CASES ON BILLS AND NOTES. CHAPTER I. FORMAL REQUISITES. SECTION I. A Bill must contain an Order. RUFF v. WEBB. AT NISI PRIUS, CORAM LORD KENYON, C. J., MAY 24, 1794 [Reported in 1 Espinasse, 129.] ASSUMPSIT for work and labor, with the common counts. Plea of the general issue. The action was brought to recover the amount of wages due by the defendant to the plaintiff. The plaintiff had been servant to the defendant, and, on his discharging him from his service, had given him a draft for the amount of his wages on an unstamped slip of paper, in the following words: "Mr. Nelson will much oblige Mr. Webb, by paying to J. Ruff, or order, twenty guineas on his account." This draft the plaintiff had taken, but it did not appear that he had ever demanded payment of it from Mr. Nelson, to whom it was addressed. It was given in evidence on the part of the defendant, that he lived in the country, and kept cash with Mr. Nelson, in London, and that he paid all his bills in that manner, by drafts on Nelson; that the plaintiff knew that circumstance, and took the draft without any objection, and that if he had applied to Nelson, that it would have been paid. This evidence was relied on as a discharge, and bar to the action. Shepherd, for the plaintiff, contended that the only mode by which this could operate as a bar to the action was by taking the draft in question as a bill of exchange, in which case, under Stat. 3 & 4 Ann. iterature & 2 demand of a right, also. 9, § 7, it is declared, that if any person shall accept a bill of ex change in satisfaction of a debt, that the same shall be deemed a full and sufficient discharge, if the person so accepting such bill for his debt shall not take his due course, by endeavoring to get the same accepted and paid, and making his protest for non-acceptance or nonpayment; but he contended, that, in point of substance, it was not s bill of exchange, but a mere request to pay money, not accepted by Nelson, or such as could put the plaintiff into any better situation to pay with respect to his demand. But if it was taken as a bill of exchange, act that it could not be given in evidence at all, as it was not stamped. en a It was answered by the defendant's counsel, that the plaintiff's having accepted the draft as payment was a waiver of every objec 9.c.8237. tion to it, and that he was therefore bound by it, and could not recur to the demand for wages. LORD KENYON said, that he was of opinion that the paper offered in evidence was a bill of exchange; that it was an order, by one person to another, to pay money to the plaintiff or his order, which was in, point of form a bill of exchange; that as such it could not be given in evidence, without being legally stamped; and as the only mode in which it could operate as a discharge of the plaintiff's demand was as stated by the plaintiff's counsel; that the plaintiff, in point of law, was therefore entitled to recover. LITTLE v. SLACKFORD. AT NISI PRIUS, CORAM LORD TENTERDEN, C. J., MAY 21, 1828. [Reported in Moody & Malkin, 171.] DEBT for money paid. The defendant, being indebted to J. S. for work done, gave him an unstamped paper, addressed to the plaintiff, in the following words: "Mr. LITTLE, Please to let the bearer have seven pounds, and place it to my account, and you will oblige "Your humble servant, "R. SLACKFORD." There was also some slight evidence that the defendant had acknowledged the debt. Comyn, for the defendant, objected that the paper produced was ■ bill of exchange, and could not be read for want of a stamp, and the other evidence would not warrant a verdict. LORD TENTERDEN, C. J. I think no stamp is necessary; the paper does not purport to be a demand made by a party having a right to call on the other to pay. The fair meaning is, "You will oblige me by doing it." Even without the paper, the other evidence would probably entitle the plaintiff to a verdict. Verdict for the plaintiff'1 NORRIS v. SOLOMON. AT NISI PRIUS, CORAM MAULE, J., FEBRUARY 17, 1840. ASSUMPSIT for goods sold and delivered. Plea: general issue, Non assumpsit. To prove the amount of the goods sold, the plaintiff called a witness, who said that he was a clerk to Messrs. Oliver & Son, accountants; that he received from them a written account, which had been handed to them by the plaintiff for the purpose of getting in the amount; that he called upon the defendant with that account, and showed it to him, and that a conversation took place between the witness and the defendant, amounting, as it was said, to an admission by the latter that the sum mentioned in the account was due to the plaintiff; but the amount could only be proved by reference to that written account, which was in the following form: Mr. SAMUEL SOLOMON, 50 Long Lane, Smithfield, And at the foot of the account the plaintiff had written the words following: 1 Biesenthall v. Williams, 1 Duv. 329, contra. But "Please pay," &c., is a valid order, the word "please" being simply a form of civility. Wheatley v. Strobe, 12 Cal. 92; Spurgin v. McPheeter, 42 Ind. 527. See further, Story, Bills (4th ed.), 43; Tilsley, Stamps (2d ed.), 138; Patterson Poindexter, 6 W. & S. 235, per Gibson, C. J. — ED. "24th December, 1839. "Yours respectfully, R. NORRIS." Bompas, Serjt., for the defendant, objected that the instrument was, in operation of law, a bill of exchange, or order for the payment of money, within the words of the Stamp Act (55 Geo. III. c. 184), and could not be used in evidence without a bill stamp. The learned judge recalled the witness, to ascertain whether Oliver & Son had any interest in the sum sought to be collected, or whether the account was delivered to them merely as agents of, and for the benefit of, the plaintiff. The witness proved that the latter was the fact; whereupon Griffen, for the plaintiff, maintained that the memorandum at the foot of the account did not amount to a bill, or order for the payment of money. Oliver & Son were merely the agents of the plaintiff, to whom he requests the money to be paid, not on their own account, but for him. Bompas, Serjt., submitted that it made no difference whether the payees were to receive the money for themselves or for the plaintiff; if that circumstance prevented an instrument from amounting to a bill of exchange, half the instruments drawn abroad and intended for bills would not be such, for it was every day's practice to make foreign bills payable to some party in this country, merely as agent for the drawers, and on their account. MAULE, J. I am of opinion that this is not a bill of exchange, nor any thing like one. Bompas, Serjt., tendered a bill of exceptions to the ruling of the learned judge; but his lordship said he had no doubt upon the subject; and the document was accordingly, under his lordship's direction, received in evidence. Verdict for the plaintiff, with a certificate for immediate execution.1 1 Conf. Hoyt v. Lynch, 2 Sandf. 328, in which the court pronounced the following instrument to be a bill of exchange: "NEW YORK, Dec. 16, 1847. “MR. J. LYNCH, - Please pay the above bill, -being the amount for tinning your houses on South Sixth Street, and charge the same to our account; and much oblige Yours, SMITH & WOGLOM."- FD |