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to whom he delivered it before presentment for acceptance, but it will be presumed to be the former. The contract, upon which the bill rests, is to be distinguished also from the debt due by the drawee to the drawer, and which the latter assigns to the payee by drawing the bill. The debt due by the drawee of a bill to the drawer, does not constitute the consideration of a bill drawn payable to a third party. If, accordingly the payee have given valuable consideration for the bill, it will be immaterial that the drawee's obligation to accept and his acceptance rest upon an illegal or fraudulent transaction, but if the drawee do not accept, the assignation completed by presentment will not entitle the payee to obtain payment from the drawee, whose debt to the drawer is tainted with fraud or illegality, because in such a case the holder must prove the existence of a debt, using his bill as an assignation of it. If a drawee have accepted a bill for an insufficient consideration, and the payee of the bill thereafter takes it in payment of the valuable consideration which he has given or promised to give the drawer, the bill is one for which valuable consideration has been given. Though in a regular bill a contract exists independently of the bill, parties may make a bill or note which is not founded on any antecedent contract, and such a bill will be valid in the hands of a holder for value, although there be no value between any of the original parties to it, or there is no debt existing between the drawer and the drawee or acceptor. Such bills are called accommodation bills. But the contracts implied on such bills, and the rights of the holder against the parties liable thereon, are the same as in an ordinary bill.

bill.

The contracts on a bill are (1) that of the acceptor who Contracts on a engages to pay the sum in the bill; (2) that of the drawer who engages that the drawee will accept and pay, and that he will pay in the event of the drawee's failure to accept and pay; (3) that of an indorser (whether one to whom the bill has been indorsed, or an indorser per aval), who engages that the drawee will accept and pay, and that he will pay his indorsee and any subsequent holder the sum in

Cheques.

Promissory notes.

Requisites of

the bill in the event of the drawee not accepting and paying, vide §§ 54, 55.

Cheques are bills of exchange drawn on a banker, payable to bearer or to order, and, subject to the provisions of §§ 60, 74, and 82, are regulated by the same rules as other bills.

Promissory notes, though distinct documents in point of form, are in their essentials identical with bills of exchange, and may be described as bills in which the drawer and acceptor are the same person. The contract of the maker of a note is an engagement to pay the payee the sum in the note.

The Act defines the formal requisites of a bill in § 3, and bills and notes. those of a note in § 83. A document which complies with

Privileges of a bill.

these definitions is a bill or note, although the parties have described it by a different name. It is entitled to the privileges, and subject to the disadvantages attached by law to bills and notes.

The privileges are:-(1.) A bill or note, whether in re mercatoriâ or not, is probative if signed by the parties liable thereon, without any of the statutory requirements as to authentication. Bills do not require to be signed in the presence of witnesses, and the signatures of a party to them may be adhibited by any person by or under authority of the party, vide § 91. (2.) Bills and notes are negotiable. They pass from holder to holder, either by delivery if payable to bearer, or by indorsement and delivery if payable to order. An assignation is implied by such delivery or indorsement of the holder's rights in the bill. In addition, the holder not merely acquires the right to sue in his own name on the bill, but he may also enforce the bill against all parties liable thereon, without being exposed to a challenge of his title as defective on grounds which would be fatal to a claim at the instance of the person from whom he has taken it, or to defences available to prior parties among themselves, provided that he has acquired the bill in such circumstances as to come within the definition of a

holder in due course, as given in § 29. The privilege of negotiability also includes that of being able to give a valid discharge to the person paying the holder in due course, and

of being able, though the holder's own title be defective, to negotiate a bill to a holder in due course, with a good and complete title, vide § 38. (3.) The presumption that the sum in the bill is due to the holder, can, in the general case, be rebutted only upon the debtor consigning the sum, or finding caution to such extent as may be fixed by the Court, but the proof that the sum is not due, is not now limited to writ or oath of the holder, vide § 100; and bills are thus deprived of one of the privileges to which lawyers and bankers in Scotland used to ascribe the great security of bills, and the credit which they obtained. (4.) The holder is prima facie deemed to have given value for a bill, whether it bears to have been granted for value or not, vide § 30, except in the cases there mentioned, and if it is proved that he gave no value, he can support the bill by showing that some prior party to him gave value, in which case the acceptor, and all parties prior to the person who gave value therefor, are liable to him if they have no other defences to rely on. (5.) Presentation of the bill to the drawee operates, according to the law of Scotland, as an intimated assignation of the sum for which the bill is drawn in favour of the holder, to the extent to which the drawee has funds belonging to the drawer in his hands, whether the drawee is under obligation to the drawer to accept or not, and whether the drawer has countermanded the order or not, vide § 53 (2). (6.) By Scottish statute law it is competent for the holder of a bill to use summary diligence against the parties liable on the bill, provided that the bill is ex facie unexceptionable, and that he has taken the requisite steps to avail himself of the statutes, vide § 98, and note thereon; and in England summary procedure in the case of bills and notes is provided by 18 & 19 Vict. c. 67 (see Appendix), and in Ireland by 24 & 25 Vict. c. 43, and 25 & 26 Vict. c. 23.

attached to

bills.

The disadvantages attached by law to bills and notes are, Disadvantages (1.) Inland bills and notes, with certain exceptions in favour of bills payable on demand and bank notes issued by bankers licensed to issue such notes, must be written on stamped paper, and if not so written are null. An unstamped inland.

Prior contracts.

Letters of credit.

bill cannot be after-stamped, except in the case where a bill or note has been written on paper bearing an impressed stamp of sufficient amount but improper denomination. Foreign bills cannot be negotiated or paid without affixing adhesive stamps of sufficient amount, vide 33 & 34 Vict. c. 97, § 51. (2.) Bills and notes, with the exception of bank notes, prescribe in six years from and after the term at which they become exigible, and the holder thereafter is limited to writ or oath in establishing the debt on the bill. (3.) The holder loses

his right of recourse against the drawer and prior indorsers, for payment of the sum in the bill, which the drawee has failed to pay, if he has omitted to take the steps and give the notices which the Act makes necessary, vide §§ 39-52.

The Bills of Exchange Act does not deal with the contracts to draw, accept, or indorse bills, nor with the documents in which these contracts are expressed. The principles applicable to the interpretation and enforcement of these contracts are widely different from those enacted by this Act with reference to bills and notes. The stringent requirements of the Act as to the form and negotiation of bills, have not been found necessary in regard to the writings embodying these contracts; and, on the other hand, some of the privileges attached to bills do not belong to them. The most important of the writings relating to these preliminary contracts are letters of credit, which play an important part in modern commerce, and have enabled parties to use bills of exchange in circumstances when, without such documents, their use would have been difficult if not impossible. A short account of the law applicable to them may not be out of place in this introduction.

Pothier, in his "Traité du Contract de Change," pt. ii. art. 2, § 3, thus describes letters of credit, and the obligations to which they give rise :-"Il y a," he says, "une espèce de rescription qu'on appelle lettre de crédit par laquelle un marchand ou banquier mande à son correspondant dans un autre lieu de compter à la personne dénominée dans la lettre l'argent dont elle temoigne avoir besoin. On donne ces sortes de lettres de crédit à des personnes qui voyagent, pour qu'elles

Ces

n'aient pas la peine de porter trop d'argent avec elles. lettres sont quelquefois illimitées, quelquefois limitées à une certaine somme. Elles ne contiennent qu'un seul mandat, par lequel celui qui a écrit la lettre charge celui à qui elle est adressée de compter la somme à la personne denominée. Le porteur de la lettre n'est point censé se charger de recevoir, il n'use de la lettre que selon son besoin, et autant que bon lui semble, et il ne contracte d'obligation qu'en recevant l'argent, qui est l'obligation du contrat de prêt, qui se fait par la numération qui lui est faite de l'argent." Letters of credit are, then, mandates, by which authority is given to a correspondent to pay to a particular person either a sum named, or any sum up to a certain amount, or any sum which he may require. They may, however, be expressed in many different ways, and subject to qualifications other than those relating to the amount to be advanced. In the first place, they may be either general or special. A general letter is addressed to no person either named or described, but contains a request to any one to whom the letter may be shown to give credit to the person in whose favour the letter is conceived. Such letters are sometimes in the form of a request to cash the drafts of the named holder or payee drawn upon the granter of the letter. Sometimes the letter is addressed to the grantee, and contains an undertaking to accept or pay bills drawn by him. Where the amount for which bills may be drawn is limited in the letter of credit, there is generally a memorandum desiring the persons who take bills drawn on the granter to indorse the amount of the bills so drawn on the letter of credit. The object of this is to prevent the holder making use of the letter after he has exhausted his credit, and is for the prevention of fraud on the public, and not on the granter; for the granter is only liable to the extent of the credit given by him, and the failure to indorse will not render him liable to innocent third parties who have been induced to advance money after the credit has been exhausted. The order of presentation to the granter will decide what drafts he must honour, under his obligation in the letter of credit, in cases

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