such neglect, it [470]

The bill, when

drawer as soon as con

by the rules of the common law *) but also interest and all charges, to be computed from the time of making such protest. But if no protest be made or notified to the drawer, and any damage accrues by shall fall on the holder of the bill. refused, must be demanded of the veniently may be for though, when one draws a bill of exchange, he subjects himself to the payment, if the person on whom it is drawn refuses either to accept or pay, yet that is with this limitation, that if the bill be not paid, when due, the person to whom it is payable, shall in convenient time give the drawer notice thereof; for otherwise the law will imply it paid since it would be prejudicial to commerce, if a bill might rise up to charge the drawer at any distance of time when in the mean time all reckonings and accounts may be adjusted between the drawer and the draweey (26).

x Lord Raym. 993.

y Salk. 127.

(26) It is probable, when the statute 9 & 10 W. III. c. 17. was passed, which requires notice of a protest to be sent within fourteen days, that such time was thought a reasonable notice of the bill's being dishonored; but it is now fully settled, that if the holder of a bill intends to have his remedy against the drawer or indorser, he must give him notice without delay of the non-acceptance or non-payment, and that he expects payment from him. It used to be held, that the reasona-bleness of the notice was a question of fact for the jury to determine; but it is now so far a question of law, that the courts will grant new trials till the jury adopt the rule which they have established: which seems to be this, viz. that notice must be given to the drawer or indorser, by the first or next post, if the time will permit, after the dishonor of the bill. 1 T. R. 168. Doug. 497. It might perhaps be more convenient to extend the rule till the post goes out on the next day, as this would cut off all questions and litigation upon the possibility of giving notice on the same day. The drawer and indorsers are discharged, without such due notice, from all actions brought upon the bill; with this exception, if the holder can prove that the drawer had

If the bill be an indorsed bill, and the indorsee cannot get the drawee to discharge it, he may call upon either the drawer or the indorser, or if the bill has been negociated through many hands, upon any of the indorsers; for each indorser is a warrantor for the payment of the bill, which is frequently taken in payment as much (or more) upon the credit of the indorser, as of the drawer. And if such indorser, so called upon, has the names of one or more indorsers prior to his own, to each of whom he is properly an indorsee, he is also at liberty to call upon any of them to make him satisfaction; and so upwards. But the first indorser has nobody to resort to, but the drawer only (27).

no effects in the hands of the drawee when the bill was dishonored, he may still recover against the drawer, though he omitted to give him notice. For the intent of the notice is to give him the earliest opportunity of regaining his property out of the hands of the drawee; and he can sustain no possible injury by the want of notice, when he has no property in the drawee's possession. 1 T. R. 712. But this reason does not extend to an indorser; and therefore the circumstance of the drawee's having no effects is immaterial in an action against him. Ib.

So if a bill of exchange is dishonored by non-acceptance or nonpayment, if the holder intends to proceed against a prior indorser, he must give him immediate notice. But if the payee in a promissory note has given no value for it, then in an action against him by the holder, it is not necessary to prove that payment was demanded of the drawer at the time it was due, or that notice was given him of the drawer's refusal to pay.

For from the omission of these circumstances such a payee can sustain no loss. 2 Hen. Bl. 336. Proof that a letter was put into the post-office in due time directed to the party, containing an account of the dishonor of a note or bill is sufficient evidence of notice. 2 Hen. Bl. 509. But the holder must remember that this cannot be proved by his own testimony.

(27) The holder of the bill may bring actions against the acceptor, drawer, and all the indorsers at the same time; but though he may obtain judgments in all the actions, yet he can recover but one satis-,

WHAT has been said of bills of exchange is applicable also to promissory notes, that are indorsed over, and negociated from one hand to another; only that, in this case, as there is no drawee, there can be no protest for non-acceptance; or rather, the law considers a promissory note in the light of a bill drawn by a man upon himself, and accepted at the time of drawing. And, in case of non-payment by the drawer, the several indorsees of a promissory note have the same remedy, as upon bills of exchange, against the prior indorsers.

faction for the value of the bill; but he may sue out execution against all the rest for the costs of their respective actions. Bayley, 43.

CHAPTER THE THIRTY-FIRST.

OF TITLE BY BANKRUPTCY.

THE preceding chapter having treated pretty largely of

the acquisition of personal property by several commercial methods, we from thence shall be easily led to take into our present consideration a tenth method of transferring property, which is that of

X. BANKRUPTCY; a title which we before lightly touched upona, so far as it related to the transfer of the real estate of the bankrupt. At present we are to treat of it more minutely, as it principally relates to the disposition of chattels, in which the property of persons concerned in trade more usually consists, than in lands or tenements. Let us therefore first of all consider, 1. Who may become a bankrupt: 2. What acts make a bankrupt: 3. The proceedings on a commission of bankrupt: and 4. In what manner an estate in goods and chattels may be transferred by bankruptcy.

1. WHO may become a bankrupt. A bankrupt was beforeb defined to be "a trader, who secretes himself, or does "certain other acts, tending to defraud his creditors." He was formerly considered merely in the light of a criminal or offender (1); and in this spirit we are told by sir Edward a See page 285. b Ibid.

c Stat. 1 Jac. I. c. 15. sec. 17.

(1) Throughout the three first statutes the bankrupt is uniformly called an offender, and the original design of the bankrupt laws

Coked, that we have fetched as well the name, as the wickedness, of bankrupts from foreign nations e. But at present the laws of bankruptcy are considered as laws calculated for the benefit of trade, and founded on the principles of humanity as well as justice; and to that end they confer some privileges, not only on the creditors, but also on the bankrupt or debtor himself. On the creditors: by compelling the bankrupt to give up all his effects to their use, without any fraudulent concealment: on the debtor; by exempting him from the rigor of the general law, whereby his person might be confined at the discretion of his creditor, though in reality he has nothing to satisfy the debt: whereas the law of bankrupts, taking into consideration the sudden and unavoidable accidents to which men in trade are liable, has given them the liberty of their persons, and some pecuniary emoluments,

d 4 Inst. 277.

e The word itself is derived from the word bancus or banque, which signifies the table or counter of a tradesman, (Dufresne. I. 969.) and ruptus, broken; denoting thereby one whose shop or place of trade is broken and gone; though others rather choose to adopt the word route, which in French signifies a

trace or track, and tell us that a bankrupt is one who hath removed his banque, leaving but a trace behind. (4 Inst. 277.) And it is observable that the title of the first English statute concerning this offence, 34 Hen. VIII. c. 4. "against such persons as do make bankrupt," is a literal translation of the French idiom, qui font banque route.

appears to have been to prevent and defeat the frauds of criminal debtors; for the 34 & 35 Hen. VIII. c. 4. the first bankrupt statute, begins with this preamble: "Whereas divers and sundry persons "craftily obtaining into their hands great substance of other men's "goods, do suddenly flee to parts unknown, or keep their houses, not

minding to pay or restore to any their creditors their debts and duties, « but at their own wills and pleasures consume the substance obtained "by credit of other men, for their own pleasure and delicate living, "against all reason, equity, and good conscience." The bankrupt being deemed an offender, and being completely divested of the disposition of his property, these statutes at the first would naturally be considered penal statutes; for this reason I presume the 21 Jac. I. c. 19. begins by declaring that "the aforesaid statute shall be largely and beneficially "construed and expounded for the aid and relief of the creditors."