to order. 10thly, Payable ever, it be intended to be negotiable, care must be taken that the operative words of transfer, com 11thly, Sum pay able. monly used in bills, be inserted therein. If, however, they be omitted by mistake, it seems that if the bill was originally intended to be negotiable, the words "or order," may be inserted at any time without a fresh stamp. The modes of making a bill transferable, are by drawing it either payable to A. B. or order, or to A. B. or bearer, or to the drawer's own order, or to bearer generally. The use, operation, and effect of each of these forms of words, will be pointed out hereafter, in that part of the work which treats of the transfer of bills and checks.. (11)-The sum for which the bill is drawn, should be clearly expressed in the body of it, and, as it has been before observed, it may be advisable to write it in figures at the head, and in words at length in the body of the bill, in order the better to prevent alteration 3. But even in an indictment for forgery, an omission in the body of the bill has been aided by the superscription. Care should be taken that the stamp be appropriated to the sum. If the sum in the superscription of the bill be different from that in the body of it, the sum mentioned in the body will be taken, primá facie, to be the sum payable'. When there has been a contract by a third person, to guarantee a bill for a currier, £40, value received, in trust for Mrs. E. Thompson, as witncss my hand, L. Asken, 25th June, 1787." The defendant objected that this was not a promissory note within the statute, not being payable either to order or bearer. A verdict was taken for the defendant, with leave for plaintiff to move to set it aside and enter a verdict for him. Upon motion being made and cause shewn, the court held that a note payable to B. without adding “or to his order or to bearer," was a legal note within the act of parliament.—S. P. Burchell v. Slocock, Lord Raym. 1545.-Moore v. Paine, Rep. Temp. Hardw. 288. and see the Entries, Ewers v. Benchin, 1 Lutw. 231, 2. Manning v. Cary, id. 277.-Clift. 916. Beawes, pl. 3.-Selw. N. P. 303, n. 16.-Hill v. Lewis, Salk. 133. Kershaw v. Cox, 3 Esp. Rep. 246.-Knill v. Williams, 10 East. 435. 437.-Cole v. Parkin, 12 East. 471.-Post, alteration. 3 Poth. pl. 35. 99.-Master v. Miller, 4 T. R. 320.-Ante, 78. * Elliot's Case, 2 East. P. C. 951.-Ante, 78, n. 2. 5 Beawes, pl. 193.-Mar. 2d ed. 138, 9.-Elliot's Casc, 2 East. P. C. 951-Ante, 78, n. 2. able. given sum, the bill should be drawn accordingly, for 11thly, Sum payif it be drawn for a larger sum, the guarantee will not be liable even to the amount of the sum he engaged to secure '. With respect to foreign bills, there is no restriction as to the amount of the sum for which they may be made payable; but it is otherwise in regard to inland bills, and drafts, which are forbidden to be drawn for any sum under twenty shillings, by the statute 15 Geo. 3. c. 51. under the penalty of £20. words value TE ceived, (12)-It appears, that in France it was not only es- 12thly, Of the sential to the validity of a bill, that it should express whether or not value had been received, but likewise the nature of the consideration which constituted the value; but in this country it is otherwise, for value received is implied in every bill and indorseinent, as much as if expressed in totidem verbis; and though there are some old cases + on the question, whether indebitatus assumpsit would lie on a bill of exchange, in which it appears there was a distinction made between a bill importing to have been given for value received, and one not containing those words, and it was holden that in the first case the drawer was chargeable at common law, but in the latter on the custom only; yet it is now settled, that there is no such distinction, and that a bill need not contain the above words. However, to entitle the holder of an inland bill or note, for the payment of £20. or upwards, to recover interest and damages against the - Philips v. Astling, 2 Taunt. 206. - Poth. pl. 8. 34. 3 Per Lord Ellenborough, in Grant v. Da Costa, 3 M. & S.352.一 White v. Ledwick, B. R. H. 25 Geo. 3. Bayl. 16. note b. A declaration on a bill of exchange was demurred to, because it was not stated to have been given for value received, but the court said it was a settled point that it was not necessary, and gave judgment for the plaintiff.-Claxton v Swift, 2 Show. 496, 7.-Mackleod v. Snce, Lord Raym. 1481.-Josceline v. Lasscre, Fortes. 282.-Jenney v. Hearle, 8 Mod. 267.-Eveskyn v. Merry, 1 Barnard. 88.-Death v. Serwonters, Lutw. 889. accord.-Dawkes v. Lord de Lorane, 3 Wils. 212.-Banbury v. Lisset, 2 Stra. 1212. semb.contra.-2 Bla. Com. 468. Hodges v. Steward, Skin. 346.-Anonymous, 12 Mod. 345. Beawes, pl. 233.-Cramlington v. Evans, 1 Show. 5.-Vin. Ab. tit. Bills of Exchange, G. 2. 'Same cases as supra, note 3, 12thly, Of the words value received. tion necessary. drawer and indorser, in default of acceptance, or payment, it should contain the words, value received'. And if a bill or note contain those words, an action of debt may be sustained by the payee, against the maker of each. These are distinctions, which render it advisable in all cases, to insert these words. It is said to have been decided, that to aid a variance, the words may be inserted at the time of the trial 3. It has been considered, that when a bill of exchange is in this form, "Pay to F. G. B. or order £315, value received," and was subscribed by the drawer, it may be alleged in pleading to be a bill of exchange for value received by the drawer from the payee 4. Of the considera- It may be proper under this head to take a concise view of the consideration on which a bill of exchange may be originally founded, or which may pass between the indorser and indorsee, &c. on the transfer of it; and in making this inquiry, it will be advisable to consider, when the validity of the bill will be affected by asud o Want of conside ration, when material. 1st. The want of consideration.: 2dly. The illegality of it. It has already been observed, that in general, a contract not under seal, will be invalid, unless it be founded on a valuable consideration; and that it is 1 9 & 10 Wm. S. c. 17.-3 & 4 Ann, c. 9. s. 4. See Appendix, 2 Bul. Ni. Pri. 275. sed qu. * Grant v. Da Costa, 3 M. & S. 351. Per Lord Ellenborough. It appears to me that value received is capable of two interpretations, but the more natural one is, that the party who draws the bill should inform the drawee of a fact which he does not know, than one of which he must be well aware. The words "value received," are not at all material, they might be wholly omitted in the declaration, and there are several cases to that effect. The meaning of them here is, that the drawer informs the drawee that he draws upon him in favor of the payee, because he has received value of such payce. To tell him that he draws upon him because he the drawee has value in his hands, is to tell him nothing, therefore the first is the more probable interpretation. And per Bayley, J. the object of inserting the words value received, is to shew that it is not an accommodation bill, but made on a valuable consideration given for it by the payce. 5 Ante, 12, 13. As to the distinction between good and valuable considerations, sec 2 Bla. Com. 444–297. ration, when ma incumbent on the plaintiff, to state such consideration Want of considein his declaration, and to prove it on the trial, before terial. he can call on the defendant for his defence. But in the case of bills of exchange, or promissory notes, it is not necessary for the plaintiff to state any consideration in his declaration, or to prove it in the first instance on the trial'; unless where he brings an action as bearer of a bill transferable by delivery, and then only under suspicious circumstances, as where it has been made under duress, or lost, and the holder cannot give a reasonable account how he came by it, and has had due notice before the trial of the action, to prove the consideration which he gave for the instrument. And whenever the holder has given full value for the bill, before it was due, the defendant will not be at liberty to shew that he had received none, although the plaintiff knew that circumstance at the time he became the 'Crawley v. Crowther, 2 Freem. 257. Per Lord Chancellor. It is now held, and the practice is so, that if a man gives a note for money, payable on demand, he need not prove any consideration, and see Trials per Pais, 501.-Meredith v. Short, 1 Salk. 25.-2 Ld. Raym. 760. S. C.-2 Bla. Com. 446.-Selw. N. P. 4th ed. 304. Duncan . Scott, 1 Campb. Rep. 100. Indorsee against the drawer of a bill. It appeared that the defendant gave the bill while under duress abroad, and under a threat of personal violence and confiscation of his property, and that it was given without consideration. Lord Ellenborough held, that the defendant, not having been a free agent, when he drew the bill, it was incumbent on the plaintiff to give some evidence of consideration, and no such evidence being given, the plaintiff was nonsuited. It Grant T. Vaughan, 3 Burr. 1516. 1527. This was an action on a note payable to bearer, which had been lost, and came to plaintiff's hands for a valuable consideration. Lord Mansfield said it is but just and reasonable that if the bearer brings the action, he ought to entitle himself to it on a valuable consideration, and strictly to prove his coming by it bonâ fide, and see Hinton's case, 2 Show. 235. King v. Milson, 2 Campb. Rep. 5. Per Lord Ellenborough would greatly impair the credit and impede the circulation of negotiable instruments, if persons holding them could, without strong evidence of fraud, be compelled, by any prior holder, to disclose the manner in which they received them.-See also Sir John Lawson v. Weston, 4 Esp. N. P. C. 56.-Rees v. Marquis of Headfort, 2 Campb. Rep. 274. S. P. Pattison v. Hardacre, 4 Taunt. 114, in which it was decided, that where a bill had been lost, or fraudulently or feloniously obtained from the defendant, the holder, who sued, must prove that he came to the bill upon good consideration, but that the defendant would not be permitted to object to the want of such proof, unless he had given the plaintiff reasonable previous notice, that the plaintiff might come to trial prepared to prove his consideration. Want of conside holder, unless he also knew that the party, from whom he received it, was acting fraudulently'. ration, when ma terial. And though when a bill of exchange has been given for a particular purpose, and that be known to the party taking it, then he cannot apply it to a different purpose; where a bill is given under no such restriction, but merely for the accommodation of the drawer or payee, and sent into the world, it is no answer to an action brought on such bill, that the defendant accepted it for the accommodation of the drawer, and that that fact was known to the holder; and in such case the latter, if he gave a bonâ fide consideration for it, is entitled to recover the amount, though he had full know-ledge of the transaction. * Collins v. Martin, 1 Bos. & Pul. 651. Per Eyre, C. J. No evidence of want of consideration, or other ground, to impeach the apparent value received, was ever admitted in a case between an açceptor or drawer, and a third person holding the bill for value, and the rule is so strict that it will be presumed that he does hold for value until the contrary appcar; the onus probandi lies on the defendant. If it can be proved that the holder gave no value for the bill, then indeed he is in privity with the first holder, and will be affected by every thing which would affect such first holder. This all pro ceeds upon the argumentum ad hominem, it is saying you have the title, but you shall not be heard in a court of justice, to enforce it against good faith and conscience. For the purpose of rendering bills of exchange negotiable, the right of property in them passes with the bills. Every holder, with the bills, takes the property, and his title is stamped upon the bills themselves. The property and the possession are inseparable. This was necessary to make them negotiable, and in this respect they differ essentially from goods, in which the property and possession may be in different persons. Morris v. Lee, K. B. Hil. 26 Geo. 3. In an action by the indorsee against the maker of a note thirteen years old, the defendant obtained a rule nisi, to set aside a judgment by default, on an affidavit by a third person, that he believed the defendant was swindled out of the note; an affidavit was made on the other side, that the plaintiff took the note bonâ fide, and gave a valuable consideration for it, and the court held, that however improperly it might have been obtained, a third person who took it fairly, and gave a consideration for it, was entitled to recover, and discharged the rule; see this case cited in Anonymous, 1 Com. Rep. 43. aud Bayl. 233. Haly. Lane, 2 Atk. 182. "Where there is a negotiable note, and it comes into the hands of a third or fourth indorsce, though some of the former indorsees might not pay a valuable consideration, yet if the last indorsee gave money for it, it is a good note as to him, un'less there should be some fraud or equity against him appearing in the case. See also per Buller, J. in Lickbarrow and Mason, 2 T. R. 71.Poth. pl. 118. 121.-Selw. N. P. 4th edit. 304. Per Lord Eldon, in Smith . Knox, 8 Esp. Rep. 47-and see Charles v. Marsden, 1 Taunt. 224. and Popplewell . Wilson, 1 Stra. 264. |