said bill, dated at this day of -;" or Notice of protest to be given to draw for non-payment after acceptance in the same form or to the same effect, except that the words "presented to him the bill of which the above is a copy, and which said did not accept," shall be left out, and instead of them, the words "demanded payment of the bill of which the above is a copy, and which the said did not pay," be inserted; and the drawer, such protest being sent to him, or notice thereof in writing (d) being given to him, or left at the place of his usual abode within fourteen days thereafter, shall pay the money mentioned in the bill to the person entitled to it, with legal interest from the day of the protest; and he to whom the bill shall be payable neglecting to procure the protest to be made, or due notice thereof to be given, shall be liable for all costs and damages accruing thereby; if the bill shall be lost or shall miscarry, the drawer shall assign and deliver another of the same tenor, sufficient ing lost or missecurity being given to indemnify him against all persons who may claim under the former. SEC. 5. If any person or persons shall draw or endorse any bill or bills of exchange, upon any person or persons out of this state, (e) on any other person or persons within any other of the United States of North America, and the same being returned back unpaid, (d) When proceeding against an endorser, under the above clause of this act, notice in writing of dishonor of a domestic bill of exchange is indispensable.--Lawrence v. Ralston, 3 Bibb, 103. 2. But if holder of a bill of exchange has proceeded according to the law merchant, want of notice in writing will not discharge the endorser. -Ibid. (e) The above act clearly discriminates between foreign bills and those drawn by persons residing in one state upon others residing in another, and fails to give a joint action in the latter case, leaving the remedy as it existed before the passage of the statute.-Cresson v. Williamson, &c. 1 Mar. 455. 2. A bill of exchange drawn by a citizen of this state on another citizen of this state, payable in a sister state, on protest does not demand 10 per cent. damages.-Clay v. Hopkins, 3 Mar. 488. 3. A bill of exchange drawn in Kentucky, and addressed Mr. J. J. W. New Orleans, is a bill drawn upon a person out of this state within the meaning of the above section, and damages were recoverable upon it. In the above case of Clay v. Hopkins, the acceptor was not designated as of Baltimore, where the bill was payable, and this distinction held material by the majority of the court--Wood v. F. & M. Bank of Lex. 7 Mon. 284. See now the act of January 10, 1820, immediately following. ers. Legal interest from day of protest to be paid. Provision in case of bill be carried. Inland pro tested bill to charge drawer and all others concerned with legal interest, What a Bill of Exchange. 1. An order drawn on a particular fund does not charge the drawer as a negotiable paper; and will not per se support an action against the drawer, if not paid.--Mershon v. Withers, 1 Bibb, 504; Prior v. Lindsey, 3 Bibb, 77. 2. An order for money set forth in the declaration and thereby appearing to be a domestic bill of exchange, but not pleaded as such, is a substantial cause of action, and the omission to plead it as a bill of exchange is cured by verdict. Murry v. Clayborn, 2 Bibb, 300. 3. A note payable at the Bank of Kentucky, must be discounted before it assumes the dignity of a bill of exchange-previous to that it is only a promissory note.-Jones v. Wood, 3 Mar. 163; Bank of Ky. v. Brooking, 2 Litt. 44; Clark v. Schwing, 1 Dana, 334. 4. A bill of exchange must not be made payable out of a particular fund, but if the fund is certain, and is described only as a means by which the drawer is to be indemnified, the bill is good, and embraced in the above act, allowing ten per cent. damages -Bank of Ky. v. Sanders, &c. 3 Mar. 185. 5. An order for the payment of $400 in yarn is not a bill of exchange, and the holder thereof is not required to give notice and use the diligence requisite in a bill of exchange, to entitle him to charges of protest and 10 per cent. damages. with a legal protest, the drawer thereof, and all others concerned, shall pay the contents of the said bill or bills, together with legal interest from the time the said bill or bills were protested, the charges of protest, and ten pounds per cent. advance for the damage thereof, and so proportionable for greater or lesser sums: Provided how an action against the drawer.-Coyle's Ex'x, v. acceptance or non-payment, or to account for the Satterwhite's Adm'r, 4. Mon. 125. In such case the action is not to be on the dis honored and unpaid order, but on the original consideration and contract.-lb. 6. Payee of an order to pay so many dollars in notes receivable at certain bank of Cincinnati cannot maintain his action against the acceptor as on a bill of exchange.-Breckenridge Ralis, 4 Mon. 534. V. 7. A bank check is in substance a domestic bill of exchange, and subject to the same laws with respect to notice, &c.-Shrieve & Combs v. Duckham, 1 Litt. 194; Humphreys v. Bicknell, 2 Litt. 298. 8. An order is in substance a bill of exchange and due diligence is necessary to make the drawer liable.-Hunter v. Simrall, 5 Litt. 65; Hager v. Boswell, 4 J. J. Mar. 62; Palmateer v. Gatewood, 4 J. J. Mar. 503. 9. Order payable in groceries is not a bill of exchange.-May v: Lansdown, 6 J. J. Mar. 165. If there be no notary, the bill may protested by any substantial person in the presence of two or more witnesses.-Ibid. failure, is cause of non-suit:-Yet if it appears that the drawer had no funds in the drawee's hands, he is not entitled to notice, provided the declaration contains the appropriate allegations to admit such proof.-Clarke v. Castleman, 1 J. J. Mar. 69. 5. If the last day of grace be Sunday the protest on Saturday is proper.-Offut v. Stout's Adm'rs. 4 J. J. Mar. 332. Notice of Protest. 1. A protest on an inland bill of exchange is necessary only to entitle the plaintiff to damages according to the statute.-Murray v. Clayborn, 2 Bibb, 300. 2. An endorser of a bill of exchange is discharged if notice, when one is required by the law merchant, is not given in a reasonable time, but personal notice is not requisite; a forwarding by mail is sufficient.-Lawrence v. Ralston, 3 Bibb, 103; Ralston, &c. v. Bullitts, 3 Bibb, 263. 3. Notice of a protest sent by a notary public and by mail to an endorser, is sufficient notice to such endorser of the protest.-Cresson v. Williams, &c. 1 Mar. 456. 4. If the drawer has no funds in the hands of the drawee, notice of non-acceptance or nonpayment, is not necessary to charge him, but if he has, such notice must be given and proved.Baxter v. Graves, 2 Mar. 152. 5. Notice of the dishonor of a note discounted in bank may be given the day after the protest, where the parties reside in the same village.Bank of Ky. v. Eades, 1 Litt. 277. 6. A notice of protest given by a notary public, is as available as if given by the holder of the bill. Such notice need not state who is the holder nor to whom the holder intends to resort 2. A bill of exchange, drawn in Illinois by a resident of that state, on another resident, is inland and the protest of a notary is not necessary, and of course is not evidence of demand and non-payment.-Taylor v. Bank of Illinois, for payment.-Shrieve & Combs v. Duckham, 7 Mon. 579. 3. By the statute which provides for the appointment of notaries, the protest of the notary is made sufficient evidence of the demand and non-payment of all foreign bills and negotiable notes placed on their footing.-Tyler v. Bank of Ky. 7 Mon. 557. 4. Failure to show notice of protest to the drawer of a domestic bill of exchange for non 1 Litt. 194. 7. The law requires no greater diligence in giving notice of the dishonor of a bill from the person to whom it is transmitted for the purpose of collection at the place of payment, than it requires from the endorsee or purchaser.-Farmers & Mechanics' Bank v. Turner, &c. 2 Litt. 19. 8. Notice in writing of a protest of a foreign Endorser not to be responsible without no ever, That nothing herein contained shall be construed to authorise any person holding a protested bill of exchange, to recover from the endorser thereof any monies on account of such protested bill, unless tice of protest. he shall have given to such endorsor reasonable notice in writing of the said protest. 9. Where the endorsee of a bill of exchange in an action against the endorser, relies on want of funds of drawer in drawee's hands, instead of notice, he must aver it in his declaration.-Frasier v. Harvie, 2 Litt. 185. 10. Bills of exchange drawn in Kentucky, on any person in another state of the Union, and payable in that state, may legally be protested, on the last day of grace.-Mills v. Rouse & Co. 2 Litt. 203. 11. A protest for non-payment of a foreign bill of exchange, on the last day of grace, is sufficient.-Farmers & Mechanics' Bank v. Turner &c. 2 Litt. 18. See Mills v. Rouse & Co. 2 Litt. 207; Battertons v. Porter, 2 Litt. 288. 12. A holder of a check on one who has no money in drawee's hands may treat it as a blank piece of paper, and is not bound to notice or diligence.-Humphreys v. Bicknell, 2 Litt. 299. 13. If a person receives a check and passes it in payment, he stands in the attitude of an endorser of a bill of exchange; and notice and due diligence are necessary to render him liable if he does not know that drawer has no money in drawee's hands, but if he did know it he will be in the same situation of the drawer.-Humphries v. Bicknell, 2 Litt. 299. 14. The usual mode of conveying notice of a protest of a bill of exchange, from one post town to another, is by mail, but from a post town into the country around, by a special messenger, and in such cases these modes must be adopted, otherwise the person bound to give notice must show that the notice was conveyed as speedily as if he had adopted them.-F. & M. Bank of Logan v. Butler, 3 Litt. 498. 15. Proof that notice, of a bill protested or note not paid when due, was put into the post office at the town where the note was discounted, without shewing to whom it was addressed or whether it was directed to the county in which they reside, is insufficient to charge them.-McGowan v. Bank of Ky. 5 Litt. 272. 16. Notice of the protest of a bill of exchange, if sent by mail, must be by the mail of the first day after protest-and what will and will not justify the presumption that it was so sent-See case, Hickman v. Ryan, 5 Litt. 24. 17. A protest is essential to a recovery on foreign bills of exchange, or negotiable notes placed in their rank.-Read v. Bank of Ky. 1 Mon. 93. Such protest should be by a notary public, but when there is no notary it may be done by a private person in the presence of two witnesses. Ibid. It is no objection to such protest that it was made by one interested, provided the witnesses were disinte sted.-Ibid. Nor is it necessary for the witnesses to subscribe their names to the protest.-Ibid. When the protest is drawn up a few hours after the demand, the necessity of noting the bill at the moment is superseded.-Ibid. Private persons have no right to charge for protesting a bill of exchange, nor can the charge made by them be included in the judgment for costs.-Ibid. 18. Notice of the dishonor of a bill put into the post office at Shawneetown, directed to the defendant, Union county, Ky. where there were two post offices in the county, one at the court house, near which the defendant resided, and the other eight miles distant, is insufficient in the absence of proof to show what was the practice of the office at Shawneetown.-Taylor v. Bank of Illinois, 7 Mon. 583. 19. Notice that a notary public had protested an inland bill of exchange is not equivalent to notice of the dishonor of the bill, and is insufficient.-Taylor v. Bank of Illinois, 7 Mon. 582. 20. Want of funds in the hands of the drawee of an accommodation inland bill, is no excuse for not giving notice to an endorser entitled to recover of the drawer.-Taylor v. Bank of Illinois, 7 Mon. 582. 21. Where there is no place fixed for the payment of a bill, the holder must make diligent search for the drawee, at his residence or within the realm of England; and drawee's absence from the state excuses this duty.-Taylor v. Bank of Illinois, 7 Mon. 581. 22. If a bill be drawn on the cashier of a bank, without funds, or his authority, the bank 1820. IN FORCE FROM ITS PASSAGE. AN ACT to regulate the damages upon protested Bills of Exchange: Approved Be it enacted by the General Assembly of the Commonwealth All acts which of Kentucky, That the provisions of all acts of assembly which give damages protested give damages against the drawer and all others concerned, at the rate of ten pounds per cent. on the protest of any bill of exchange, which shall have been drawn or endorsed in this commonwealth, pay on bills of ex change repeal ed. holding the bill is not prejudiced by sending the cashier abroad, so that the demand could not be made of him in person.-Taylor v. Bank of Ilinois, 7 Mon. 581. 23. It is not necessary to give the defendant notice to produce the notice sent him of the protest of the bill to let in evidence of the contents of the notice sent.--Taylor v. Bank of Illinois, 7 Mon. 578. 24. A bill payable so many days after date, need not be presented until it is due; but if presented for acceptance before and dishonored, there must be immediate notice.-Ibid, 580. 25. The holder of an inland bill of exchange is bound to make diligent inquiry for drawer, and leave notice of non-acceptance or non-payment at his known residence, if by reasonable diligence he could ascertain he had such an one.-Hager v.Boswell, &c. 4 J. J. Mar. 62. 26. Before the drawer of an inland bill of exchange can be made responsible, it must either be proved that the order had been presented in due time, and that notice of its non-acceptance or non-payment had been given to the drawer in a reasonable time, or some legal excuse shown for failure to give such notice or to make such presentation-Ibid. Endorsement. 1. Bills of exchange are transferable by endorsement only-Other instruments transferable by statute may be transfered on a separate piece of paper.-Instone v. Williamson, 2 Bibb, 84. 2. A blank endorsement authorizes a holder to superscribe an assignment to himself, and when filled up the action cannot be brought in the name of the payee or endorser; otherwise it may. -Bradford v. Ross, 3 Bibb, 239. 3. A note negotiated in bank assumes the grade of a foreign bill, and the assignor of the note having taken it up from the bank, may ex punge the assignment and sue in his own name. -Bell v. Morehead, 3 Mar. 159. 4. From the endorsement to the bank, the law will presume that the note was discounted by the bank.--Grey & Powers v. Bank of Kentucky, 2 Litt. 379: Clark v. Schwing, 1 Dana, 335. 5. Possession is only prima facie evidence of legal title to a bill or note, and payor may defeat the action by showing that the legal title does exist in those subsequent endorsers, whose names are struck out.-Tuggle v. Adams, 3 Mar. 432. 6. The undertaking of endorsers of bills of exchange is several and not joint, and contribution is seldom allowed.-Hixon v. Reed, 2 Litt. 176. 7. No action can be maintained by the first endorser (who was also the payee) of an accommodation note discounted by the Bank of Kentucky, against the second endorser, on the ground of the payor's having become insolvent, and the first endorser's having paid the whole to the bank. Ibid, 175. 8. Accommodation endorsers are supposed to know the law merchant and to agree to abide by it. and the first endorser is considered as saying to the rest, "endorse and I will stand behind you for the whole."—Ibid, 176. 9. A bona fide holder of a bill of exchange for a valuable consideration, endorsed in the name of the firm by a member thereof, who is in the habit of so endorsing, without notice of its being so endorsed, will recover the amount against all the partners, notwithstanding the endorsement of the name of the firm was expressly prohibited by the articles of partnership.-Bank of Kentucky v. Brooking, &c. 2 Litt. 45. 10. An inland bill placed on the footing of a foreign bill, by being discounted by the Bank of Kentucky, will be as a foreign bill in the hands of every subsequent holder.--Battertons v. Porter, 2 Litt. 389. able out of the same, but within any one of the United States of North America, or within any of the territories thereof, shall be, and the same are hereby repealed: Provided however, That nothing herein contained, shall be construed to affect the rights of parties under any contract heretofore made. 11. When a note is negotiable at bank on its face, has been endorsed to the bank, and suit is brought by the bank as endorsees, against the makers of the note, want of consideration is no defence.-Grey & Powers v. Bank of Kentucky, 2 Litt. 378; Tuggle v. Adams, 3 Mar. 430. 12. To make an inland bill of exchange on the same footing as a foreign bill of exchange, whenever the endorsement to, and discount by a bank will effect it, the endorsement may as well be to the cashier of the bank as to the bank itself, if the bank actually discounts the bill.— F. & M. Bank v. Turner, &c. 2 Litt. 17. 13. If a bill of exchange be endorsed to some other person by the plaintiff, if the endorsement be genuine he cannot have an action on it, but the genuineness is matter of fact for the jury.Blair v. Pollock, Litt. Sel. Cas. 208. 14. One of several joint holders of a bill of exchange may transfer the whole interest by his endorsement.-Snelling v. Boyd, 5 Mon. 173. 15. The finder of a bill of exchange payable to the bearer, is responsible to the owner, and so of voluntary holder, but not so of a bona fide purchaser for a valuable consideration.-Adkins v. Blake's Adm'r. 2 J. J. Mar. 40. 16. If a person sign or endorse a bill of exchange in blank, he is bound for whatever sum may be inserted, although he signed on the parol condition that the sum should be less than that inserted.-Taylor, &c. v. Craig, 2 J.J. Mar. 461. 17. A party to a note raised to a level of a bill Proviso. 1. A bill of exchange is a simple contract, and the liabilities upon it may be barred by the lapse of five years.-Clark v. Schwing, 1 Dana, 335-6. 2. But a note discounted by the bank of Kentucky, and thereby placed upon the footing of a bill of exchange, is embraced by the 8th section of the act of 1812, placing unsealed instruments on the same footing with those that are sealed, and consequently as to the drawers, they are not within the statute of limitations.-Ibid. [For other decisions touching bills of exchange, see the following cases, viz: Murray v. Clayborn, 2 Bibb, 300; Lawrence v. Ralston, 3 Bibb, 104; Ralston v. Bullitts, 3 Bibb, 263; Bank of Kentucky v. Sanders, 3 Mar. 185; Tuggle v. Adams, 3 Mar. 430; Mills v. Rouse & Co. 2 Litt. 205; Stout v. Cloud, 5 Litt. 206; Hager v. Boswell, 4 J. J. Mar. 63.] |