by the underwriting the same under the party's hand so accepting) and after the expiration (2.) of three days after the said bill or bills shall become due, the party to whom the said bill or bills are made payable his servant agent or assigns may and shail cause the said bill or bills to be protested by a notary publick, and in default of such notary publick by any other substantial person of the city town or place in the presence of two or more credible witnesses refusal or neglect being first made of due payment of the same; which protest shall be made and written under a fair written copy of the said bill of exchange, in the words or form following: KNOW all men, that I A. B. on the at the usual place of abode of the said day of have demanded payment of the bill of the which the above is the copy, 'which the said did not pay, wherefore I the said 'do hereby protest the said bill. Dated this day of No. I. 9 & 10 W. III.c.17. II. Which protest so made as aforesaid shall within fourteen days (3) Protest or Noafter making thereof be sent, or otherwise due notice shall be given thereof tice thereof to to the party from whom the said bill or bills were received who is upon be given in producing such protest to repay the said bill or bills together with all in- fourteen Days terest and charges from the day such bill or bills were protested; for after made, &c. which protest shall be paid a sum not exceeding the sum of sixpence ; and in default or neglect of such protest inade and sent or due notice given within the days before limited, the person so failing or neglecting thereof is and shall be liable to all costs (4.) damages and interest which do and shall accrue thereby. III. Provided nevertheless, That in case any such inland bill or bills of Bill lost or misexchange shall happen to be lost or miscarried within the time before carried, Drawer limited for payment of the same, then the drawer of the said bill or bills to give another. make affidavit of the fact, and give notice of such affidavit to the drawee-and also to insert a notification in the Gazette, that in case of a Bill being presented within a limited time, the party presenting it should be required to account for his title by affidavit-and for a proper person to be invested with a summary authority to decide upon the title to the Bill, or to direct an issue, as might be deemed expedient-and that upon nonproduction of the Bill within a limited time, for instance a month, the same remedies should be allowed as if the party having sustained the loss had had the actual possession. Proper provisions might be introduced for giving a regular notification to the preceding parties, in the same manner as if the Bill were forthcoming. 11. I think it would be a great addition to the benefit arising from Bills of Exchange and Promissory Notes, if the parties in case of default were rendered liable to an execution upon summary process, under the controul of a judge of the superior courts, with power to put any disputed question of law or fact into a proper course of examination. It would be a great check upon the random issue of accommodation paper, if parties were aware that their engagement extended to subject themselves to immediate execution in case of such default, whereas there is very little scruple in giving a mere signature, which has no other effect than driving the holder to a desperate and probably unproductive action. This summary remedy was established in the law of Scotland against the acceptor, and against the drawer and indorser, in case of non-acceptance, by an Act of 1681, and is extended to drawers and indorsers generally, by stat. 12 Geo. 3. c. 72. sec. 40. except where the indorsation is qualified to be without recourse. I apprehend that the provision has been found beneficial in its consequences, and that it would not be less so if adopted in England. To give effect to this and other summary proceedings, recommended in different parts of these notes, I am aware that some new arrangements would be requisite in the judicial establishment, upon which some general observations will be introduced in the second Number of the Appendix. (1.) The Act does not apply to Bills made payable after sight.-Leftly v. Mills, 4 T. R. 170. (2.) The protest cannot be made until the day after the Bill has become due-Bayley, 3 Ed. 123; the three days mentioned in the text are evidently the ordinary days of grace. (3.) This notice is confessedly not sufficient to intitle the party to recover. The precise time within which notice must be given is not very accurately settled-but in no case is it sufficient, unless given the day after that of the Bill being dishonoured, or of receiving notice thereof. (4.) These costs are only the costs of protesting-not the legal costs of an action, which are recovered of course. Protest of an inland Bill is only necessary for the purpose of recovering interest and expenses. Vide 2 B. & A. 696. No. I. is and shall be obliged to give another bill or bills of the same tenour with those first given, the person or persons to whom they are and shall be so delivered giving security if demanded to the said drawer to indemnify him W. III. c. 17. against all persons whatsoever in case the said bill or bills of exchange so alleged to be lost or miscarried shall be found again. (4.) 9 & 10 (5.) See Walmesley v. Child, 1 Vesey, sen. 341-ex parte Greenway, 6 Ves. 812-Pierson v. Hutchinson, 2 Cowp. N. P. 211. 3 & 4 Anne, c. 9. See 1 Bur. 227. 325. This Act (being for the Benefit of Commerce) is liberally construed. 3 Wils. 1. Promissory Notes may be assigned or indorsed, and Action maintained thereon as on Inland Bills of Exchange. [ No. II. ] 3 & 4 Anne, c. 9.-An Act for giving like Remedy upon Promissory Notes, as is now used upon Bills of Exchange, and for the better Payment of Inland Bills of Exchange. WHEREAS it hath been held, That notes in writing signed by the party who makes the same whereby such party promises to pay unto any other person or his order any sum of money therein mentioned are not assignable or indorsable over within the custom of merchants to any other person; and that such person to whom the sum of money ' mentioned in such note is payable cannot maintain an action by the 'custom of merchants against the person who first made and signed the same; and that any person to whom such note should be assigned 'indorsed or made payable could not within the said custom of mer'chants maintain any action upon such note against the person who first drew and signed the same:' Therefore, to the intent to encourage trade and commerce which will be much advanced if such notes shall have the same effect as inland bills of exchange and shall be negociated in like manner; Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons in this present Parliament assembled, and by the authority of the same, That all notes in writing that after the first day of May in the year of our Lord one thousand seven hundred and five, shall be made and signed by any person or persons body politick or corporate, or by the servant or agent of any corporation banker goldsmith merchant or trader who is usually intrusted by him her or them to sign such promissory notes for him her or them whereby such person or persons body politick and corporate his her or their servant or agent as aforesaid doth or shall promise to pay to any other person or persons body politick and corporate his her or their order or unto bearer any sum of money mentioned in such note shall be taken and construed to be by virtue thereof due and payable to any such person or persons body politick and corporate to whom the same is made payable; and also every such note payable to any person or persons body politick and corporate his her or their order shall be assignable or indorsable over in the same manner as inland bills of exchange are or may be according to the custom of merchants; and that the person or persons body politick and corporate to whom such sum of money is or shall be by such note made payable shall and may maintain an action for the same in such manner as he she or they might do upon any inland bill of exchange made or drawn according to the custom of merchants against the person or persons body politick and corporate who or whose servant or agent as aforesaid signed the same; and that any person or persons body politick and corporate to whom such note that is payable to any person or persons body politick and corporate his her or their order is indorsed or assigned or the money therein mentioned ordered to be paid by indorsement thereon shall and may maintain his her or their action for such sum of money either against the person or persons body politick and corporate who or whose servant or agent as aforesaid signed such note or against any of the persons that indorsed the same in like manner as in cases of inland bills of exchange; (1.) (1.) As to the affinity between Bills of Exchange and Promissory Notes, see Heylin v. An derson, 2 Bur. 669—Brown v. Harraden, 4 T. R. 148-Carlos v. Fancourt, 5 T. R. 482. No. II. c. 9. And in every such action the plaintiff or plaintiffs shall recover his her or their damages and costs of suit; and if such plaintiff or plaintiffs shall be 3 & 4 Anne, nonsuited or a verdict be given against him her or them, the defendant or defendants shall recover his her or their costs against the plaintiff or plaintiffs; and every such plaintiff or plaintiffs defendant or defendants respectively recovering may sue out execution for such damages and costs Plaintiff or Defendant may reby capius fieri facias or elegit. II. And be it further enacted by the authority aforesaid, That all and cover Costs. every such actions shall be commenced sued and brought within How Actions such time as is appointed for commencing or suing actions upon the case shall be by the statute made in the one-and-twentieth year of the reign of King brought. James the First, intituled An Act for Limitation of Actions, and for avoid- 21 Jac. 1. c. 16. ing of Suits in Law. III. Provided, That no body politick or corporate shall have power by Proviso against virtue of this Act to issue or give out any notes by themselves or their giving out servants, other than such as they might have issued if this Act had never Notes. been made. IV. And whereas by an Act of Parliament made in the ninth year of the reign of his late Majesty King William the Third, intituled An 9 & 10 W. 3. "Act for the better Payment of inland Bills of Exchange, it is among c. 27. other things enacted, That from and after presentation and acceptance of the said bill or bills of exchange, (which acceptance shall be by the underwriting the same under the party's hand so accepting) and after the expiration of three days after the said bill or bills shall become 'due, the party to whom the said bill or bills are made payable his servant agent or assigns may and shall cause the same bill or bills to be protested in manner as in the said Act is enacted: And whereas by there being no provision made therein for protesting such bill or bills in case the party on whom the same are or shall be drawn refuse to accept the same by underwriting the same under his hand, all mer'chants and others do refuse to underwrite such bill or bills, or make any other than a promissory acceptance, by which means the effect and good intent of the said Act in that behalf is wholly evaded and no bill or bills can be protested before or for want of such acceptance by underwriting the same as aforesaid:' For remedy whereof be it enacted by the authority aforesaid, That from and after the first day of May Party refusing which shall be in the year of our Lord one thousand seven hundred and to underwrite five, in case upon presenting of any such bill or bills of exchange the Bill of Exparty or parties on whom the same shall be drawn shall refuse to accept change, such the same by underwriting the same as aforesaid, the party to whom the Bill may be prosaid bill or bills are made payable his servant agent or assigns may and tested for Nonshall cause the said bill or bills to be protested for non-acceptance as in acceptance. case of foreign bills of exchange; any thing in the said Act or any other law to the contrary notwithstanding: for which protest there shall be paid two shillings and no more. V. Provided always, That from and after said first day of May no No Acceptance acceptance of any such inland bill of exchange shall be sufficient to of Inland Bills charge any person whatsoever, unless the same be underwritten or in- of Exchange to dorsed in writing thereupon; (2.) and if such bill be not accepted by be sufficient, such underwriting or indorsement in writing no drawer of any such unless the same inland bill shall be liable to pay any costs damages or interest thereupon be underunless such protest be made for non-acceptance thereof; and within written, nor fourteen days after such protest the same be sent or otherwise notice Drawer thereof thereof be given to the party from whom such bill was received or left in liable to Costs, 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 and payable, then no drawer of such bill shall be compellable to pay any costs damages or interest thereupon, unless a protest be made and sent or notice thereof be given in manner and form above-mentioned. (2.) This provision, although very generally expressed, is held only to affect the right to damages, &c. and not to prevent the liability of a &c. person giving a verbal or collateral acceptance to the payment of the sum specified in the Bill. No. II. 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 3 & 4 Anne, made of non-acceptance or non-payment thereof and notice thereof be sent given or left as aforesaid. c. 9. VI. Provided, That no such protest shall be necessary either for nonNo Protest ne- acceptance or non-payment of any inland bill of exchange, unless the cessary for value be acknowledged and expressed in such bill to be received, and Non-Payment, unless such bill be drawn for the payment of twenty pounds sterling or unless the Bill upwards; and that the protest hereby required for non-acceptance shall be made by such persons as are appointed by the said recited Act to protest inland bills of exchange for non-payment thereof. be drawn for 201. or up. wards. test shall be made. VII. And be it further enacted, That from and after the said first By whom Pro- day of May, if any person doth accept any such bill of exchange for and in satisfaction of any former debt or sum of money formerly due unto him, the same shall be accounted and esteemed a full and complete payment of such debt, if such person accepting of any such bill for his debt 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. (3.) Acceptance of Bill esteemed a full Payment of Debt. Proviso. Act to continue three Years. VIII. Provided, That nothing herein contained shall extend to discharge any remedy, that any person may have against the drawer acceptor or indorser of such bill. IX. And be it further enacted by the authority aforesaid, That this Act shall continue and be in force for the space of three years from the said first day of May, and from thence to the end of the next session of Parliament and no longer. [Made perpetual by 7 Annæ, c. 25. s. 3.] (3.) Where defendant being indebted to plaintiffs for goods sold, and C being indebted to defendant, drew a bill on C payable at two months, which C accepted, but afterwards dishonoured: Held, that defendant was not entitled to notice of the dishonour, his name not being in the bill, and that the bill was not to be esteemed a complete payment of the debt under stat. 3 & 4 Anne, c. 9. s. 7. Swinyard v. Bowes, 5 M. & S. 62. 17 Geo. III. c. 30. 15 Geo. 3. re cited. [No. III. ] 17 George III. c. 30.-An Act for further restraining the Negociation of Promissory Notes, and Inland Bills of Exchange, under a limited Sum, within that Part of Great Britain called England. (1) WHEREAS by a certain Act of Parliament passed in the fifteenth (2) year of the reign of his present Majesty, intituled An Act to restrain the Negociation of Promissory Notes and Inland Bills of Exchange, under a limited Sum, within that Part of Great Britain called England, all negotiable promissory or other notes bills of exchange or draughts or undertakings in writing for any sum of money less than the sum of twenty shillings in the whole and issued after the twentyfourth day of June one thousand seven hundred and seventy-five, were made void, and the publishing or uttering and negociating of any such notes bills draughts or undertakings for a less sum than twenty shillings, or on which less than that sum should be due was by the said Act restrained under certain penalties or forfeitures therein men⚫tioned; and all such notes bills of exchange draughts or undertakings in writing as had issued before the said twenty-fourth day of June were made payable upon demand and were directed to be recovered in such manner as is therein also mentioned: And whereas the said Act hath 'been attended with very salutary effects, and in case the provisions ⚫ therein contained were extended to a further sum (but yet without ⚫ prejudice to the convenience arising to the public from the negocia (1.) This Act has been suspended by various Acts, from 37 Geo. 3. c. 61. to 55 Geo. 3. c. 30. which continued the suspension until the 25th of March, 1816. If there is any further continuance, by any statute of 56 Geo. 3. it will be noticed in the Table of Contents. (2.) Repealed by 48 Geo. 3. c. 88. post No. 5. . No. III. tion of promissory notes and inland bills of exchange for the remittance <of money in discharge of any balance of account or other debt), the good purposes of the said Act would be further advanced;' Be it there- 17 Geo. III. fore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons c. 30. in this present Parliament assembled, and by the authority of the same, All negotiable That all promissory or other notes bills of exchange or draughts, or Promissory undertakings in writing being negotiable or transferrable for the payment Notes, &c. for of twenty shillings or any sum of money above that sum and less than 20s. and less five pounds; or on which twenty shillings or above that sum and less than 54. shall than five pounds shall remain undischarged, and which shall be issued specify the within that part of Great Britain called England at any time after the Names, &c. of first day of January one thousand seven hundred and seventy-eight, the Persons to shall specify the names and places of abode of the persons respectively to whom payable. whom or to whose order the same shall be made payable; and shall bear date before or at the time of drawing or issuing thereof and not on any day subsequent thereto; and shall be made payable within the space of twenty-one days next after the day of the date thereof; and shall not be transferrable or negotiable after the time thereby limited for payment thereof; and that every indorsement to be made thereon shall be made before the expiration of that time and to bear date at or not before the time of making thereof: and shall specify the name and, place of abode of the person or persons to whom or to whose order the money contained in every such note bill draught or undertaking is to be paid; and that Signing of every the signing of every such note bill draught or undertaking and also of such Note, and every such indorsement shall be attested by one subscribing witness at Indorsement, the least; and which said notes bills of exchange or draughts or under- to be attested takings in writing may be made or drawn in words to the purport or by one Witness effect as set out in the schedule hereunto annexed, No. I. and II.: and that all promissory or other notes bills of exchange or draughts, or undertakings in writing being negotiable or transferrable for the payment of twenty shillings or any sum of money above that sum and less than five pounds; or in which twenty shillings or above that sum and less than five pounds shall remain undischarged, and which shall be issued within that part of Great Britain called England at any time after the said first day of January one thousand seven hundred and seventy-eight, in any other manner than as aforesaid; and also every indorsement on any such note bill draught or undertaking to be negotiated under this Act other than as aforesaid shall and the same are hereby declared to be absolutely void; any law statute usage or custom to the contrary thereof in anywise notwithstanding. II. And be it further enacted by the authority aforesaid, That the pub- Penalty. lishing uttering or negotiating within that part of Great Britain called England, of any promissory or other note bill of exchange draught or undertaking in writing, being negotiable or transferrable for twenty shillings or above that sum and less than five pounds, or on which twenty shillings or above that sum and less than five pounds shall remain undischarged and issued or made in any other manner than notes bills draughts or undertakings hereby permitted to be published or negotiated as aforesaid; and also the negotiating of any of such last-mentioned notes bills draughts or undertakings after the time appointed for payment thereof or before that time in any other manner than as aforesaid, by any act contrivance or means whatsoever from and after the said first day of January one thousand seven hundred and seventy-eight, shall be and the same is hereby declared to be prohibited or restrained under the like penalties or forfeitures, and to be recovered and applied in like manner as by the said Act is directed with respect to the uttering or publishing or negotiating of notes bills of exchange draughts or undertakings in writing, for any sum of money not less than the sum of twenty shillings or on which less than that sum should be due. All negotiable III. And be it further enacted by the authority aforesaid, That from and immediately after the passing of this Act all promissory or other tween 20s. and 51. which shall be issued before Jan. 1. 1778. shall be payable on demand. VOL. II. S |