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7thly & fourth not paid. " Each of the parts, when drawn in Great Britain, must be stamped. Where a bill consists of several parts, each ought to be delivered to the payee, unless one be forwarded to the drawee for acceptance, otherwise there may be difficulties in negotiating the bill, or obtaining payment. The forgery of an indorsement of the payee on one of the parts, will not pass any interest, even to a bona fide holder, and the real payee may sustain an action on the other part.

9thly, To (9)-A bill of exchange and promissory note must specify to whom it whom pay-is to be paid, for it is said that otherwise it will be merely, waste paper;" and therefore it has been recently decided, that a note payable to A.or [63]to B. and C. is not a valid promissory note, and cannot be sued upon as

able.

such by one of the payees; but Pothier observes, that if the drawer have omitted to mention any person to whom the bill is to be paid, declaring in the bill, however, from whom he has received the value, it is but reasonable to construe the instrument to be payable to that person. And it is now settled, that if a bill of exchange be drawn and negotiated, and a blank left for the name of the payee, a bona fide holder may fill it up with his own name, and recover against the drawer.1 But in an action against the acceptor, the holder must prove an authority from the drawer for inserting his name as payee." Care also should be taken that the name be properly spelled, though, if there be a mistake, parol evidence is admissible to show who was intended." Where there are two persons of the same name, it is advisable to describe the payee in such a manner that no mistake can arise ; and if there be father and son of the same names, and it be intended to be payable to the son, he must be so described, because, if the Christian and surname only be stated, it will be intended for the father until the contrary appear.»

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1 Cruchley v. Clarence, 2 M. & S. 90. An action against the defendant as drawer of a bill of exchange, the bill had been drawn on one Henry Mann, and a blank left for the name of the payee; the bill had been negotiated by one Vashon, and indorsed to the plaintiff, who filled up the blank with his own name, and upon the trial, a verdict was found for the plaintiff; the court afterwards refused to set aside the verdict, and observed, that as the defendant had chosen to send the bill into the world in this form, the world ought not to be deceived by his acts, and that by leaving the blank, he undertook to be answerable for it when filled up in the shape of a bill; see also Usher v. Dauncey, 4 Camp. 97. and see Powell v. Duff, 3 Campb. 182. The issuing of a bill with a blank for the payee's name was expressly prohibited in France, see post, p. 64. n. Crutchley v. Mann, 1 Marsh. 31-5

Taunt. 529. S. C. This was an action on a bill of exchange drawn by one A. C. in Jamaica, upon the defendant in London, with the name of the payee left in blank; the drawer delivered it to the person from whom the plaintiff received it, and plaintiff inserted his own name as payee. The bill was not accepted, but the plaintiff produced a letter from the defendant, which he contended amounted to an acceptance. The Chief Justice left the case to the jury, who found for the plaintiff, reserving two points for the opinion of the court; first, as to the stamp, and secondly, whether there was sufficient evidence that the plaintiff had authority to insert his name, or that the bill was that to which the letter alluded. A rule nisi having been obtained, and cause shown, the court held, that the plaintiff ought to have proved that he was authorized to insert his name as payee; if he were to recover, as the case then stood, they did not know how the defendant could charge the drawer with the value of the bill, as he might say it was not the instrument which he delivered to the person from whom the plaintiff received it; see the preceding note.

"Beawes, pl. 3. Willis v. Barrett, 2 Stark. 29.

° Mead v. Young, 4 T. R. 28. PSweeting v. Fowler and another, 1Stark. 106.

However, a misdescription of the character of the payee will not vitiate, 9thly, To provided it can, from the whole instrument, be collected who was the whom payparty intended. Bills under £5 are, by the statute 17 Geo. 3. c. 30. to express the names and places of abode of the persons respectively to whom or to whose order the same shall be payable.

A bill may be drawn payable to bearer, and in such case it will be transferrable by delivery; and a bill or note payable to J. S. or bearer, is, in legal effect, payable to the bearer, and J. S. is a mere cypher." In France, bills of this description were at first forbidden, but by a subsequent law they were established. In that country, it appears that it was formerly usual to make bills payable to a person whose name was left in blank, in order that the holder of the bill, when he was desirous of not being known, might fill it up with any name he chose; but as these bills were employed as a cloak for usury and fraud, they were afterwards prohibited. These bills seem to have been in the nature of those payable to a fictitious payee, the validity of which has been so frequently and fully discussed of late in our courts of justice; the result of which discussion seem to be, that a bill payable to a fictitious person or his order, is in effect, a bill payable to bearer, and may be declared on as such against all the parties, knowing that the payee was a fictitious person. The use of these fictitious names has been

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The King v. Box, 6 Taunt. 325.
Grant v. Vaughan, 3 Burr. 1526.—
Bayl. 15.
• Id. ibid.

• Poth. pl. 221.

• Arrets de Reglements de la Cour du 7 Juin. 1611, et du Mars, 1624. and see Pardessus droit Commercial, 1 tom. 358.

Ex parte The Royal Burgh of Scotland, 19 Ves. 311, 12. 2 Rose Bank. Cas. 201. Almost all the modern cases upon this question arose out of the bankruptcy of Livesay and Co. and Gibson and Co. who negotiated bills with fictitious names upon them, to the amount of nearly a million sterling a year The first case was Tatlock v. Harris, 2 T. R. 174. in which the court of K. B. held, that the bona fide holder for a valuable consideration of a bill drawn payable to a fictitious person, and indorsed in that name by the drawer, might recover the amount of it in an action against the acceptor, for money paid or money had and received; upon the idea, that there was an appropriation of so much money to be paid to the person who should become the holder of the bill. In Vere v. Lewis, 3 T. R. 182, decided the same day, the court held, there was no occasion to prove that the defendant had received any value for the bill, as the mere circumstance of his acceptance was sufficient evidence of this; and three of the Judges thought the plaintiff might recover on a count which stated that the bill was drawn payable to bearer. Minet t. Gibson, 3 T. R. 481, put this point directly in issue, and the unanimous opinion of the court was, that where the circumstance of the payee being a fictitious person, is known to the acceptor,

the bill is, in effect, payable to bearer.
Soon after, the court of C. P. laid down
the same doctrine in Collis v. Emmet,
1 Hen. Bla. 413. The decision was ac-
quiesced in; but Minet v. Gibson was
carried up to the House of Lords, 1 Hen.
Bla. 569. The opinions of the Judges
being then given, Eyre, C. B. (p. 598.) and
Heath, J. (p. 619.) were for reversing the
judgment of the court below, and Lord
Thurlow C. coincided with them (p. 625.)
but the other Judges thinking otherwise,
judgment was affirmed. Parl. Cas. 8vo.
ii. 48. The last case upon the subject
reported is Gibson v. Hunter, 2 Hen. Bla.
187, 288. which came before the House of
Peers upon a demurrer to evidence; and
in which it was held, that in an action on
a bill of this sort against the acceptor, to
show that he was aware of the payee
being fictitious, evidence is admissible of
the circumstances under which he had
accepted other bills payable to fictitious
persons. Vide also Tufts's case, Leach
Cro. Law, 172. but in Bennett v. Farnell,
(1 Campb. Ni. Pri. 130.) Lord Ellenbo
rough, C. J. held, that a bill of exchange
made payable to a fictitious person or his
order, is neither in effect payable to the
order of the drawer, nor to bearer, but
is completely void; though if money paid
by the holder of such a bill as the con-
sideration for its being indorsed to him,
actually gets into the hands of the ac-
ceptor, it may be recovered back as
money had and received. However,
from a subsequent observation (1 Campb.
180 c.) it appears that the last case is to
be taken with this qualification "unless
it can be shown that the circumstance of
the payee being a fictitious person was

able.

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9thly, To highly censured, and the person fraudulently indorsing the fictitious name whom pay-on the bill, to give it currency, would be guilty of forgery.

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As it is not necessary or essential to the validity of a bill of exchange that there should be three parties to it, a bill may be drawn payable to the drawer himself, though in such case it is said to be more in the nature of a promissory note. A bill may also be payable to one for the use of another; when drawn payable to a married woman, it is payable to the husband, and transferrable only in his name.

10thly, Pay (10)-As the commercial advantage to be derived from the negotiable to or- able quality of bills of exchange, was the only reason why our courts allowed in their favour an exception to the rule relative to the assignment of choses in action, it was once thought, that unless they possessed that quality, they would have no greater effect than that of being mere evidence of a contract. But it is now well established, that it is not essential to the validity of a bill, as an instrument, that it be transferrable from one person to another." 4 (86) If, however, it be in

known to the acceptor." A new trial
was refused in this case, because no such
evidence had been offered at Nisi Prius,
and Lord Ellenborough said, he conceived
himself bound by Minet v. Gibson, and
the other cases upon this subject, which
had been carried up to the House of
Lords (though by no means disposed to
give them any extension,) and that if it
had appeared that the defendant knew
the payee to be a fictitious person, he
should have directed the jury to find
for the plaintiff. See also Ex parte Allen,
Co. B. L. 184. Ex parte Clarke, 3 Bro.
238. Parl. Cas. 8vo. 9th vol. 235. 255.
Cullen, 98. 1 Mont. B. L. 145.-Bayl. 22
to 24. Selw. N. P. 4th ed. 303.

y The King v. Edward Tuft, Leach
Cro. Law, 172. The King v. Taylor, id.
257, and note a. Tatloch v. Harris, 3 T.
R. 174. Vere v. Lewis, id. 182.-Minet
v. Gibson, id. 482. Collis v. Emmett,
Hen. Bla. 313. Gibson v. Minet, id. ibid.
569. 2 East's P. C. 957.

Rex v. Edward Tuft, Leach Cro. Law, 172. The prisoner was indicted for forging an indorsement on a bill of exchange, and found guilty, but the Judge before whom he was tried, submitted the case to the consideration of the Judges, upon the following statement:-The bill was drawn payable to Messrs R. & M. and indorsed by them generally, and became the property of one W. W. from whom it had been stolen; the prisoner, for the purpose of getting it discounted, indorsed on it the name of John Williams.

The Judges were unanimously of opinion that this was a forgery, for, although the fictitious signature was not necessary to his obtaining the money, yet it was a fraud both on the owner of the bill and the person who discounted it, and referred to Rex v. Locket, where it was holden, that the forging a name, either real or fictitious, with an intent to defraud, was forgery; but see The King ". Inhabitants of Burton-upon-Trent, 3 M. & S. 523, where Lord Ellenborough said, if a party sign an instrument in a name assumed by him for other purposes, a considerable time before, such signature will not amount to a forgery, but other wise, if he assume a name by which he had never been known before, for the purposes of fraud.

2 Butler v. Crips, 1 Salk. 130. and v. Ormston, 10 Mod. 286. Bayl.

22. Ante, 20.

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(86) The same principle has been recognized in the United States, Downing v. Backenstoes, 3 Caines' Rep. 137. Goshen Turnpike Co. v. Hurtin, 9 John. Rep. 217.

As between indorser and indorsee a note not negotiable is, in Massachusetts, treated exactly as if negotiable. Jones v. Fales, 4 Mass. Rep. 245.

If the payee of a note payable to himself or bearer indorse it, he will be liable as indorser. Bush v. Adm. of Reeves, 3 John. Rep. 439.

And it has been held that the contract made by indorsement extends to all future in

der.

tended to be negotiable, care must be taken that the operative words of 10thly, Paytransfer, commonly used in bills, be inserted therein; though if they able to or 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 transferrable, 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 ex- 11thly,Sum pressed in the body of it, and, as it has been before observed, it payable. 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. 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, prima facie, to be the sum payable. The sum must be fixed and certain, and not contingent. When there has been a contract by a third person, to guarantee a bill for a given sum, the bill should be drawn accordingly, for if it be drawn for a larger [67] 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 with 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.

(12)-It appears, that in France, it was not only essential to the validi- 12thly, Of ty of a bill, that it should express whether or not value had been recei- the words ved, but likewise the nature of the consideration which constituted the value receivalue; but in this country it is otherwise, for value received is implied in every bill and indorsement, as much as if expressed in totidem

after date, I promise to pay to Mr. Smith currier, 401., value received, in trust for Mrs. E. Thompson, as witness 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 shown, 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. Man-
ning v. Cary, id. 274. Clift. 916.

с

Beawes, pl. 3. Selw. N. P. 3903, n. 16.
Hill v. Lewis, Salk. 133.

Kershaw v. Cox, 3 Esp. Rep. 246.
Knill Williams, 10 East, 435 437. Cole
v. Parkin, 12 East, 471. Post, alteration.
& Poth. pl. 35. 99. Master v. Miller,
4 T. R. 323 Ante, 60.

h Elliot's case, 2 East P. C. 951. Ante,
60, note.

Beawes, pl. 193. Mar. 2d. ed. 138, 9.
Elliot's case, 2 East P. C. 951. Ante, 60
* Smith v. Nightingale, 2 Stark. 375.
Ante, 45.

1 Phillips v. Astling, 2 Taunt. 206.
Poth. pl. 8. 34.

dorsees, even where the notes are not originally negotiable; and an action lies in favour of an indorsee against a remote indorser. Codwise v. Gleason, 3 Day's Rep 12.

A bank note payable to W. Pitt, or bearer, is in effect payable to the bearer; as between any bona fide holder, and the Bank, such holder is to be deemed the Bearer to whom the Bank is originally liable. Bullard v. Bell, 1 Mason's Rep. 252.

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12thly, Of verbis," and though there are some old cases on the question, wheththe words er 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 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. (88) 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." But in a [68] subsequent case, where a bill was drawn by I. S., payable to his own order, "value received," it was held that this must mean value received by the drawee, and it was alleged in the declaration to be for value received by the said I. S., it was adjudged to be a fatal variance, though the plaintiff was permitted to recover on the account stated.

Of

the

It may be proper under this head to take a concise view of the conconsidera- sideration on which a bill of exchange may be originally founded, or

tion necessary.

"Per Lord Ellenborough, in Grant v. Da Costa, 3 M. & S. 352. White v. Ledwick, B. R., H. 25 Geo. 3. Bayl. 16, note b. A declaration on a bill of exchange 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 neces sary, and gave judgment for the plaintiff. Claxton v. Swift, 2 Show. 496, 7. Mackleod v. Snee, Ld. Raym. 1481. Josceline v. Lassere, Fortes. 282. Jenney v. Hearle, 8 Mod. 267. Eveskyn v. Merry, 1 Barn. 88. Death v. Serwonters, Lutw. 889. acc. Dawkes v. Lord de Loraine, 3 Wils. 212. Banbury v. Lisset, 2 Stra. 1212. semb. contra. 2 Bla. Com. 468.

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Hodges v. Steward, Skin. 346. Ano-
nymous, 12 Mod. 345.

P Beawes, pl. 233. Cramlington v.
Evans, 1 Show. 5. Vin. Ab. tit. Bills of
Exchange, G. 2.

1 Same cases as supra, note.*

9 & 10 Wm. 3. c. 17. 3 & 4 Ann. c. 9.

9. 4 See Appendix.

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Bishop v. Young, 2 Bos. & Pul. 78. 81.
Bul. Ni. Pri. 275. sed quære.

"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 favour of the payee, because he has received value of such payee. 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 show that it is not an accommodation bill, but made on a valuable consideration given for it by the payee.

* Highmore v. Primrose, 5 M. & S. 65.

(88) Where the terms for "value received" are inserted in a declaration on a note, whether they are material to be proved, depends on this consideration, whether they are descriptive of the note itself or only an averment of the consideration of the indorse. ment or assignment of the instrument. If the former, and the words are not in the note, the variance is fatal; if the latter, then as the proof of a value is not material, the averment need not be proved. Wilson v. Codman's Ex. 3 Cranch, Rep. 198. Russell v. Ball, &c.. 2 John. Rep. 50. Saxton v. Johnson, 10 John. Rep. 418.

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