dorser, one preliminary objection has been made to the holder's right of recovery in any form of action against the drawer or acceptor: the very act of indorsing on a bill, a name which belongs to nobody, is, it is said, in itself a felony; it has a general tendency to defraud, though the fraud be pointed against no particular individual; and in all cases which have arisen, has actually defrauded the holder of the bill, by imposing on him the idea of a security which does not exist. The act too of sending the bill into circulation with a fictitious name on it, it is said, is felony in him, who is privy to the transaction.

Whether each or either of these acts be in reality a felony, admits of considerable doubt, and is one point " on which the opinion of the Judges is required by the House of Lords." Should that opinion be given in the affirmative, the advocates on the part of the defendant to the action insisted, that the holder of the bill could not recover against either the drawer or the acceptor, because he could not make title, through the medium of a felony in another: a felony contaminates a transaction, and the civil remedy is completely merged in it, by the policy of the law, to prevent, as much as possible, crimes from going unpunished.

The case of Peacock and Rhodes, they said, could not be cited in opposition to this doctrine; for in that case, the bill having been regularly indorsed by the payee, and having, though after having been stolen, come to the hands of the plaintiff for a good consideration, he was only under the necessity of proving the hand-writing of the first indorser, and was not bound to make any part of his title through the person who stole the bill: but here the plaintiff deriving his title through the indorsement which was a forgery, was necessarily barred of his action. To this it was answered, that this pro position with respect to the effect of the felony was not true to such an extent; it was true, indeed, that a civil action could not be maintained, where the cause of action was grounded wholly on an act of felony; as if one stole a horse or money, the owner could not maintain trover, or money had and received against him, because the civil remedy was merged in the felony; if the horse came into the hands of another person, under circumstances which would not amount to a change of property, the original owner might recover him from that person; though, therefore, the felony might be an answer to an action against either the drawer or acceptor, where it appeared the defendant was guilty of the felony; yet that would not preclude the plaintiff from recovering against the other, if he did appear to be guilty.

The advocates on the other side of the question in the House of Lords, professing not to impeach the judgment of the Common Pleas, in the case of Collins and Emett, in which the defendant was perfectly innocent of the supposed felony, were satisfied to maintain, that where the fact of the felony could be fixed on the defendant, that was a bar to a civil action.

In a transaction of this kind, it is apprehended, that whoever in fact makes the fic titious indorsement, both the drawer and acceptor must in general be guilty of publishing the bill with that indorsement on it, knowing it. to be ficticious.

In such a case, whether this amounts to a felony, is certainly a preliminary question; for, though, independently of that question, the plaintiff might be intitled to recover, yet if in fact it shall be decided to be felony, he must necessarily be precluded from his action, because if he were to recover at all, he must recover against the felon himself.

But it may happen that the acceptor may not know that the bill he accepts is attended by any circumstance different from those attending bills in the usual course of business; as where the bill is brought him for acceptance by a third person, either be fore the indorsement is made or afterwards, without intimation of the payee's being fic

titious the drawer too, even in common cases, may be so far unaffected with the felony, that he may not be guilty of publishing the bill with a false indorsement on it, knowing it to be false, for it may be carried out of his hands before the indorsement is made and in some cases, as in that of Collins and Emett, the person appearing as the drawer may be perfectly ignorant of the transaction.

In any of these cases therefore, in which the defendant may appear to have acted without knowledge of the circumstances, the question of felony cannot be considered as preliminary to the decision on the plaintiff's right of action: if the adherence to the rule which requires proof of the hand-writing of the first indorser, be so rigid, that the plaintiff can in no form of action recover without it, that is, of itself sufficient without the intervention of the felony: if an action in any form can be sustained, in which that rule may be dispensed with, then it is not through the felony that the plaintiff derives his title, and consequently he cannot be affected by the decision of that question.

If this reasoning be well founded, it follows that whatever that decision may be, the general question is still open to discussion; if in the affirmative, then in those cases only where the defendant is innocent; if in the negative, then in all cases.

In support of the judgment on the fifth count, which states the bill as being drawn payable to bearer, it has been urged that in stating an agreement or a deed in pleading, it is sufficient to state the legal operation of it, though there might be a verbal variance between that and the instrument itself: as where a lease is made jointly by B. tenant for life of C. and him in remainder or reversion, in fee; during the life of C. this may be stated as the lease of tenant for life, and the confirmation of him in remainder or reversion; that being then the legal operation of the deed: and, for the same reason, after the death of C. it may be stated as the lease of the person in remainder or reversion, and the confirmation of B.

So here, it was said, though the bill appeared on the face of it to be payable to order, yet as no body existed who could give such order, the engagement must be to pay the bill, which was, in effect, to render it payable to the bearer.

If, however, recourse must be had to the intention of the parties, it would seem that it is only in the case of a blank indorsement in the name of the fictitious payee, that the bill must be considered as in effect payable to bearer; where the indorsement is special, as it was in the present case, the intention to be attributed to the parties is, that it should be payable to the order of him to whose order it is made payable by the fictitious indorsement, and then the third count would have been better adapted to support the judgment than the fifth.

But it was objected that this argument was not applicable to the present case; for though it must be admitted that a deed must be stated according to its legal operation; yet that operation must appear on the face of the deed itself, without any collateral circumstances to explain it, contrary to the evident meaning of the words.

With respect to the joint lease of tenant for life, and him in remainder or reversion, if the several interests which they had in the land did not appear in the deed, yet the operative words of this lease were not of that fixed and determinate meaning that they could not admit of a different construction, if collateral circumstances require it, in order to give them effect: but the words "payable to order," and "payable to bearer," were so peculiarly appropriated to the distinct species of bills in which they were respectively used, that the one could by no possibility be construed to mean the other.

A still stronger objection to the judgment's being supported on this count, arises from a question put to the Counsel by the Lord Chancellor, whether an action could be maintained on this bill against an indorser. That an action may be maintained against an indorser of such a bill can admit of no doubt: it is from the frame of it payable to

:

order, and transferrable by indorsement and in an action against an indorser, no question could arise about the fictitious payee, because, as will be seen hereafter, in that action the plaintiff derives no part of his title, through any of the parties to the bill who proceeds the defendant: but a bill payable to bearer, being transferrable by delivery, cannot regularly be indorsed; and it seems, from the question, to have been supposed that no action could be maintained against the indorser; though no doubt was entertained but that it might, even when it was held that a bill payable to bearer could not be the subject of an action by the indorsee, against the acceptor or drawer. If, therefore, the judgment were affirmed on this count, it would follow that the same instrument must, in one case, be considered as a bill payable to bearer, and in another, as a bill payable to order, both of which it cannot be but the difficulty suggested with respect to the period when the bill shall be said to cease to operate as payable to bearer, and assume the character of a bill to order, admits of an easy solution: as against the drawer and acceptor it operates as the one; as against the indorser, it operates as the other.

So general seems to be the opinion that there ought to be a strict adherence to the rule which has given rise to this question, that the count which states the bill in its own terms, appears to have been abandoned on all sides: the plaintiff's counsel in the case of Tatlock and Harris abandoned it; the advocates on the same side in the House of Lords abandoned it: the Court of King's Bench professed, that on it their opinion did not proceed; and the Lord Chancellor in his address to to the House on the subject of the questions to be referred for the opinion of the Judges, seemed to think it could not be supported by the special verdict.

One general objection was made to all those counts which were founded on the bill itself: it is only in favour of the custom of merchants that the practice is founded of declaring on those instruments as specialities, and if such a bill was not within the custom of merchants, then the plaintiffs could not recover on those counts: that such a bill was not within the custom of merchants, it was argued, appeared from this; that in no book on the subject was there to be found any allusion to a bill of this kind; the usage had provided, and the law had acknowledged two sorts of bills, which were sufficient to answer every purpose of trade, where the parties had no sinister view; if it was wished to facilitate the circulation of the bill, it might be made payable to bearer; if to confine it within certain limits, it must be made payable to order; but this was a new invention to enable men to raise money by a fraud, and it could not be pretended, that this was within the custom of merchants.

To this it was answered, that the custom of merchants is not to be confined to those particulars which are to be found in any mercantile book; nor is the novelty of the thing a sufficient reason to reject it; it had not be been done all at once; that every thing which makes a part of the law and custom of merchants at this day, was esta blished it was not without considerable struggles that bills, payable. to bearer, obtained the same privileges as those payable to order: new facts laid the foundation of new rules; and unless the decision on the question of felony could preclude all further discussion, there could be no inconvenience in its being determined now for the first time, that where a bill was drawn in the name of a fictitious payee, and accepted, the drawer and acceptor should, by the custom of merchants, be answerable for the money to a holder by a fair consideration.

That such a holder, in substantial justice, ought to recover against either the drawer or the acceptor, there can be no doubt: he has parted with his property, on the faith of their security; and it is not very gracious in them to tell him, that because, by their contrivance, perhaps, he has one security less than he supposed, he shall not have thes advantage of those which really exist. .

1

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Such is the substance of the arguments on both sides of this important cause, and, as far as I can recollect, the points proposed for the opinion of the judges are these:* First. Whether the publication of the bill by the defendant with the fictitious indorsement on it, he knowing at the time that it was fictitious, amounts to a felony?

Secondly. If that be not felony, whether the facts found by the special verdict support the judgment on the count, which states the bill as payable to bearer?

Thirdly. If judgment on that count cannot be supported, whether it can be supported by any other count founded on the bill as a speciality?

Fourthly. Whether on any of the other counts which state all the particular circumstances of the case, the plaintiff be entitled to recover?

It was also suggested by the Lord Chancellor, that if on the first point, the opinion of the Judges should be in favour of the defendant in error, and on the others against him, another question might not still be considered, whether, when the defendant to the action was privy to the fraud, the plaintiff might not recover in an action of deceit ? In the case of Bennett v. Farnell, i Campb. Č. N. P. 130, it is held, that a bill of exchange made payable to a fictitious person, or his order, is neither in effect payable to the order of the drawer nor to bearer, but is completely void, though if money paid by the holder of such a bill, as the consideration for its being indorsed to him, gets directly into the hands of the acceptor, it may be recovered back as money had and received. This case was brought before the Court of King's Bench, on a motion for a new trial, when Lord Ellenborough observed, "The doctrine I have been supposed to have held, that a bill of exchange made payable to a fictitious person, or his order, is neither in effect payable to the order of the drawer nor to bearer, must be taken with this qualification, unless it can be shewn that the circumstance of the payee being a fictitious person was known to the acceptor." A new trial was refused in this case, because no such evidence had been offered at Nisi Prius, Lord Ellenborough said, he conceived himself bound by Minet v. Gibson, and the other cases upon this subject which had been carried up to the House of Lords (though by no means disposed to give them any extension,) and that, if it had appeared that the defendant knew the payee to be a fic titious person, he should have directed the jury to find a verdict for the plaintiff. See 1 Campb. C. N. P. 180. a. 9, in Addenda.

245. LETTERS OF CREDIT being a species of bills of exchange, and equally binding with them, I shall speak of them under this head, as the proper place for it; and presume it will be needless to counsel my readers to be very circumspect in giving them, as their honour and credit is as much concerned for the punctual re-payment of whatever sums are advanced in consequence thereof, as they would be for the discharge of a bill of exchange.

246. These letters are of two sorts, viz. general and special, and both given to furnish travelling persons with cash as their occasions may require; they are commonly open or unsealed, and contain an order from the writer to his correspondent or correspondents, to furnish the bearer with a certain sum, or an unlimited one; and the difference between them is, that the former is directed to the writer's friends at all the places where the traveller may come (though it is not customary to give separate letters to each place) and the other directed to some particular one; obliging himself for the repayment of whatever monies shall be advanced in compliance with the credit given, on producing a receipt or a bill of exchange, which he thinks proper to have, from the person credited.

*Kyd on the Law of Bills of Exchange, 8vo. London, 1790. A most valuable tract, as it includes the arguments in the latest cases decided by our Courts of Justice.

247. If any money is advanced on either species of these letters and bills of exchange given for the sum on the person who wrote them, he is obliged to accept and pay the same; and in case of refusal he may be compelled thereto, rather than the drawer, as the remitter in the loan of his cash had more regard to his correspondent's sufficiency than the drawer's whom it is probable he knew nothing of; therefore, in this respect, the person giving the credit is to be reputed as the drawer.

248. And as the giver of these letters is so obliged for the punctual repayment of the money advanced, I repeat that he ought to be very cautious to whom he gives them, more especially those without limitation, as, in the hands of a dishonest person they may prove his ruin; and as it is hardly possible that he that requests the credit should be ignorant of what cash he shall want, at least with a little difference, I think the compliment, for it can be nothing else, of an unbounded credit should be excused, being really of no service either to him that pays, or him that receives it.

249. Advice by post should always follow a letter of credit, and duplicate of it accompany such advice; and it would be prudent therein to describe the bearer, with as many particulars as possible, for fear he should lose, or be robbed of his credentials, and a stranger reap the effects of them. These letters are wrote in various forms, and though a copy may be superfluous to most of my readers, yet the prospect of its being serviceable to some few, I hope, will plead my excuse for adding it here.

SIR,

London, the 3d of January, 1791.

THIS is designed to accompany (or kiss your hands by) Mr. John Stevens, and to request your furnishing him with a thousand dollars of your money (or with as much cash as he shall require of you, if you give an unlimited credit) for which please to take his bills on me, or on any other he shall think proper to draw them; and I do hereby oblige myself for the punctual discharge, and remain,

To Mr. Thomas Richardson,
Merchant, in Leghorn.

Sir, your most humble servant,

W. B.

250. The time of paying bills is always settled between the drawer and remitter, sometimes on a certain fixed and appointed day, or at sight, or so many days after sight, or so many days, weeks, or months after date; at usance, half usance, usance and half, and two or three usos or usances.

251. A bill payable at a certain day, is due on the day mentioned, according to the style of the place it is drawn on, not where it is drawn from; so that a bill from Amsterdam, made payable at Hamburgh on the last day of November, is to be understood that day of Old Style, and vice versa for a bill drawn in the same manner from Hamburgh to Amsterdam.

252. If bills are made payable at some days after sight, their acceptance is dated on the day they are presented, and from thence the days of their running are counted; but, if they are made payable at sight, they are to be satisfied without any days of grace to be allowed.

253. If a bill be made payable some weeks after date or sight, the weeks must be reduced into days, and in counting these the almanack should be consulted; and if a bill is drawn to be paid one or two months after sight or date, then the day of payment falls on the same day in the succeeding month, &c. from that in which the bill was presented or dated, although the months differed in the number of their days. As for example, a bill dated the 7th of January, and payable a month after date, is payable the 7th of February, not the 8th; and a bill dated the 30th of January, to be paid a month