bill described in the 9 & 10 Wm. II, presented to a party CH. 20. on whom drawn, and refused to be accepted by underwriting Art. 3. the same, shall by the holder be "protested for non-acceptance, as in cases of foreign bills of exchange," " provided that no acceptance of any such inland bill of exchange shall be sufficient to charge any person whatever, unless the same be underwritten or endorsed in writing thereupon." And if not so accepted, no drawer shall be liable to pay costs, damages, or interest thereon, unless such protest be made for non-acceptance, and within fourteen days after such protest, the same be notified to him from whom the bill was received ; and if such inland bill be accepted, and not paid in three days after due, then no drawer shall pay costs, damages, or interest thereon, unless protested and notified as aforesaid; but if either protest be made for non-acceptance, or non-payment, the drawer is made liable to costs, interest, and damages, or if notice be so given; but no protest is necessary, unless the bill be expressed to be for value received, unless the bill be for £20 or more, and the protest may be made by such persons as are designated by the said act of 9 & 10 of W. III. And it is further enacted, that if any person accept such bill in satisfaction of any former debt due to him, the same shall be deemed full payment thereof, if he who accepts such bill for his debt, do 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-payment thereof." "Provided that nothing herein contained shall extend to discharge any remedy, that any person may have against the drawer, acceptor, or endorser of such bill." It will be observed, that this statute recited that money notes were not so negotiable as that the assignee could sue in his own name, and then makes them negotiable. In the Appendix, 1 Cranch 367 to 461, many cases are collected, to shew, a money note payable to A or order, was, before the statute of Anne negotiable as an inland bill, and that as a foreign bill was. It is a question, if all these cases are sufficient to overturn the express authority of this statute, and the direct decision in Clarke v. Martin, 1 Cranch 408, 411, and in four other cases, not within the custom of merchants &c. See Post. As these statutes are in general the foundation of negotiable paper in the United States, they are thus cited verbatim in their essential parts, and the substance of all the other parts taken. Contracts, to be negotiable, must be for the payment of money, and rest on the general credit of the maker. It can answer their useful purpose only by making them a good demand against him any where, and payable in money, and ab CH. 20. solutely. If only a demand on a particular fund, or payable in bulky articles, or on condition, their general use and circulation must be defeated. It is not necessary to express value 4 Maule & S. received in a bill of exchange; may be payable on condition to be void in a certain event. 25. 1 Stra. 24, 2 Stra. 1217, § 3. What notes are good and negotiable. A note payable" in two months after such a ship is paid off," is negotiable; for this is a thing of a public nature, and morally certain, and need not be physically so. It is enough the payment be certain in a moral sense. 4. So to pay "in six weeks after the death of the deft's. father, for value received," is good; for the payment is certain, and only the time when, is uncertain. So is the case of all bills payable in so many days after sight, as it may be not certain when they will be presented. It is sufficient if payable in all events, though uncertain whether in a longer or shorter time. 1 Burr. 226, 5. So a note to an infant is valid and negotiable, "payaGoss v. Nel- ble when he shall come of age, specifying the time, 12th of son; see 7 M. June, 1750." So to pay to A or order, on a day, or when he completes a building. R. 240. 1 Wils. 262, derwood. 6. So a note to pay to A or order, £8, on paying off the Evans v. Un- wages of a public ship, is negotiable. See Edie's case, a. 5. 7. So a promise to pay £5 to B, for a debt due from C to B, is negotiable, for this is a sum to be paid in all events, and one man may, in writing, promise to pay another's debt. So to promise to account with T. T. or his order, for value received by me, is a negotiable promise. Same case, 8 Mod. 362; see Stevens v. Blunt, and 2 Ld. Raym. 1396. 1 Stra. 264, Kyd 33. -Mod. 296, 316.7 D. & E. 337. § 8. So a promise by the maker of a note to pay out of a particular fund, then in his power, is negotiable; for though this is named, there is an obligation generally on his personal credit to pay, the bare making the note being an acknowledgment he has money in his hands; he may be sued though this 1 Dall. 194. fund should fail; but a bill accepted on such a fund, its negotiability ceases. See Ch. 30, a. 4, s. 7. 3 Caines 137. 8 Johns. R. 485. If part of a note be paid, it is negotiable for the residue, but not for a part of what is due, as the right of action cannot Chitty 115.- be divided. Several cases, Post. A made his note to B or order, and minuted on it, B was, as the consideration, to assign A a judgment against C; this is negotiable. But quære. $9. The following notes are not negotiable, to wit: One to pay £50, or render his body to prison; because the note. 5 T. R. 482, is contingent; for if the body be rendered, the money will 487, Carlos v. Fancourt. never become due; and not being negotiable when made, it Chitty 37, 38. cannot become so afterwards. One paid by the last endorser ceases to be negotiable. 3 Mass. R. 465. Cunn. 110.- CH. 20. 10. So a promise to deliver a horse, and pay money; for it must be all money on a true construction of the statute, Art. 3. and because if part of the payment could be in such an article as a horse, it would make the note's currency very incon- 2 Stra. 1271, venient. Martin v. Chaimtry. 11. So a promise to pay A £50, if B do not pay it in Cunn. 114.six weeks; for it is uncertain who is to pay. A bill of ex- Imp. 392.change, not to order, nor like words, is not so endorsible as Chitty 261. the endorsee can sue. 1 Dallas 194. § 12. So to pay £10, if he do not render a prisoner by Kyd 36. such a day; for there is no certainty the money will be paid. 13. So to pay 10 days after the deft. shall marry; for it 2 Stra. 1151, is uncertain if he will ever marry; and so if the money Beardesly r. will ever become due. A promissory note is not negotia ble at common law. 2 Ld. Raym. 775, 825; Salk. 129; 2 Ld. Raym. 757. Baldwin. 14. So to pay on the death of A, provided he leave suf- 1 Burr. 325, ficient estate; for if he do not leave sufficient estate, the mon- Roberts v. ey will never become payable. Note not to order, is not negotiable. 2 Dallas 250. Peake. 15. So to pay B or order, £300, in good East India Bul. N. P. bonds; for these bonds are not money. So to pay when a 268, Moore v. house is sold. 2 Bos. & P. 443. Vanlute.- 4 Mass. R. 16. So a note payable in foreign bills, that is, bank bills 261. of certain country banks, that passed at about two per cent. 245, Jones r under par, is not negotiable; for it is not a cash note, or for Fales.money, within the meaning of the 3 & 4 of Anne, though 1 Bay. 66never enacted in Massachusetts, yet "in practice, the provis- 120. ions of the first section were early adopted." See Sanger v. Stimpson, a. 10. So a note to pay, provided a ship arrive at her port, free from capture and condemnation. R. 387. 15 Mass. 9 Johns. R. § 17. So to pay out of the deft's. monies that should arise 5 T. R. 482, from his reversion of £43, when sold. 2 Ld. Raym. 1361, Carlos v. 1563; 3 Wils. 207. Fancourt. Herle. mines, being Jenny v. This is only Kyd 34. 18. So a promise to pay Herle £50 on demand, out of mon- Stra. 591, ey in your hands, belonging to the owners of part of the consideration for the manor of W. a bare appointment to pay money out of a particular fund, and cannot answer the necessities or purposes of trade and commerce; see 1 Bos. & P. 398. 19. So to pay out of W's money as soon as you shall re- 3 Wils. 207. ceive it. So an order to pay on the account of freight, when -2 W. Bl. accepted to pay on such a particular fund, is not understood 782-Stra. to be on the general credit of the acceptor, so that in all Dougl. 571, events he may be called upon to pay his acceptance. 1211. Pierson v. v. Сн. 20. § 20. A note to pay to the order of A, or to A or his order, is the same, and A may sue in both cases. 10 Mod. 286. 21. So a promissory note to bearer, payable in goods, is not a negotiable security, within the 12th section of the act of 424, Clark v. Feb. 28, 1795, respecting trustees; only the original promisee can sue it. 2 Mass. R. King & al. trustees. 3 Mass. R. 556, Blake v. Sewall.Chitty 108. 1 W. Bl. 445. Chitty 65, Bowyer v. Bampton. 2 Burr. 1216; same case, 1 W. Bl. 295. -Kyd 61, 64.-Stra. 22. A promissory note or bill of exchange, once paid, ceases to be negotiable, as where the note had been paid by the second endorser; but the person who makes the endorsemeut may be liable on his promise. If an endorser or drawer pay, he must sue a prior party, not one after the party paying. ART. 4. Notes &c. void by certain statutes. § 1. Certain statutes here, as in England, as the statutes against usury, against gaming, &c. make all usurious notes and contracts, and all gaming notes and contracts, absolutely void, in whosesoever hands they come. For particular cases, see Consideration, Usury, Gaming, &c. § 2. And where a note is made void by statute, as for usury &c., the consideration may, in every case, be enquired into, and the note is void even in the hands of an innocent endorsee, as against the maker, but the endorsee may sue the endorser. 2 Stra. 1155. ART. 5. A contract once negotiable is always so ;-by whom endorsible. 1. Any note, or bill, or order, to pay money to one or his order, is negotiable in its nature, and if endorsed to one, he has the entire property of it; and though in the en567-3 Wils. dorsement to him the words, " or order," are omitted, yet he 1, 5, Rawlinmay endorse it; for the endorsement, with such an omission, follows the nature of the original contract; and a blank endorsement may be filled up even at the trial. So a note, or bill, or order, may be endorsed by an executor or administrator, by the name of executor or administrator, but to pass the property only. son v. Stone, -Stone v. Rawlinson, Willes 559. 2 Stra. 260. -Kyd 68. Connor v. Martin. 2. So if a note or bill be made or endorsed to a feme Strange 616, sole, and she marries, her husband may endorse it. For by the marriage he is entitled to all her personal estate; and he not only assigns the property of the note or bill, but he also, by a general endorsement, makes himself liable as endorser. 3. So the assignees of a bankrupt may endorse a bill or note, and to a married woman, clearly to pass the property, and they make themselves liable as endorsers, by a general endorsement. So as to Guardians &c., Ch. 85. Kyd 68.- Cunn. 115. Kyd 69, Ev ans v. Cramlington. 14 Mass. R. 279. § 4. If a note or bill be payable to A, to the use of B, A must endorse it; for B has only an equitable interest in it; and A must sue it, though he will recover the monies due on it to B's use. One is not liable, who endorses between other parties. § 5. The endorsement of a part of the debt is bad, unless the residue be paid; for the drawer, or acceptor, or endorser, cannot be subjected to several actions on the same contract. Salk. 69; 1 Ld. Raym. 360. CH. 20. Art. 6. Kyd 71. v. Vickery. 6. So a bill or note, to two or more partners, may be en- Carth 465. 12 Mod. 213. dorsed by one of them, if it concern their joint trade. Kyd 68. So if the bill or note be drawn in favour of two persons, or Dougl. 630, either of them, though not partners, either may endorse it. So 653, Carvich where a bill drawn by two, is made payable to them or their order, either may negotiate it, for by so drawing the bill they hold themselves out to the world as partners. In this case the writing was, "Mr. Abraham Vickery, two months after date, please to pay to us or our order, the sum of, &c. JOHN MAYDWELL. It was endorsed thus, "Jno. Maydwell." The Maydwells were father and son. The endorsement was by the son. They were admitted not to be partners. Deft. accepted the bill. Lord Mansfield non-suited the plt., because there was not an endorsement by both. But on consideration, the whole court was of opinion the endorsement, by one, was good, for "that the Maydwells by making the bill payable to our order,' had made themselvos partners, as to this transaction." They being thus partners quoad hoc, it seems one could endorse it by signing his individual name. 1. T. R. 757; & 4 T. R. If A, in one State, draws a bill on B, in another in the Un- See Ch. 50 a. ion, it is an inland bill, to be endorsed &c. accordingly. 7. So it seems, if I own a bill, and get A to endorse and 3 sell it on my account, an action lies against me as an endorser; 177, the case for what I do by him I do by myself. But it is to be under- of Finn & al. stood that A exceeds not his authority in his endorsement of v. Harrison. the bill. Where debt lies against the acceptor of a bill, and 85-3 T. R. maker of a note, 2 Wheaton's R. 385. § 8. After a bill has become due, one promises to pay it according to the tenor of it, this is a valid promise, and an action lies presently. This was a bill drawn March 25, 1696, and payable in a month. May 26th, 1697, the deft. accepted it, and promised to pay according to its tenor and effect. Verdict for the plt., for this was a promise to pay on demand. ART. 6. The effect of an endorsement, and how it may be restricted. -5 Com D. 176. 12 Mod. 211, Pigot. Jackson v. 1. If the payee &c. give an order to receive a note, bill, 2 Burr. 1226, or order, to his use, he retains the property, and he may mod- in Edie v. ify the order as he pleases; but if he sell it, and transfer the East India Comp.-If an property by endorsement, it is doubtful if he can take away endorsee use its negotiability, an essential quality given to it by the maker, an endorsery to his agreement he is liable in damages, Chipman 85. ment contra |