381

NOTES.

Note 1. page 1.-The order to the drawee is not as it seems revoked by the death of the drawer. Abbot, the master of a vessel at London, bound for Boston, and having on board goods consigned to Perkins, drew a bill in favor of one of his (Abbot's) creditors upon Perkins for the amount of freight to be paid by him. Abbot died, and his estate was insolvent, and after his death, which was known to Perkins, he accepted and paid the bill. Abbot's administrator then sued Perkins for the amount of freight, but the court held that the draft was an assignment of the money that might become due for the freight, and that Abbot's death was not a revocation of the request on the drawee to accept. Cutts v. Perkins, 12 Mass. Rep. 206. Bayley, 5. American Ed. See 2 Ves. J. 115.

Note 2. page 2.-The modern decisions confirm the doctrine of Lord Mansfield, that the acceptor of a bill is the original debtor. In Dingwall v. Dunster, Dougl. 249, his lordship said, "There is this difference between the acceptor and the others, that the acceptor is first liable." In Smith v. Knox, 3 Esp. N. P. C. 47, Lord Eldon says, "The acceptor is first liable, and the indorsees in the order in which they stand on the bill." In Clark v. Devlin, 3 B. & P. 366, Chambre J. says, "the acceptor of a bill is to be considered as the principal debtor, and the other parties as sureties only." In Fentum v. Pocock, 1 Marsh. 16, Mansfield C. J. says, "Laxton v. Peat is the first case in which it has even been supposed that the acceptor was not the first, and the last person compellable to pay the holder." In Pownal v. Ferrand, 6 B. & C. 442. Lord Tenterden says, "The acceptor was primarily liable on the bill to the plaintiff," and Holroyd J. “The defendant as acceptor of the bill, was liable in the first instance to pay it." In Philpot v. Briant, 4 Bingh. 720, Best C. J. says, "The acceptor of a bill of exchange is considered as the principal debtor; all the

other parties to the bill are sureties that the acceptor shall pay the bill, if duly presented."

66

But a distinction has been taken between the primary liability of the acceptor, and his being the primary debtor. Looking at the effect of a bill of exchange," says Lord Eldon, Bishop v. Young, 2 B. & P. 83. "it seems very reasonable to hold, that although the acceptor be primarily liable, yet that he is not liable for his own debt, but for that of another." See, also, Priddy v. Henbrey, 1 B. & C. 679.

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It is said by Pardessus, Cours de Droit Commercial, vol. ii. p. 461. that, "Le tiré qui a accepté la lettre, méme en faisant, contre le tireur, les reserves dont nous avons parlé n. 373, s'est rendu debiteur direct et principal de la somme y enoncée." But in another place, (p. 346.) the same writer tation n'est qu'une sûreté de plus pour le proprietaire de la lettre, et non un nouveau contrat, qui ait pour objet ou pour résultat, de substituer un debiteur à un autre; et cést en quoi le contrat de change differe essentiellement d'une vente de creance.

Upon this point appears to depend the question whether or not the acceptor is liable to pay the costs of the other parties who have been sued upon the bill, a question which will be discussed in the notes to chapter XII.

Note 3. page. 2.-"Il est important de mentionner sur chacun des exemplaires s'il est premier, deuxiéme troisiéme quatrième, &c. et que la paiement de l'un annulera les autres ; parce qu' autrement, rien ne prouvant qu'un des exemplaires est le doublée ou le triple des autres, chacun d'eux passeroit dans le commerce pour une lettre original." Pardessus, vol. ii, p. 367.

66

Note 4. page 12.--But it is not necessary that the money should be English money. Actions have frequently been brought in our courts on bills payable in foreign money. So in the French law, Il ne' pas necessaire que la monnoie qui fait l'object de la convention ait un cours legal dans le lieu on la deliverance doit en etre faite ni méme dans celui ou l'on stipule; il suffit que ce soit de la monnoie d'un pays quelconque." Pardessus, vol. ii. p. 336.

Note 5. page 15.- Bills of this kind are mentioned by Pothier, pl. 16. "La cinquieme espéce est de celles qui sont payables à certains temps solennels de foirs. Par example il y a à Lyon quatre temps solennels de foire qu'on appelle vulgairement les paiements de Lyon qui sont chacun d'un mois - Les lettres de change payable a ces temps de foire ne font mention que du temps de la foire, sans faire autres mention précise du jour."

Note 6. page 27.-The Scotch law is different. The words "or order," are not necessary in that country, and a bill or note may be effectually indorsed without them by the payee. Thomson, 101.

Note 7. page 30.-The cases of Alves v. Hodgson, and James v. Catherwood, may be distinguished on the ground that in the former case, the stamp was required by the revenue laws of one of our own colonies, while in the latter it was imposed by the law of a foreign independent state. But the language of Lord Kenyon in Alves v. Hodgson, is general, and does not seem to recognise this distinction. "I think," says he, "we must resort to the laws of the country in which the note was made, and unless it be good there, it is not obligatory in a court of law here." In Clegg v. Levy, 3 Campb. 167, Lord Ellenborough made use of the same general expressions; "I should clearly hold, that if a stamp was necessary to render this agreement valid in Surinam, it cannot be received in evidence without that stamp here. A contract must be available by the law of the place where it is entered into, or it is void all the world over." It is said by Lord Mansfield, Holman v. Johnson, Cowp. 343, that "no country ever takes notice of the revenue laws of another." In matters of penalty it is certainly true that our courts will not recognise foreign revenue laws; Folliott v. Ogden, 1 H. Bl. 135. Wolff v. Oxholm, 6 M. & S. 99; but it does not seem to follow from thence, that when the validity of a contract is made to depend upon a revenue law, the courts of this country are not bound to recognise it.

Note 8. page 40. In America, it has been held that if a person, not the payee of a note, indorses his name upon it, at the time it is made, intending to make himself responsible to the payee, he is liable as an original promiser. Moies v. Bird, 11 Mass. R. 436. Bayley, 38. American ed.

Note 9. page 47.-So in America, where a person signed a promissory note "as guardian to A. L. an insane person," it was held that he was personally liable. Thatcher v. Dinsmore,

Mass. R. 269. Bayley, 50. Amer. edit. Where a person sub. scribed a note as agent in the following form, "pro W. Gill, J. S. Colburn," it was held, in America, that Gill was liable as maker if Colburn had authority to subscribe in his name; but that, if Colburn had no authority, he was liable to a special action on the case. Long v. Colburn, 11 Mass. R. 97. Bayley, 51. Amer. edit. But in another case the pretended agent was held personally liable as maker. The court said, "If a person, under pretence of authority from another, executes a note in his name, he is bound, and the name of the person for whom he assumed to act will be rejected as sur

plusage. The party who accepts such a note under such mistake or imposition, ought to have the same remedy against the attorney who imposes on him as he would have had against the pretended principal, if he had been really bound." bury v. Ellis, 3 Johns. Ca. 70. Bayley, 52. Amer. edit.

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Note 10. page 48. It is difficult to reconcile the cases of Willison v. Patteson and Antoine v. Morshead. The indorsement to the plaintiff in the latter case, while he was an alien, could confer no title, (see 7 Taunt. 448.) and to allow such a contract to be enforced after the return of peace, appears to destroy the rule that contracts with aliens shall be void. Antoine v. Morshead is, as it seems, only to be supported on the ground that it was a contract for the benefit of British subjects detained in the foreign country. The circumstance of the action not being brought until the return of peace, will not in general enable the alien to recover. Gumba v. Le Mesurier, 4 East, 407.

Note 11. page 55.-In America it has been held, that where a note is payable to two joint executors, one of them cannot transfer it by his separate indorsement. Smith v. Whiting,

9 Mass. R. 334.

Note 12. page 57.-It has been decided in the United States, that a promissory note given by an infant for necessaries is void. Swasey v. Vanderheyden, 10 Johns. R. 33. Bayley, 34. American ed. But it has been there held, that if an infant indorse a note, an action may be maintained upon it by the indorsee against any of the prior parties. "That an infant may indorse a negotiable promissory note or a bill of exchange payable to him, seems to be well settled in the law merchant, and is no ways repugnant to the common law. Whether an infant may avoid an indorsement so made and oblige the promiser to pay him, is a question not arising in this case, for there has been no countermand or revocation of the order to pay, which is implied in his indorsement. If an action should be brought against the infant as indorser, without doubt he may avoid such action by a plea of infancy. But that is a personal privilege which none but himself can set up in avoidance of any contract in his favor." Per Parker C. J., Nightingale v. Withington, 15 Mass. R. 272. Bayley, 34. American ed. The French law is to the same effect. Pardessus, vol. ii. p. 459.

Note 13. p. 57.-Upon the same principle viz. the want of that consent, without which a contract cannot be binding, it is said by Parsons C. J. in Putnam v. Sullivan, 4 Mass. R. 45. Bayley, 92. Amer. ed., that " perhaps if a blind man had a note falsely and fraudulently read to him, and he indorsed it

supposing it to be the note read to him, he would not be liable as indorser, because he is not guilty of any laches."

Note 14. page 67.-In America it has been held that a person indorsing such a note as a surety, believing it to be good against the partnership, will not be liable upon it to the creditor to whom it has been given, and who knew that it was for a demand against one partner. Livingston v. Hastie, 2 Cain. 246. Bayley, 44. Amer. ed.

Note 15. page 68.-The principle upon which this distinction turns appears to be this. After an actual dissolution of partnership the parties are not liable as partners, in case they do not hold themselves forth to the world as such. The insertion of the dissolution in so public an instrument as the Ga zette proves that they no longer hold themselves out to the world as partners. There is no method of notifying the fact in a more general and public manner. With regard to persons who have had no previous dealings with the partnership, the proof of insertion in the Gazette without any evidence of reading the Gazette, seems quite sufficient. They rely upon the parties having held themselves out to the public as partners; the answer is the notice to the public in the Gazette.

With regard to persons who have had previous dealings with the partnership the case is very different. The parties have held themselves out to them individually as partners, and as to them such character will continue until a notice that it has been abandoned is traced home to them. They do not rely on the public dealings of the parties, but on their private and individual transactions with themselves. A mere notice to the public therefore, as by advertisement in the Gazette, is no notice to them.

Note 16. page 89.-According to the French law, in the time of Pothier, a release to the drawer was a discharge of the accommodation acceptor. "Lorsque la proprietaire de la lettre de change en a fait la remise pour le tout ou pour partie, au tireur qui la lui a fournie, lorsqu'elle est volontaire, opère la liberation pour le tout ou pour partie, non seulement du tireur à qui elle est faite, mais aussi de l'accepteur, a qui la tireur n'avoit pas encore remis les fonds pour l'acquitter; car autrement si celui qui a fait remise de la lettre de change au tireur, pouvoit encore en demander le paiement a l'accepteur, le tireur ne jouiroit pas de la remise qui lui a été faite, puisque l'accepteur auroit recours contre lui, afin de faire donner les fonds pour le paiement de la lettre." Pl. 180. This reasoning applies strongly to the question in the text. The law having once recognised accommodation bills, it would seem to follow, that in this case, as in others, the consequences of such recognition