« EelmineJätka »
made. A date is not of the substance of a deed, for if it want a date, or have a false or impossible date, as the 30th of February, yet the deed is good. Goddard's case, 2 Co. 5. a. Case on a foreign bill of exchange payable at double usance from the dates, and it was alleged that the party beyond the sea drew the bill on a certain day, and that the same was presented to and accepted by the defendant. Exception, that the date of the bill was not set forth. The court said, that they would intend the bill dated at the time of drawing it. Judgment for plaintiff. So where in the first count of the declaration it was statedh, that the defendant heretofore, to wit, on the 15th day of September, 1800, drew a bill of exchange, bearing date the day and year aforesaid, payable two months after date. The second count stated, that the defendant afterwards, to wit, on the same day and year aforesaid, drew a certain bill of exchange, payable two months after date. On writ of error, after judgment by default, it was objected, that the second count could not be sustained, because the date of the bill was not stated; that although, in De la Courtier v. Bellamy, the court held, that it might be intended that the date of the bill was the day of the drawing, yet there the day of drawing was expressly stated; whereas in this case it was to be collected only from words of reference to the first count, in which the day of drawing was laid under
“to wit.” But the court were of opinion, that this case was not distinguishable from De la Courtier v. Bellamy, and that they might well intend the date to have been the day of drawing stated in the first count. The defendant, on the 4th May, 1810, drew a bill of exchange, which he dated on the 11th May, 1810, payable sixty-five days after date, and delivered it to the payee, who, after indorsing it for a valuable consideration to the plaintiff on the fifth of May, died on the same day. It was holden, that the plaintiff was entitled through this indorsement to recover against the draweri. In the case of a bill dated on a Sundayk, the court, in the absence of evidence, would not presume the acceptance to have been written on that day; and even if it had, such an act would not be an act of ordinary calling within stat. 29 Car. 2. c. 7.
Alteration of Date.—A bill of exchange was drawn on defendant on the 26th March, 1788, payable three months after
g De la Courtier v. Bellamy, 2 Show. Giles v. Bourne, 6 M. and S. 73. 4:22.
S. P. on demurrer. h Hague v. French, Exchequer Cham- i Pasmore v. North, 13 East, 517.
ber, in error, 3 Bos, and Pul. 173. k Legbie v. Levi, i Cr. and J. 180.
date to J. S. and accepted by defendant?. After acceptance, and while the bill remained in the hands of J. S. the payee, the date of the bill was altered by some person unknown, from the 26th March, 1788, to the 20th March, 1788, without the authority or privity of defendant: J. S. the payee, afterwards indorsed the bill so altered to the plaintiffs for a valuable consideration. It did not appear that plaintiffs knew of the alteration at the time when the bill was indorsed to them. Payment having been refused, plaintiffs sued the defendant as acceptor. The declaration contained two special counts, one on a bill dated the 20th March, 1788, the other on a bill dated the 26th March, 1788, and the money counts. Special verdict. The case was argued twice in B. R. after which the court (Buller, J. dissentient,) gave judgment for defendant, on the ground that the alteration of the instrument had avoided it. So if the word “date" be inserted, instead of the word "sight,” Long v. Moore, Kenyon, C. J. 3 Esp. N. P. C. 155. So where a billm having been accepted generally, the drawer, without the consent of the acceptor, added the words “payable at Mr. B.'s, Chiswell Street.” But a mere correction of a mistake, as by inserting the words “or order," in furtherance of the intention of the
parties, will not vitiate the bill. Kershaw v. Cox, Le Blanc, J. 3 Esp. N. P. C. 246; Brutt v. Picard, 1 R. and M. 37. S. P. So where two persons being jointly indebted to another, agreed to give him a bill of exchange, to be drawn by one of the debtors, and accepted by the other, instead of which they sent him a promissory note, made by the one and indorsed by the other, which he immediately returned to be altered into a bill of exchan which was done accordingly: it was holden, that such alteration, only fulfilling the terms of the agreement, might be considered as the correction of a mistake, and did not render a new stamp necessary, the instrument never having been negotiated as a promissory note. Webber v. Maddocks, 3 Campb. 1. See Cole v. Parkin, 12 East, 471. So if the alteration be not in the time of payment, sum, &c. or other material part, the bill will not be affected by it. Hence, writing on the bill the place where it was to be paid, before the bill was negotiated, at the request of the payee, has been holden not to destroy the validity of the bill. Trapp v. Spearman, Kenyon, C. J. 3 Esp. N. P. C. 57. Jacobs v. Hart, 2 Stark. N. P. C. 45. Lord Ellenborough, C. J. 6 M.
1 Master and others v. Miller, 4 T. R.
320, affirmed on error in Exchequer
in Master v. Miller was not confined
to negotiable instruments. m Cowie and another v. Halsall, 4 B.
and A. 197. See also Desbrow v. Weatherley, 6 C. & P. 758.
and S. 142. S. P. Stevens v.
Stevens v. Lloyd, 1 M. and Malk. 292. So where in an action by the indorsee, against the acceptor of a bill, it appeared that, after the bill had been accepted by the defendant, the words “ Prescott and Co.” had been written under his name by the drawer, without his knowledge or assent, the plaintiff having refused to take the bill unless these words were added. Lord Ellenborough held, that as the addition of these words did not alter the responsibility of the acceptor, he was still liable. Marson v. Petit, i Campb. 82. n.
So where the acceptor had made the bill payable at his own house, and some time after delivery to payee, at the request of payee, altered the place of payment to a banker's; it was holden to be immaterial. Three persons joined as drawer, acceptor, and first indorser, in making an accommodation bill; and it was afterwards issued for value to J. S. Previously to its being issued, its date had been altered : it was holden, that the acceptor, having assented to the alteration when he was informed of it, it was no answer to an action on the bill against him, that the bill had been so altered without the consent of the drawer and first indorser, and that a fresh stamp was not necessary in consequence of such alteration, the bill having been altered before it was issued in point of law. An accommodation bill is not issued until it is in the hands of some person who is entitled to treat it as a security available in law. Downes v. Richardson, 5 B. and A. 674. But in all these cases it lies on the plaintiff to show that the alteration was made previous to the note being issued. Johnson v. Duke of Marlborough, 2 Stark. 313. If upon a bill being presented for acceptance, the drawee alters it as to the time of payment, and accepts it so altered : although the drawer and indorser are thereby discharged, yet if the holder acquiesces in such alteration and acceptance, the bill will be good as between the holder and acceptoro. But if, after a bill has been drawn and indorsed, and before it is accepted, the drawee alter it by postponing the time of payment, it renders the bill voidp.' So where a bill was delivered by the drawee to the payee, and afterwards its date was altered by an agreement between the payee and drawee before acceptance, in an action by payee against acceptor, it was holden void9 under the stamp laws, for it was negotiated when delivered by the drawer to payee. But where drawer sued acceptor upon a bill and failed, in consequence of having altered the bill in a material part, he may still recover on the counts on the original consideration. Atkinson v. Hawdon, 2 Ad. & El. 628.
n Walter v. Cubley, 2 Cr. and M. 151; p Outhwaite v. Luntley, 4 Campb. 4 Tyrw. 87.
179. o Paton v. Winter, 1 Taunt. 420. 9 Walton v. Hastings, 4 Campb. 223.
of the Person to whom the Bill is made payable.-Regularly a bill of exchange ought to be made payable to a real person, but if it be drawn payable to a fictitious payee or order, and indorsed in his name, by concert between the drawer and acceptor, it will be considered as a bill payable to bearer, and
may be declared on as such in an action by an innocent indorsee for a valuable consideration against the drawer.Collis and others v. Emett, 1 H. Bl. 313; or against the acceptor—Gibson and another v. Minet and another, 1 H. Bl. 569. But see contr. the opinions of Eyre, C. J. and Heath, J. 1 H. Bl. p. 598, 625, with whom Lord Thurlow, Ch. concurred. But if the circumstance of the payee being a fictitious person is unknown to the acceptor, he cannot be declared against on the bill, either as a bill payable to bearer, or to the order of the drawer. Where the drawer subscribed himself as Thomas Wilson, when his name was Thomas Wilson Richardson, it was holdens, that he was not to be esteemed to have committed a forgery, unless it were proved that the omission of his surname was for purposes
of fraud. Words “or order.” The negotiability of a bill of exchange depends on its being made payable to A. or order, or to A.'s order, or to A. or bearer. See post, on the transfer of bills of exchange. A bill payable to A.'s order is the same as if it were made payable to A. or ordert, and may be declared on, without alleging that A. did not make any order for the payment of the bill to any other persona. In Hill v. Lewis, Salk. 133. exception was taken that a bill vas payable to defendant only, without the words “or his order," and therefore not assignable by the indorsement; and Holt, C. J. agreed that the indorsement of this bill did not make him that drew the bill chargeable to the indorsee; for the words “or his order," give authority to the plantiff to assign it by indorsement; and it is an agreement by the first drawer that he would answer it to the assignee; bit the indorsement of a bill which has not the words, “or hs order," is good or of the same effect between the indorser and the indorsee, to make the indorser chargeable to the indorsee.
“ Value received.”—The essence of a bill of exchange is, that it is negotiable or payable to order, and that it is payable generally, not out of a particular fund. It is rot essentially necessary to insert the words “value receivedy.” But if they are omitted in inland bills, the holder cannot avail himself of the provisions of 9 and 10 W. 3. c. 17, and 3 and 4 Ann, c. 9. s. 4. A bill of exchange is presumed to be made upon a good and valuable consideration; and in actions not between immediate parties some suspicion must be cast on the plaintiff's title before he can be compelled to prove what consideration he has given for it. A mere notice given by the defendant to the plaintiff, that he will be required at the trial to prove the consideration, is not sufficient to cast this burden on the plaintiff?. When suspicion is cast on the plaintiff's title by showing that some previous holder has been defrauded out of it, the plaintiff must prove what consideration he gave for ita. In actions between immediate parties, the illegality or want of consideration may be insisted on by way of defence to an action on the bill. In other cases, bills of exchange are made void by express statute. “As between the drawer and payee, the consideration may be gone into, yet it cannot between the drawer and indorsee; and the reason is, because it would be enabling either of the original parties to assist in a fraud ;” per Ashhurst, J. in Lickbarrow v. Mason, 2 T. R. 71. See an anonymous case in chancery, Comyns, 43. where Sommers, Lord Keeper, held, that the drawer of a bill of exchange, though given without consideration, was not entitled to relief against a third person, to whom it was assigned for a just debt. See also Srelling v. Briggs, Bull. N. P. 274, where it is said, that it seems a reasonable distinction which has been taken between an action between the parties themselves, in which evidence may be given to impeach the promise, and an action by or against a third person, viz. an indorsee or an acceptor. See also Puget de Bras v. Forbes and another, coram Loughborough, C. J. 1 Esp. N. P. C. 117. There must, however, be a total failure of consideration to constitute a defence in an action brought by the drawer against the acceptor; and, consequently, circumstances amounting to proof only of a partiał failure, will afford no answer to action brought by indorsee against acceptor. Mann v. Lent, 10 B. and C. 877. See ante, 165 n., and Obbard v. Betham, 1 M. and Malk. 483, as to distinction between a contract and security in this respect.
r Bennett v. Farnell, 1 Campb. 130.
u Smith v. M'Clure, 5 Eas, 376.
By sta;. 9th Ann c. 14. s. 1 “All notes, bills, &c. where
y White v. Ledwick, 4 Doug. 247, on Clarke v. Elliott, B. R. London Sit
demurrer to the declaration. Per tings alter M. T. 52 G. 3. S. P Lord Ellerborough, C. J. in Grant a liees v. M. of Headfort, 2 Campb. v. Da Cota, 3 M. and $. 352.
574 z Reynoldsv. Chettle, 2 Campb. 596. b Puget de Pras v. Forbes, 1 Esp. N.
P. C. 117.