§ 8. It has been contended, however, that promissory notes were negotiable by the "Law Merchant" of England, (which was as much a part of the common law as the laws of murder or marriage,) and that the statute of Anne was only declaratory of then existing statutes which Lord Holt denied. The question is no longer a practical one, and notwithstanding that this view is rebutted by authorities not less eminent than those which assert it, we incline to coincide with the latter.2 EFFECT OF A BILI OR DRAFT FOR THE WHOLE OF A PARTICULAR FUND. § 9. It was said in Gibson vs. Minet, 1 H. Bl., 569, and it has been frequently quoted, that: "The theory of a Bill of Exchange is, that the bill is an assignment to the payee of a debt due from the acceptor to the drawer;" and the decisions sustain this dictum as applied to accepted bills, acceptance being considered as an absolute appropriation of the amount to the payee for which the acceptor is primarily liable.* Before acceptance, however, what is the effect of a Bill of Ex Bill of Exchange, made or drawn according to the custom of merchants, against the person, &c., who signed the same; and that any person, &c., to whom such note that is made payable to any person, &c., his, her, or their order, is indorsed or assigned, or the money therein mentioned ordered to be paid by indorsement thereon, shall and may maintain his, her, or their action, for such sum of money, either against the person, &c., who signed the note, or against any of the persons that indorsed the same, in like manner as in cases of inland Bills of Exchange.” Irvin vs. Maury, 1 Misso., 194; Dunn vs. Adams, 1 Ala., 527; Edwards on Bills, 51-2; 1 Parsons N. & B., 10-13. 2Byles on Bills, (Sharswood's ed., p. 5.) Caton vs. Lenox, 5 Rand., 31. See also Davis vs. Miller, 14 Grat., 18; Norton vs. Rose, 2 Wash., 233. Story on Bills, 2 18. *Lambert vs. Jones, 2 Pat. & H., 144; Mandeville vs. Welch, 5 Wheat, 277; Wells vs. Williams, 39 Barb., 567; Buckner vs. Sayre, 18 B. Monroe, 745. It was held however, in Marine and Fire Insurance Bank of Georgia es. Jauncly, 3 Sandford, 257, that the acceptance of a draft payable generally, does not vary its nature, nor convert it into an assignment of the property remitted on account, to the drawee; and that to make a Bill of Exchange operate as a transfer of the funds in view of which it was drawn, it must cease to be a bill in the sense of the Law Merchant. Remittances, however, may be made for the purpose of being applied to the payment of a particular instrument, under circumstances which will give rise to a trust, and create an equitable lien or title which may be enforced on behalf of all or any of the holders of the instrument. Ex parte Prescott, 3 Deacon, and Chitty, 218; 3 Lead. Cases in Equity, 359. change drawn on funds? The question divides itself into two branches: First, Is a Bill of Exchange (a negotiable bill in its commercial sense,) drawn for the whole amount of a fund in the drawee's hands an assignment thereof? and Second, Is a Bill drawn for a portion of such funds an assignment? The authorities are at variance on the first question, some ruling that a Bill for the whole fund is an assignment, some the contrary; and some confusion has arisen from a failure to discriminate between a proper Bill of Exchange, and an order or draft for or upon a particular fund. In the late case of Bank of Commerce vs. Bogy, 44 Misso., 13, in which a Bill was drawn for the whole of an amount due the drawer from the drawee, and afterwards negotiated, it was held that this did not operate as a legal or equitable assignment of the debt, and that suit could not be maintained thereupon against the drawee by the holder--although such a bill was competent evidence tending to show an assignment, and with other circumstances to show it was the intention of the drawer to assign the amount, would vest in the holder an exclusive claim to it. And this view seems sustained by reason and authority.' In Mandeville vs. Welch, 5 Wheat, 277, Story, J., indicated an opinion that a Bill for the whole of a particular fund was an assignment, but that question was not before the Court; and no case has been found, says Professor Parsons, (Vol. I., N. & B., p. 33, note s,) in which a negotiable bill has been drawn for the whole amount of the fund, and the drawee has been sued on refusal to accept. EFFECT OF NON-NEGOTIABLE DRAFT FOR ALL OF A FUND. § 10. The authorities concur that a non-negotiable draft for the whole of an amount due by the drawee is an assignment, and that the holder may recover it of the drawee. In Anderson vs. Desoer, 6 Grat., 364, a draft for $10,000, drawn by Grivegnee, a legatee, dated Malaga, 20th July, 1819, upon the executors of his uncle, at Richmond, Va., who had left him a legacy of $10,000, directing that when forthcoming, and out of the funds destined for that object by his deceased uncle, they should pay that amount to the order of Messrs. 'Bank of Republic vs. Millard, 10 Wallace, 152. See post chapter on Checks, Sands vs. Matthews, 27 Ala., 399; Kimball vs. Donald, 20 Misso., 577; N. Y. and Va. State Bank vs. Gibson, 5 Duer., 574; Hurlburt, J., in Cowperthwaite vs. Sheffield, Comst., 243; 1 Sandford, 415; Winter vs. Drury, 1 Seld., 525; Luff vs. Pope, 5 Hill 413; 7 Hill, 577. Contra, Wheatly us. Strobe, 12 Calif., 92. VOL. I.-NO. III.-2 Scholtz & Brothers, for value received of them, noting the same as amount of legacy left him by his uncle, was held to be an assignment of the legacy, and as such to have precedence over an attachment thereupon served four days after the drawing of the draft, and before it was presented. In Gibson vs. Cooke, 10 Pick., 15, in which case the effect of a non-negotiable draft was in question, the Court said: "It seems to be well settled that a draft by the creditor on his debtor, in the form of a Bill of Exchange to the amount of the debt, or the whole fund in his hands, is a good and valid assignment of the debtor fund." But none of these cases arose upon a negotiable bill.' EFFECT OF A BILL FOR A PART OF A FUND. § 11. It is settled that a Bill of Exchange for a part of a fund is no assignment until accepted.2 EFFECT OF NON-NEGOTIABLE DRAFT FOR PART OF A FUND. § 12. There is conflict of authority upon the question whether or not a non-negotiable draft or order for a portion of a fund is an assignment. In Mandeville vs. Welch, 5 Wheat, 277, the Supreme Court held that such a draft was not an assignment, Story, J., saying "a creditor shall not be permitted to split up a single cause of action into many actions without the assent of his debtor, since it may subject him to many embarrassments and responsibilities not contemplated in his original contract." In Cowperthwaite vs. Sheffield, 1 Sandf., 416, it was held that such an order was not an assignment unless accepted, but when accepted it would be; and it is difficult to see how this doctrine can be successfully controverted.3 § 13. Formerly it was doubted whether or not it was not necessary to the character of a Bill of Exchange that it should be negotiable, which quality was imparted to it by making it payable "to order" or "to bearer." But it is now well settled in England and in the United States, and has been expressly decided in Virginia, that an instrument may be a bill without such words, and will be entitled 1To same effect, see Cutts vs. Perkins, 12 Mass., 209; Robbins vs. Bacon, 3 Greenl., 346; Mortin vs. Naylor, 1 Hill, 583. See 1 Pars. N. & B., 287, 333. 21 Parsons N. & B., 332; Mandeville vs. Welch, 5 Wheat, 277. 31 Pars. N. & B., 334; Poydras vs. Delamare, 13 La., 98; Legro vs. Staples, 16 Maine, 252; Johnson vs. Thayer, 17 Id., 401; M. Menomy vs. Farrers, 3 Johns, 71. But see Morton vs. Naylor, 1 Hill, 583, and 1 Pars. N. & B., 334, note v. to days of grace. Nor are such words necessary to the character of a Promissory Note, though wherever the Statute of Anne has been adopted they are requisite to its negotiability. In Virginia, the place of payment is the criterion of negotiability, and such words are neither necessary to render the paper a bill or note, or to render it negotiable.3 THE INSTRUMENT MUST BE UNSEALED. § 14. Except where it is otherwise provided by statute, an instrument under seal, although in all other respects in a negotiable form, is, according to the best authorities, not negotiable, and possesses none of the qualities of negotiable paper. In a number of the States however, sealed instruments payable to order, or to bearer, are placed on the same footing as Bills and Notes, as in Ohio, Georgia, North Carolina. A bill or note, however, is not considered as sealed unless there be a recognition of the seal in the body thereof, although a seal be actually attached to the signer's name, and the expressions are used which are usual in sealed instruments. Such at least are the well established doctrines respecting promissory notes. As to a bill, it has been held that a seal attached and recognized, might be regarded as surplusage; but as a bill may be valid as such without being negotiable in the full sense of the term, we can not see that more can be said than that the seal does not destroy its character as a bill, while it deprives it of negotiability. 1Averett's adm'r vs, Booker, 15 Grat., 167; Michigan Bank vs. Eldred, 9 Wal., 544. See Chitty on Bills, p. 66; 1 Am. Lead. Cas., 302; Duncan vs. Maryland Saving Bank, 10 Gill & J., 300; Gerard vs. LaCoste, 1 Dallas, 194; Wills vs. Brigham, 8 Cush., 6; Raymond vs. Middleton, 29 Penn. St., 530; Bates vs. Butler, 46 Maine, 387; Carruth vs. Walker, 8 Wise, 252. 3Muir vs. Jenkins, 2 Cr. C. C. R., 18. Clegg rs. Lemesurier, 15 Grat., 108; Mann vs. Sutton, 4 Rand., 253; Hopkins vs. Railroad Co., 3 Watts & S., 410; Clark vs. Farmers' Manf. Co., 15 Wend., 256; Parks vs. Duke, 2 McCord, 380; Lewis vs. Wilson, 5 Blackf., 369. "Peasley vs. Boatwright, 2 Leigh, 196. In Austin vs. Bullock, 4 Munf., 442, the following was held to be a Promissory Note, and the scroll annexed as a seal to be mere surplusage: $2,361.81. RICHMOND, October 10, 1801. On or before the first day of February next, we bind ourselves, our heirs, executors, or administrators, to pay Thomas and Amos Ladd, or order, two thousand three hundred and sixty-one dollars and eighty-one cents. "Irwin vs. Brown, 2 Cr. C. C. R., 314. AUSTIN & ANDERSON, [L. S.] 15. A scroll affixed as a seal is generally of the same force as a seal, and parol evidence is admissible to show that a scroll affixed was intended as a seal. An instrument binding the signers to pay a certain sum of money, and signed by some with, and by others without, seals, is the bond of the former, and he promissory note of the latter, and one action of debt may be brought against all the parties. 16. The bill must contain a certain direction, and the note a certain promise to pay. A bill is in its nature the demand of a right, not the mere asking of a favor, and therefore a supplication made, or authority given to pay an amount, is not a bill. The language, “Mr. Little please to let the bearer have £7 and place it to my account, and you will much oblige your humble servant," was held not a bill; but on the other hand, where the language was: "Mr. Nelson will much oblige Mr. Webb by paying I. Ruff, or order, on his account, twenty guineas," was held to import an order, and therefore a good bill. The usual expression used in bills is "please pay," and it has been well said by Justice Story that the language should not be too nicely scanned, nor be regarded because of its politeness as asking a favor rather than demanding a right. "Please let the bearer have $50; I will arrange it with you this forenoon," and signed, "your's, most obedient," was held sufficient in Kentucky. An instrument directing a certain person to deliver a particular sum to A. B, or to be accountable or responsible to him for a particular sum, would be a good bill, and so would a direction to credit him in cash for a particular sum, or any expression from which such direction could be inferred. 8 § 17. A note must contain a certain promise to pay. The mere acknowledgment of a debt, such as "I. O. U. £ 200," has been held in England not a note," but in a number of the States of the Union any due bill is regarded as a promissory note. In Virginia, in the case of Young vs. Johnston, 10 Grat., 269, a bond running "due D. S. Young, on demand," was not excepted to as not importing a prom 'Pollock vs. Glassell, 2 Grat., 439. 9 Morris vs. Lee, 2 Lord Raymond, 1396. 10 2Rankin vs. Toler, 8 Grat., 13. Ruff es. Webb, 1 Esp. R., 129. "Bresenthal es. Williams, 1 Duvall, 329. *Ellinson vs. Collingride, 9 C. & B., 570. Fisher vs. Leslie, 1 Esp., 420; Tompkins vs. Ashby, 6 B. & C., 541. 10 Finney vs. Shirley, 7 Misso., 42; Marrigan vs. Page, 4 Humph., 247; Brewer r Brewer, 7 Georgia, 584; Lowe vs. Murphy, 9 Georgia, 338; Kimball es Huntingdon, 10 Wend., 675; Fleming vs. Barge, 6 Ala., 373. |