Volume 1
The universal dictionary of trade and commerce : with large additions and improvements, adapting the same to the present state of British affairs in America, since the last treaty of peace made in the year 1763. With great variety of new remarks and illustrations incorporated throughout the whole: together with everything essential that is contained in Savary's dictionary: also, all the material laws of trade and navigation relating to these kingdoms, and the customs and usages to which all traders are subject / By Malachy Postlethwayt, esq.
- Jacques Savary des Brûlons
- Date:
- 1766
Licence: Public Domain Mark
Credit: The universal dictionary of trade and commerce : with large additions and improvements, adapting the same to the present state of British affairs in America, since the last treaty of peace made in the year 1763. With great variety of new remarks and illustrations incorporated throughout the whole: together with everything essential that is contained in Savary's dictionary: also, all the material laws of trade and navigation relating to these kingdoms, and the customs and usages to which all traders are subject / By Malachy Postlethwayt, esq. Source: Wellcome Collection.
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![fhall te as lie accepts. BefiJes, the *a'«r is J.fcharged, if rteie is no acceptance in time. The acceptance is a perto- nal contraft, and, if left to a jury, would deltroy the Crete of all fuch notes. Had (he aflion been againft the com- pany, there had been more reafon to have doubted then, than in the prefent cafe. , Kettleby in reply. Everyman sproperty muft depend on the difcretion of a jury, and thinks it was a proper queftion for their determination, whether this acceptance of the defen¬ dant was on his own account, or for that of the company, as being a matter of gteat importance, and was never deter¬ mined. . c Strange. As this a£lion depends upon the uncertainty of a meerbmatter of fa£l, the jury are the only proper perfons that can determine it. The fame may happen in many ot^er cafes, and as it is admitted that a fervant may ad on his own and his maker’s account, and therefore as he may ad in a double capacity, it is a proper queftion to come before a jury, to determine in which capacity he aded in the prelent As to the remedy over upon the drawer, that will be the fame, let this be determined as it will ; for here is certainly an ac¬ ceptance, but the queftion is by whom, which will make this objection vanifh. t , „ York chief-juftice. I am of the fame opinion my brother Bage was of at the trial, and think the verdid was a proper verdid. A bill of exchange is a contrad of a very peculiar nature, de¬ pending, in a great meafure, upon the cuftom of merchants. It is originally the contrad of the drawer, but, when ac¬ cepted, is a contrad of the drawee, and is according to t e tenor of the bill : and a farther contrad may arife from the indorfer; though it is certain that a writing may be drawn in the form of a bill of exchange, and yet not be fo; but 1 know of no cafe, where it has happened to be fo, and the accepter been difcharged, by any evidence not appearing upon the bill itfelf, and cited the cafes of Jenney and Hern. Paf. i o Geo. I. in B. R. The latter of thefe cafes was on a bill to pay to J. S. on demand, out of the money in your hands, arifing from, &c.-And, in this cafe, the accepter was held liable to anfwer for no more than what he fhould raife from, &c.-But the cafe in queftion comes not up to this. The addition in the bill is merdy a defeription, and cannot alter the nature of the contrad ; and the acceptance is general, and muft be taken fecundum formam billae. It is no? to account out of any particular fund, but only, when the money is paid, to what account to place it. As to the letter of advice, that was only between the drawer and drawee; and, as it was a private tranfadion only be¬ tween them, it cannot alter the cafe. In regard to the evidence of the defendant’s being cafhier of the company, this ought not to be confidered by the court: any extrinfic parole evidence might as well be produced, and that would affed the credit of all thefe contrads. It is plain¬ ly, from the face of the bill, a bill between the drawer and drawee, and could not have been accepted by the company, but for the honour of the drawer, and this a ftranger might have done. There was a much ftranger cafe in this court, between Cramlington and Evans. 2 Vent. 307. Where, notwithftanding the money due upon the bill was levied by extent before the day of payment, yet it was held the accepter was bound, and the indorfee had judgment againft him. Nor would it have excufed the defendant, if the acceptance had been for the company; for the company could not have been charged. That would have been a matter of equity between Mr. Bifhop and the company, and he might have been relieved there. Probyn. Where a bill is drawn upon a banker, and accepted by one who is his fervant, he inclined to think it fhall bind the mafter, though the acceptance is general, becaufe no one would truft the fervant; and the bill is taken on the credit of the mafter: but the prefent cafe is not fo : the bill here is drawn upon the fervant, and the addition is only deferiptive of him.'-We muft go according to the face of the note, and the rules of law, to make things certain.—The indorfer is a ftranger to the contrad between the drawer and drawee, and, if there is any thing in it that does not appear upon the face of the note, it ought not to be admitted in evidence againft him. Lee. In cafes of this kind, extrinfic evidence ought not to be admitted ; the acceptance is general, according to the tenor of the bill; and, as the bill {hews nothing that the com¬ pany were engaged in it, no evidence thereof ought to be ad¬ mitted. Bills of exchange are facred things ; and, as no man •can determine any thing of them but from the face of the bill, that only fhould be taken in evidence, which is under¬ flood to be a general rule in all trials of this kind. Page. In a cafe where a bill was given for goods fold and de¬ livered, which were not delivered ; yet the court would not •admit any evidence of it; for they held that the bill was to he confidered from the face of it. Cur. The rule to ftay the poftea muft be difcharged. This cafe being important, is the reafon I have given the 2 B I L pleadings thereupon, according to the beft information I have been able to obtain. Crofte and Gray. Eafter 8 Geo. II. One Slaughter, a clerk in the Exchequer, gave a promiftary note to Gekie, Gekie indorfed it over to Webb, who indorfed it to the defendant, who indorfed it to the plaintiff. The note was not payable ’till fix months after date, and, about a week after it became due, the plaintiff, by his attorney, de¬ manded the money of Slaughter, who refufed payment, and defired fome time of forbearance, which the plaintiff’s at¬ torney refufed to give, but after the plaintiff himfelf gave him a month’s time. This was in Augnltlafit, and, the month expiring before the beginning of Michaelmas term, the plaintiff, the firft day of the term, filed a bill in the Ex¬ chequer againft Slaughter (which was as foon as he could.be fued, by reafon of his privilege) and on this bill obtained judgment : but, Slaughter proving infolvent, the plaintiff brought this action againft Gray, the indorfer. The queftion was, whether, if the indorfee gives time to the drawer of the note, it does not difeharge the indorfers. The chief juftice laid, the time for the indorfee to demand the money of the drawer, was fettled to be a reafonable time..——A verdict was given for the plaintiff. Lewis and Orde. 2d Sittings in Middlefex, before Hardwicke chief-juftice. This was an a<SHon brought upon a note given by the plain¬ tiff to the defendant, in the following form ; ] promife to pay to Mr. James Lewis eleven pounds, at the payment of the {hip Devonfhire, for value received. The plaintiff declared as upon the ftatute of queen Anne, taking it to be a note with¬ in the ftatute. Marlh for the defendant objeifts, that it is nqt a note within the ftatute. ift. Becaufe not payable to order, or bearer; and 2dly, Becaufe of the contingency of the time of pay¬ ment. Hardwicke. It has been long fettled, that the ftatute does not require a particular certain form, and laid, he remembered a cafe in this court, where it was held on demurrer, that a note, to be within the ftatute, need not be payable to order: and in that cate it was urged, that it might as well be faid every note within the ftatute fhould be payable to order or bearer, for they are the words of the ftatute. As to the con¬ tingency of the payment, the fubfequent fail of the payment of the fliip makes it certain ; and therefore, though not 2 lyen ab initio, yet became fufficiently fo, and within the fta- tute, by the fa£t happening after. It is not like the cafe of Jofcelin and Laferre. Raym. 1362, where it was held, that a bill of exchange, payable out of a particular fund for growing fubftftence, was not within the ftatute. I think, therefore, the declaration is proper enough ; but you may make your objection in arreft of judgment, for this will ap¬ pear on the record. The chief-juftice further faid, that in cafe of a foreign attachment, where A receives the money of B, by authority of C, and in difeharge of a debt due from C to A, the money can never after be attached in the hands of A for the debt of B, Powell and Moliere, in Chancery, Eafter 10 Geo. II. The bill was for fatisfadlion of a bill of exchange drawn upon the defendant, and accepted by him. Pending the fuit, the original defendant died, and it was revived againft his execu¬ tors, praying alfo a difeovery of afiets, and to be fatisfied thereout. On the proofs fome queftion was made, whether the acceptance was fufficient to charge the defendant, and whether the plaintiff by keeping the note about ten days af¬ ter it became due, without coming to the drawee for the mo¬ ney, had not difcharged the accepter ? But it was infilled for the defendant, as a previous matter, that the plaintiff had 2 plain remedy at law, that his cafe depended upon fails that ought to be tried by a jury, and not to be determined in this court. Hardwicke lord chancellor. Regularly the plaintiff ought to purfue his remedy at law, and not in this court : and, if the cafe flood as it did at firft, I fhould certainly difmifs the bill; but the bill of reviver praying a fatisfailion out of aftets and a difeovery of aftets, it is made a cafe of which this court takes cognizance, and then the prayer of fatisfailion is an incident that follows with it, I have, therefore, no doubt, but that the plaintiff is proper in praying a remedy in this court. But, with regard to the acceptance, if there were doubt of it, as to the fa£l, or whether in law what has been done amounts to an acceptance, it might be ftill neceflary to fend the parties to a trial at law ; but I think there is no doubt of either. The teftator, when the bill was brought to him, received it, entered it in his book according to his courfe of trade, and is proved to have been made under 2 parti¬ cular number, and wrote that number under the bill, and re¬ turned it. Now it is faid to be the cuftom of merchants, .that, if a man underwrites any thing to a bill, it amounts to an acceptance. But, if there were no more than this in the cafe, I fhould think it of little avail to charge the defen¬ dant; but what determines me is, the teftator’s letters; and I fbinje](https://iiif.wellcomecollection.org/image/b30459436_0001_0330.jp2/full/800%2C/0/default.jpg)
