partners refuses to concur in signing notice of dis- By act of partner. solution, to be inserted in the Gazette, or pending the partnership, has improperly issued bills in the name of the firm, it is advisable to file a bill, to prevent him from signing, or negotiating securities in the name of the firm, and praying a dissolution '.

With respect to the mode in which a bill should be drawn, accepted, or indorsed, by or on the behalf of several persons, it has been laid down, that whenever a person draws, accepts, or indorses a bill for himself and partner, he should always express that he does so" for himself and partner," or subscribe both the names, or the name of the firm, and that otherwise it will not bind the partner. But it has been recently determined, that where a bill is drawn upon a firm, and accepted by one partner only in his name, it will bind the firm 3. And where A. B. and C. being in partnership, A. drew a promissory note, by which he promised individually to pay the money, and signed the same with his own name only, but prefixing to his signature "for A. B. and Co." this was held to

'Master v. Kirton, 3 Ves. jun. 74.-Ex parte Noakes, 1 Mont. on Partn. 93.-Ryan v. Mackmarth, 3 Bro. Ch. Ca. 15.-Newsome v. Coles, 2 Campb. 619.-Lawson v. Morgan, 1 Price Rep. 203.

2 Pinkney v. Hall, 1 Salk. 126.-Ld. Raym. 175. S. C.-Carwick . Vickery, Dougl. 653.-Smith v. Jarves, Ld. Raym. 1484.-The King v. Wilkinson, 7 T. R. 156.-Meux v. Humphrey, 8 T. R. 25.— Lepine v. Bayley, id. 325.-Watson, 214.

Mason. Rumsey, 1 Campb. 384. A bill was drawn on "Messrs. Rumsey and Co." and T. Rumsey, jun. wrote upon it, "Accepted, T. Rumsey, sen." The present action was defended by T. Rumsey, jun. who contended, that even if he were a partner (which he denied) this acceptance would not bind him. It was contended, that if a bill be drawn upon a firm, it must be accepted in the name of the firm, or by one partner for himself and his copartners, otherwise the holder might protest the bill, as the mere signature of a single partner was binding only upon himself. Lord Ellenborough. There is no foundation for the doctrine contended for; this acceptance does not prove the partnership; but if the defendants were partners, they are both bound by it. For this purpose, it would have been enough if the word "accepted" had been written on the bill, and the effect cannot be altered by adding "T. Rumscy, sen." If a bill of exchange is drawn upon a firm, and accepted by one of the partners, he must be understood to exercise his power to bind his co-partners, and to accept the bill according to the terms in which it is drawn. The plaintiff had a verdict.

By act of partner. bind the firm'.

It is said, however, that if a bill be directed unto two or more persons in these terms, "To Mr. Robert A. and Mr. J. B. Merchants in London ;" in this case, both A. and B. ought to accept the bill, and that if one refuse, the bill must be protested for want of acceptance. So if a promissory note appear on the face of it to be the separate note of A. only, it cannot be declared on as the joint note of A. and B. though given to secure a debt for which both were liable. And when one of two partners drew bills of exchange in his own name, and got them discounted, and applied the proceeds to the partnership account, it was held, that the party advancing the money, has no remedy against the partnership, either upon the bills so drawn by the single partner, or for money had and received through the medium of such bills*, though, in a subsequent case, it appearing that all the partners had caused such bills to be issued for the purpose of raising money for the firm, they were held liable to be sued by the persons who discounted the bills for the money as lent, and for interest '.

* Ld. Galway v. Matthews and another, 1 Campb. 403.-10 East. 264. S. C. but not same point.-Bayl. 24.

2 Marius, 16; and see Carwick v. Vickery, Dougl. 653.—Bayl. 55. 3 Siffkin v. Walker and another, 2 Campb. 308.-Emly t. Lye and another, 15 East. 7.

* Emly v. Lye and another, 15 East. 7.

5 Denton v. Rodie and another, 3 Campb. 493. Per Lord Ellenborough, "I think this case is distinguishable from Emly v. Lyc. Here I conceive the partner in America had authority from the two others to raise money for the use of the firm, and money was accordingly raised from the plaintiffs upon these bills, in pursuance of such authority. The transaction is a loan rather than a discount. I. B. Clough was sent out to America to manage the business of the house there, and to procure homeward investments; the shipments from this country did not form an adequate fund for that purpose. He says himself, that he had a carte blanche as to the means he should adopt; he accordingly raises money, for which he gives, as a security, bills of exchange, drawn in his own name, upon the house. They know and recognize this mode of dealing; they regularly accept and pay the bills so drawn, till the time of their failure; therefore, although I cannot say they are jointly liable upon the unaccepted bills, I think they are jointly indebted to the same amount, as for money lent, or money had and received." It was then suggested, that the plaintiffs, upon this supposition, could not claim interest; but Lord Ellenborough thought, that from the course of dealing, the plaintiffs were entitled to interest, although they did not recover upon the written securities. Verdict accordingly.

53

CHAPTER III

OF THE FORM AND REQUISITES OF BILLS, &C.-THE
CONSIDERATION FOR WHICH MADE OR TRANSFERRED
-CONSTRUCTION OF THEM-CONSEQUENCE OF AL-
TERATION IN THEM AND OF THE DRAWER'S

LIABILITY.

THOUGH a bill of exchange, check, promissory The form of bills

note, &c. must be in writing', there is in general no particular form, or set of words, necessary to be adopted, any more than in the case of a bond or other deed'. And indeed our courts considering the general utility of these instruments, and how much they tend to the extension of credit, and consequent advancement of trade and commerce, have uniformly gone further in giving effect to them as instruments, than they have where a question has arisen on the formation of a deed.

Thomas v. Bishop, Rep. Temp. Hardw. 2.

Com. Dig. tit. Obligation, B. 1, 2.-Bac. Ab. tit. Obligation, B. v. Ormston, 10 Mod. 287.-Dawkes v. Ld. de Loraine, 3 Wils. 213.-Morris v. Lee, Lord Raym. 1397.-1 Stra. 629.-8 Mod. 36. S. C.-Chadwick v. Allen, 2 Stra. 706.-Rast. Ent. 338.-Ruff r. Webb, 1 Esp. Rep. 129.-Colchan v. Cooke, Willes, 396.—Bayl. 3. Morris v. Lee, Lord Raym. 1396.-1 Stra. 629.-8 Mod. 362. S. C. Plaintiff sued as indorsee of a note in these words, "I promise to account with T. S. or order, for fifty pounds, value received by me;" and after verdict for plaintiff, it was insisted in arrest of judgment, that this was not a negotiable note: sed per cur. "There are no precise words necessary to be used in a note or bill. Deliver such a sum of money, makes a good bill; by receiving the value, the defendant became a debtor, and when he promises to be accountable to A. or order, it is the same thing as a promise to pay A., and it would be an odd construction to expound the word 'accountable' to give an account, when there may be several indorsees." Judgment for plaintiff. Chadwick v. Allen, 2 Stra. 796. A note was in these words: "I do acknowledge that Sir Andrew Chadwick has delivered me all the bonds and notes, for which £400 were paid him on account of Colonel Synge, and that Sir Andrew delivered me Major Graham's receipt and bill on me for £10, which £10 and £15. 5s. balance, due to Sir Andrew, I am still indebted and do promise to pay," and

of exchange, &c.

in general.

The form of bills of exchange, &c.

Thus an order or promise to deliver money, or a promise that I. S. shall receive money, or a promise to be accountable or responsible for it, will be a sufficient bill, or note'; and where a note was in these words "borrowed of I. S. £50, which I promise never to pay," the word "never" was rejected, and the holder recovered'; and in a late case it was decided, that an instrument in the common form of a bill of exchange, except that the word "at" was substituted for “ to," before the name of the drawee, may be declared on as a bill of exchange, or as a promissory note, at the option of the holders'; and we have seen, that an instrument that appears, on common observation, to be a bill of exchange, may be treated as such, although words be introduced into it for the purpose of deception, which might make it a promissory note 4. It is however advisable to draw bills, &c. according to the forms hereafter given. And in the case of bills and notes, for the payment of less than £5 certain forms must be observed, for it is provided that all negotiable bills or notes made in England for less than twenty shillings, shall be void, and all negotiable bills or notes made in England (excepting Bank of England notes and notes payable to the bearer on demand) for the payment of twenty shillings and less than £5, should be void, unless they specify the name and place of abode of the person to whom or to whose

upon demurrer to the declaration, the court held it a note within the statute.

Cashborne. Dutton, Scacc. M. 1 Geo. 2. MS.-Sel. Ni. Pri. 363. Where the note set forth in the declaration was, "I do acknowledge myself to be indebted to A. in £, to be paid on demand, for value received." On demurrer to the declaration, the court, after solemn argument, held, that this was a good note within the statute, the words "to be paid," amounting to a promise to pay, observing that the same words in a lease would amount to a covenant to pay rent.

'See cases in last note.

2 Cited by Ld. Mansfield in Russell v. Langstaffe, B. R., M. 21 Geo. S. and in Peach v. Kay, sittings after Trin. Term, 1781. and per Lord Hardw. 2 Atk. 32. Bayl. 4.

Shuttleworth v. Stephen, 1 Campb. 407.-Ante, 28.

4 Allen v. Mawson, 4 Campb. 115.-Ante, 28.

17 Geo. 3. c. 30. s. 1. See the statute in the Appendix, 6 48 Geo. 3. c. 88.

of exchange, &c.

order they are made payable, and be attested by one The form of bills subscribing witness, and bear date at or before the time when they are issued, and be made payable within twenty-one days after the date, and being the form prescribed by the act'.

requisites.

There are two principal qualities essential to the Their general validity of a bill or note, first, that it be payable at all events, not dependent on any contingency, nor payable out of a particular fund; and secondly, that it be for the payment of money only, and not for the payment of money, and performance of some other act, or in the alternative; for it would perplex commercial transactions, if paper securities of this nature, encumbered with conditions and contingencies were circulated, and if the persons to whom they were offered in negotiation, were obliged to inquire when these uncertain events would probably be reduced to a certainty.

First. An order or promise to pay money, provided the terms mentioned in certain letters, shall be complied with, or provided that I. S. shall not be surrendered to prison within a limited time*, or provided

'17 Geo. 3. c. 30. s. 1. made perpetual by 27 Geo. 3. c. 16. See post, Appendix.

'Per Kenyon, C. J. in Carlos v. Fancourt, 5 T. R. 485.-Dawkes v. Lord de Loraine, 3 Wils. 213.-2 Bla. Rep. 782. S. C.-Roberts v. Peake, 1 Burr. 325.

'Kingston v. Long, B. R. M. 25 Geo. 3. The plaintiff brought an action as indorsee against the defendant as acceptor, upon an order importing to be payable, "provided the terms mentioned in certain letters written by the drawer were complied with," and the court held clearly, that the plaintiff could not recover, though the acceptance admitted a compliance with the terms, for the order was no bill until after such compliance, and if it were not a bill when drawn, it could not afterwards become one. Bayl. 9.

*Smith v. Boheme, 3 Lord Raym. 67. cited Lord Raym. 1362. 1396. Action by the plaintiff as payee of the note, against the makers, upon a promise to pay the plaintiff, or order, on demand, the sum of £71 12s. 10d. or surrender the body of Samuel Boheme to an action brought against him by Smith. Verdict for the plaintiff, and judgment; and on error brought in the King's Bench, the court held that this was not a note within the statute, because the money was not absolutely payable, but depended upon the contingency whether the defendants should surrender Samuel Boheme to prison, and the judgment was reversed.