Page images
PDF
EPUB

exception, writes the same, and requires that the justices will put their seals, the justices shall so do, and if one will not, another shall; and if, upon complaint made of the justice, the king cause the record to come before him, and the exception be not found in the roll, and the plaintiff show the written exception, with the seal of the justices thereto put, the justice shall be commanded to appear at a certain day, either to confess or deny his seal, and if he cannot deny his seal, they shall proceed to judgment according to the exception, as it ought to be allowed or disallowed." The statute extends to both plaintiff and defendant. Here will be considered, 1, the cases in which a bill of exceptions may be had; 2, the time of making the exception; 3, the form of the bill; 4, the effect of the bill.

1. In general a bill of exception can be had only in a civil case. When in the course of the trial of a cause the judge, either in his charge to the jury, or in deciding an interiorcutory question, mistakes the law, or is supposed by the counsel on either side, to have mistaken the law, the counsel against whom the decision is made may tender an exception to his opinion, and require him to seal a bill of exceptions. 3 Bl. Com. 372. See Salk. 284, pl. 16; 7 Serg. & Rawle, 178; Whart. Dig. Error, D, E; 1 Cowen, 622; 2 Caines, 168; 2 Cowen, 479; 5 Cowen, 243; 3 Cranch, 298; 4 Cranch, 62; 6 Cranch, 226: 17 Johns. R. 218; 3 Wend. 418; 9 Wend. 674. In criminal cases, the judges, it seems, are not required to seal a bill of exceptions, 1 Chit.Cr. Law, 622 ; 13 John. R. 90; 1 Virg. Cas. 264; 2 Watts, R. 285; 2 Sumn. R. 19. In New York, it is provided by statute that on the trial of any indictment, exceptions to any decision of the court may be made by the defendant, in the

same cases and manner provided by law in civil cases; and a bill thereof shall be settled, signed and sealed, and filed with the clerk of the court. But such bill of exception shall not stay or delay the rendering of judgment, except in some specified cases. Grah. Pr. 768, note. Statutory provisions have been made in several other states authorising the taking of exceptions in criminal cases. 2 Virg. Cas. 60 and note; 14 Pick. R. 370; 4 Ham. R. 348; 6 Ham. R. 16; 7 Ham. R. 214; 1 Leigh, R. 598; 14 Wend. 546. See also 1 Halst. R. 405; 2 Penn. R. 637.

2. The bill of exceptions must be tendered at the time the decision complained of is made; or if the exception be to the charge of the court, it must be made before the jury have given their verdict. 8 S. & R. 216; 4Dall. 249; S. C. 1 Binn. 38; 6 John. 279; 1 John. 312. 5 Watts, R. 69; 10 John. R. 312; 5 Monr. R. 177; 7 Wend. R. 34; 7 S. & R. 219; 11 S. & R. 267; 4 Pet. R. 102; Ala. R. 66; 1 Monr. 215; 11 Pet. R. 185; 6 Cowen, R. 189. In practice, however, the point is merely noted, at the time, and the bill is afterwards settled. 8 S. &R. 216. 11 S. & R. 270.

3. The bill of exception must be signed by the judge who tried the cause; which is to be done upon notice of the time and place, when and where it is to be done. 3 Cowen, 32; 8 Cowen, 766; Bull. N. P. 316; 3 Bl. Com. 372. When the bill of exception is sealed, both parties are concluded by it. 3 Dall. 38; Bull. N. P. 316.

4. The bill of exceptions, being part of the record, is evidence between the parties, as to the facts therein stated. No notice can be taken of objections or exceptions not appearing on the bill. 8 East, 280; '3 Dall. 38, 422, n,; 2 Binn. 168. Vide generally, Dunlap's Pr., Grah. Pr., Tidd's Pr., Chit. Pr., Penna. Pr., Archbold's Pr., Sellon's Pr., in their several indexes, h. t.; Steph. PI. I11; Bac. Ab. h. t.; 1 Phil. Ev. 214; 12 Vin. Ab. 26a; Code of Pract. of Louisiana, art. 487, 8, 9.

BILL OF EXCHANGE, contracts. A bill of exchange is defined to be an open letter of request from, and order by, one person on another, to pay a sum of money therein mentioned to a third person, on demand or at a future time therein specified. 2 Bl. Com. 466; Bayl. on Bills, 1; Chit. Bills, 1; 1 H. B1.586; 1 B. & P. 291, 654; Selw. N. P. 285; Leigh's N. P. 335; Byles on Bills, 1. The subject will be considered with reference, 1, to the parties to a bill; 2, the form; 3, their different kinds; 4, the indorsement and transfer; 5, the acceptance; 6, the protest.

[ 2 ] § 1. The parties to a bill of exchange are the drawer, (q. v.) or he who makes the order; the drawee, (q. v.) or the person to whom it is addressed; the acceptor, (q. v.) or he who accepts the bill; the payee, (q. v.) or the party to whom, or in whose favour, the bill is made. The indorser, (q. v.) is he who writes his name on the back of a bill; the indorsee, (q. v.) is one to whom a bill is transferred by indorsement; and the holder, (q. v.) is in general any one of the parties who is in possession of the bill, and entitled to receive the money therein mentioned. Some of the parties are sometimes fictitious persons. When a bill is made payable to a fictitious person, and endorsed in the name of the fictitious payee, it is in effect a bill to bearer, and a bona fide holder, ignorant of that fact, may recover on it, against all prior parties, who were privy to the transaction. 2 H. Bl. 178-288; 3 T. R. 174, 182, 481; 1 Camp. 130; 19 Ves. 311. In case where the drawer and payee were fictitious persons, the acceptor was held liable to a bona fide holder.

10 B. & C. 468; S. C. 11 E. C. L. R. 116. Vide as to parties to a bill, Chit. Bills, 15 to 76, (ed. of 1836.)

[ 3 ] § 2. The form of the bill. 1. The general requisites of a bill of exchange, are 1st, that it be in writing. R. T. Hardw. 2 ; 2 Stra. 955 ; 1 Pardess. 344, 5.—2d, That it be for the payment of money, and not for the payment of merchandise; 5 T. R. 485 ; 3 Wils. 213; 2 Bla. Rep. 782; 1 Burr. 325; 1 Dowl. & Ry. N. P. C. 33; 1 Bibb's R. 502; 3 Marsh. (Kty.) R. 184; 6 Cowen, 108; 1 Caines's R. 381; 4 Mass. 245; 10 S. & R. 94; 14 Pet. R. 293. 1 M'Cord, 115; 2 Nott & M'Cord, 519; 9 Watts, R. 102. But see 9 John. R. 120; and 19 John. R. 144, where it was held that a note payable in bank bills was a good negotiable note.—3d. That the money be payable at all events, not depending on any contingency, either with regard to event, or with regard to the fund out of which payment is to be made, or the parties by or to whom payment is to be made. 8 Mod. 363; 4 Vin. Ab. 240, pl. 16; 1 Burr. 323; 4 Dougl. 9; 4 Ves. 372; Russ. & Rv. C. C. 193; 4 Wend. R. 575; 2 Barn. & Aid. 417.—2. The particular requisites of a bill of exchange. It is proper here to remark that no particular form or set of words is necessary to be adopted. An order "to deliver money," or a promise that "AB shall receive money," or a promise "to be accountable," or "responsible" for it, have been severally held to be sufficient for a bill or note. 2 Ld. Raym. 1396; 8 Mod. 364. The several parts of a bill of exchange are, 1st, that it be properly dated as to place.—2, That it be properly dated as to the time of making; as the time a bill becomes due is generally regulated by the time when it was made, the date of the instrument ought to be clearly expressed. Beawes, pl. 3; 1 B. 2, C. 398; 2 Pardcss. n. 333.—3, The superscription of the sum for which the bill is payable is not indispensable, but if it be not mentioned in the bill, the superscription will aid the omission. 2 East, P. C. 951.—4th, The time of payment ought to be expressed in the bill; if no time be mentioned, it is considered as payable on demand. 7 T. R. 427; 2 Barn. & C. 157.—5th, Although it is proper for the drawer to name the place of payment, either in the body or subscription of the bill, it is not essential, and it is the common practice, for the drawer merely to write the address of the drawee, without pointing out any place of payment; in such case the bill is considered payable, and to be presented at the residence of the drawee, where the bill was made, or to him personally any where. 2 Pardess. n. 337; 10 B. & C. 4; Moody & M. 381; 4 Car. & Paine, M. It is at the option of the drawer whether or not to prescribe a particular place of payment, and make the payment there part of the contract. Beawes, pl. 3. The drawee, unless restricted by the drawer, may also fix a place of payment by his acceptance. Chit. Bills, 172.—6th, There must be an order or request to pay, and that must be a matter of right, and not of favour; Mood. & M. 171 ; but it seems that civility in the terms of request cannot alter the legal effect of the instrument; " il vous plaira de payer," is in France the proper language of a bill. Pailliet, Manuel de Droit Francais, 841. The word pay is not indispensable, for the word deliver is equally operative. Ld. Raym. 1397—7th, Foreign bills of exchange consist, generally, of several parts; a party who has engaged to deliver a foreign bill, is bound to deliver as many parts as may be requested. 2 Pardess. n. 342. The several parts of a bill of exchange

are called a set; each part should contain a condition that it shall be paid, provided the others remain unpaid. Ib. The whole set make but one bill.— 8th, The bill ought to specify to whom it is to be paid; 2 Pardess. n. 338; 1 H. Bl. 608; Russ. & Ry. C. C. 195. When the name of the payee is in blank, and the bill has been negotiated by indorsement, the holder may fill the blank with his own name; 2 M. & S. 90; 4 Campb. 97; it may, however, be drawn payable to bearer, and then it is assignable by delivery. 3 Burr. 1526.—9th, To make a bill negotiable, it must be made payable to order, or bearer, or there must be other operative and equivalent words of transfer. Beawes, pl. 3; Selw. N. P. 303, n. 16; Salk. 133. If, however, it is not intended to make the bill negotiable, these words need not be inserted, and the instrument will nevertheless be valid as a bill of exchange. ft T. R. 123; 6 Taunt. 328; Russ. & Ry. C. C. 300; 3 Caines's R. 137; 9 John. R. 217. In France a bill must be made payable to order; Code de Com. art. 110; 2 Pardess. n. 339.—10th, The sum for which the bill is drawn, must be clearly expressed in the body of it, in writing at length. The sum must be fixed and certain, and not contingent. 2 Stark. R. 375; and it may be in the money of any

country 11th, it is usual to insert

the words, value received, but it is implied that every bill and indorsement has been made for value received, as much as if it had been expressed in toiidem verbis; 3 M. & S. 352; Bayl. 40, n. 83 —12th, It is usual when the drawer of the bill is debtor to the drawee, to insert in the bill these words, " and put it to my account;" but when the drawee or the person to whom it is directed is debtor to the drawer, then he inserts these words, "and put it to your account;" and sometimes where a third person is debtor to the drawee, it may be expressed thus, "and put it to the account of A B." Marius, 27; Com. Dig. Merchant, F 5; R. T. Hardw. 1, 2, 3; but it is altogether unnecessary to insert any of these words. 1 B. & C. 398; S. C. 8 E. C. L. R. 108.—13th, When the drawer is desirous to inform the drawee that he has drawn a bill, he inserts in it, the words, "as per advice;" but when he wishes the bill paid without any advice from him, he writes, "without further advice." In the former case the drawee is not authorised to pay the bill till hevhas received the advice; in the latter, he may pay before he has received advice.—14th, The drawee must either subscribe the bill, or, it seems, his name may be simply inserted in the body of the instrument. Beawes, pl. 3; Ld. Raym. 1376; 1 Stra. 609.—15th, The bill being a letter of request from the maker to a third person, should be addressed to that person, by the Christian name and surname, or by the full style of their firm, 2 Pardess. n. 335; Beawes, pl. 3; Chit. Bills, 186, 7.—16, The place of payment should be stated in the bill.—17th, As a matter of precaution, the drawer of a foreign bill, may, in order to prevent expenses, require the holder to apply to a third person, named in the bill for that purpose, when the drawee refuses to accept the bill; this requisition is usually in these words, placed in a corner under the drawee's address; "Au besoin chez

Messrs. at ," in other

words, "In case of need apply to

Messrs. at ."—18th, The

drawer may also add a request or direction, that in case the bill should not be honoured by the drawee, it shall be returned without protest or without expense, by subscribing the words, "retour ''sans protit," or

"sans frais ;n in this case the omission of the holder to protest, having been induced by the drawer, he, and perhaps the indorsers, cannot resist the payment on that account, and thus the ,expense is avoided, Chit. Bills, 188.—19th, The drawer may also limit the amount of damages, by making a memorandum on the bill, that they shall be a definite sum, as, for example, "In case of nonacceptance or non-payment, reexchange and expenses not to exceed

dollars." Ib.

[ 4 ] § 3. Bills of exchange are either foreign or inland. Foreign, when drawn by a person out of, on another in, the United States, or vice versa; or by a person in a foreign country; on another person in another foreign country; or by a person in one state on another in another of the United States. 2 Pet. R. 589; 10 Pet. R. 572; 12 Pick. 483; 15 Wend. 527; 3 Marsh. (Kty.) R. 488; 1 Rep. Const. Ct. 100; 4 Leigh's R. 37; 4 Wash. C. C. Rep. 148; 1 Whart. Dig. tit. Bills of Exchange, pl. 78. But see 5 John. R. 384, where it is said by Van Ness, Justice, that a bill drawn in the United States, upon any place within the United States, is an inland bill. An inland bill, is one drawn by a person in a state, on another in the same state. The principal difference between foreign and inland bills is, that the former must be protested, and the latter need not. 6 Mod. 29; 2 B. & A. 656; Chit. Bills, (cd. of 1836,) p. 14. "The English rule requiring protest and notice of non-acceptance of foreign bills, has been adopted and followed as the true rule of mercantile law in' the states of Massachusetts, Connecticut, New York, Maryland, and South Carolina. 3 Mass. Rep. 557; 1 Day's R. 11; 3 John. Rep. 202; 4 John. R. 144; 1 Bay's Rep. 468; 1 Harr. & John. 187. But the

supreme court of the United States, in Brown v. Berry, 3 Dall. R. 365 ; and in Clark v. Russell, cited in 6 Serg. & Rawle, 358, held, that in an action on a protest for non-payment on a foreign bill, protest for non-acceptance, or notice of non-acceptance, need not be shown, inasmuch as they were not required by the custom of merchants in this country; and those decisions have been followed in Pennsylvania. 6 Serg. & Rawl. 356. It becomes a little difficult, therefore, to know what is the true rule of the law-merchant in the United States, on this point, after such contrary decisions." 3 Kent's Com. 95. As to what will be considered a foreign or an inland bill, when part of the bill is made in one place and part in another, see 1 M. & S. 87; Gow, R. 56; S. C. 5 E. C. L. R. 460; 8 Taunt. 679; 4 E. C. L. R. 245; 5 Taunt. 529; 1 E. C. L. R. 179.

[ 5 ] § 4. The indorsement. Vide articles, Indorsement; lndorser; Indorsee.

[ 6 ] k) 5. The acceptance. Vide article Acceptance.

[ 7 ] § 6. The protest. Vide article Protest.

Vide, generally, Chitty on Bills; Bailey on Bills; Byles on Bills; Marius on Bills; Kyd on Bills; Cunningham on Bills; Pothier, h. t.; Pardess. Index, Lettre de change; 4 Vin. Ab. 238; Bac. Ab. Merchant and Merchandise, M; Com. Digest, Merchant; Dane's Ab. Index, h. t.; 1 Sup. to Ves. Jr. M, 514; Smith on Mer. Law, Book 3, c. 1.

TABLE.

Bill of exchange.

1. Defined, 1.

2. Parties to, 2.
1. Actual persons

1. Drawer, 2.

2. Drawee, 2.

3. Acceptor, 2.

4. Payee, 2.

5. lndorser, 2.

6. Indorsee, 2. I Vol. I.—18. I

7. Holder, 2.
2. Fictitious persons, 2.

3. Form of the bill, 3.

1. General requisites, 3.

1. Must be in writing, 3.

2. To pay money, 3.

3. Payable at all events, 3.

2. Particular requisites, 3.

1. Dated as to place, 3.

2. Dated as to time, 3.

3. Subscription of a sum, 3.

4. Time of payment, 3. . 5. Place, 3.

6. Order or request to pay, 3.

7. Several parts, 3.

8. Name of payee, 3.

9. Payable to order, 3.

10. The sum to be paid, 3.

11. Value received, 3.

12. To whom it is to be charged, 3.

13. With or without advice, 3.

14. Drawee's name, 3.

15. Addressed to the payee, 3.

16. Place of payment, 3.

17. Au beioin, 3.

18. Request that it be not protested, 3.

19. May limit the damnges in case of non-acceptance, 3.

4. Qualities of, 4.

1. Foreign, 4.

2. Domestic, 4.

5. Indorsement, 5.

6. Acceptance, 6.

7. Protest, 7.

BILL OF FORECLOSURE, chancery practice. A bill of foreclosure is one filed by a mortgagee against the mortgagor, for the purpose of having the estate sold, and thereby to obtain the sum mortgaged on the premises with interest and costs. 1 Madd. Ch. Pr. 528. As to the persons who are to be made par- < ties to a bill of foreclosure, see Story, Eq. PI. § 199—202.

BILL OF GROSS ADVENTURE, a phrase used in French maritime law; it comprehends every instrument of writing which contains a contract of bottomry, respondentia, and every species of maritime loan. We have no word of similar import. Hall on Mar. Loans, 182, n. See Bottomry; Gross adventure; Respondentia.

« PreviousContinue »