Imágenes de páginas
PDF
EPUB

as to other

parties.

Effect or other competent parties. Therefore, if a husband indorse a note, by incapacity which his wife promised to pay him a sum of money as between him and the indorsee, it is certainly good, and as infancy is a personal privi[20]lege, of which the infant alone can avail himself; the drawer or acceptor of a bill, cannot set up the infancy of the indorser as a defence to the action, and it is reported to have been decided, that where a bill drawn and indorsed by an infant to a third person, who indorsed the same to the plaintiff, had been misappropriated by the first indorsee, in fraud of such drawers, and they had therefore demanded the bill from the plaintiff, that circumstance afforded no defence in an action against the acceptors, because it would materially injure the circulation of bills, if such facts were to be inquired into." (26)

ties, and

Sect. 2. Of Bills of exchange differ from most other contracts in the circumstance the number of there being frequently more than two parties to them: a bill has, inof the par deed, previously to its being transferred, generally three parties, nameby ly, the person making it, who is called the drawer, the person to whom which they it is directed, who before acceptance is called the drawee, and afterbewards, the acceptor, and the person, in whose favour it is made, who is come such. called the payee. It is not, however, necessary that there should be

mode

may

three parties to a bill; there are sometimes only two; as where a person draws a bill on another, payable to his own order; and, indeed, a bill will be valid where there is only one party to it, for a man may draw on himself payable to his own order. In such case it is said, that the [ 21 ]instrument, in legal operation, is rather a note than a bill; however, in practice, it is usual to declare upon the instrument as if it were a bill, not admitting the identity of the drawer and drawee, and if accepted, the defendant may be charged in one count as the drawer, and in another as acceptor, and in a third as the maker of a promissory

182.

t

Poth. pl. 29. Haly v. Lane, 2 Atk.

Haly v. Lane, 2 Atk. 181.

Haly v. Lane, 2 Atk. 182. and see the general principle, Holt v. Clarencieux, 2 Stra. 937. Warwick v. Bruce, 2 M. & S. 205. 6 Taunt. 118. But in Jeune v. Ward, 2 Stark. 330, such a defence was permitted. Taylor v. Croker, 4 Esp. Rep. 187, sed quære.

* Ex parte Parr, 18 Ves. 69. Per Lord Eldon, "It is said by the counsel, that the house at Liverpool was partner with the other house at Demerara; but it has been established above thirty years, that the same persons may be both drawers and acceptors, as constituting different firms."

Starke v. Cheesman, Carth. 509. Christopher Cheesman, being in Virginia, drew a bill on Christopher Cheesman in Ratcliffe, London, which in truth, was upon himself, and the plaintiff declared, that defendant drew a bill payable after sight, and directed the same to Christopher Cheesman in Ratcliffe, and then averred that the drawee was not found, and thereupon the bill was protested, and the defendant, as drawer,

became chargeable. The defendant suffered judgment by default, and moved in arrest of judgment; but made no objection, on the ground that the bill was drawn by the drawer upon himself, though other objections were taken, and the plaintiff had judgment.

Dehers . Harriot, 1 Show. 163. A. drew a bill payable by himself in Dublin, an action was afterwards brought thereon; and no objection being taken on this account, plaintiff recovered.

Robinson v. Bland, Burr. 1077. The defendant being at Paris, drew a bill on himself in London; the consideration was partly for money lost at play in Paris, and partly money lent at the time and place of play, and upon that ground, a case was reserved for the opinion of the Court; but no objection was made that the defendant drew the bill upon himself.

Jocelyn v. Laserre, Fort. 282. Per Eyre, J. It is not necessary to have three persons to make a good bill of exchange. A man may draw a bill upon himself. y Bayl. 21.

2 See cases in note, ante, p. 20.

(26) Though a note given by an infant be void as against him, yet it will be good against an indorser. Ensign v. Woodhouse, 4 Esp. Rep. Davy's Note (1.)

the питber, &c. of

note. And an instrument in the common form of a bill of exchange, ex- Sect. 2. Of cept that the word at is substituted for to, before the name of the drawees, may be declared on as a bill of exchange, and if refused acceptance, the parties. the drawer may immediately be sued, or, as it seems, it might be declared on as a promissory note, after it is due. So though husband and wife are in legal consideration one person, and though a note given [ 22 ] by a married woman to her husband is void, yet if he indorse it over to a third person as between the husband and the indorsee, the note is certainly good. Various inconveniences, however, may arise from the some person becoming a party to a bill or note in different capacities, viz. as drawer, and also as second indorser, &c.

[blocks in formation]

The word at was in very small letters, enclosed in the hook of the following S. This instrument was drawn in Yorkshire, and being remitted to the plaintiff, who was an attorney in London, he presented it for acceptance to Perring and Co., and as they refused to accept it, he immediately gave notice of its dishonour to the defendant, and commenced an action against him. The question was, whether the plaintiff had a right to treat this instrument as a bill of exchange. Gibbs, C. J., upon the authority of the above,

case, I should not have hesitated to de-
cide, that in point of law this instrument
is a bill of exchange, had the word at
been distinctly written before the names
of the drawees; but I shall leave it to the
Jury, whether the word "at" from the
manner in which it was written, was not
inserted for the purpose of deception, and
then the instrument is a bill of exchange
in point of fact. The at being struck out,
it is in the common form in which bills of
exchange are drawn. The defendant
says, Two Months after date, pay to;"
this is not a promise to pay; but a re-
quest to third persons to pay. I cannot
receive evidence of the manner in which
such instruments are considered in York-
shire. The defendant, in contemplation
of law, issued it in London, where the
plaintiff received it; he took it to be a
bill of exchange, as almost any other
person in London would have done.
can see no motive for drawing an instru-
ment in this form, except to deceive the
public. If such instruments have been
common in the country, they ought not to
be continued or endured. The plaintiff
did well in immediately commencing the
action, when Perring and Co. refused to
accept the bill. The Jury found the inser-
tion of the "at" to be fraudulent, and the
plaintiff recovered.

I

b Per Ld. Hardwicke, in Haly v. Lane, 2 Atk. 181.

[ocr errors]

Mainwaring v. Newman, 2 Bos. & Pul. 120. Bishop v. Hayward, 4 T. R. 470. Porthouse v. Parker and others, 1 Campb. 82. Ex parte Parr, 18 Ves. 65. Davison v. Robertson, 3 Dow. 229, 230. As to fictitious bills, see post.

Bishop v. Hayward, 4 T. R. 470, was a declaration on a promissory note, stated to have been made by one Collings, payable to plaintiff, or order, and afterwards indorsed by him to defendant, who reindorsed it to plaintiff. The court, upon motion, arrested the judgment; and Per Buller, J., the consequence of supporting this judgment would be, that the plaintiff, without having any real demand on defendant, might recover against him, by the judgment of the court, without allowing the defendant a possibility of defending himself.

the

ber, &c. of

Sect. 2. Of It is by transfer of a bill of exchange from one person to another, num when it is negotiable, that the parties may become numerous; in which case if the transfer be by indorsement, the person making it is called the indorser; the person in whose favour the transfer is made, the indorsee; and in all cases, the person in possession of the bill is called the holder.

the parties.

Mode

a party.

The drawer, acceptor, indorser, and holder, are the principal, and immediate parties to the instrument; but besides them, a person may become a party to it in a collateral way; as where the drawee refuses to accept, any third party, after protest for non-acceptance, may accept for the honour of the bill, generally, or of the drawer, or of any particular indorser, in which case the acceptance is called an acceptance supra protest, and the person making it is styled the acceptor for the honour of the person on whose account he comes forward; and he acquires certain rights, and subjects himself to nearly the same obligations, as if the bill had been directed to him. A person may also become party to the instrument by paying it supra protest, either for the honour of the drawer or indorsers. The right and obligations, attached to this collateral mode of becoming party to a bill, will be spoken of hereafter.

of With respect to the mode of becoming party to any one of these inbecoming struments, it is a general rule, that no person can be considered as a party to a bill, unless his name, or the name of the firm of which he is a partner, appear on some part of it; however, a person may be[ 23 ]come drawer, indorser, or acceptor, not only by his own immediate act, but also by that of his agent or partner.

By act of agent.

It is a general rule of law, that whenever a person has a power, as owner, to do a thing, he may consequently, as incident to his right, do it by attorney or agent. Hence it is clear, that a person may draw, accept, or indorse a bill by his agent, as well as by himself. In these cases, he is said to draw, accept, and indorse by procuration." As this agency is a mere ministerial office, infants, feme coverts, persons attainted, outlawed, excommunicated, aliens, and others, though incapable of contracting on their own account, so as to bind themselves, may be agents for these purposes. i

With respect to the manner of their appointment, it is said that there ought to be a formal power of attorney; but this is by no means necessary; for the authority which an agent has, to draw, indorse, and accept bills, in the name of his principal, may be, and indeed most usually is, by parol.1

As to the extent of the agent's authority, if a person be appointed a general agent, as in the case of a factor for a merchant residing

[blocks in formation]

abroad, the principal is bound by all his acts; but an agent, constituted By act of so for a particular purpose, and under a limited and circumscribed power, agent. cannot bind the principal by any act exceeding his authority. Therefore, where A. desired B. to get a bill discounted for him, but declared that he would not indorse, it was decided, that no representation of B. could bind A. as an indorser, though it was insisted, that what B. had done, was within the scope of his employment, which was to raise money on the bill, and that a subsequent promise to pay was inoperative. It appearing, however on a second trial, that A. did not declare that he would not indorse it, it was adjudged, that as he had authorized B. to get the bill discounted, without restraining his authority, as to the mode of doing it, he was bound by his acts.

Upon the question what is a general authority, it has been decided, [ 24 ] that a person signing his name on a blank stamped piece of paper, and delivering it to I. S. authorizes I. S. to insert any sum which the amount of the stamp will warrant."(32) It has also been held, that a letter of

Jackson, 7 T. R. 209. The king v. Bigg, 3 P. Wms. 432. Bac. Abr. Corporations, E. 3. Bayi. 226. Payley Prin. & Agent, 117. and see 3 & 4 Anne, c. 9.

m Per Buller, J. in Fenn, v. Harrison, 3 T. R. 757. East India Company v. Hensley, 1 Esp. Rep. 111.

Dissentè Kenyon, C. J.

• Fenn v. Harrison, 3 T. R. 757. 4 T. R. 177. The defendants employed F. H. to get a bill discounted, but said that they would not indorse it; F. H. employed his brother J. H. and said he would indemnify him if he would indorse it. J. H. indorsed it, and the plaintiffs discounted it. The bill being dishonoured, the plaintiffs applied to the defendants, who promised to take it up, but did not, and this action for money had and received, and money paid, was brought against them. Lord Kenyon told the jury, that if they thought that J. H. had made himself answerable as the agent of the defendants, that was sufficient consideration for their promise. A verdict was found for the plaintiffs, and on a rule nisi for a new trial and cause shown, Lord Kenyon inclined to think the verdict right, because, though the agent had exceeded his authority, he thought the principal bound by what he did, but the other Judges differed, because F. H. was a particular agent only, and the rule was made absolute. On the next trial it did not appear that the defendants had told F. H. that they would not indorse the bill, a verdict was found for the plaintiffs; and on a rule nisi

for a new trial, and cause shown, the
whole court thought the verdict right;
because, as F. H. was not restrained as
to the mode of getting the bill discounted,
the defendants were bound by his acts;
but Buller and Grose, Justices, said, that
if the facts had been the same, they
should have continued of their former
opinion. Rule discharged. See obser-
vations on this case, Bayl. 168, 9. Payley
Prin. & Agent, 124, 5. 138. 146.
also Helyear v. Hawke, 5 Esp. 75. Alex-
ander v. Gibson, 2 Campb. 555.

See

P Collis v. Emmet, 1 Hen. Bla. 313. Emmet signed his name on a blank paper, stamped with a shilling bill stamp (the highest stamp then in force for bills,) and delivered it to Livesay and Co. that they might draw such bill thereon as they should please; they drew one for 1551l. at three months date, which was duly transferred to Collis and Co., and Collis and Co. sued Emmet thereon. A special verdict was found, principally with a view to another point, and the court held Emmet answerable, and the plaintiffs had judgment.

Russel v. Langstaffe, Dougl. 496, 514. The defendant, to accomodate one Galley, indorsed his name on five copper-plate checks, made in the form of promissory notes, but in blanks, without any sums, dates, or times of payment being mentioned therein, and delivered them to Galley; Galley filled them up as he thought fit, and the plaintiff discounted them; the plaintiff knew the notes were blank at the time of the indorsement; Galley not paying them

(32) A blank indorsement on a blank piece of paper, with intent to give a person a credit, is, in effect, a letter of credit; and if a promissory note be afterwards written on the paper, it binds the indorser. Violett v. Patton, 5 Cranch. Rep. 142. Where the defendants left their names indorsed in blank on papers, with their clerk, for the purpose of having notes of a certain description written thereon, and third person obtained those papers by false pretences, and wrote notes thereon, signed by himself as promissor to the indorser, and passed them to a third person, who had no notice of the facts, the defendants were held as indorsers. Putnam v. Sullivan, 4 Mass. Rep. 45.

agent.

By act of attorney, given by an executor to A. B. authorizing him to transact the affairs of the testator, in the name of the executor, as executor, and to pay, discharge, and satisfy all debts due from the testator, conveys to A. B. a sufficient authority to accept a bill of exchange in the name of the executor, drawn by a creditor for the amount of a debt due from the testator, and thereby to make the executor personally liable, on the ground that an authority of this nature necessarily includes all inter[ 25 ]mediate powers, that is to say, all the means necessary to be used in order to effect the accomplishment of the object of the principal, namely, the paying, satisfying, and discharging the testator's debts. Butin another case which was upon the same letter of attorney, the court, after consulting with the Judges of C. P., determined that the executor was not personally liable, and that a power of attorney, given by an executrix, to act for her as an executrix, does not authorize the attorney to accept bills to charge her in her own right, though for debts due from her testator. So in a late case it was decided, that where one gives a power of attorney to another, to demand and receive all moneys due to him, on any account whatsoever, and to use all means for the recovery thereof, and to appoint attorneys for the purpose of bringing actions, and to revoke the same, and to do all other business;" the latter words must be understood with reference to the former, as meaning all business appertaining thereto; and although the attorney may receive moneys due to the principal in auter droit, yet he cannot under this power indorse a bill for him, which comes to his hands. It has also been held, that a power of attorney to receive all salaries and money, with all the principal's authority to recover, compound, and discharge, and to give releases and appoint substitutes, does not authorize the attorney to negotiate bills received in payment, nor to indorse them in his own name; nor can evidence of a usage at the navy office, to pay bills, indorsed by the attorney in his own name, and negotiated by him, under such a power, be received to enlarge the operation of the

power.

An authority may also be implied and inferred from prior conduct of the principal, for a special authority is not necessary to constitute a power to draw, indorse, or accept by procuration, but the law may infer an authority from the general nature of certain acts permitted to be done, and usual employ is evidence of a general authority; and therefore, if a person has, upon a former occasion, in the principal's absence, usually accepted bills for him, and the latter on his return, approved thereof, he would be bound in a similar situation on a second absence from home; and if a drawee of a bill has previously paid

when they became due, plaintiff brought
this action. Hotham, B., before whom the
cause was tried, was of opinion, that as
the notes were incomplete when the de-
fendant indorsed them, no subsequent act of
Galley could make them otherwise, because
that would alter the effect of the defendant's
indorsement, and he accordingly directed a
verdict for the defendant; but upon appli-
cation for a new trial and cause shown,
Lord Mansfield said, "Nothing is so clear
as that the indgrsement on a blank note is
a letter of credit for an indefinite sum; the
defendant said, trust Galley to any amount
and I will be his surety;' it does not lie in
his mouth to say the indorsements were not

[blocks in formation]
« AnteriorContinuar »