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of administration taken out at Durham, cannot bring an action on the custom of merchants against the drawer, and lay the same in London, because a bill of exchange is not equal to a bond or specialty, which are the deceased's goods where they happen to be at his death, but is a simple contract which follows the person of the debtor, and makes bona notabilia where the debtor resides, and therefore administration ought to be taken out in London.
II. Of the Capacity of the contracting Parties to a Bill of
All persons, whether merchants or not, if they have capacity to contract, may be parties to a bill of exchange. This appears from the case of Sarsfield v. Witherly, Carth. 82, in which it was decided, that the act of drawing a bill of exchange constituted the drawer a merchant, within the custom of merchants, so as to make him responsible to the holder upon non-payment. Corporations, by the intervention of their agents may be parties to a bill of exchange; but by stat. 3 and 4 W. 4. c. 98, under which the Bank of England enjoys exclusive privilege of banking, as a corporation, upon certain conditions, it is enacted by s. 2, that during the continuance of that privilege, no body politic or corporate, and no society or company, or persons united or to be united in covenants or partnerships, exceeding six persons, shall make or issue in London, or within sixty-five miles thereof, any bill of exchange or promissory note, or engagement for the payment of money on demand, or upon which any person holding the same may obtain payment on demand : provided that nothing therein, or in the 7 Geo. 4. c. 46, shall be construed to prevent any body politic or corporate, or any society or company, or incorporated company or corporation, or co-partnership, carrying on and transacting banking business at any greater distance than sixty-five miles from London, and not having any house of business or establishment as bankers in London, or within sixty-five miles thereof, (except as thereinafter mentioned,) to make and issue their bills and notes, payable on demand or otherwise, at the place at which the same shall be issued, being more than sixty-five miles from London, and also in London, and to have an agent in London, or at any other place at which such bills or notes shall be made payable for the purpose of payment only; but no such bill or note shall be for any sum less than five pounds, or be re-issued in London, or within sixty-five miles thereof.
Assumpsit will lie on a bill of exchangel against a trading corporation, whose power of drawing and accepting bills is recognised by statute.
Infant.-An infant cannot bind himself by a bill drawn in the course of tradem, or even for necessaries. But infancy is a personal privilege, of which the infant alone can avail himself. Hence it has been holden, that the drawer of a bill of exchange cannot set up the infancy of the payee and indorser as a defence to the action'. In like manner the acceptor of a bill of exchange cannot set up the infancy of the drawer as a defence to an action brought at the suit of the indorsee. Taylor v. Croker, 4 Esp. N. P. C. 187; and per Lord Hardwicke, in Haly v. Lane, 2 Atk. 181, 2. S. P. So, though a note given by a wife to a husband is void, yet if it is indorsed over by the husband, as between him and the indorsee, it is certainly good. Ibid. And if a bill be accepted by a party after he is of full age, he will be liable, although the bill was drawn on him while an infantP.
Feme Covert.—A feme covert cannot bind herself by drawing a bill of exchange. This proposition falls within the general rule of law, which permits married women to avoid all contracts made by them during their coverture. To this rule there are some exceptions, which are stated under title Baron and Feme, sect. II. The interest in a bill of exchange or note given to a feme covert, vests in her husband, and he must indorse it. An action was brought by the indorsee against the maker of a promissory note 4. The first count of the declaration was upon the note, to which were added the money counts. It appeared that the note had been given by the defendant to a married woman, with knowledge of her coverture, to the intent that she should indorse it to the plaintiff, which was done accordingly, in payment of a debt which she owed him (in the course of carrying on trade in her own name with the consent of her husband.) The plaintiff had dealt with her as a feme sole. It was holden, that the property in the note vested in the husband by the delivery to the wife, and that her indorsement did not transfer any interest to the plaintiff; consequently he was not entitled to recover on the special count: nor on the money counts, because no money had passed between the plaintiff and defendant. Where a promissory note is given to a married woman, the husband may sue on it, in his own name only?; and then a debt due to the maker from the wife dum sola cannot be set off. A promissory note made payable to a woman who is married at the time of the making, passes by the indorsement of the husband alone, during the coverture. Mason v. Morgan, 2 Ad. and Ell. 30
1 Murray v. the East India Company, o Grey v. Cooper, B. R. E. 22 G. 3. 5 B. and A. 204.
MS. S. C. more fully reported m Williams v. W. Harrison and R. Har. 3 Doug. 65. rison, Carth. 160.
p Stevens v. Jackson, 4 Campb. 164. n Williamson v. Watts, 1 Campb. 552. 9 Barlow v. Bishop, 1 East's R. 432.
Sir J. Mansfield, C. J.
But if a promissory note is made payable to a married woman, and she indorses it for value in her own names, and the maker afterwards promises to pay it, in an action against him by the indorsee, it will be presumed, that the nominal payee had authority from her husband to indorse the note in that form, and the indorsement will be considered as vesting a legal title to the note in the plaintiff. So where the husband called on the defendant for payment of a debt due to the wife, and drew a bill, which was signed by his wife in his presence, at the request of, and accepted by, the defendant, and afterwards indorsed by the wife: the husband having obtained value from the plaintiffs, to whom he delivered the bill; it was holdent, that they might recover against the defendant, the acceptor, inasmuch as the indorsement was by the authority of the husband, and consequently the property passed to the plaintiffs.
Bill of exchange payable to a woman dum sola—she afterwards marries, and then the bill becomes due and is dishonoured: the husband may sue in his own name without joining the wife, for the property in the bill and the right of transfer is vested by the marriage in the husband, and as he might have indorsed it in his own name, so he may sue in his own name without a formal indorsement; for a bill of exchange differs in this respect from other choses in action, that the right of action is vested in the indorsee, who may sue in his own nameu.
Agent.--Bills of exchange may be drawn, accepted, or indorsed, by means of the agent or attorney of the party. An agent or attorney for this purpose may be constituted by parol. In such case the principal is said to draw, accept, or indorse, by procuration. Agents should be cautious how they accept bills directed to them personally, and not to their principals, although such direction describe them in their official characters; for in such case, if they accept in their own name, they will become personally responsible, as appears from the following case :—The plaintiff was indorsee of a bill of exchange, drawn from Scotland upon the defendant in these words*, “At thirty days' sight pay to J. S. or order 2001. value received of him, and place the same to account of the York Buildings' Company, as per advice from Charles Mildmay. To Mr. Humphrey Bishop, cashier of the York Buildings' Company, at their house in Winchester Street, London. Accepted per H. Bishop." The bill not having been paid, an action was brought against defendant upon his acceptance : at the trial he proved, that the letter of advice was addressed to the company; and that, the bill having been brought to their house, defendant was ordered to accept it, which he did in the same manner as he had accepted other bills. Page, J. directed the jury to find for the plaintiff, which they did accordingly. On motion for a new trial, the court held the direction right; “for the bill on the face of it imported to be drawn on the defendant, and it was accepted by him generally, and not as servant to the company, to whose account he had no right to charge it until actual payment by himself. And this being an action by an indorsee, it would be of dangerous consequence to trade, to admit evidence arising from extrinsic circumstances—as the letter of advice. And this differed widely from the case of a bill addressed to the master, and underwritten by the servant : where undoubtedly the servant would not be liable, but his acceptance would be considered as the act of the master. A bill of exchange is a contract by the custom of merchants, and the whole of that contract must appear in writing. In this case there was nothing in writing to bind the company, nor could any action be maintained against them upon the bill: for the addition of cashier to defendant's name was only to denote the person with certainty; the direction to whose account to place it was for the use of the drawee only.” Judgment for the plaintiff. One who covenants for himself, his heirs, &c. under his own hand and seal, for the act of another, shall be personally bound by his covenant, though he describe himself in the deed as covenanting for and on the part and behalf of such other person. Appleton v. Binks, 5 East, 148. Where the defendant, in the absence of his brother, who was liable to give the plaintiff a bill for goods supplied, signed it in his own name; it was holden, that he was personally liable, the debt of a third person being a sufficient consideration for which a third person may bind himself by bill, and the consideration need not be such as would enable the plaintiff to sue on a special contract. Sowerbyv. Butcher, 2 Cr. & M. 368. But where A. entered into and signed an agreement as agent of B., and B. shortly afterwards signed it with the words “I hereby sanction this agreement, and approve of A.'s having signed it on my behalf;" it was holden, that A. was not personally liable. Spittle v. Lavender, 2 Brod. and Bingh. 452. An agent to a country bank, to whom the plaintiff sent a sum of money in order to procure a bill upon London, drew, in his own name, for the amount upon the firm in London, the two firms being the same: it was holden ý that the agent was liable as drawer, although plaintiff knew that he was agent, and supposed that the bill was drawn by him as such, and on account of the country bank, to which the agent paid over the money. A power of attorney?, authorising an agent to demand, sue for, recover, and receive, by all lawful ways and means whatsoever, all monies, debts, dues, whatsoever, and to give sufficient discharges, does not authorise him to indorse bills for his principal.
r Burrough v. Moss, 10 B. and c. t Prestwick and another v. Marshall, 558.
7 bingh. 565. s Cotes v. Davis, 1 Campb. 485. u M`Neilage v. Holloway, I B. and A. x Thomas v. Bishop, Str. 955. Ca. Temp. Hardw. 1, S. C.
Partners.-By the custom of England where there are joint traders, and one of them accepts a bill drawn on them for himself and partner, such acceptance binds all the partners, if it concerns the trade; otherwise, if it concerns the acceptor only, in a separate and distinct interest. If a bill of exchange is drawn upon a firm, and one of the partners accept it in his own name, this acceptance binds the partnershipb. So if A., B., and C. are in partnership, and A. draws a promissory note, by which he promises individually to pay the money, and which he signs with his own name only, but prefixing to his signature "for. A., B., and C.” this binds the whole partnership". Where there are several partners it is competent to either of them, by his indorsement, in the name of the firm, to pass their interest in the billd; and such indorsement made by one partner for the satisfaction of his separate debt, cannot be questioned in an action by the indorsee against the acceptor, without shewing that the in
y Leadbitter v. Farrow, 5 M. and S. c Lord Galway v. Matthew, I Campb. 345.
403. 2 Murray v. the East India Company, d Swan v. Steel, 7 East 210, recog5 B. and A. 204.
nized in Vere v. Ashby, 10 k. and a Pinkney v. Hall, Salk. 126.
C. 296. Arden v. Sharpe and anob Mason v. Rumsey, 1 Campb. 384. ther, 2 Esp. N. P. C. 524. Wells
v. Masterman, 2 Esp. N. P. C. 731.