over, c. 9. TIT. 23. 1. WHEREAS it hath been held, that notes in writing, signed by the party who makes the same, whereby such party promises to pay unto any other person, or his order, any A. D. 1704. sum of money therein mentioned, are not assignable or indors- St.3 & 4 Ann. ible within the custom of merchants, to any other per- P. L. 93. son; and that such person to whom the sum of money men- Promissory tioned in such note is payable, cannot maintain an action, by notes may be the custom of merchants, against the person who first made assigned or and signed the same; and that any person to whom such note indorsed, and should be assigned, indorsed, or made payable, could not action mainwithin the said custom of merchants, maintain any action up- on as on inland on such note against the person who first drew and signed the bills of exsame: Therefore to the intent to encourage trade and com- change. According to Montesquieu, (Esprit des Loix, L. 21. c. 17.) bills of exchange, was an invention of the Jews who sought refuge in Lombardy from the cruel tyranny exercised over them throughout almost all Christendom. Beawes (Lex Mercat. 413.) attributes the contrivance to the Gibelins, who were expelled from Italy by the Guelphs. Whatever was the origin of this species of paper currency, certain it is, that it was substituted for coin, and was found by long experience to facilitate commercial intercourse, and promote the purposes of trade. Foreign bills of exchange were long in general use among merchants all over Europe, and the rules respecting them had been long established as the custom of merchants, before they were recognized and allowed by the laws of England. This custom, however, was at length acknow. ledged as part of the Law-Merchant, and of course part of the municipal law of England. Afterwards, in the reign of Charles I. inland bills were introduced; but they were not esteemed on a footing with foreign bills, though the advantages attending them were sensibly felt: and it was found necessary to obtain the aid of the legislature to place them on the footing on which they now stand by the statutes 3 & 4 An. and 9 & 10 W. 3. It is not certain at what time promissory notes of hand came into general use; but probably not long after the introduction of inland bills. The reports of cases concerning bills and notes in the latter end of the reign of W. 3. and beginning of that of Q. Anne, confound them together, so that it is often difficult to ascertain whether the contest arose on a note or a bill. It is, however, certain, that promissory notes were in general use about that period, and that their negotiability was established by the custom of merchants, some considerable time before this statute was passed. They were considered on a footing with inland bills of exchange. It appears by the preamble of the act, that they were held "not to be assignable, or negotiable, within the custom of merchants; but this was principally owing to the obstinate and persevering (not to say illiberal) opposition of lord chief justice Holt, who had great and deserved influence in the legal decisions of those times. His influence prevailed in the courts of Westminster Hall but his victory appears not to have been very complete, and his triumph was short; for this act was soon after passed, to gratify the trading part of the nation, and the negotiability of notes was es tained there TIT. 23. A. D 1704. c. 9. P. L. 93. merce, which will be much advanced, if such notes shall have the same effect as inland bills of exchange, and shall be negotiated in like manner; Be it enacted, That all notes in wriSt.3 & 4 Ann. ting, that after the first day of May, in the year of our Lord, 1705, shall be made and signed by any person or persons, body politic or corporate, or by the servant or agent of any corporation, banker, goldsmith, merchant, or trader, who is usually intrusted by him, her or them, to sign such promissory notes for him, her, or them, whereby such person or persons, body politic and corporate, his, her, or their servant or agent, as aforesaid, doth or shall promise to pay to any other person or persons, body politic and corporate, his, her, or their order, or unto bearer, any sum of money mentioned in such note, shall be taken and construed to be, by virtue thereof, due and payable to any such person or persons, body politic and corporate, to whom the same is made payable; and also every such note payable to any person or persons, body politic and corporate, his, her, or their order, shall be assignable or indorsible over, in the same manner as inland bills of exchange are or may be, according to the custom of merchants'; and that the person or persons, body politic and corporate, to whom such sum of money is or shall be by such note made payable, shall and may maintain an action for the same, in such manner as he, she, or they might do, upon any inland bill of exchange, made or drawn according to the custom of merchants, against the person or persons, body politic and corporate, who, or whose servant or agent, as aforesaid, signed the same; and that any person or persons, body politic and corporate, to whom such note that is payable to any person or persons, body politic and corporate, his, her, or their order, is indorsed or assigned, or the money therein mentioned ordered to be paid by indorsement thereon, shall and may maintain his, her, or their action for such sum of money, either against the person or persons, body politic and corporate, who, or whose servant or agent, as aforesaid, signed such note, or against any of the tablished by a legislative act, as it had been before established by mercantile usage, In the year 1794, an attempt was made in this state, to place bonds, conditioned for the payment of money, where they had been transferred by a blank indorsement, on a footing with promissory notes: but this attempt did not succeed, though it appeared that many bonds had been thus transferred and thrown into circulation. The court very properly rejected the claim of those who contended for the general negotiability of such instruments, as they were never intended, by the original contract, for any such use, nor adapted for the purposes of trade. It did not appear that the commercial part of the community had ever given a general sanction to the practice of passing bonds, as a substitute for bills, or notes, or wished to establish any such custom. The practice, on the contrary, seems to have originated in the necessities of some, (few of whom were merchants) and the cupidity of others, composing a class of men who are the bane of all fair trade. It was not for men like these; men drowned in debts, speculators, peculators and swindlers, by their necessitous shifts, and nefarious practices, to make the Law Merchant. See 1 Bay's Rep. Parker v. Kennedy. that indorsed the same, in like manner as in cases of persons inland bills of exchange: and in every such action the plaintiff TIT. 23. costs. or plaintiffs shall recover his, her, or their damages and costs Plaintiff or of suit; and if such plaintiff or plaintiffs shall be nonsuited, defendant or a verdict be given against him, her, or them, the defendant may recover or defendants shall recover his, her, or their costs against the plaintiff or plaintiffs; and every such plaintiff or plaintiffs, defendant or defendants, respectively recovering, may sue out execution for such damages and costs by capias, fieri facias, or elegit. [See Execution.] 2. And be it enacted, That all and every such actions shall be commenced, sued, and brought within such time as is ap pointed for commencing or suing actions upon the case, by the 2 BI. Com. statute made in the twenty-first year of the reign of king 467. James the first, entitled An act for limitation of actions, and for avoiding of suits in law. [See Limitation of Actions.] 3. Provided, That no body politic or corporate shall have power, by virtue of this act, to issue or give out any notes, by themselves or their servants, other than such as they might have issued, if this act had never been made. 4. And whereas by an act of parliament made in the ninth year of the reign of his late majesty, king William the third, entitled, An act for the better payment of inland bills of exchange,* it is, among other things, enacted, That from and after presentation and acceptance of the said bill or bills of exchange, (which acceptance shall be by the underwriting the same under the party's hand so accepting), and after the expiration of three days after the said bills shall become due, the party to whom the said bill or bills are made payable, his servant, agent or assigns, may and shall cause the same bill or bills to be protested in manner as in the said act is enacted: And whereas by there being no provision made therein for protesting such bill or bills, in case the party, on whom the same are or shall be drawn, refuse to accept the same, by underwriting the same under his hand, all merchants and others do refuse to underwrite such bill or bills, or make any other than a promissory acceptance, by which means the effect and good intent of the said act in that behalf is wholly evaded, and no bill or bills, can be protested before or for want of such acceptance by underwriting the same as aforesaid:' For remedy Bills of exwhereof, Be it enacted, That in case, upon presenting of any change may such bill or bills of exchange, the party or parties, on whom be protested the same shall be drawn, shall refuse to accept the same, by ceptance. underwriting the same, as aforesaid, the party to whom the said bill or bills are made payable, his servant, agent, or assigns, may and shall cause the said bill or bills to be protested for non-acceptance, as in case of foreign bills of exchange; any thing in the said act, or any other law, to the contrary notwithstanding: For which protest there shall be paid two shillings, and no more. *9 and 10 W. 3. c. 17. See Vol. 3. of the Statutes at large, p. 697. for non-ac TTT. 23. Proviso. 5. Provided always, That no acceptance of any such inland bill of exchange shall be sufficient to charge any person whatsoever, unless the same be underwritten or indorsed in wriAcceptance to ting thereupon; and if such bill be not accepted by such unbe in writing, derwriting, or indorsement in writing, no drawer of any such or protest for inland bill shall be liable to pay any costs, damages, or intenon-acceptance, &c. Proviso. Value receiv. ed to be expressed in the bill, which must be for 201. or over. rest thereupon, unless such protest be made for non-acceptance thereof, and within fourteen days after such protest, the same be sent, or otherwise notice thereof be given to the party from whom such bill was received, or left in writing at the place of his or her usual abode; and if such bill be accepted, and not paid before the expiration of three days after the said bill shall become due and payable, then no drawer of such bill shall be compellable to pay any costs, damages, or interest thereupon, unless a protest be made and sent, or notice thereof be given, in manner and form abovementioned: Nevertheless, every drawer of such bill shall be liable to make payment of costs, damages, and interest upon such inland bill, if any one protest be made of non-acceptance or non-payment thereof, and notice thereof be sent, given or left, as aforesaid. 6. Provided, That no such protest shall be necessary, either for non-acceptance or non-payment of any inland bill of exchange, unless the value be acknowledged and expressed in such bill to be received, and unless such bill be drawn for the payment of 201. sterling or upwards; and that the protest, hereby required for non-acceptance, shall be made by such persons as are appointed by the said recited act to protest in land bills of exchange for non-payment thereof. 7. And be it further enacted, That if any person doth accept any such bill of exchange, for and in satisfaction of any former debt, or sums of money formerly due unto him, the same shall be accounted and esteemed a full and complete payment of such debt; if such person, accepting of any such bill for his debt, doth not take his due course to obtain payment thereof, by endeavouring to get the same accepted and paid, and make his protest as aforesaid, either for non-acceptance or non-pay ment thereof. Acceptance to 8. Provided, That nothing herein contained shall extend to be in satisfac- discharge any remedy, that any person may have against the tion for debt, drawer, acceptor or indorser of such bill. [See Title 26, unless duly presented, &c. Bonds, Unnegotiable Notes, &c.] TITLE 24, Blasphemp-Prophaneness. St. 6 & 7 W. 1. WHEREAS it is found by experience, That an act of TIT. 24. Parliament made in the 21st year of the reign of king James the I. entitled, An Act to prevent and reform profane swear- A. D. 1695. ing and cursing, hath proved ineffectual to the suppressing of 3. c. 11. those detestable sins, by reason of some deficiencies in the P. L. 89. said act; Be it therefore enacted, That if any person or per- 4 Bl. Com. 60. sons shall (after the 24th day of June, in the year of our Lord Profane 1695) profanely swear or curse in the presence or hearing of swearing. any justice of peace of the county, riding, or division, or of the mayor or other head officer, or justice of peace for any city or town corporate, where such offence is or shall be committed, or that shall be thereof convicted by oath of one witness, or by the confession of the party offending, before any justice of peace of the county, or mayor, or bailiff, or other chief officer or justice of the peace of such city or town corporate, where the said offence shall be committed; that then for every such offence, the party so offending shall forfeit and pay to the use of the poor of the parish where such offence or offences shall be committed, the respective sums hereinafter mentioned (that is to say) every servant, day labourer, common soldier and common seaman, one shilling, and every other person, two shillings, and in case any of the persons aforesaid shall after conviction offend a second time, such person shall forfeit and pay double; and if a third time, treble the sum respectively by him or her to be paid for the first offence. Penalty 2. And upon neglect or refusal of payment of the said for- How to be lefeiture, any justice of peace of the county, riding, or division, vied. or mayor or other head officer, or justice of peace of any city or town corporate, where the said offences shall be committed, shall and are hereby authorized and required to direct and send his warrant to the constable, tything-man, church-warden, or overseer of the poor of the parish where the offence shall be committed, or where the offender shall inhabit, thereby commanding them, or some one or more of them, to levy, by distress and sale of the goods of the offender, the sum so forfeited, for the use of the poor of the parish, as aforesaid; and in case no such distress can be had, then every such offender, being If no distress, above the age of sixteen years, shall, by warrant under the offenders to be hand and seal of the said justice of peace, or other officer as put in the aforesaid, be publicly set in the stocks for the space of stock, hour for every single offence, and for any number of offences whereof he shall be convicted at one and the same time, then two hours; and if the party offending be under the age of sixteen years, and shall not forthwith pay the said forfeitures, then he or she shall, by warrant as aforesaid, be whipped by the constable, or by the parent, guardian or master of such of fender, in the presence of the constable. one |