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Ann. c. 9. s. 4. it is enacted (36), that “ upon presenting "such bills drawn for the payment of five pounds or upwards, in case the drawee should refuse to accept them by underwriting the same, the payee, his agent, &c. shall "cause the same to be protested for non-acceptance, as in case of foreign bills of exchange. The protest to be made "by such persons as are appointed by the stat. of W. 3. "to protest for non-payment, and 2s. only to be paid for "it."

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Sect. 5. "Provided, that no acceptance of such bill shall "be sufficient to charge any person, unless the same bill be "underwritten or indorsed in writing thereupon (37), and "if such bill be not so accepted, the drawer shall not be lia"ble to pay any costs, damages, or interest, unless such pro"test be made for non-acceptance thereof, and within 14 days after such protest, the same be sent, or otherwise "notice thereof be given, to the party from whom such bill "was received, or left in writing at the place of his or her "usual abode; and if such bill be accepted, and not paid "before the expiration of three days after the said bill shall "become due, the drawer shall not be liable to pay any costs, damages, or interest, unless a protest be made and "sent, or notice thereof given, in manner and form above "mentioned; nevertheless, every drawer of such bill shall "be liable to make payment of costs, damages, and interest, upon such inland bill, if any one protest be made of nonacceptance or non-payment thereof, and notice thereof be "sent, given, or left as aforesaid."

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Sect. 7. "If any person accept any such bill (38) in satis

e See stat. 9 & 10 W. 3. c. 17. s. 1. and 3 & 4 Ann. c. 9. s. 6.

(36) Lord Hardwicke, C. J. in Lumley v. Palmer, justly observed, that this statute was drawn very darkly.

(37) "If these words stood singly, it would be hard to say that any remedy lay against the acceptor by reason of a parol acceptance; but the generality of these words is restrained by the words that immediately follow, so that the first general words are only to be understood to relate to the charging the drawer with interest and costs." Cas. Temp. Hardw. 78. Per Lord Hardwicke, in Lumley v. Palmer.

(38) That is, a bill for 57. or upwards, payable after date, and expressed to be for value received, see s. 4.

Formerly, a bill given in payment of a precedent debt, was not considered as payment, unless the money was paid by the drawee,

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"faction of any former debt or sum of money, formerly due unto him, the same shall be esteemed a complete payment "of such debt, if such person doth 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."

Sect. 8. "Provided, that nothing herein contained shall "extend to discharge any remedy (39) that any person may "have against the drawer, acceptor, or indorser of such "bill."

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"In case any inland bills of exchange (for 51. or upwards, payable at a certain time after date, and expressed to be "for value received) be lost or miscarried within the time be"fore limited for payment, the drawer shall give other "bills of the same tenor with those first given, the persons "to whom they shall be so delivered giving security to the "drawer to indemnify him in case the bills shall be found again."

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The indorsee of a lost bill, where the bill has been indorsed in blank, cannot recover at law against the acceptor, although a sufficient indemnity is tendered; he must resort to a court of equity for relief". But where the bill lost had only a special indorsement upon it, an action may be maintained, without producing the bill1.

Liability of the Drawer on Non-acceptance.-If the drawee, on presentment for acceptance, dishonour the bill, the drawer may be called on for immediate payment (40). In

f 9 & 10 W. 3. c. 17. s. 3.

g Pierson v. Hutchinson, 2 Camp. N.

P. C. 211.

h See Walmsley v. Child, 1 Ves. 341. and Exp. Greenway, 6 Ves. jun. 812.

iLong v. Bailie, 2 Camp. N. P. C. 214. n. See also Brown v. Messiter, 3 M. & S. 281.

although the holder had neglected to present it for payment, or to give notice of non-payment. See 12 Mod. 203. Ca. Temp. Holt, 299. Salk. 124. See Bishop v. Rowe, 3 M. & S. 362.

⚫ (39) "The construction of this clause is, that it relates to the remedy for the principal sum in the bill, for these two acts (viz. 9 & 10 W. 3. c. 17. and 3 & 4 Ann. c. 9.) relate to and make a provision for protests, which are to be followed with interest, damages, and charges upon the drawer; and, therefore, this is a very natural proviso, that this should not extend to discharge any remedy that they might have for the principal sum, though there were no such protest." Per Lord Hardwicke, C. J. in Lumley v. Palmer, Ca. Temp. Hardw. 78.

(40) A foreign bill of exchange was drawn payable at 120 days

Milford v. Mayor, Doug. 55. where the defendant was holden to bail, on an affidavit of debt, on a bill of exchange, drawn by defendant and indorsed to plaintiff, although the bill was not due at the time of the arrest; yet the drawee having dishonoured the bill, the court refused to discharge the defendant (41). And in Ballingalls and another v. Gloster, B. R. E. 43 G. 3. 3 East's R. 481. it was adjudged, that the indorsee of a foreign bill of exchange might bring an action against the person who had indorsed it to him, immediately on the non-acceptance of the drawee, although the time for which the bill was drawn was not elapsed, on the ground, that every indorser was in the nature of a new drawer. And Lord Ellenborough, C. J. said, that, in a late case tried before him at Guildhall, it appeared to be the universally received law on the Continent, that an indorser was liable immediately on the non-acceptance of the drawee.

V. Of the Transfer of Bills of Exchange. Of the Party in whom the Right of Transfer is vested.

BILLS payable to order (42) or to bearer, are negotiable,

after sight, but when the bill was presented for acceptance, that was refused; upon which an action was immediately brought against the drawer, without waiting till the expiration of the 120 days. On the trial, the defendant objected, that he was not liable until the expiration of the 120 days, and offered to call evidence to prove, that the custom of merchants was such. But Lord Mansfield, C. J. said, the law was clearly otherwise, and refused to hear the evidence. Bright v. Purrier, London Sittings after Trin. 5 Geo. 3. Bull. N. P. 269. cited by Ellenborough, C. J. in Ballingalls v. Gloster, 3 East's R. 483..

(41) In Macarty v. Barrow, B. R. E. 6 Geo. 2. Str. 949. (more fully and accurately reported from a note supplied by Wilmot, C. J. in 3 Wils. 17. and from Ford's note, in 7 East, 437. n. (a) and recognized in Francis v. Rucker, Ambl. 672.) the defendant having drawn bills on Spain, which were afterwards protested for nonacceptance, became a bankrupt before they were returned, and, being arrested, he was discharged, upon motion, on the ground that it was a debt contracted before the bankruptcy, and at the very instant when the bills were drawn.

(42) It must be observed, that the indorsement of a bill which has

and the transfer of them for a good and valuable consideration vests a right of action in the assignee. It is a rule of the common law, that choses in action are not assignable; but in the case of bills of exchange there is an exception to this rule, and in favour of commercial intercourse they are, by the custom of merchants, assignable to a third person not named in the bill, or party to the contract, so as to vest in the assignee a right of action in his own name. Whether a bill of exchange be negotiable or not, is a question of law.

In respect of bills payable to order, the custom has directed, that the assignment should be made by a writing on the bill, called an indorsement; and in respect of bills payable to bearer, that the assignment should be constituted by delivery only (43). A transfer of a bill of exchange by indorsement is an act similar in effect to making a new bill, the indorser being in the nature of a new drawer'.

Indorsements are of two kinds, 1st. blank, 2d. in full.-An indorsement in blank, which is the most common, is made by the writing the indorser's name on the back of the bill, without any mention of the name of the person in whose favour the indorsement is made (44).

k Grant v. Vaughan, 3 Burr. 1523. 1526. 1528.

1 Per Holt, C. J. Skin. 411. Hard

wicke, Chr. 1 Atk. 282. Lord Mansfield, C. J. 2 Burr. 674. Lord Ellenborough, C. J. 3 East's R. 482.

not the words "or to his order" is good, or of the same effect between indorser and indorsee to make the indorser chargeable to the indorsee. Per Holt, C. J. Hill v. Lewis, Salk. 133.

(43) If a bill be payable to A. or bearer, and A. delivers it over for money received without indorsement, this is a sale of the bill, and the seller does not become a new security; but if he had indorsed it, he had become a new security, and then he had been liable upon the new indorsement. Per Holt, C. J. Governor and Company of the Bank of England v. Newman, Lord Raymond, 442. Cited in Emly v. Lye, 15 East, 7. and post. tit. Partner.

(44) Indorsements, either blank or special, subsequent to a blank indorsement by the payee, may be struck out even at the trial*; consequently a remote indorsee may declare as the immediate indorsee of the payee or first indorser.

Indorsees of a bill of exchange against acceptor. The bill was indorsed in blank by the payee, and after several indorsements it came to one Jackson a bankrupt, (whose assignees had indemnified defendant) under a special indorsement to him or order. Jackson,

Theed v. Lovel, Str. 1103.

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If A. the payee of a bill of exchange indorses it in blank and delivers it to B., and B. writes, above A.'s indorsement, pay the contents to C." without subscribing his own name, B. is not liable to C. as an indorser of the bill; for, in order to make a party liable as an indorser, his name must appear written with intent to indorse.

An indorsement in full, or special indorsement, mentions the name of the indorsee, as thus, "Pay the contents to A. B." and is subscribed with the name of the indorser (45).

m Vincent v. Horlock, 1 Camp. N. P. C. 442.

without indorsing the bill, sent it to Muir and Atkinson, who discounted it with plaintiffs. Plaintiffs had struck out all the indorsements except the first. Per Lord Kenyon, C. J. "The fair holder of a bill may consider himself as the indorsee of the payee, and strike out all the other indorsements. This special indorsement being made after the payee had indorsed it, cannot affect the title of the present plaintiffs.' Smith and others v. Clarke, Sittings for London after T. 34 Geo. 3. Peake's N. P. C. 225. 1 Esp. N. P. C. 180. S. C. So where there were several blank indorse ments intermediate between the indorsement by the payee and the indorsement by the defendant, and plaintiff declared that the payee indorsed the bill to the defendant, who indorsed it to plaintiff; this was holden good. Chaters v. Bell, 4 Esp. N. P. C. 210. Per Lord Ellenborough, C. J.

(45) A full or special indorsement contains in itself a transfer of the interest in the bill to the person named in such indorsement. Poth. Traité du Contrat de Change, part 1. chap. 2. s. 23, 24. But a bare indorsement, without other words purporting an assignment, does not work an alteration of the property. Per Cur. Lucas v. Haynes, Salk. 130.

Clark having a bill of exchange payable to him or order, put his name upon it, leaving a vacant space above, and sent it to J. S. his friend, who got it accepted; but the money not being paid, Clark brought assumpsit against the acceptor. And it was objected, that the action should have been brought by J. S. But per Holt, C. J., J. S. had it in his power to act either as servant or assignee. If he had filled up the blank space, making the bill payable to him, as he might have done if he would, that would have witnessed his elec tion to have received it as indorsee. The property of the bill would have been transferred to him, and he only could have maintained this action against the acceptor; but since he has not filled up the blank space, his intention is presumed to act as servant only to Clark, whose name was put there; that on payment thereof a receipt for the money might be written over his name, and therefore the action is maintainable by Clark. Clark v. Pigot, Salk. 126. and 12 Mod. 192.

From the foregoing case it appears that a blank indorsement is an

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