Kendall v. Galvin

15 Me. 131 | Me. | 1838

The opinion of the Court, after advisement, was drawn up by

Shepley J.

The acceptance of a bill of exchange by the drawee is presumptive evidence, that he had effects of the drawer in his hands. It is so stated by the elementary writers upon bills, and the authorities authorize it. 2 Stark. Ev. 167, 8; Vere v. Lewis, 3 Term R. 183.

Whether the instructions given were correct must depend therefore upon the instrument offered in evidence by the plaintiffs. If it is to be regarded as a bill of exchange, the instructions were erroneous, because no testimony was oilbred to rebut this presumption at law. If it can be regarded as an order or request to pay money, and not a bill of exchange, and so not within the rule applicable to them, then the instructions were correct.

No precise, form of words are necessary in a bill of exchange. Morris v. Lee, Ld. Ray. 1396. There are certain essential requisites ; such as, that it be payable at all events, not on a contingency, not out of a particular fund, that it be for the payment of money only, and that it exhibit so clearly the drawer, drawee, and amount, that these can be known to strangers into whose hands it may come.

The plaintiff's counsel contends, that the instrument in this case is defective in several particulars, and that it should not be regarded as a bill of exchange.

3. That it is not made payable to order or bearer. It is well settled however, that the words order or bearer are not essential. Bayley, 29; Ld. Ray. 1545 ; 6 Term R. 123 ; 9 Johns. R. 217.

2. That it lias not the words value received. These w'ords are not regarded as essential. Bayley, 33; Ld. Ray. 1481; 8 Mod. 267.

3. It is not payable at a day certain, or at any usance or time after date. It has been decided, that it is not necessary to constitute it a bill of exchange, that it should be.

In the case of Boehm v. Sterling, 7 Term R. 419, the writing declared on was in these words :

“ Bartholomew Lane, London, 17 February, 1796.

“ Messrs. Down, Thornton, Free, and Cromwell, pay to Mr. Dobson or bearer, 2444£ 14s.

“ Sterling, Hunters & Co.”

Lord Kenyon says, “ at the time of the trial, I thought there was a difference between banker’s checks and bills of exchange; and that the rule adopted with regard to the latter did not apply to the former; but on further consideration, 1 do not think that, that distinction is well founded.” It was held to be a bill of exchange and to be properly declared on as such.

4. It is not payable at any particular place or addressed to the drawee stating his residence.

In the case of Shuttleworth v. Stephens, 1 Camp. 407, the instrument declared on was in these words, “ 21 st October, 1804. Two months after date pay to the order oí John Jenkins 78£ 11s. value received. Thos. Stephens.” No place of payment or place of residence of any party is stated in this case or in the case of Boehm v. Sterling, yet they were held to be properly declared on as bills. A request to pay the amount of a note written underneath it, has been held to be a bill of exchange. Leonard v. Mason, 1 Wend. 522. The instrument in evidence in this case might have been declared on as a bill of exchange ; and if so, and a recovery could have been had, then the rule of law respecting bills applied to it, although not declared on as such; for the law applicable to it cannot be different on account of the different manner in which it is presented in evidence.

It would seem, that requests, or orders, payable out of a particular fund, or upon a contingency, or not payable in money only, or which are liable to any other objection preventing them from being regarded as bills of exchange, do not come under the rule of law, that acceptance is prima facie evidence of effects of the drawer in hand. Weston v. Penniman, 1 Mason, 306.

To enable the plaintiff to maintain this suit, he must rebut the prima facie evidence arising from his acceptance.

Exceptions sustained, and new trial granted.