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250

BILLS

OF

EXCHANGE through the delay (§ 74). Apart from any question of regarded as a promissory note made by a banker payable delay, a banker’s authority to pay his customer’s cheques to bearer on demand. It is, however, subject to special is determined by countermand of payment or by notice of stamp regulations. It is not discharged by payment, but the customer’s death (§ 75). Of recent years the use of may be re-issued again and again. In the interests of the cheques has enormously increased, and they have now be- currency the issue of bank notes is subject to various come the normal machinery by which all but the smallest statutory restrictions. A bank, other than the Bank of debts are discharged. To guard against fraud, and to England, may not issue notes in England unless it had a facilitate the safe transmission of cheques by post, a system lawful note issue in 1844. On the other hand, Bank of of crossing has been devised which makes crossed cheques England notes are legal tender except by the bank itself. In fundamental principles there is general agreement payable only through certain channels. The first Act which gave legislative recognition to the practice of cross- between the laws of all commercial nations regarding ing was the 19 and 20 Yict. c. 95. That Act was amended negotiable instruments. As Mr Justice Story, in 1858, and a consolidating and amending Act was passed the great American lawyer, says : “ The law rein 1876. The Act of 1876 is now repealed, and its pro- specting negotiable instruments may be truly visions are re-enacted with slight modifications by §§ 76 to declared, in the language of Cicero, to be in a great measure 82 of the Bills of Exchange Act, 1883. A cheque may be not the law of a single country only, but of the whole comcrossed either “generally” or “specially.” A cheque is mercial world. Non erit lex alia Roma}, alia Athenis, alia crossed generally by drawing across it two parallel lines nunc alia posthac, sed et a,pud omnes gentes et omni tempore, and writing between them the words “ & Co.” When a una eademque lex obtinebit ” {Swift v. Tyson, 16 Peters 1). cheque is crossed generally it cannot be paid over the But in matters of detail each nation has impressed its incounter. It must be presented for payment by a banker. dividuality on its own system. The English law has been A cheque is crossed specially by adding the name of the summarized above. Perhaps its special characteristics may banker, and then it can only be presented through that be best brought out by comparing it with the French code particular banker. A cheque, whether crossed generally and noting some salient divergences. English law has or specially, may further be crossed with the words “ not been developed gradually by judicial decision founded on negotiable.” A cheque crossed “ not negotiable ” is still trade custom. French law was codified in the 17th centransferable, but its negotiable quality is restricted. It is tury by the “ Ordonnance de 1673.” The existing “Code put on pretty much the same footing as an overdue bill. de Commerce ” amplifies but substantially adopts the proThe }>erson who takes it does not get, and cannot give a visions of the “ Ordonnance.” The growth of French law better title to it, than that which the person from whom was thus arrested at an early period of its development. he took it had. These provisions are supplemented by The result is instructive. A reference to Marius’ treatise provisions for the protection of paying and collecting on Bills of Exchange, published about 1670, or Beawes’ bankers who act in good faith and without negligence. Lex Mercatoria, published about 1740, shows that the Suppose that a cheque payable to bearer, which is crossed law, or rather the practice, as to bills of exchange was generally and with the words “ not negotiable,” is. stolen. even then fairly well defined. Comparing the practice of The thief then gets a tradesman to cash it for him, and that time with the law as it now stands, it will be seen the tradesman gets the cheque paid on presentment through that it has been modified in some important respects. For his banker. The banker who pays and the banker who the most part, where English law differs from French law, receives the money for the tradesman are protected, but the latter is in strict accordance with the rules laid down the tradesman would be liable to refund the money to the by Beawes. The fact is that, when Beawes wrote, the true owner. Again, assuming payment of the cheque to law or practice of both nations on this subject was nearly have been stopped, the tradesman could not maintain an uniform. But English law has gone on growing while French law has stood still. A bill of exchange in its action against the drawer. (See also under Banking.) A promissory note is defined by section 83 of the Act origin was an instrument by which a trade debt due in one to be an “ unconditional promise in writing made by one place was transferred in another place. This theory I rench person to another, signed by the maker, en- law rigidly keeps in view. In England bills have dePromissory gaging to pay on demand, or at a fixed or veloped into a paper currency of perfect flexibility. In noies. determinable future time, a sum certain in money France a bill represents a trade transaction; in England to or to the order of a specified person or to bearer.” A it is merely an instrument of credit. English law affords promissory note may be made by two or more makers, and full play to the system of accommodation paper; French they may be liable either jointly, or jointly and severally, law endeavours to stamp it out. A comparison of some according to its tenor (§ 85). For the most part, rules of the main points of difference between English and of law applicable to a bill of exchange apply also to a French law will show how the two theories work. In promissory note, but they require adaptation. A note England it is no longer necessary to express on a bill that differs from a bill in this: it is a direct promise to pay, value has been given for it, for the law raises a presumpand not an order to pay. When it issues it bears on it tion to that effect. In France the nature of the considerathe engagement of the principal debtor who is primarily tion must be stated, and a false statement of value avoids liable thereon. The formula for applying to notes the the bill in the hands of all parties with notice. In Engrules as to bills is that “the maker of a note shall be land a bill may be drawn and payable in the same place. deemed to correspond with the acceptor of a bill, and the In France the place where a bill is drawn should be so far first indorser of a note shall be deemed to correspond with the distant from the place where it is payable that there may drawer of a bill payable to drawer’s order ’ (§ 89). Buies re- be a possible rate of> exchange between the two. This solating to presentment for acceptance, acceptance, acceptance called rule of distantia loci is said to be disregarded now Hupra protest, and bills in a set, have no application, to a in practice, but the code is unaltered. As I rench lawyers note. Moreover, when a foreign note is dishonoured it is not put it, a bill of exchange necessarily presupposes a contract necessary, for English purposes, to protest it. All promis- of exchange. In England since 1765 a bill may be draw n sory notes are, under the Stamp Act, 1891, subject to an ad payable to bearer, though formerly it was otherwise. . In valorem stamp duty. Inland notes must be on impressed France it must be payable to order; if it were not so it is stamp paper. Foreign notes are stamped with adhesiv e clear that the rule requiring the consideration to be truly stamps. For ordinary legal purposes a bank note may be stated Would be a nullity. In England a bill originally