Sect. 4. Of cerned, either in the protest itself, or in a separate instrument (a). payment 81If, however, the acceptor supra protest for the honour of the drawpra protest. er or indorser, receive his approbation of the acceptance, he may pay the bill without any protest for non-payment (b).

Although, with respect to other debts, a stranger, who has no interest in them, does not, by paying them, entitle himself to the rights of a creditor, unless he have the consent of the debtor to such payment (c), yet, with regard to bills of exchange, a stranger, who pays them in case of protest, acquires all the same rights that the holder of the bill had, although no regular transfer of the bill were made to him (d); and he may maintain an action against the person for whose honour he discharged the bill, either on the bill itself (e), or on the count for money paid to the defendant's use (ƒ). A person taking up a bill for the honour of the drawer has, however, no right against the acceptor without effects (g). The reason of the above exception to the general [410] rule, precluding a party from constituting himself the creditor of

another, without his concurrence, it has been observed, is that it induces the friends of the drawer or indorsers to render them this service, it tends to prevent the great expense attending the return of a bill, and preserves the credit of the trader (h), &c.

(a) Beawes, pl. 53.-Mar. 128.

(b) Beawes, pi. 48.

(c) Exall v. Partridge, 8 T. R. 310-1 Rol. Ab. 11.-Lampleigh v. Buthwait, Hob. 105.-Stokes v. Lewis, 1 T. R. 20.-In Williams v. Millington, 1 Hen. Bla. 83. --Jenkins v. Tucker, Id. 91.

(d) Mertens v. Winnington, 1 Esp. Rep. 112.-Poth. pl. 171.-Ex parte Wackerbarth, 5 Ves. jun 574.-Manning's Index, 70.

(e) Fairley v. Roch, Lutw. 891. See Manning's Index, 70.

(f) Smith v. Nissen, 1 T. R. 269.

(g) Ex parte Lambert, 13 Ves. jun. 179.—Bayl. 148.; but see 5 Ves, jun. 574.

(h) Beawes, pl. 54.-Poth. pl. 171.

*CHAPTER VII.

[411]

OF CHECKS ON BANKERS.

A CHECK, or draft, on a banker, is a written order or request, addressed to persons carrying on the business of bankers, and drawn upon them by a party having money in their hands, requesting them to pay on presentment to a person therein named, or to bearer, a named sum of money. The form of a check has already been given (a) It nearly resembles a bill of exchange, but it is uniformly made payable to bearer, and must be drawn upon a regular banker. On account of the daily and immediate use of checks, the legislature has exempted them from stamp duties, provided they be for the payment of money to the bearer on demand, and drawn upon a banker or person acting as such, residing, or transacting the business of a banker, within ten miles of the place where such draft or order shall be issued, and provided also that such place be specified in such draft or order, and that the same bear date on or before the day the same shall be issued, and do not direct the payment to be made by bills or promissory notes (b). We have before considered the decisions upon this enactment (c). If these requisites be not strictly observed, an unstamped check cannot be read in evidence for any purpose (d).

It was once thought, that a check or draft on a banker is not negotiable generally, but only so within the bills of mortality (e). But it is now settled, that they are as negotiable as bills of exchange, though, strictly speaking, they are not due before payment is demanded, in which respect they differ from bills of exchange or promissory notes, payable on a particular day (ƒ). In practice, they are taken in payment as cash, and it has been decided, that a banker in London, receiving bills from his correspondent in the country, to whom they had been indorsed to present for payment, is not guilty of negligence in giving up such bills to the acceptor upon receiving a check on a banker for the amount, although it turn out that such check is dishonoured (g). They

[ ⚫ 412]

must, however, be described as checks, and not as cash in an annuity transaction (a). And in an action for usury, the forbearance should be laid from the time when the check was actually received, and not from the time when it was given (b). It is said that checks are not protestable (c); and this doctrine seems to be correct, because checks are payable on presentment, and the statute 9 & 10 Will. 3. c. 17. applies only to bills of exchange payable after the date.

In the ordinary course of business, a check cannot be circulated or negotiated so as to affect the drawer, who has funds in the hands of the bankers, after banking-hours, of the day after he first issues it (d). But where the drawers of a banker's check issued it nine months after it bore date, upon a consideration which afterwards failed, as between them and the persons to whom they delivered it, it was held that they could not be permitted to object this circumstance in an action brought by a subsequent holder for a valuable consideration, and without notice, though by the general rule, any person receiving a negotiable instrument after it is due, is deemed to have taken it upon the credit of the person [413] from whom he received it, and subject to the same equities as existed between him and the party sued on such instrument (e).

With respect to the time when checks should be presented for payment, the general rule seems to be, that it suffices to present it at any time during banking hours of the day after it was issued (ƒ). If the banker on whom the check is drawn has reason to suspect that the drawer has committed an act of bankruptcy, he cannot safely pay the draft, because the payment of a check on a banker is not protected by the statute 19 Geo. 2. c. 32. s. 1. which mentions only bills of exchange and debts for goods sold (g). Most of the rules respecting bills of exchange affect checks on bankers, and therefore it may suffice to refer to the preceding part of the work, and to the Index, title Check.

(a) Poole v. Cabanes, 8 T. R. 328.—Duff v. Atkinson, 8 Ves. 577. 580. (b) Borradaile v. Middleton, 2 Campb. 53.

(c) Grant v. Vaughan, 3 Burr. 1519.

(d) Ante, 350, 1.

(e) Boehm v. Stirling, 7 T. R. 423. Ante, 166, in notes.
(ƒ) Ante, 350, 1.

Holroyd v. Whitehead, 1 Marsh. 128. 5 Taunt. 444.

CHAPTER VIII.

OF PROMISSORY NOTES-BANKERS' NOTES, AND BANK OF ENGLAND

NOTES.

[414]

THE law respecting bills of exchange, having been pointed out in the preceding chapters, it remains, in the present, to make a few observations, relative to promissory notes, bankers' notes, and bank of England notes.

A promissory note is defined to be a promise or engagement in writing, to pay a specified sum at a time therein limited, or on demand, or at sight, to a person therein named, or his order, or to the bearer (a). The person who makes the note is called the maker, and the person to whom it is payable the payee, and the person to whom he transfers the interest by indorsement, the indorsee.

The usual form of the instrument is thus:

501.

London, 1st January, 1818. Two months after date (or "on demand"), I promise (Stamp) to pay to Mr. A. B. or order fifty pounds, for value received.

Sect. 1. Of promissory notes.

C. D.

[Sometimes are here subscribed, "Payable at Messrs. G. H. and Co. bankers, London." But those words are immaterial, ante, 325.]

Observing on the origin and nature of promissory notes, it has been well remarked, by a modern writer (b), that, as commerce advanced in its progress, the multiplicity of its concerns required, in many instances, a less complicated mode of payment, and of obtaining credit, than through the medium of bills of exchange, *to which there are, in general, three parties. A trader, whose [*415) situation and circumstances rendered credit from the merchant or manufacturer, who supplied him with goods, absolutely necessary,

(a) 2 Bla. Com. 467.-Bayl. 1.-Kyd. 18. Selw. N. P. 4th ed. 361. (b) Kyd. 18.

Sect. 1. Of might have so limited a connection with the commercial world at promissory notes. large, that he could not easily furnish his creditor with a bill of exchange on another, but his own responsibility might be such, that

his engagement to pay, reduced into writing, might be accepted with the same confidence as a bill on another.

The validity of these instruments, though favoured by many judges, met with a strenuous opponent in Lord Holt, who, as it has been observed (a), most pertinaciously adhered to his opinion, that no action could be maintained on a promissory note, as an instrument, but t'at it was only to be considered as evidence of a debt. He was of opinion, that actions upon notes, as such, were innovations upon the rules of the common law; and that the declarations upon them amounted to the setting up a new sort of specialty unknown in Westminister-hall (b). The learned judge ap pears to have retained this opinion in a case (c) where judgment for the plaintiff, in an action on a promissory note, was reversed, on the ground that the custom alleged in the declaration was void, since it tended to bind a man to pay money without any consideration. As observed by Lord Kenyon, C. J. this question exercis ed the judgments of the most able lawyers of the last century; but the authority and weight which Lord Holt's opinion had in Westminster-hall, made others yield to him; and it was thought neces sary to resort to the legislature (d), and the 3 and 4 Anne,

(a) Brown v. Harraden, 4 T. R. 151.

(b) Clerke v. Martin, 2 Ld. Raym. 758.-Story v. Atkins, id. 1430. Trier v. Bridgman, 2 East. 359.-Walmsley v. Child, i Ves. 346.

(c) Clerke v. Martin, 2 Ld. Raym. 759.—Buller v. Crips, 6 Mod. 29, 30. -Grantv. Vaughan, 3 Burr. 1520.

(d) Brown v. Harraden, 4 T. R. 151.

Before the statute of queen Anne many attempts were made to put promissory notes on the footing of bills of exchange, but without success, vide Pearson v. Garrett, 4 Mod. 242.-Clerke v. Martin, Ld. Raym. 757.-Salk. 129.-Burton v. Souter, Ld. Ray m. 774, and Williams v. Cutting, Ld. Ray m. 825.-Salk. 24.-7 Mod. 154.-11 Mod. 24, and see 4 T. R. 151, 152.

"By the 3 and 4 Anue, c. 9. s. 1. 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 merchants, maintain any action upon such note against the person who first drew and signed the same;" therefore, to the intent to encourage trade and com merce, which will be much advanced, if such notes shall have the same effect as inland bills of exchange, and shall be negotiated in like manner; be it enacted, that all notes in writing, that after the 1st day of May, in the year of our Lord 1705, shall be made and signed by any person or persons, body politic or corporate, or by the servant or agent of any corporation, banker, goldsmith, merchant, or trader, who is usually intrusted by him,