person, as for any other personal wrong. But when the fraud is directly connected with the contract with the wife, and is the means of effecting it, and parcel of the same transaction, the wife cannot be responsible, or the husband be sued for it together with the wife." Upon this ground it was held, that an action would not lie against husband and wife for a false and fraudulent representation by the wife; that she was sole and unmarried, whereby the plaintiffs were induced to take her promissory note as security for a loan to a third party (m).

If slander be spoken by husband and wife, there must be separate actions, one against the husband only, for the slander spoken by him, and the other against the husband and wife, for slander spoken by the wife (n). So for words spoken of husband and wife formerly there must have been two actions, one by the husband for the words spoken of the husband, and another by the husband and wife for the words spoken of the wife (o): but now such claims may be joined in one action, and if more than one action is brought, the actions may be consolidated (p).

The policy of the common law would not permit husband and wife to give evidence for each other, because their interests were the same; nor against each other, on account of the implacable dissension which might be occasioned thereby (q); but now, in all civil causes, except proceedings instituted in consequence of adultery, the husband and wife are compellable to give evidence for or against each other, but neither is compelled to disclose any communication made by the one to the other during marriage (r). The declarations of a married woman, during coverture, of the non-payment of money lent to her before marriage, are admissible in evidence for the plaintiffs, in an action brought against her husband as her administrator; for the wife, like any other person, may bind her representative (s). Feme covert, sued as feme sole, cannot bring error without her husband joining (t).

If husband and wife are taken in execution for a debt of the wife, she is entitled to be discharged, unless she has separate property, out of which she can pay the debt (u).

(m) Fairhurst v. Liverpool Adelphi Loan Association, 9 Exch. 422; S. C. 23 L. J., Exch. 163.

(n) Swithin v. Vincent, 2 Wils. 227; Dyer, 19, a, pl. 112, in the margin.

(o) Errington v. Gardiner, B. R. M. 22 Geo. III. MS. See Smith v. Warner, Goldsb. 76; Dalby v. Dorthall, Cro. Car. 553; Anon., W. Jones, 440; Smith v. Cooker, W. Jones, 409.

(p) Common Law Procedure Act, 1852,

fraud

is the he wite mer with uld not esenta

by the

nder

CHAPTER IX.

BILLS OF EXCHANGE AND PROMISSORY NOTES.

I. Of the Nature of a Bill of Exchange,

II. Of the Capacity of the Contracting Parties to a Bill

PAGE

356

V. Of the Transfer of Bills of Exchange,

392

Of the Party in whom the Right of Transfer is vested

397

VI. Of Presentment for Payment, and herein of the Days

of Grace,

397

Non-payment and Notice thereof

399

Bill may be discharged,

Protest..

Non-payment of Checks

19 & 20 Vict. c. 25, and 21 & 22 Vict. c. 79

VII. Of the Acts of the Holder, whereby the Parties to the

406

408

408

409

VIII. Of the Action on a Bill of Exchange,.
Pleading under the New Rules
Evidence

Recovery of Interest

IX. Of the Nature of a Promissory Note, .

Stat. 3 & 4 Ann. c. 9, s. 1, placing Promissory Notes

on the footing of Inland Bills of Exchange.. What are Negotiable Notes within the Statute Of Bankers' Notes

Joint and several Notes
Consideration

425

425

425

431

432

432

434

..

434

437

437

X. Of the Time when a Note ought to be presented for

439

I. Of the Nature of a Bill of Exchange.

A BILL of Exchange is a written order from A. to B., directing B. (who has, or is supposed to have, in his hands, sufficient effects belonging to A.) to pay a sum of money to C. or order, or to C. or bearer, either at sight or a certain number of days after sight, or after date, or at single, double, or treble usance, or on demand. The peculiar properties of a bill of exchange are these:-First,-It is assignable to a third person not named in the bill, or party to the contract, so as to vest in the assignee a right of action in his own name: contrary to the general rule of law, that choses in action are not so assignable. Secondly,-Although a bill of exchange be merely a simple contract, and not a specialty, yet it will be presumed that it has been originally given for a good and valuable consideration.

Bills of exchange are either foreign or inland foreign bills of exchange have long been considered as the most convenient paper security among merchants, in conformity to the universal usages and customs established among traders, by unanimous concurrence, for facilitating a general commerce throughout the world (a). The person making the bill is called the drawer, the person to whom it is directed the drawee (b), and the person in whose favour it is made the payee. When the drawee has undertaken to pay the bill, he is styled the acceptor, and his undertaking to pay the bill is called an acceptance. No one can be liable as acceptor but the person to whom the bill is addressed (c), unless

(a) Postleth. Dict.

(b) As to the necessity of there being a drawee, see Peto v. Reynolds, 9 Exch. 410; S. C. 23 L. J., Exch. 98.

(c) Per Lord Tenterden, C. J., delivering judgment in Polhill v. Walter, 3 B. & Ad. 122. See stat. 6 & 7 Will. IV. c. 58, post, p. 407.

he be an acceptor for honour. Bills of exchange payable to order are assignable by indorsement. The person making an indorsement is called the indorser; the person in whose favour it is made the indorsee; the party in possession of the bill, and entitled to receive its contents, the holder: but not so if he only lends his name for the purpose of suing on it (d). Bills payable to bearer are transferable by delivery without indorsement (e). Where the drawee refuses to accept, a stranger, after protest for non-acceptance, may accept for the honour of the drawer, and thereby such stranger acquires certain rights, and subjects himself to the same obligations as if the bill had been directed to him. So a stranger may become a party to a bill, paying it after protest for non-payment, either for the honour of the drawer or indorsers. Although regularly there ought to be three persons concerned in a bill of exchange, viz. drawer, drawee, and payee, yet there may be only two; that is, the characters of drawer and payee may be, and frequently are, united in the same person (ƒ), as if A. draw a bill in this manner: 'Pay to me or my order £ Value received by myself."

A bill of exchange is a simple contract (g), and consequently is within the Statute of Limitations; and must be sued for within six years after it becomes payable. In an action by an administrator, upon a bill of exchange payable to the testator, but accepted after his death, it was held that the Statute of Limitations begins to run from the time of granting the letters of administration, and not from the time the bill becomes due, there being no cause of action until there is a party capable of suing (h). An agent having money in his hands belonging to his principal, purchases with it a bill of exchange, which he indorses specially to his principal; the latter, at the time of the indorsement, was dead, but that fact was not known to the agent; it was held, that the property in the bill passed to the administrator of the principal, and that he might, therefore, sue upon the bill in that character; it was held, also, that the administrator was only entitled to recover interest upon bills accepted after the death of the testator from the time of demand of payment made by the administrator, and not from the time the bills became due (i). If a note be payable by instalments, with a provision that if default be made in such payment the whole note shall become due, it seems that the statute would run from the time of the first default (k). Bills of exchange for value received are not such matters of account as are intended by the exception in the Statute of Limitations concerning merchants' accounts (1).

A bill of exchange is to be paid as a simple contract debt; and (h) Murray v. East India Company,

(d) Emmett v. Tottenham, 8 Exch. 884. (e) Grant v. Vaughan, 3 Burr. 15, 16. (f) Per Holt, C. J., in Buller v. Crips, 6 Mod. 30.

(g) Renew v. Axton, Carth. 3.

5 B. & A. 204.

constitutes bona notabilia not as a bond or specialty in the place where the instrument is at the time of the deceased's death, but where the debtor resides (m).

II. Of the Capacity of the contracting Parties to a Bill of Exchange:

Corporations, p. 358.
Infant, p. 361.

Feme Covert, p. 361.
Agent, p. 362.

Partners, p. 363.

Spiritual Person, p. 365.

All persons, whether merchants or not, if they have capacity to contract, may be parties to a bill of exchange. This appears from the case of Sarsfield v. Witherby, Carth. 82, in which it was decided, that the act of drawing a bill of exchange constituted the drawer a merchant, within the custom of merchants, so as to make him responsible to the holder upon non-payment.

Corporations. The general rule is, that as a corporation is a body politic and invisible, it can only speak and act by its common seal (n); but on this general rule many exceptions have been grafted (0), and it has been held (p) that assumpsit will lie on a bill of exchange against a trading corporation, whose power of drawing and accepting bills is recognized by statute.

The stat. 7 & 8 Vict. c. 32, s. 27, continues to the Bank of England the privileges given or recognized by the stat. 3 & 4 Will. IV. c. 98, and by sect. 10 enacts, that from and after the passing of this act no person other than a banker, who on the 6th day of May, 1844, was lawfully issuing his own bank notes, shall make or issue bank notes in any part of the United Kingdom. And by sect. 11, from and after the passing of this act it shall not be lawful for any banker to draw, accept, make or issue in England or Wales any bill of exchange or promissory note, or engagement for the payment of money payable to bearer on demand; or to borrow, owe or take up in England or Wales any sums or sum of money on bills or notes of such banker payable to bearer on demand, save and except that it shall be lawful for any banker who was, on the 6th day of May, 1844, carrying on the business of a banker in England or Wales, and was then lawfully issuing in England or Wales his own bank notes, under the authority of a licence to that effect,

(m) Yeomans v. Bradshaw, Carth. 373. (n) See Gibson v. East India Company, 5 Bingh. N. C. 269.

(o) See ante, p. 70.

(p) Murray v. East India Company, 5 B. & A. 204. See Broughton v. Manchester Water Works Company, 3 B. & A. 1.