bills, &c.

been made at the place where it is payable, according Construction of to the maxim, contraxisse unusquisque in eo loco intelligitur in quo ut solveret se obligavit, and that consequently the contract should be construed and regulated according to the laws and usage of that place to which the contracting parties have understood themselves subject, following the other rule, in contracti– bus veniunt ea quæ sunt moris et consuetudinis in regione in quá contrahitur1. It further appears, that although the form of the remedy must depend on the laws of the country in which it is pursued, it will, in respect of the extent of it, be subject to the same regulations and restrictions as if it had been pursued in the country where the contract was made; and therefore if a man in a foreign country enter into a contract to be there performed, the fulfilment of which cannot in that country be enforced by arrest, he cannot in this country be holden to bail.

It has been observed by a celebrated writer on the law of nations, that it is the first general maxim of interpretation, "that it is not allowable to interpret what has no need of interpretation;" and that when a deed is worded in clear and precise terms, when its meaning is evident, and leads to no absurd conclusion, there can be no reason for refusing to admit the meaning which such deed naturally presents; to go elsewhere in search of conjectures, in order to restrict or extend it, is but an attempt to elude it, and if this dangerous method were once admitted, every deed might be rendered useless. It seems that on similar principles, our courts, notwithstanding their anxiety to give effect to the intentions of the contracting parties, have laid it down as a general rule, that all latitude of construction must submit to this restriction,

'Poth. pl. 155.-Bayl. 68.

Melan v. De Fitzjames. 1 Bos. & Pul. 141. Pedder v. Mac Master, 8 T. R. 609.-Potter v. Brown, 5 East. 124. but see Imlay . Ellefsen, 2 East. 255.Tidd, 6th ed. 218.

Vattel, 224. et vide Powell on Contracts, tit. Construction.

bills, &c.

Construction of namely, that the words and language of the deed bear the sense which is attempted to be put upon them'. However, in the case of bills, and other negotiable instruments, our courts have relaxed this rule, and therefore in the case just alluded to, where an action was brought by an indorsee of a bill of exchange against the acceptor, and he could not prove an indorsement by the payee, evidence was admitted to prove that the payce was a fictitious person, and consequently could not indorse it; and it was adjudged, that as the drawer and acceptor knew of such fact, the bill should against them operate as a bill payable originally to bearer, and that the holder might recover thereon as such. The courts have always in mercantile affairs endeavoured to adapt the rules of law to the course and method of trade and commerce, in order to promote it, and when new cases have arisen on the mercantile law, they consult traders and merchants as to their usage in regard to bills.

Delivery of a bill to the payee; and effect thereof.

A BILL OF EXCHANGE, &c. in general, is delivered by the drawer to the payee, and where it consists of several parts, as is usual in the case of foreign bills, each ought to be delivered to the person in whose favour it is made, unless one part be forwarded to the drawee for acceptance, and in that case the rest must be so delivered; were it otherwise, difficulties might arise in negotiating a bill, or obtaining payment of it, though a delivery is not essential to vest the legal interest in the payee '.

'Anderson v. Pitcher, 2 Bos. & Pul. 168.-Hotham v. East India Company, Dougl. 277.-Burnet v. Kensington, 7 T. R. 214.

2

Gibson v. Minet, 1 H. B. 569. and see ante, 83, 4, note

3 Per Willes, C. J. in Stone v. Rawlinson, Willes, 561. Barnes, 164. S C. but see 1 Holt C. N. P. p. 99. in notes.

4 Ante, 80, 1.—Bayl. 19.

5 Smith v. M'Clure, 5 East. 477. The plaintiff declared on a bill payable to his own order, and averred that he delivered it to the defendant, to whom it was addressed, and who accepted it according

of bill to payee.

In general one contract not under seal cannot be Effect of delivery extinguished by another similar contract', and a mere promise to give time for the payment of a pre-existing debt, is not binding. But a person by taking a bill of exchange or promissory note, in satisfaction of a former debt, or of a debt created at the time, is precluded from afterwards waiving it, and suing the person who gave it him, for the original debt before the bill is due; for the taking of the bill amounts to an agreement to give the person delivering it credit for the length of time it has to run. And even on behalf of the crown an extent in aid cannot be issued against a person from whom the principal debtor has taken a bill which is not due. But where an action

to the usage and custom, &c. and by reason of the pre:nises, &c. the defendant became liable to pay. The defendant demurred specially, and assigned as cause, that it was not alleged that the defendant redelivered the bill to the plaintiff, Per curiam, the acceptance of the bill, which was admitted by the demurrer, and must be taken to be a perfect acceptance, vested a right in the drawer to sue upon it, and if, after such an acceptance, the acceptor improperly detained the bill in his hands, the drawer might nevertheless sue him on it, and give him notice to produce the bill, and on his default, give parol

evidence of it.

Story. Atkins, Ld. Raym. 1430.-Scott v. Surman, Willes, 406. Taylor . Wasteneys, 2 Stra. 1218.

2

De Symons v. Minchwick, 1 Esp. Rep. 430.

3 Stedman v. Gooch, 1 Esp. 3. Assumpsit for goods sold; defence that plaintiff had taken three promissory notes of Finlay; it appeared that these notes had been returned to the defendant before they were payable, and it was insisted, that the plaintiff having taken them in discharge of her debt for goods sold, could not maintain an action on her original debt until an actual default in the payment of these notes, as the notes might be paid when they became due, nor should the plaintiff be allowed to judge of the probable or improbable ability of the party to pay at a future day.

Lord Kenyon said, that the law was clear, and that if in payment of a debt, the creditor is content to take a bill or note payable at a future day, he cannot legally commence an action on his original debt, until such bill or note becomes payable, or default is made in the payment; but that if such bill or note is of no value, as if, for example, drawn on a person who has no effects of the drawer's in his hauds, and who therefore refuses it, in such case he may consider it as waste paper, and resort to his original demand, and sue the debtor on it.

The King v. Dawson, Wightwick 32. It was pleaded to an inquisition founded on an extent in aid, that the defendant had accepted a bill drawn upon him by J. C. (the original debtor) and which did ' not become due until after the inquisition was taken; the replication stated, that the bill was dishonoured, and that the original debtor te

of bill to payee.

Effect of delivery having been brought against the acceptor of a bill of exchange, it was agreed between the parties that the defendant should pay the costs, renew the bill, and give a warrant of attorney to secure the debt, and the defendant gave the warrant of attorney and renewed the bill, but did not pay the costs, it was held that the plaintiff might bring a fresh action on the first bill, while the second was outstanding in the hands of an indorsee'. And if the person delivering the bill knew that it was of no value, the holder, on discovering the fraud, will not be precluded from immediately suing such party on his original liability. We have already seen what conduct the holder may pursue, when a bill or note given in payment of a debt, is upon a wrong stamp. Where one of three joint covenantors gave a bill of exchange for part of a debt secured by the covenant, on which bill judgment was recovered, it was held that such judgment was no bar to an action of covenant against the three, such bill, though stated to have been given for the payment and in satisfaction of the debt, not being averred to have been accepted as satisfaction nor to have produced it in fact. And the taking a bill or note does not prejudice a prior specialty security, so as to preclude the party taking them from recovering interest payable on the specialty. And it

the crown, had been obliged to take it up; upon demurrer, that as the inquisition was executed before the bill became due, the bill could not, at that time, have been taken up by the said J. C. The court held, that as on the day of taking the inquisition, no action could have been maintained by J. C. against the defendant upon this bill of exchange, the interest in the bill at that time being in his indorsee, there was, in fact, at that time, no right of action against any person.

'Norris v. Aylett, 2 Campb. 329. Per Lord Ellenborough. There was to be no extinguishment of the bill, (until amongst other things) the costs were paid. If they had been paid this might have brought it within the case of Kearslake v. Morgan, but the agreement remaining unperformed on the part of the defendant, the plaintiff reserved to himself the power of rendering the bill available; this is like accord without satisfaction. Verdict for the plaintiff, on his delivering up the substituted bill to the defendant.

2 Stedman v. Gooch, 1 Esp. Rep. 5.-Anonymous, 12 Mod. 517. Puckford v. Maxwell, 6 T. R. 52.-Owenson v. Morse, 7 T. R. 64. * Ante, 75.

* Drake v. Mitchel, 3 East. 251.

5 Curtis v. Rush, 2 Ves. & B. 416.

has been held that a vendor does not waive his lien on Effect of delivery of bill to payee. the estate sold, by taking the promissory note or acceptance of the vendee, and receiving its amount by discount'. Bills, in lieu of which other bills were given, if permitted to remain with the holder, may be sued upon in case the latter bills are not paid. When an account for goods sold is settled, and the defendant gives a bill of exchange for the amount which remains unpaid, it has been holden that the defendant cannot, in an action on the consideration of such bill, go into evidence to impeach the charges in the first account which has been settled, the giving of the bill being conclusive evidence of the sum due 3.

The effect of taking a bill of exchange or promissory note in satisfaction of a precedent debt, is, that the creditor cannot proceed in an action for such debt, without shewing that he has used due diligence to obtain acceptance or payment; and also shewing if the

Ex parte Loaring, 2 Rose, 79. Grant . Mills, 2 Ves. & B. 306.

Ex parte Barclay, 7 Ves. jun. 597. Barclay was indorsce and holder of two bills drawn by Kemp upon Dearlow, and indorsed by Clay to Barclay; these bills were dishonoured, and Clay drew two other bills upon Sampson for the amount of the former bills, interest, and charges, and the former bills were permitted to remain with Barclay; one of the two last bills was paid by Sampson. Upon petition by Barclay to be allowed to prove these bills under a commission of bankrupt against Kemp, it was objected on the ground that the two latter bills were accepted in discharge of them. Lord Chancellor. If two bills are dishonored, and two others given" in lieu" of them, but the former allowed to stay in the hands of the holder, that fact will give a construction to the words "in lieu," and the meaning will be only in case they are paid. See also Bishop v. Rowe, 3 M. & S. 363. Knox . Whailey, 1 Esp. Rep. 159.-(Sed quæ. Trueman v. Hurst, 1 T. R. 40.-Chandler v. Dorsett, Finch Rep. 431. Vin. Ab. Partner, E. 2.) The defendant was indebted to the plaintiff £74, for clothes, &c. and gave him a bill of exchange for £84. and received the difference. The bill being dishonored, plaintiff brought his action on the bill and for a further sum for clothes furnished since the bill was given. At the trial the defendant was proceeding to impeach the plaintiff's charges contained in the first bill, which was objected to by the counsel for the plaintiff. Lord Kenyon ruled, that up to the time of the giving the bill of exchange, all matters must be considered as closed, and that the giving the bill must, to that effect, be taken as conclusive evidence of the sum due at that time.

Smith v. Wilson, Andr. 187. This was a special case for the opinion of the court. It appeared that the defendant being indebted to the plaintiff for goods sold, and money paid, had in part payment,