ASSUMPSIT ON BILLS OF EXCHANGE AND Ld. Raym. NOTES and INSTRUCTIONS for drawing DECLARA- to the is HE inftrument or writing which conftitutes a good bill of exchange, ing to lord chief justice De Grey, in delivering the Opinion of the Court in the cafe of Dawkes and Wile v. De Loraine, E. T. 11 Geo. III. 3 Wilf. Rep. (1) 10 Mod. 213.) “confined to any certain form or fet of words (1), yet it must have 287. "fome effential qualities (2), without which it is no bill of exchange; it must "carry with it a perfonal and certain credit given to the drawer, not con"fined to credit upon any thing or fund (3); it is upon the credit of a per"fon's hand, as on the hand of the drawer, the indorfer, or the perfon "who negociates it. He to whom fuch bill is made payable or indorfed takes "it upon no particular event or contingency (4), except the failure of the "general perfonal credit of the perfons drawing or negociating the same.” And therefore a writing in these words; I Wilf. 263. Str. 1211. 4 Vin. 241. pl. 20. White v. Ledwick, B. R. Stat. 25 Geo. III. Ld. Raym. 1481. Fort. 282. "January 8, 1768. "Seven weeks after date please to pay Mifs Read thirty-two pounds and feven- " £. 32:17:0 "To Timothy Brecknock, St. Mary-le-Bone. 8Mod.267. was held not to be a bill of exchange within the custom of merchants. Add1. Barnard, ed to this, it feems effentially neceffary that it be negociable (5), i. e. payable ́to order (6), (vid. cafes, and the authorities cited), and for value received fame cafes. 88. 、. Lutw. 889. I Mod. Ent. 310. Ent. 313. Stra. 1211. 2. Wilf. 353. The feveral parties to a bill of exchange are, DRAWER, the perfon who makes or draws the bill of exchange :— 1 Show.497. DRAWEE, the person on whom a bill of exchange is drawn, and who is to (2) 1 Mod. pay it if he accepts it :-PAYEE, the perfon to whom a bill of exchange or note is to be paid :-ACCEPTOR, the perfon on whom a bill of exchange is drawn, and who is to pay if he accepts it; he is then called the acceptor: -INDORSER, the first indorfer is he to whom or to whofe order a bill or note is payable. Sometimes a bill is made payable to a third perfon, rec 3. Wilf. 212. (3) Lord Raym. 1362. Str. 592. Fort. 282. Lord Raym. 1361. 8. Mod. 265. Str. 591. 1211. Cowp. 571. Burr. 226. Lord Raym. 1481. Str. 762. 24. I Wilf. 262.-(4) Str. 1217. Kington v. Long, B. R. Stat. 25 Geo. III. 3 Ld. Raym. 67. 1362. 1396. 8 Mod. 363. 4 Vin. 240. pl. 16. Burr. 323. Str. 1151. Fort. 281. 10 Mod. 294. 316. Lord Raym. 1563. Bl. 782. 3 Wilf. 207: Bl. 1072. Wilf. 262.-(5) Str. 1271. Bull. Ni. Pri. ed. 1790, 272. Lord Raym. 1387. 8 Mod. 364. Str. 629. Lord Raym. 1396. 8 Mod. 362. 364.-(6) Salk. 133. 35. 2 Show. 160. Burr. 1516. Bl. 485. 10. Mọd. 286. Mar. 35. 1 Show Show. 8. Comb. 401. koning. koning the drawer one, the drawee or acceptor (if it be a bill of exchange) the fecond; but if it be a note, whereby one man promises to pay another, or order, and he to whom it is payable indorfes it, he is then a fecond, not a third perfon. Sometimes alfo one man draws a bill of exchange on another, payable to himself (the drawer) or order, fometimes payable to his (the drawer's) order and although in this last cafe it may seem at first view that none but fuch order can maintain an action, yet the perfon to whofe order the bill is made payable may also maintain one; and that for very good reafons; for there is no difference between having the power to dispose money and having the money itself; and order (7) implies property; nor can any thing (7) 1 Wilf. be understood by it in this cafe but an authority to appoint the payment of 190. the money, which he does to himself; ruled on demurrer, -v. Orm- Salk. 130. fton, Hil. 1 Geo. I. 10 Mod. 286. But in a declaration by fuch perfon, it Comb. 401 is generally averred, that he has not indorfed or negociated the fame, &c.; fo 10 Mod. in the cafe above cited: but fuch an averment cannot be abfolutely necef- 286. fary.—FIRST INDORSEE, the perfon to whom the first indorfer indorfes the Carth. 403. bill or note -SECOND INDORSER, he to whom the first indorfer indorsed Lord the bill or note; and when the first indorfee indorfes it to another perfon, Raym. 654. then he is not only FIRST INDOR SEE but SECOND INDORSER INDORSEE, he to whom the fecond indorfer indorfes the bill or note; if he alfo indorfes it, then he is the fecond indorfee, and the THIRD INDORSER and fo on as to the next, who is the THIRD INDOR SEE, and FOURTH INDORSER to FOURTH INDORSEE, who becomes FIFTH INDORSER to FIFTH INDORSEE, and fo on as far as indorfements go for wherever a man has a bill or note indoifed to him, and indorfes, it again, he is first an indorfee, then an indorfer. SECOND Now fuppofe a bill drawn by A. on B. payable to C. or order, and B. accepts it :-C. indorfes to D.; D. indorfes to E.; E. indorfes to F.; F. indorfes to G. If the bill is not paid to either of the parties to G. he (G.) may fue A. the drawer; or B. the drawee or acceptor; or C. the payee or firft indorfer, or D. the fecond indorfer and first indorfee; or E. the third indorfer and fecond indorfee; or F. the fourth indorfer and third indorfee; all of them in feparate actions. If F. pays the bill, he may fue A. B.C. D. or T. E. or all of them in feparate actions. So if E. pays the bill, he may fue all above him. But (a) the drawer cannot fue B. the acceptor, unless fomebody to whom the bill is indorfed indorfes it to A. then A. fues as indorfee; as fuppofe G. or any other indorfee indorfes it to A. If any perfon, fuppofe C. the payee, or any of the indoifers, fue the acceptor B. then you fhew that A. drew a bill on B. payable to C. that B. accepted (b) it, whereby he became liable to pay the money to C. according to the tenor of the bill. If D. the first indorfee fues B. the acceptor, you must fhew the making and acceptance of the bill, and that C. to whom, or to whofe order, it was pay (a) An action upon a bill of exchange lies for the drawer against drawee after he has accepted it. Simmonds against Parminter and Barrow, I Wilf. 185. poftea.. (b) By the custom of England, where there are two joint traders, and able, one accepts a bill drawn on both for able, indorsed the bill (vide poste, as to the neceffity of proving first indorfe ment) to D. and that B. the acceptor had notice of the indorfement, and became liable to pay the money to D. according to the tenor of the bill, and of his acceptance and of the indorfement; and that being so liable, he promifed payment accordingly. (a) If the bill is accepted by B. and he does not pay, and C. has not indorfed it over, and does not chufe to fue B. the acceptor, but A. the drawer, then you must shew the making and acceptance of the bill, and that at the expiration of the time specified in the bill for payment, the bill was shewn to B. for payment, and that he was requested to pay, and did not, nor has paid the money, of which A. the drawer had notice, and thereby became liable to pay the bill to C. the payee, when he should be thereto requested; and being fo liable, he promised to pay the money accordingly. If D. the first indorfee fues A. the drawer, you must fhew the making, acceptance, and indorsement of the bill, notice of the indorsement to the acceptor, presenting the bill to him for payment, and requesting payment; that he has not paid it, that A. the drawer had notice of it, and became liable to pay to D. when requested, and promise of payment, as in the last preceding cafe. If any other of the indorfees fue A. you must shew the fame, as in the last cafe, and flate all the indorsements, notice of the feveral indorsements to B. the acceptor, and the presenting the bill to him, his refufal to pay, notice to the drawer, his being liable to pay, and promife; and when you shew that B. the acceptor has not paid, you must fhew that neither of the feveral perfons who indorfed the bill before it came to the plaintiff have paid the bill therefore A. the drawer is liable upon re queft. (b) If an indorfer fues any of the indorfers who indorsed before it came to the plaintiff, you must fhew the fame. If the bill is indoried before it is accepted, and the perfon on whom drawn has refused to accept, and the drawer or any of the indorfees is fued, you muft fhew the bill was indorfed the day it was made, and that after it was indorfed to the plaintiff, he afterwards, to wit, on fanie day and year, presented the bill to B. on whom drawn, for acceptance, and requested him to accept the bill and pay it, according to the tenor of the bill, and of the indorfements, that he refused to accept the bill, or pay it, and therefore the defendant became liable to pay, according to the tenor of the bill and the indorsements, and that defendant promised to pay accordingly. In this cafe, you fay he is liable to pay according to the tenor of the bill and the indorsements; but if it is against the drawer or indorfer, where the bill has been accepted, and the acceptor has refused payment, you say he became liable to pay when requested. For in the first case the bill is fuppofed to come back to defendant before it is due, and that he says, "I'll pay you the bill according to the tenor," that is, when due, the bill not being due at that time. In the other case, the bill does not come back to the defendant tillafter it is due, and then he is supposed to promise to pay the money when plaintiff defires him to pay it, that is, when requested. (a) Rushton against Afpinall, Dougl. 680. requires the fame ceremony, where the indorfee fues the indorfer, and determines that the want of it is error, and not cured by verdict. (b) By the cafe of Millard v. May or, Dougl. 55. it is determined, that 1 In the cafe of notes it is nearly the fame, only there they are drawers and indorfers that are fued as defendants, for there is not any acceptor, a note being where one man promiles to pay a fum of money to another perfon, or to his order, or to that perfon, or to his order. But bills, as before observed, are drawn by one man upon another, payable to a third perfon or his order, or to the person who draws it or his order, or to his order only; and when it is accepted, he who drew it payable to himself or order, or to his order, indorfes it over to a third perfon. To bills of exchange the parties are liable by the law, ufage, and custom of merchants, therefore that is mentioned in the declaration. But notes 7 are indorfable and liable by indorfees, by virtue of an act of parliament or 3. & 4. ftatute; and therefore in a declaration on a note it is faid, by reafon whereof, Anne, c. 9, and by force of the ftatute in fuch cafe made and provided, the defendant became liable to pay; and being liable, promised payment. A bill to pay out of his growing fubfiftence is not good within the custom of merchants: fo to pay fo much money out of his rent, Jofceline and Laffere, Fort. 281. It is more an authority than a bill of exchange, Ch. J. Parker: and though it be no good bill of exchange, yet if it be a good confideration to raise the exprefs promise upon, the declaration will be good. There is no neceffity in a bill of exchange to say value received. Eyre, J. faid the fame. And it is not neceffary to have three perfons to make a good bill of exchange; for a man may draw a bill on himself; but it is always taken to be for a certain fum, and the party takes on himself to pay at all events, A bill drawn by a man upon himself may be confidered as tantamount to an acceptance by him; and after tender and refusal by him of payment, an action will lie. Lord Mansfield held, that where a fecond, third, or other fubfequent indorfee fues upon a bill or note, you need only prove the indorsement of the payee and your next immediate indorfer; but Buller, J. contra, where you state all you must prove all as stated. Qu. Where the acceptor, or, on his non-payment, the drawer, on the bill with four or five indorfements being fhewn for payment, promises payment, or does any thing which implies an admiffion of them, does not by that waive his right to object to your not being able to prove them? See Sayer Rep. 223. Hankey v. Wilfon. It is not abfolutely neceffary to fay," fuper fe affumpfit," for the law raises a promise. Salk. 128. Str. 214. If a bill drawn twenty-eighth December at two months it must it seems be paid third March, allowing for the three days of grace, so must a bill drawn thirtieth December at two months; for in the latter cafe, by the custom of merchants, the two odd days in December shall be dropped in the account, for the fake of uniformity. This is fo confidered by the bankers themselves. 1 VOL. I. ON Drawer v. à bill re- ON BILLS or EXCHANGE. INLAND, BY DRAWER. FOR that whereas, at the feveral and refpectives times hereafter mentioned, the faid plaintiff and defendant, and alfo one A. B. were perfons refiding, &c. and being fo refident, &c. he the faid plaintiff, on, &c. at, &c. according to the custom, &c. from time, &c. made his certain bill of exchange in writing, his own proper hand being thereto subscribed, the said bill bearing date, &c. then and there directed the faid bill to the faid defendant by the name and defcription of, &c.; and by the faid bill then and there required the faid defendant, &c. and then and there delivered the faid bill to the faid A. B. which faid bill of exchange the faid defendant afterwards, to wit, on, &c. at, &c. upon fight thereof accepted, accordBill not ne- ing to the faid cuftom, &c.: and the faid plaintiffs aver, that the gotiated. faid A. B. not having, at any time after the faid acceptance of the faid bill by the faid defendant as aforefaid, indorfed over or negociated the faid bill, or ordered or appointed the money therein fpecified, or any part thereof, to be paid or payable to any other perfon or perfons whatsoever; fhe the said A. B. afterwards, and after the end and expiration of the faid twenty-fix days in the said bill specified, and thereby appointed for the payment of the money therein mentioned, to wit, on, &c. at, &c. fhewed and prefented the faid bill to the faid defendant for payment of the money therein fpecified, and then and there required him to pay the fame to her the faid A. R. according to the tenor and effect of the faid bill, and of his aforefaid acceptance thereof; but the faid (plaintiff) in fact further fays, that he the faid (defendant) did not, when the faid bill was fo fhewn and prefented to him as aforefaid, or at any other time whatsoever, pay to the faid A. B. the faid fum of money in the faid bill specified, or any part thereof, but then and there wholly refufed and neglected fo to do; whereupon fhe the faid A. B. afterwards, to wit, on, &c. at, &c. returned the faid bill to the faid plaintiff), and called upon him for the payment of the money therein specified; by reafon whereof, and of the aforefaid cuftom and law of merchants, he the faid (plaintiff) was afterwards, to wit, on, &c. at, &c. forced and obliged to pay, and did pay, to the faid A. B. the faid fum of, &c. in the faid bill specified, whereof the faid defendant then and there had notice; by means of which faid several promifes, and by force of the aforefaid custom and law of merchants, he the faid defendant became liable to pay to the faid plaintiff the faid fum of, &c. in the faid bill specified, when he the faid defendant would be thereto afterwards requested; and being fo liable, he the faid defendant, in confideration thereof affumpfit accordingly. (A Count for goods fold and money lent and advanced, had and received; account ftated; and common conclufion) (a). (a) See similar precedent post. 230. with Mr. Lawes's Opinion. ON |