that constitutes himself another's agent, and receives bills to solicit their recovery, and neglects demanding payment when they are due, or, if refused, omits protesting, will be obliged to make good the damage that shall accrue through his remissness.

190. He that is possessor of a bill, which only says, pay, without mentioning the time when, or that it is without a date, or not clearly and legibly written, payable some time after date, &c. so that the certain precise time of payment cannot be calculated or known, must be very circumspect, and demand the money whenever there is any probable appearance of the time's being completed that was intended for its payment, or that he can demonstrate any circumstance that may determine it, or make it seem likely when it should be paid.

191. When a person hath a bill sent him to demand acceptance, with directions to hold it at the order of the second, and if the same is not produced, properly indorsed, at the time it becomes due, nor the first asked for, the possessor of this may demand payment thereof, on giving security to produce the indorsed bill, and in case of refusal may protest for non-payment, and such a protest is of validity against the drawer; but yet, if he that hath the bill omits to demand payment, and to protest, he is no ways culpable or responsible, but the detainer of the indorsed bill may thank himself for his carelessness.

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See the cases of Blesard v. Hirst, 5 Burr. 2670, Goodall v. Dolley, 1 T. R. 712. Anonymous, 1 Vent. 45. Dagglish v. Weatherby, 2 Bla. Rep. 747, and per Lord Ellenborough, in Orr v. Maginnis, 7 East, 362, 3 and 4 Am. c. 2. s. 7. and in the case of Roscow v. Hardy, 12 East Rep. 434, where the holder of a bill before it was due, having tendered it for acceptance, which was refused, kept it till due, when it was tendered for payment, and refused, and then immediately returned it on the second indorser, who not knowing of the laches, took up the bill, it was held that his ignorance of the laches of the former holder, did not entitle him to recover against the first indorser who set up such defence.

192. Though a bill be not indorsed, or the indorsement not right, but something wanting in it, yet the possessor is allowed to demand payment, and the acceptor is obliged to make it, upon delivery of the two bills, if he will under his hand and seal oblige himself to procure the third properly and truly indorsed.

193. If, through mistake, the words and figures describing the sum in a bill of exchange differ, the former are to be preferred, until further advice clear up the disagreement; as it is more natural to suppose that a man may mistake in making a few figures than in writing several words, and the former at the top of the bill only serving to express an abbreviation of the latter wrote at length in the body, and are indeed the very substance of it, and therefore more particular regard ought to be had to them than the others; and for the same reason, though the sum figured in the letter of advice and bill do agree, the words in the body of the bill should determine the affair, at least till the certainty can be known.

194. And if the name of the person to whom the bill is payable should be altered, erased, or interlined before acceptance, this will not justify the acceptor's refusal to pay it when due to the person whose name has been so mended or interlined, as he

must or ought to have taken notice of such an essential particular, when he accepted the bill, and should have started the objection and satisfied him about it before accepting, as this obliges him to a compliance, even though he should aver that the amendment or interlining was made after, except he can prove it, which it will lie upon him to do.

195. If the direction on a bill of exchange be forgot, but the remitter advise his correspondent on whom it was intended to be drawn, the possessor may demand acceptance, and in case of refusal protest against the drawer, and recover the charges of him; and in case the person drawn on have a letter of advice from the drawer, desiring him to accept such a bill, he may safely do it, though it comes without a direction.

196. Another method of exchanging, very different from all those before-mentioned, is that by bills on marts and fairs, and though the English have very little concern in these negociations, I have thought it not foreign to my design of giving my readers a general notion of exchanges, to describe the nature of those particular ones; which I shall do in speaking of a few of the most considerable, and from these a just idea may be formed of all the rest.

197. There are many fairs in Europe, where business for very great sums is transacted ; as at Lyons, Rheims, Rouen, Bourdeaux, Troyes, St. Denis, Dieppe, Toulon, &c. in France; Frankfort upon the Main, Leipzic, and Naumbourg, in Germany; Bolzano, in the Ferol; and Novi, subject to the Genoese; with divers others unnecessary to be mentioned here; and, as I proposed, I shall limit what I have to say concerning them in regard of bills, to those of Lyons, Frankfort, Leipzic, or Leipzig, and Naumbourg, being the most considerable of all others.

198. There are yearly four fairs at Lyons, in which each hath his payment of bills, bearing the name of the preceding fair; the first is that of the Epiphany, which always begins in January, the Monday after Twelfth-day; the second is Easter Fair, beginning on St. Nisier's day, in April; the third is August Fair, which begins on St. Dominick's day, in that month; and the fourth is the fair of All-Saints, beginning on St. Hubert's day, in November; and as each fair has its payment, the major part of the bills on this city are not made payable in fair time; and though they should be, they will only be discharged afterwards in the payment of that fair, which payments are regulated as follows, viz.

199. The payment of the Epiphany begins the first, and ends the last of March; that of Easter begins the first, and ends the last of June; that of August begins the first, and ends the last of September; and that of All-Saints begins the first, and ends the last of December; so that when bills are drawn to be paid at one of these appointed times at Lyons, that is not yet begun, the drawer says, "Pay this my first of exchange, &c. in the next Epiphany payment, or in the next Easter payment, &c." but if the payment is already begun, the bill must then be drawn payable in this current, or present payment of Epiphany, or this current payment of Easter, &c.

200. It was customary formerly to make the bills drawn from Amsterdam and else where, on the payments of Lyons, in golden crowns of the sun; but as this specie has been long since decried in France, the present usage in exchange is to draw for the payments of Lyons, as is practised on all other parts of that kingdom, viz. in crowns of sixty sous.

201. The bills, drawn in the above manner, are to be accepted in the first six days of the payment they are made payable in, and the person they are drawn on is not obliged to declare whether he will or will not accept till the sixth day, but after that day, the bearer may protest them for non-acceptance, though he should detain them during the whole time of that payment, to see whether any one offers to discharge them: however the protest should immediately be forwarded to the remitters; and if any one pays a

bill of exchange in the time of the payment, before the sixth day, or if this be a feast, the day following, it will be at his own risk.

202. The bearers of bills not satisfied by the last day of any payment, must protest them on the third day after the payment finishes, otherwise they will lose their right against the drawers; but if this is done in, form and in the time prescribed, the holder may afterwards refuse payment from any one that offers it, and take his reimbursements on the drawer, both for principal and charges.

203. And the said possessors of bills are obliged to take their reimbursement on the drawers or indorsers in a time limited, viz. for all bills drawn from any part of France, in two months; those which are from Italy, Switzerland, Germany, Holland, Flanders, and England, in three months; and those which are drawn from Spain, Portugal, Poland, Sweden, and Denmark, in six months, to be counted from the date of the protest; and in default thereof they will lose their rights against the drawers or indorsers.

204. FRANKFORT has two annual fairs of great resort, viz. the first is the fair of Easter, beginning the Sunday before Palm-Sunday, that is, fifteen days before Easter; and the second is the September fair, which commences the Sunday preceding the birth of the Virgin Mary, which is the 8th of September, if this feast happens on Monday, Tuesday, or Wednesday; but if it falls out on Thursday, Friday, or Saturday, then the fair does not begin till the Sunday following, or on the Sunday which that festival may fall on. 205. Each of these fairs lasts fifteen days or a fortnight; the first week is appointed for accepting, and the second for paying the bills of exchange; the acceptance payable in fair-time is made from the Monday of its opening to the Tuesday of the succeeding week at nine o'clock in the morning, after which hour, the possessor of a bill is no longer obliged to wait for payment, but should protest, or at least note it for non-acceptance, which indeed he may do from the moment that acceptance is denied.

206. Bills on these fairs were formerly accepted verbally, but they must now be accepted in form as other bills are, by subscription of the acceptor's name, with the day of its acceptance ;. and when a bill thus accepted is not satisfied before Saturday noon in the week of payment, the bearer is obliged to protest it for non-payment, by carrying it to the notary established for that purpose, between two o'clock and sun-set, that he may note it, after which he must send the protest per first post.

207. LEIPZIC has three fairs yearly; the first being called the New-year's Fair, commences on the first of January, or on the second, if the first be on a Sunday; the second is at Easter, beginning always on the Monday three weeks from that feast; and the third begins the first Sunday after St. Michael, whether that day happens on a Sunday or not.

208. These fairs are opened on the appointed days by the ringing of a bell, and which rings again eight days after to finish them; so that these eight intermediate days between the two ringings is properly the fair, and the acceptance of bills is demanded on the first or second of these days; but if the persons on whom they are drawn have a. mind to defer their acceptance till the week of payment, they may; which week begins immediately after the bell has rung to end the fair, and lasts till the fifth day following inclusive; so that the bills on the New-Year's fair ought to be paid the 12th of January, and those on the fairs of Easter and Michaelmas, the Thursday in the week of payment, otherwise to be duly protested.

209. It is permitted to the holders of the bills to protest them for non-acceptance, immediately on refusal, but not to return them; on the contrary, they are obliged to keep them till the fair is entirely finished, to see if any one offers payment; and as what is called the Convoy of Nuremberg departs from Leipzic at ten at night of the protesting day, there is no room to make one after that hour, and the possessors will forfeit their right against the drawers if they let the time slip.