Imágenes de páginas


3dly. Ex-has been obliged to pay the holder in consequence of the acceptor's refusal, frequently is put to other expenses by the return of the bill, such as re-exchange, postage, commission, and provision.



Re-ex- Re-exchange is the expense incurred by the bill being dishonoured in a foreign country in which it was payable, and returned to the country in which it was made or indorsed, and there taken up the [424] amount of it depends on the course of the exchange between the countries through which the bill has been negotiated." It is not necessary for the plaintiff to show that he has paid the re-exchange: it appears not to be decided, whether any exchange or re-exchange can be allowed between this and an enemy's country. It is said, that the relative abundance, or scarcity, of money in different countries, is what forms the exchange between those countries. In the drawing of bills on a foreign country, the value of money in that country is the first thing to be inquired into; thus, for instance, supposing 71,000 livres tournois are worth £603. 19s. 10d. English money sterling, and that an English merchant has sold goods of the value of £603. 19s. 10d. to a Frenchman, who wishes to pay him for the same by a bill of exchange payable in France, the bill must of course be drawn for 71,000 livres tournois: if at the time the bill is due, the exchange is in favour of France, and consequently the value of 71,000 livres tournois exceeds that of £603. 19s. 10d. English money, and the bill be returned to this country, and the drawer or an indorser, be called on to take it up, he may (as in the case of Mellish v. Simeon, ") be obliged to pay £309, 48, 5d. more than the amount of the bill, which sum forms what is called the re-exchange, and is the difference between the draft and re-draft. It appears that the drawer of a bill is liable for the whole amount of the re-exchange, occasioned by the circuitous mode of returning the bill through the various countries in which it has been negotiated, as much as for that occasioned by a direct return, although payment of the bill were expressly prohibited by the laws of the country on which it was drawn.

9 Auriol v. Thomas 2 T. R. 52.

Y Cullen, 172. 1 Montague's Bank.
Law, 146. For the nature of Exchange,
see Mont. Esp. L. b. 2. 1. 10. and Smith's
Wealth of Nations, 2d vol. 144. 213. 234.
and the observations in De Tastet v.
Bearing, 11 East, 269. Bayl. 159, 160.

De Tastet v. Bearing, 11 East, 265.
Cullen, 102. 172. 1 Montague, 146.
For the nature of Exchange, see Mont.

But the acceptor is not liable for

Esp. L. b. 2. 1. 10, and Smith's Wealth of Nations, 2d vol. 144. 234. And see observations in De Tastet v. Baring, 11 East, 269.

"Mellish v. Simeon, 2 Hen. Bla. 378. Vide note, ante, 106.

*Francis C. Rucker, Amb. 6742 Smith's Wealth of Nations, 228. y Ante, 106.

of a suit brought by an indorsee, to whom the payee indorsed it. Ibid. But where it is the custom to protest notes on non-payment, the costs of the protest are recoverable. Morgan v. Reintzel, 7 Cranch, 273. Where on the indorsement of a note, the consideration passing between the indorsee and his indorser, is not equal to the amount of the note, the indorsee in an action against the indorser, can only recover the consideration which he has already paid. Braman v. Hess, 13 John. Rep. 52.

The acceptor of a bill and the maker of a note are not liable to an indorser for the costs which he may have incurred in consequence of default of payment by them. Steele v. Sawyer, 2 M'Cord. 459.

The drawer of a note is not bound to refund to the indorser any costs which he may have paid in consequence of his indorsement when he paid off the note as soon as it be came due. Richardson v. Parnall, 1 M'Cord. 192.

The indorser of a sealed note is not liable as indorser, and if he suffer judgment to go against him he cannot recover the costs incurred from the drawer. Parks v. Drake, 2 M'Cord. 380.



re-exchange, for his contract cannot be carried farther than to pay the sum specified in the bill, together with legal interest, where interest is change. due. Where A. deposited a sum of money at the banking-house of B., in Paris, for which B. gave him his note payable in Paris, or at the choice of the bearer, at the Union Bank, in Dover, or at B's. usual residence in London, according to the course of exchange upon Paris, and after this note was given, the direct course of exchange between London and Paris ceased altogether, having been previously to its total cessation extremely low, and the note was at a subsequent period presented for acceptance, and payment at the residence of B., in London, [425] at which time there was a circuitous course of exchange on Paris, by way of Hamburgh, and it was holden, that A. was entitled to recover on the note according to such circuitous course of exchange upon Paris, at the time when the note was presented. Between this country and India, it is not customary to make a distinct charge of re-exchange; but it has been the constant course with respect to bills for payment of pagodas in the East Indies, and returned protested, to allow at the rate of 108. per pagoda, and five per cent. After the expiration of thirty days from the notice to the defendant of the bill's dishonour, which includes interest, exchange, and all other charges. It appears from the case of Francis v. Rucker, that the drawer and indorsers of bills, drawn in Pennsylvania on any person in Europe, and returned protested for non-payment to that country, are liable to the payment of £20 per cent. advance for the damage thereof. But the liability to pay re-exchange does not extend to the acceptor of a bill accepted in England: he is only liable for the principal sum, together with interest, according to the legal rate of interest where the bill is payable."

In De Tastet v. Baring, a verdict having passed for the defendants in an action to recover the amount of the re-exchange upon the dishonour of a bill drawn from London on Lisbon, upon evidence that the enemy was in possession of Portugal when the bill became due, and Lisbon was then blockaded by a British squadron, and there was in fact no direct exchange between Loudon and Lisbon, though bills had in some few instances been negotiated between them through Hamburgh and America about that period, the court refused to grant a new trial, on the presumption that the jury had found their verdict on the fact that no re-exchange was found to their satisfaction to have existed between Lisbon and London at the time; the question having been properly left to them to allow damages in the name of re-exchange, if the plaintiff, who had indorsed the dishonoured bill to the holder, had had either paid, or was liable to pay, re-exchange; and saving the question of law, whether any exchange or re-exchange could be allowed between this and a country in possession of the enemy.

With respect to provision, it is said by Pothier, f(544) that it is usual Provision,

Napier v. Schneider, 12 East, 420. Bayl. 160.

Pollard v. Herries, 3 Bos. & Pul. 335. Ante, 287; and see Bayl. 159, 160.

b Auriol v. Thomas, 2 T. R. 52. Bayl. 161.

Francis v. Rucker, Amb. 672.
Woolsley v. De Crawford, 2 Campb.
445. Napier v. Schneider, 12 East, 420; but
see Pothier, cited in Manning's Index, 64.
* 11 East, 265. 2 Campb. 65. S. C.
f Pl. 86, 87, 88.

(544) In Massachusetts, in actions on foreign bills against the drawer or indorser, the holder is entitled to recover the money for which the bill was drawn, the charges of protest with interest at six per cent. on these sums from the time when the bill should have been paid, and the further sum of ten per cent. of the money for which the bill was drawn,


Provision, for the holder of a bill to allow his agent, to whom he indorses it for the &c. purpose of receiving payment for him, a certain sum of money called [426] provision," at the rate of so much per cent. to recompense him, not

only for his trouble, but also, if such agent be a banker, for the risk he runs of losing the money, which he is obliged to deposit with his correspondents in different places for the purpose of re-paying his principal the amount of the money received on the bills. And it is said, that one half per cent. is not an unreasonable allowance, whether the agent be a banker or not.

The charges above enumerated, are the only legal ones, nor can any extraordinary loss not necessarily incidental, which the holder or other parties may be put to by travelling, or by some advantageous engagement being delayed or defeated by the want of punctual payment, be in any case legally demanded.

[ocr errors]

8 Lovelass, 235. cites Lex Merc. 461. 52. Woolsley v. De Crawford, 2 Campb. Poth. pl. 55. Auriol v. Thomas, 2 T. R. 445.

with interest from the time when payment of the dishonoured bill was demanded of the drawer. But nothing is allowed for re-exchange, the ten per cent. being by immemorial usage, a substitute for it. Grimshaw v. Bender, 6 Mass. Rep. 157. Barclay v. Minchin, 6 Mass. Rep. 162.

In Pennsylvania, twenty per cent. is allowed in lieu of damages and charges. Chap man v. Steinmetz, 1 Dall. Rep. 261. Keppele v. Carr, 4 Dall. Rep. 155. Hendricks v. Franklin, 4 John. Rep. 119. Statute of Pennsylvania, 1700. Purdon's Digest, 66. The same rule prevails in New York. Kenworthy v. Hopkins, 1 John. Cas. 107. Hendricks v. Franklin. Weldon v. Buck, 4 John. Rep. 144. Thompson v. Robertson, 4 John. Rep. 27. And the holder can recover no more than the contents of the foreign bill, and twenty per cent. damages, with interest, and charges of protest, at the par of exchange; and nothing is to be allowed for the difference between the price of the bill at the time it was returned, and at the time it was drawn. Hendricks v. Franklin. But in the Court of Errors of New York, this decision has been overruled by a bare majority, and it has been held, that the holder is entitled to recover the contents of the bill at the rate of exchange, or price of bills on the place in which it was drawn, at the time of the return of the dishonoured bill, and notice thereof to the drawer, together with twenty per cent. damages and interest. Graves v. Dash, 12 John. Rep. 17. And the twenty per cent. damages are payable upon a protest for non-acceptance, as well as for non-payment. Weldon v. Buck. But not where the bill is remitted to pay an antecedent debt. Kenworthy v. Hopkins, 1 John. Cas. 107. Thompson v. Robertson, S. P. Chapman v. Steinmetz, 1 Dall. Rep. 261.

In Rhode Island, the damages on foreign bills are settled at ten per cent. Brown v Van Braam, 3 Dall. Rep. 244. 346. Statutes of Rhode Island, p. 444. edit. 1798. In South Carolina, the damages on foreign bills are fifteen per cent., with the difference of exchange. Winthrop v. Pepoon, 1 Bay's Hep. 468. In Virginia, the damages on foreign bills are fifteen per cent. Slacum v. Pomeroy, 6 Cranch, 221.

And now in Pennsylvania, by an act of assembly passed the 30th March, 1821, the former act is repealed, and the damages recoverable on foreign bills of exchange, over and above the principal sum, charges of protest, and interest from the time of notice of protest and demand of principal and damages, are as follows: if drawn on persons in the United States, or territories thereof, (excepting the state of Louisiana,) five per cent. on the principal sum; on persons in Louisiana, or other place in North America, or the islands thereof, (excepting the north-west coast of Mexico,) or in any of the West India or Bahama islands, ten per cent; on persons in the island of Madeira, the Canaries, the Azores, the Cape de Verd islands, the Spanish Main, or Mexico, fifteen per cent.; on persons in Europe, or the islands thereof, twenty per cent.; on persons in any other part of the world, twenty-five per cent.



THE remedy by action of debt, to enforce payment of a bill or note, and the proof of it under the commission of bankruptcy, remain to be considered in this chapter.

bill or note.

The action of debt on simple contract was formerly much in use, but Sect. 1. Of was afterwards disused on account of the wager of law; it has lately the action * revived in practice, and is now become a common action for the reco- of debt on a very of money due on simple contract. The principal advantages arising from adopting this remedy are, first, that the plaintiff need not, after judgment by default, execute a writ of inquiry, or refer to the Master to compute principal and interest; and secondly, that the defendant must, in debt, on a bill of exchange, if there be no other count in the declaration on another simple contract, put in special bail on bringing a writ of error ; but bail în error is not necessary, on a judgment by default in debt, on a promissory note, the validity of which instrument was not established until after the statute James 1. c. 8. And if a declaration, in debt on a bill of exchange, contain any one count on a contract for which debt would not lie at the time of passing the statute 3 James 1 c. 8, bail in error is not necessary." Debt on simple contract, also, is not sustainable against exccutors or administrators, except in the Court of Exchequer, where wager of law is not allowed, or by special custom in the city of London.

[ocr errors]

This action may be supported by the payee of a promissory note against the maker, when expressed to be for value received, and by the payee of a foreign or inland bill of exchange expressed to be for value received against the drawer, and by the first indorsee against the first indorser, who was also the drawer of a bill payable to his own order.k In Bishop v. Young, (the most recent decision on the sub-[ 428 1 ject,) the court said, "We do not say how the case would stand, if the "action were brought by any other person than him to whom the note "was originally given, or against any other person than him by whom "it was signed and made, or if the note itself did not express a con"sideration upon the face of it." Therefore it is still uncertain, whether in respect of the want of privity between the parties, an indorsee can support an action of debt against the drawer of a bill or maker of a note.

a Gilb. on the Action of Debt, 363, 4. Ablet v. Ellis, 1 Bos. & Pul. 249. Trier v. Bridgman, 2 East, 359.

Trier v. Bridgman, 2 East, 359. d Webb v. Geddes, 1 Taunt. 540. Trier v. Bridgman, 2 East, 359.

Barry v. Robinson, 1 New Rep. 293. Norwood v. Read, Plowd. 182. Palmer v. Lawson, 1 Lev. 200. Pinchon's case, 9 Co. 86, 7. 3 Bla. Com. 347.

[blocks in formation]

of debt on a bill or note.

Sect. 1. Of Debt is not sustainable on a collateral engagement, as on a promise the action to pay the debt of another; and it has been holden, that debt cannot be supported on a bill of exchange by the payee against the acceptor;" therefore bail in error is not necessary upon a judgment in debt against the acceptor of a bill; first, because no privity of contract exists between those parties ; and secondly, because in an action of debt on simple contract, the consideration ought to be shown, which is not stated in a declaration on a bill, and an acceptance is only in the nature of a collateral promise or engagement to pay, which creates no duty. In Rumball v. Ball, the plaintiff recovered in an action of [429 debt on a promissory note, and in another reporter it is said, that debt will lie against the maker of a note, but not against an indorser. In Welsh v. Craig, it was holden, that debt would not lie upon a note, but, as it has been observed, it does not appear by, or against, what particular party that action was brought," though from the argument of counsel it may be inferred, that the action was against an indorser.' Debt is not sustainable on a promissory note payable by instalments, unless the whole be due, (547)

[ocr errors]


m Anon. Hardr. 486. Com. Dig. tit. Debt, B. Purslow v. Baily, 2 Ld. Raym. 1040. Hodsden v. Harridge, 2 Saund.

52 b.

[ocr errors]

Bishop v. Young, 2 Bos. & Pul. 80. 82, 83. Anon Hardr. 485. Simmonds v. Parminter, 1 Wils. 185. Browne v. London, 1 Mod. 285. Gilb. tit. Debt, 364. Com. Dig. tit. Debt, B. Anon. 12 Mod. 345. Bayl. 94. 1 Taunt. 540. 2 Campb. 197, n. a.

• Webb v. Geddes, 1 Taunt 540.

P Rol. Ab. 497, pl. 4. 10. Core's case, 1 Dyer, 21 a.

Bishop v. Young, 2 Bos. & Pul. 83. Hodges v. Steward, 1 Salk. 125, pl. 5. Vin. Ab. tit. Bills, N. But perhaps, the action of debt might now be sustainable by the payee, &c. against the acceptor, first, because with respect to privity of contract, it has been holden, that if one deliver money to another to pay over to a third person, the cestuique use may sus tain an action of debt against the bailee to recover it. Harris v. De Bervoir, Cro. Jac. 687. 1 Rol. Ab. 441. 597. 1. 55. Whorewood v. Shaw, Yelv. 23. And the acceptance of a bill amounts to a promise in law, to pay the amount of it to the person in whose favour it is drawn. Hussey v. Jacob, 1 Ld. Raym. 88. And se

condly, because an acceptance is not a collateral engagement, nor is it similar to a promise by A. to pay the debt of B., if B. do not, an argument which was ad duced in support of the doctrine, but the acceptor is primarily liable. Bishop t

Young, 2 Bos. & Pul. 83. And lastly, because whenever the common law or custom raises a duty, debt lies for it, Anon. Hardr. 486. Com. Dig. tit. Debt, A Hussey v. Jacob, Ld. Raym. 88, on which ground Twisden, J. held, that indebitatus assumpsit would lie on a bill of exchange at the suit of the payee against the accept or. Brown v. London, 1 Vent. 152 Anon. Holt, 296. Anon. 12 Mod. 345. Hodges v. Steward, Skin. 346. acc. Brown v. London, 1 Freem. 14. 1 Mod. 285. 1 Vent. 152. S. C. Hodges v. Steward, Comb. 204. contra.

Rumball v. Ball, 10 Mod. 38, ob served on in Bishop v. Young, 2 Bos. &

Pul. 84.

[blocks in formation]

(547) In Maryland debt will not lie on a note at the suit of a payee or his administrstors against the maker. Lindo v. Gardner, 1 Cranch, 343. In Virginia debt will pot lie against an acceptor of a bill, even in a suit by the payee. Smith v. Sagar, 3 Hen and Munf. Rep. 394. Wilson v. Crowdhill, 2 Munf. Rep. 302. But an action of debt lies by statute for the holder of a bill against the drawer and indorser in case of a default in payment. Slacum v. Pomeroy, 6 Cranch, 221.

An action of debt cannot be maintained on a note for the payment of a liquidated sum in current bank paper. Campbell v. Neister, 1 Litt. 30.

But debt lies by the drawer against the acceptor of a bill of exchange payable to the drawer or order for value received in goods. Priddey v. Henbrey, 1 Barn. & Cressw


« AnteriorContinuar »