Sect. 1, Of ledge, the jury *were directed to infer an authority to make such the capacity indorsement (a).

of the con

tracting par

ties.

Except in the instance of an indorsement by a feme covert, it Effect of in- seems, that although a bill, &c., be drawn, indorsed, or accepted, capacity as to by a person, incapable of binding himself, it will nevertheless be other parties. valid against all other competent parties (b). Therefore, if a [ *26 ]

Sect. 2. Of

husband indorse a note, by which his wife promised to pay him a sum of money as between him and the indorsee, it is certainly good (c) and as infancy is a personal privilege, 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 (d), 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 enquired into (e.)(1).

Bills of Exchange differ from most other contracts in the cirthe number of cumstance of there being frequently more than two parties to the parties, and mode by them: a bill has indeed, previously to its being transferred, generwhich they ally three parties, namely, the person making it, who is called the drawer, the *person to whom it is directed, who before acceptance is called the drawee, and afterwards, the acceptor, and the person, in whose favour it is made, who is called the payee. It is not, how

may become

such.

[ * 27 ]

(a) Cotes v. Davis, 1 Campb. 485. Action by indorsee, against maker of promissory note, payable to Mrs. Carter or order, and indorsed by her in her own name. The note, when due, with the indorsement thereon, was presented by a notary to defendant, who said it should be paid in a few days; defendant now offered to prove, that Mrs. Carter was the wife of one Cole, who was still living. Lord Ellenborough said, the jury might presume, that her husband authorized her to indorse notes by the name in which she herself passed in the world, and that the defendant was estopped from contesting her authority for this indorsement. Verdict for plaintiff. See also Doe ex dem. Leicester & another v. Biggs, 1 Taunt. 367. (b) Poth. pl. 29.-Haly v. Lane, 2 Atk. 182.

(c) Haly v. Lane, 2 Atk. 181.

(d) 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. (e) Taylor v. Croker, 4 Esp. Rep. 187. sed quære.

(1) 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.)

ever, necessary that there should be three parties to a bill; there Sect. 2. Of the number, are sometimes only two; as where a person draws a bill on ano- &c. of the ther, payable to his own order; and indeed a bill will be valid, parties. where there is only one party to it, for a man may draw on himself payable to his own order (a). In such case it is said that the instrument in legal operation is rather a note than a bill (b); 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 (c), 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 note. And an instrument in the common form of a bill of exchange, except 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 drawer may immediate ly be sued, or, as it seems, it might be declared on as a promissory note, after it is due (d). So though husband and wife are in le

(a) Ex parte Parr, 18 Ves. jun. 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 Ratcliff, 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 Ratcliff, 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 judg ment; 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 v. 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.

Hobinson 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.

(b) Bayl. 21.

(r) See cases in note (1), supra.

(d) Shuttleworth v. Stephens, 1 Campb. 407. Declaration in common form, as upon a bill of exchange, drawn by defendant on Messrs. John Morson and Co. payable to John Jenkins, and indorsed to him by the plaintiff. In support of the action, a paper-writing, of which the following is a copy, was given in evidence:

21st October, 1804.

Two Months after date, pay to the Order of John Jenkins 787. 118. value eceived.

At Messrs. John Morson and Co.

The. Stephens.

[ * 28 ]

[ * 29 ]

&c. of the

Sect. 2. Of gal consideration one person and though a note given by a marthe number, ried woman to her husband is void, yet if he endorse it over to a parties. third person as between the husband and the indorsee, the note is certainly good (a). Various inconveniencies, however may arise, from the same person becoming a party to a bill or note in different capacities, viz. as drawer, and also as second endorser, &c. (b).

Lord Ellenborough held, that this was properly declared on as a bill of exchange, and that Messrs. Morson and Co. might be considered as the drawees, although perhaps it might have been treated as a promissory note, at the option of the holder.

Allen v. Mawson, 4 Campb. 115. The plaintiff declared as indorsee, against the defendant, as drawer of a bill of exchange, alleged to have been dishonoured for non-acceptance. The instrument given in evidence, was in the following form:

401.

Bradford, August 2d, 1814.

Two Months after date, pay to Mr. Lewis Alexander or Order, Forty Pounds, value received.

George Mawson.

The word at was in very small letters, inclosed 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 decide, 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 request to third persons, to pay. I cannot receive evidence of the manner in which such instruments are considered in Yorkshire. 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. I can see no motive for drawing an instrument 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 insertion of the "at" to be fraudulent, and the plaintiff' recovered.

(a) Per Ld. Hardwicke, in Haly v. Lane, 2 Atk. 181.

(6) 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 Collins, payable to plaintiff or order, and afterwards indorsed by him to defendant, who re-indorsed 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 number,

It is by transfer of a bill of exchange from one person to anoth- Sect. 2. Of , when it is negotiable, that the parties may become numerous; &c. of the in which case, if the transfer be by indorsement, the person ma- parties. ling 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 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 (a); as where the drawee refuses to accept, any third party, after protest for nonacceptance, 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.

ty.

[ 30 ]

With respect to the mode of becoming party to any one of these Mode of beinstruments, it is a general rule, that no person can be considered coming a paras 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 (b); however, a person may become drawer, indorser, or acceptor, not only by his own immediate act, but also by that of his agent or partner.

It is a general rule of law, that whenever a person has a power By act of aas owner, to do a thing, he may consequently, as incident to his gent. right, do it by attorney or agent (c). Hence it is clear that a person may draw, accept or indorse a bill by his agent, as well as by himself (d). In these cases he is said to draw, accept, and indorse by procuration (e). As this agency is a mere ministerial office, infants, feme coverts, persons attainted, outlawed, excommunicated, aliens, and others, though incapable of contracting on

(a) Poth. pl. 25, 26.

(6) Per Baller, J. in Fenn. v. Harrison, 3 T. R. 760.—Siff kin v. Walker and another, 2 Campb. 308.-Emly v. Lye and another, 15 East. 7, 11.

(c) Combe's Case, 9 Co. 75. b.-Kyd. 32.

(d) Molloy, b. 2. c. 10. s. 27.—Ward v. Evans, Lord Raym. 930.—6 Mod. 36. S. C. —— v. Harrison, 12 Mod. 346.—Anonymous, id. 564.—Usher v. Dauncey and another, 4 Campb. 97. et vide 3 and 4 Anne, c. 9. s. 1.

(e) Beawes, pl. 83.-Kyd. 33.

Sect. 2. Of their own account, so as to bind themselves, may be agents for the number, these purposes (a).

&c. of the

parties.

[ * 31 ]

With respect to the manner of their appointment, it is said (b) 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 (c).

As to the extent of the agent's authority, if a person be ap pointed a general agent, as in the case of a factor for a merchant residing abroad, the principal is bound by all his acts; but an agent, constituted so for a particular purpose, and under a limited and circumscribed power, cannot bind the principal by any act exceeding his authority (d). Therefore, where A. desired B. to get a bill discounted for him, but declared that he would not indorse, it was decided (e), 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 authorised B. to get the bill discounted, without restraining his authority, as to the mode of doing it, he was bound by his acts (f).

(a) Co. Lit. 52. a.

(b) Beawes, pl. 86.-Marius, 2d ed. p. 104. .

(c) Per Lord Eldon, in Davison v. Robertson, 3 Dow. Rep. 229.-Porthouse v. Parker, 1 Campb. 29. and per Holt, C. J. in Anonymous, 12 Mod. 564.-Harrison v. Jackson, 7 T. R. 209.-The King v. Bigg, 3 P. Wms. 432.-Bac. Ab. Corporations, E. 3.-Bayl. 226.-Payley Prin. & Agent, 117 and see 3 and 4 Ann. c. 9.

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

(e) Dissentiente Kenyon, C. J.

(f) 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 receiv ed, and money paid, was brought against them. Lord Kenyon told the jury, that if they thought that J. H had made himself auswerable 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 shewn, 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;