July 18. 1671. ON a Trial before the Lord Chief Justice Hales, between Nathaniel and John Let Plaintiffs, and Leonar Moresco Widow Defendant; concerning the Custom of Merchants, in case an Accepted Bill of Exchange be lost; The Question was, Whether the Accepter was bound to pay the Money on the second Bill; And upon Hearing, by consent of Counsel on both sides, a Verdict was agreed on in these Words. WE find the Custom of Merchants to be, That if the first Bill which is Accepted be lost after Acceptance, and before payment thereof, The Merchant who Accepted such Bill, is bound to pay the Money upon the second Bill to the Party by the Bill appointed to Receive the same, or to such Person to whom it is by Endorsement appointed to be paid; If the Party who is to Receive the Money, shall give unto the Party so Accepting sufficient security to save him harmless for such payment, and not otherwise. With this Case, as it relates to the Parties, Plaintiffs and Defendant, it is not intended, nor is it any way proper to intermeddle; nor is it possible for any person, without knowledge of the particular circumstances attending it, to give any judgement therein: But because the right stating and determining the general Question, and the Custom of Merchants therein, may be of universal Concern; and because on this Occasion various Discourses have been amongst Merchants themselves, who seem of different judgements and apprehensions thereabout; It is thought necessary to propose the same to the serious and mature consideration of Merchants, and to desire their judgements thereupon, which may serve as a Rule in future, and lead the way to the settlement of other Matters of like nature, now controverted amongst Merchants. In order to the Resolution of the said Question, It hath been observed, FIrst, That generally and universally all Merchants agree in this, That though the first Accepted Bill were lost, yet that the Party to whom the Money was due ought not to lose the same; and that the Accepter is bound to pay the Money on the second Bill, so as he may be secured to pay the same but once. Secondly, That concerning the way and manner, whereby the Accepter may be secured, the Merchants do not agree amongst themselves. I. Some affirm, That the Party requiring the Money on the second Bill, is bound by the Custom of Merchants to give good security by Bond in a penal Sum to the Accepter, to save him harmless against his Accepted Bill; and that unless such security be given to the satisfaction of the Accepter, the Accepter is not bound to pay the Money. II. Others affirm, That though it be usual and oftentimes practised by Merchants in such Cases to give security one to another, to avoid trouble; yet that there is no such Custom to necessitate a Merchant so to do, or to debar him of his Right for default thereof: But in such Case, The Merchant claiming the Money may bring his Action on the second Bill; and that if on Trial he prove the Acceptance of the first Bill, and his right and propriety to the Money, he ought to have judgement against the Accepter for the principal Sum, but not for any costs of Suit, unless the loss of the Accepted Bill was by the Accepter himself; And the Judgement in this Case is a Security to the Accepter against the Accepted Bill. III. Others affirm, That the payment of the Money on the second Bill (after the usual time limited by the Custom of Merchants for payment of Bills) to a person to whom the same is duly endorsed, and his Receipt and Discharge thereon, is of itself, according to the nature of Bills of Exchange, and the Custom of Merchants, a sufficient discharge of, and security against the first Accepted Bill. The Reasons and Grounds for each of these several Opinions seem to be in substance as follow. Those which Assert the first Opinion allege, First, That they have often known it practised, in case of the loss of a first Accepted Bill, that security hath been given to save the Accepter harmless, and that they never knew it otherwise. Secondly, That the Acceptation is that only which obligeth the Party on whom the Bill is drawn, and that therefore he ought, on payment, to have up his Obligation, or else to be well secured against it. Thirdly, That if persons be dishonest, it may fall out, That the first accepted Bill may be endorsed to one man, and the second Bill to another man: In which case they do conceive, he that hath the Accepted Bill is by preference entitled to the money; so that if the Accepter should pay the money on the second Bill, and not have good security, If afterward the first accepted Bill should be found endorsed to another, That person would Recover payment by virtue of the said accepted Bill, and so the Accepter should be forced to pay the same Bill twice, besides the trouble and vexation of Suits; and that therefore he ought to be secured against these inconveniences before he part with his money. Those that are of the second and third Opinions, First, They propose some things to be considered in reference to the Customs of Merchants in general, as I. That every Usage or common practice amongst Merchants, doth not amount to the denomination of the Customs of Merchants, so as always to oblige; many things passing between Merchant and Merchant in a way of civility and friendship, by way of accommodation, which cannot therefore presently be called a Custom; as for instance: It is usual, and the common practice of Merchants, Upon the taking up and delivering of money by exchange, That the party who takes up the money and draws his Bill, doth give his first Bill on the Post-day, and sends for his money on the second Bill a day or two after; Yet no Merchant will say, That this use and common practice is an obliging Custom; But rather the contrary, That it is only a common Civility, and that the party that draws the Bill, may by the true and ancient Custom of Merchants, refuse to deliver any Bill before he receives the money for the value therein expressed. II. That no one, two, or more particular Merchants, affirming, That they have known such a thing practised in in such a case, and that they never knew it otherwise, is a sufficient ground to determine that practice to be a Custom of Merchants, so as to oblige all Merchants in the course of Exchange thereunto: For though it might be so practised between some, which those particular Men heard of, Yet the same Case might be contested by others, and adjudged after another manner, which they might never hear of. III. That the Customs of Merchants do not separate between Justice and Equity, i. e. in English, between Law and Chancery, but both are comprehended, and aught to be considered in the determination of any Matter amongst Merchants touching Bills of Exchange; So that there is no Rule so positive, but that differing circumstances may alter the Case. There are some common principles which are taken for foundations, and unalterable, not so much because they are received for the Custom of Merchants, as that they are in their own nature just and equitable, and carry the reason with them, that bears testimony to and for them: Such are these following: That every man's word should be as good as his deed. That every Creditor must have a Debtor. That every one should answer for his own Act, or for his own neglect, and that thereby another should not be detrimented. These and such like are principles upon which all the several particular Customs of Merchants are founded, and are inviolably to be observed. But there is no particular Custom, to which a not otherwise can be subjoined, because the circumstances may vary the Case; for instance: It is a received Custom of Merchants, That if there be a neglect of protesting a Bill within the time limited, That then the Drawer is discharged, and the Party claiming the money shall have no Recourse against him for the same. To explain this Case, suppose Thomas receives of Richard 100 l. and gives to Richard his Bills of Exchange for the same sum on William of Amsterdam, payable to Richard or his order at 2 Usance. This Bill is not paid by William at Amsterdam, nor protested in due time for non payment by Richard, or his Assigns, Yet Richard comes and requires satisfaction of Thomas. If the Question be barely and singly put to most Merchants, Whether Richard that paid the value hath Recourse on Thomas the Drawer, in case the Bill was not paid by William on whom is was drawn, It is probable they will readily answer, That Richard hath his Recourse on Thomas the Drawer, or that Thomas is bound to pay the money to Richard, if the Bill were not paid by William on whom it was drawn, and a Protest made for non payment in due time, and not otherwise; and that they have often known, that the Drawer was discharged, and no way liable, unless a Protest for non payment were made in due time, without which they never knew that the Drawer was chargeable. This Answer seems very plausible; but let the matter be examined. The Case is this: Thomas had no money or effects in the hands of William, on whom he drew the Bill, nor was William any way indebted to Thomas; But Thomas having occasion for money, takes up this money of Richard, and gives him his Bill for the same on William, hoping he would honour his Bill, and orders him upon payment to Redraw the money on him again, which he promiseth William to pay. Richard by neglect keeps the Bills by him, or sends them to other places to negotiate, so that it happens that the Bill comes not to Amsterdam, till the time mentioned in the Bill, and the time limited by the custom of Merchants there, for making the Protest, be expired. When the Bill is presented to William, he returns answer (to a Protest then made after the limited time) that he will not accept or pay the said Bill. Richard Returns back to Thomas, who answereth, That the Protest was not made in due time, and that therefore he is by the Custom of Merchants discharged. If this should be taken for Good, Then Richard would be a Creditor without a Debtor: William could not be his Debtor, because he did never accept the Bill; and Thomas should not be his Debtor, because the Protest was not made in time. Then, Thomas would gain 100 l. for nothing, and Richard would lose as much. Can this rationally consist with justice and good conscience? And if not, No more can it consist with the Custom of Merchants, which is bottomed on that foundation. The Case being on Evidence made out to be as above expressed, Thomas shall by the Custom of Merchants be obliged to repay the money to Richard; and those very Merchants which gave their opinion in the general, with a not otherwise, will no doubt on the consideration of these Circumstances subscribe hereunto. If the Case have this variation from what is above, That William was really indebted to Thomas, Then Thomas shall not be obliged to pay back, or to answer the money to Richard; But only shall be bound to assign unto Richard so much of his Debt owing by William, as the said Bill did amount to; It will not be material, whether William be solvent or insolvent, for that Richard by neglecting to protest in time, hath lost the security of Thomas, and so is to take William only for his Debt, whether he be good or bad. If the Case have this variation, That the Bill of Exchange was accepted by William, Then Richard shall have no Recourse at all on Thomas; but having William obliged by his Acceptance, shall take him only for his Debtor. And in case of William's Insolvency, and that Thomas drew the money only on his Credit; Thomas may, if he will, repay the money to Richard, and take up the Bills, which is esteemed fair dealing; but if he will not, Richard hath no right, according to the Custom of Merchants, to enforce him: But in this case Richard must come in as a Creditor to William, and Thomas must be charged as a Debtor to William. Having thus premised these things, concerning the Customs of Merchants in the general, Secondly, They allege, That in some Cases, and under some Circumstances, though the Accepted Bill be lost, yet there may be no need to require security of the party that demands the money on the second Bill, nor any reason for him to give it; and so the General Assertion before laid down is not to be admitted with a not otherwise. I. If the Bill of Exchange be drawn payable to a person directly, without any expression of order, as thus: AT double Usance pay this my first of Exchange to Mr. A. B. five hundred Crowns at 56 d. per Crown value, of Mr. C. D. and put it to Account, as per advice of E. F. To Mr. G. H. Merchant in London. All Merchants will agree, That A. B. hath no power according to the Custom of Merchants to Endorse or Assign the same to any other; and that if he should take upon him so to do, yet such Endorsment is invalid, and the party to whom such Bill is Endorsed cannot have any recourse upon the Accepter in his own name or right, by virtue of such Endorsement: And that G. H. is only liable to pay the money to A. B. and to no other; unless C. D. who paid the value, should before the actual payment countermand the same; which not being done, though the first Accepted Bill be lost, it would be altogether needless for G. H. to require security of A. B. because the payment of the money to A. B. and his Receipt doth fully discharge G. H. the Accepter from that parcel. II. That the Accepted Bill is not only lost, that is to say, mislaid, or out of the way for the present, but extinct and destroyed, may possibly in some Cases, as in destruction by Fire or Shipwreck, be certainly known, and sufficiently evidenced: And if so, Then it will be unnecessary to require security against that which is certainly known not to be. III. It may fall out sometimes accidentally; whereof there is experience, That the Accepted Bill hath been lost by the person that Accepted it, or by his servant, and in such Case it seems unreasonable, that the party claiming the money on the second Bill should be forced to give security. Thirdly, They say, If such a Custom were admitted, That on the loss of an Accepted Bill the party claiming the money should be remediless without first giving security, many inconveniences might ensue. I. It's probable some persons may not be able to give security, and yet of such persons there would be the greatest reason to require it: But that a poor man in such a Case should lose his money, and another enjoy it without any right, would be very unjust. II. It may be considered, That a great part of the money remitted by Exchange is for the Account of persons residing beyond sea; and what Factor will be willing to become security, and procure another also to be security with him, whom he must indemnify, when as he must depart with the money presently, but his Bond lies out against him forever. So that in such Case the Foreigner will be at a loss, and hereby the Trade may be discouraged and lessened. III. May not a person out of design to gain time, and to keep the money, pretend he hath Accepted a Bill when he never did; and so if both Bills cannot be produced, remain with the money? It hath been several times known, That when money hath been demanded on a Bill not Accepted, Answer hath been made on the Protest, by the party on whom the Bill was drawn, That he had Accepted the other Bill; when as in some time after both Bills have been produced, and neither of them Accepted: Now if the other Bill had miscarried, the falsity could not have been detected. IV. The Accepter on this pretext, to gain time and keep the money, may be over curious and dislike the security tendered: And if it be answered to this, That then the party may bring his Action, and the Court will judge of the security; It may be considered, 1. That this will be a means to beget Suits, instead of preventing them: 2. That it may deter men from offering themselves as security, lest they should thereby come to have their Credits questioned in a public Court, and so render it more difficult to obtain security: 3. It would be a double charge if the security were not approved, or allowed of. Fourthly, They say, The only reason of requiring security is to indemnify the party that pays the money on the Bill, that he be not charged twice for the same parcel, but that he be assured that he pays the money to the right party: This they conceive is done by a Trial at Law, and a Judgement thereupon; because on Trial the Court will examine all Circumstances, and the party claiming the money must prove his right and propriety. Obj. Suppose the Bill of Exchange be made payable to A. B. or his order, and that A. B. hath Endorsed the Accepted Bill to L. M. and the other Bill not Accepted to J. K. and taken a value of each of them; Shall not L. M. having the Accepted Bill recover payment of G. H. notwithstanding his former payment to J. K. on the other Bill unaccepted, or any Judgement had thereupon; it being a Rule in the course of Exchange, That it is only the Acceptance of the Bill that obliged G. H. on whom it was drawn to the payment, and that Endorsements of Bills amongst Merchants doth transfer Property? Answ. It is answered, That the payment of one of the Bills to J. K. in case the said Bill was duly endorsed by A. B. to him, and paid at or after the due term, limited by the Custom of Merchants for payment of Bills of Exchange, was a good payment of that parcel, and a due discharge to the Accepter of his Acceptance, and aught to be accepted as a good Plea in Bar, to any Action brought by L. M. on the Accepted Bill against G. H. the Accepter, or E. F. the Drawer; if there have been a Judgement in the Case, That hath determined the Endorsement to be duly made, and so there will need no other matter to be examined but the payment. For the clearing this matter, upon which the main difficulty depends, It must be considered, First, That though there be two or three Bills given, viz. first, second, and third, Yet they are all to be understood to be but one parcel, and the giving of several Bills, is intended to supply the Inconveniences that might happen by the miscarriage of the Post or other accident, and therefore to Parts not far remote, as to France, Holland, etc. there is usually given but two Bills, first and second; and to Parts more remote, as to Venice, Italy, &c, there is given three Bills, first, second and third. Secondly, That the tenor of every Bill of Exchange is conditional, to pay the one, the other not being paid: This Condition is always expressed in the second Bill, and sometimes in the first; however it is always employed, for a first denotes there is a second, and amongst Merchants it is always so understood; and therefore when they give but one Bill, it is usually expressed, Pay this my sole (or my only) Bill. Thirdly, That the Acceptance of one Bill, doth oblige the Accepter to the payment of the parcel, and is not, nor aught to be restrained to the particular Bill underwritten, or to any particular person to whom the same is Endorsed, but is understood generally of the parcel, and to pay the same to such person as at the time of the falling due of the Bill (according to the Custom of Merchants) shall have right to demand and receive the same. That the Acceptance is not restrained to the Bill underwritten, but is to be extended to the Parcel, which takes in all the Bills: It is supposed no Merchant, acquainted with the Trade and Course of Exchange, will deny: Yet if any shall say, That the Accepter is strictly obliged to the Bill underwritten, and not to the Parcel generally; and that upon the Acceptance of one Bill the other are rendered invalid, and become only Scrolls; They are desired to consider, I. Whether this be not contrary to the very design and end of giving two Bills, which is to prevent the Inconvenience may happen by the loss of one. II. Whether this would not in a great measure cut off the Trade and Accommodations of Merchants in the Trade of Exchange. Bills are sent for Acceptance, and then transmitted to other places to negotiate: But who would dare to adventure an Accepted Bill, if the miscarriage thereof should be the loss of the money. That the Acceptance cannot be restrained to any particular person, to whom the same is payable or Endorsed, is evident; Because, according to the Custom of Merchants, the person that paid the value hath power of Countermanding the payment, at any time before it be due and actually paid, or duly Endorsed to another; and in case of Endorsements, it is the same still, for he that paid the value on the last Endorsement hath the power of Revocation: Hence it is, that it is so unsafe for a Merchant to pay a Bill before it be due; because if he that paid the value doth signify a countermand before the Bill be due, and make out his title to the money, he that paid the Bill before due, shall be adjudged to have paid it in his own wrong, and be obliged to pay it again, notwithstanding he had his Accepted Bill delivered him up by the other. Fourthly, That the Acceptance of a Bill, is always to be understood according to the nature and tenor of Bills of Exchange, and the Condition therein expressed or employed, viz. to pay one, the other not paid, and so the Obligation by the Acceptance is to the parcel, and not to any of the Bills distinctly and separately, but conditionally: So that G. H. having paid J. K. may truly and justly answer to L. M. demanding by his underwritten Bill, That he hath performed what his Obligation by his Acceptance obliged him to, viz. to pay the parcel, i. e. one Bill, the other not being paid: And this Plea in this Case, is the same in effect, and aught to be so taken, as that of Conditions performed to a Bond in the Course of our Law, is. Fifthly, Though Endorsements of Bills of Exchange do amongst Merchant's transfer Property, Yet there is no rule of preference, so as positively to determine the Right to be in one and not in the other: In the Case alleged, I. Suppose L. M. with the Accepted Bill endorsed to him, and J. K. with the other Bill Endorsed to him, come both together at the time of payment to demand the money of G. H. It is supposed there is no Custom of Merchants obliging him to pay this and not that, but that it is in the choice of G. H. to pay which of them he pleaseth; though it may be best for him to prevent trouble to pay neither, and to keep the money till the matter be determined, which in foreign Parts would be in a day or two by the Court Consulate, but in England if he be sued, he may pay the money into Chancery, and thereby be discharged, and leave the two Competitors to try their Title. If he resolves to pay one, it will be readily granted, that in prudence he will choose to pay him that hath the Accepted Bill, thereby to take up his firm. II. Suppose as this Case is, That the first Bill Accepted doth not appear at the time limited for payment, but only the second Bill Endorsed by A. B. to J. K. In this Case there cannot be a preference, because there appears but one Claimer: That which our Law in some Cases gives a Right by way of preference, viz. The time of Assignment, as in Mortgages the first takes place, will not here be material, the doubt being about the Acceptance, and not about the time of the Endorsement. Oftentimes there is no Dates put to the Endorsements on Bills of Exchange: and when there is, It may fall out that the first Accepted Bill may be Endorsed after the second. Obj It is further Objected, That L. M. who paid his money to A. B. upon the Endorsement of the first Accepted Bill to him, might not do it on the Credit of A. B. the Endorser, nor on the Credit of E. F. the Drawer, but on the Credit of G. H. and his Acceptance; and that he would not have trusted A. B. but depended on G. H. the Accepter: Whereas J. K. who took the Endorsement of A. B. on the second Bill, must needs be understood purely to trust A. B. in the Case: And it's probable, that L. M. in confidence of the solvability of G. H. the Accepter, might not send for the money at the time, knowing the Accepter to be always liable: And if in the mean time G. H. should pay the money to J. K. on the second Bill, and that thereby L. M. should be debarred of any Recourse against G. H. the Accepter, he should be remediless, not having protested in time; Which would bar all Civility, and also obstruct the Trade, by hindering the Negotiating of Bills of Exchange. Answ. This Objection is founded on Suppositions and Irregularities, and seems to be the Language of a Goldsmith Banker, and not of a knowing Merchant: For the clearing the same, First, It is to be considered, That of late years there are two kinds or sorts of Negotiating Bills of Eexchange; one very ancient between Merchant and Merchant in the Course of Exchange, whereby a Bill on Amsterdam is made use of at Paris, etc. one and the same Bill by several Endorsements supplying several men's occasions in distinct places: The other very novel in England, between the Goldsmith Banker and the Merchant or Factor; The Goldsmith by way of discount advancing the money, and the other assigning him the Bill. Secondly, That it should be a Rule to every man in the Course of Exchange, to take care that he delivers his money to a sufficient responsible person: Whereas the first supposition in the Objection is, That L. M. paid his money to A. B. on the Credit of G. H. the Accepter, and not on the Credit of A. B. the Endorser, etc. It is answered, That J. K. might pretend also, that he paid his money on the Credit of E. F. the Drawer, and not on the Credit of A. B. the Endorser; and the Consequences would be as fatal to J. K. if the Accepted Bill were paid to L. M. for that he could never have recourse on E. F. the Drawer, but only on A. B. the Endorser; and the like recourse may L. M. have, though the Protest were not made in time. L. M. should have taken care to whom he delivered his money, and if he looked on the Accepter only, he therein acted irregularly, and the same ought not to be any Argument on his behalf. If it be seriously examined, it will appear, That many, if not most of the Frauds and Abuses touching Bills of Exchange have risen, or been occasioned from this irregular proceeding, in not observing the Rule abovementioned. Whence is it, That some persons, when their Credit is low, that they cannot take up money by Exchange, do pretend to deliver money by Exchange, and causing the Bills to be made payable to them or Order, Negotiate the first Bills (which are delivered on the Post-day) on the Credit of the Drawer, and thereupon receive the money, and presently absent themselves, and never pay the value to the Drawer. Whence is it, That some Factors (designing to make an advantage by Failure) having Bills sent them to receive for other men's Accounts, do negotiate, or rather discount the Bills with Goldsmith-Bankers, and thereby defeat their Principals; But from this, That the Bankers (who make great advantage on such occasions) rest and rely on the sufficiency of the Drawer or Accepter. And thus, upon this Supposition, it comes to pass, That some persons (who are or would be reputed honest men) do for gain become assistant, and helpful to others to carry on unjust and fraudulent designs. It is true, That Bills of Exchange made payable to such a person or order, being Endorsed by him for a value received, aught to have their Course; and in such Case the Goldsmith Banker will say, The Merchant ought to have taken care whom he entrusted. And may it not with as much and more reason be said to the Bankers in the present Case, They should have taken care whom they entrusted and delivered their money to? Thirdly, That in matters of Exchange all punctuality ought to be observed, as well in demanding the money on a Bill, as in paying it: It is acknowledged, that the Accepter is always bound for the parcel until payment: But if any will forbear or neglect to send for his money in the proper time, such neglect ought not to be to the prejudice of any but himself. A Master of a Ship firms three Bills of Lading for a Bag of 500 Pieces of Eight, received at Cadiz from William, to be delivered at London to him or his Order: The Master keeps one Bill, William keeps the other two; One of which he assigns to Richard, for the value of him; The other he assigns to Thomas, for the value of him. The Ship arrives at London: Richard forbears or neglects for some days to send for the Bag of money: In the mean time, Thomas sends his Bill of Lading, receives the Bag of money, and delivers up the Bill of Lading with a Receipt thereon. Shall Richard in this Case have any other recourse than against William, who dealt unjustly in assigning one parcel to two persons; and he cannot blame the Master for delivering the money to Thomas, but himself for not sending for it sooner. So in the present Case, L. M hath no reason to blame G. H. for paying the money to J. K. but rather to blame himself for not sending for it sooner. Fourthly, To that Supposition in the Objection, That this would obstruct Trade, by hindering the Negotiating of Bills of Exchange; It may be Answered from what is before alleged, That the fraudulent and unjust Negotiation of Bills, by insolvent persons, may in some measure be thereby prevented: But the Mercantile and true Negotiating of Bills of Exchange, by persons of Credit, will be advanced, and the Honour of the Trade of Exchange preserved. It is a Principle taken for granted in the Course of the Trade of Exchange, That all Merchant's Trading in Exchange, are (or aught to be) persons of Credit, able to draw by Exchange, and therefore the damages recoverable in Case of Protest for non payment, according to the Custom of Merchants, is only the common Charges of the Protest, Commission and Port of Letters, and the Rechange, that is, the difference of price between the Redrawing and the Remittance. And nothing can ever advance the Trade of Exchange, or uphold the Honour of it, unless it be managed by persons of Credit and Reputation. The Objecter would introduce a new Principle, and takes it for granted, That Bills of Exchange are Negotiated by persons of no Credit or Estates, such as he dares not trust of themselves: And that he might continue to deal with (i. e. to fleece) these securely, is the Ground of his Objection, and the Trade he fears would be obstructed. The Result upon the Whole. FRom these several Discourses and Argumentations there may arise a Determination of Two Questions. First, What Course should be taken, in Case an Accepted Bill be lost? This seems to be Resolved thus: I. That the Accepter by virtue of his Acceptance, underwritten on one Bill, is bound to satisfy the parcel, that is to say, one Bill or the other; or if one miscarry, than the other. II. That if the Accepted Bill were lost by the Accepter himself or his Servant, than he ought to pay the money on the other Bill without requiring security. III. That though the Accepted Bill were not lost by the Accepter or his Servant, Yet if the Bill were payable to such a person, and not to him or his order, and no countermand signified to him, The Accepter might with safety pay the money to him on the second Bill, without any other security than a discharge for the same. IV. That if the Bill were payable to Order, The Accepter on payment of the money on the other Bill, might require security to indemnify him from the Accepted Bill, or any trouble and charge arising by reason thereof; which, if it can be complied with, is a good way of Accommodation, and hath been often practised. V. The not giving security in this Case, ought not to render the Accepter Unactionable, or destroy the Right of the party claiming the money by the other Bill. VI That the Accepter paying the money to a person to whom the other Bill was rightly Endorsed, after the time limited by Custom for payment, and having up the said Bill, and a discharge thereon, ought not to be further chargeable by the Bill on which the Acceptance was under-written. VII. That the Accepter if he be not contented to pay the money on the other Bill, and that the Demandant and he cannot agree thereabout, Yet the Accepter, if he be a Merchant of Repute and Credit, and without sinister designs, will maintain the Honour of Exchange, and be ready, as he ought, (were there a Court Merchant in England) to pay the money into the Court; Which should be his security for that parcel against all Claimers: Whether this is practicable in the Course of the Common Law, Learned Counsel must direct. However, if the Accepter be sued at the Common Law, he may address to Chancery, pay the money into that Court, and take the Indemnity thereof. Secondly, What Course is to be taken when one parcel is really transferred to two persons; The Accepted Bill to one, The other Bill to another? This seems to be thus Resolved: I. When there appears but one of the Bills at the time limited for payment, the payment thereof aught to discharge the Accepter of the parcel, that is to say, of the other Bill or Bills. This Case will be the same in substance with the other Question; there it is in supposition, here in reality; therefore the Resolves to that may be applicable to this. II. When both Bills appear at the time of payment, It is in the Accepter his choice to pay either of them, there being no positive Custom of Merchants that gives Right by preference. III. That though it be in his choice to pay either, Yet it will be most advisable (if he pay any) to pay the Accepted Bill, that so he may take up his firm. IV. That it is best in that Case for the Accepter to pay neither, but to pay the money into Court, as is proposed in the seventh Resolve on the former Question. V. That in this Case it may be equal, and prevent trouble and Charges, for the two Demandants to agree, and jointly to bear the hazard or loss. VI That where they cannot agree, and that the whole money is paid and adjudged to one, the other ought to have his Recourse only against the Endorser, who is obliged to make good, not only the Principal, but all Charges and Damages: And that in this Case, the time of the Protest will not be material, the Redemand of the money not being for any failure of the Party on whom it was drawn. Of the Time of the falling due of Foreign Bills of Exchange. MAny Disputes have of late years arisen amongst Merchants, concerning the time of the falling due of Bills of Exchange; which is a matter of great moment, in order to the making of Protest in the due and limited time: For when on the one hand, some apprehend Bills to be due sooner, by over diligence, discontents, animosities and quarrels are occasioned amongst Merchants; and on the other hand, while others take them to be due later, by neglect, they run into hazards and inconveniences: Therefore it would be requisite, and a very necessary Work, so to settle this by a Universal Concurrence of Merchants, that in future all Quarrels and Disputes herein might be prevented. In order to which, upon this occasion, That which hath been observed of the difficulties and differences concerning this particular, is also humbly offered to the Consideration of Merchants. These difficulties for the most part do arise from the difference between the New and Old Style, and the inequality of the Months of the Calendar, some Months having 31 days, some but 30, and February but 28, except in the Leap-year. The First Case. Bills of Exchange are drawn from Paris, payable in London at 2 Usance, and bear Date, the 6 December, 6 January, 6 March, 6 July, 6 August: To find out when these Bills are due in London, First, Some do examine when they would have been due in Foreign Parts, reckoning the 2 Usances from the Date, and then substracting the 10 days for the difference of the Style; as thus, 2 Usances from the 6 December is the 6 Feb. the 6 February New Style is the 27 January Old Style; and so they make the Bills above to fall due in London, the 27 January, 24 February, 26 April, 27 August, 26 October. For reason of this their way and opinion, They allege, That the Bills being made in France, the 2 Usances ought to be accounted according to the Computation in France. Secondly, Others do examine what the true Date of the Bill is according to the English Account, and substracting the 10 days for the difference of the Style from the Date, they then reckon the 2 Usances, as thus, The 6 December New Style is the 26 November Old Style, 2 Usances from the 26 November is the 26 January; and accordingly they account the Bills before mentioned to fall due, the 26 January, 27 February, 24 April, 26 August, 27 October. To evidence this manner of Reckoning to be the true and right way, and that the other is not proper, nor aught to be settled, it is alleged, First, That the Command or Direction by the Bill of Exchange is to the Merchant in London, to pay such a sum in London at 2 Usance, which doth necessarily imply 2 months to be accounted in London from the Date: Though the Bill be made in France, yet its reference is to the Merchant in London, who is to pay it there at such a time. If the 2 Usances should be calculated according to the Account in France, it would fall out, That sometimes there would want in London 3 days of 2 months, as in the Bill Dated the 6 January, and at another time there would be 2 days more than 2 months, as on the Bill Dated the 6 March; whereas the Merchant in London ought to have 2 months' time for the payment of his money; which calculating according to the second Opinion he would always have. Secondly, If the first manner of Accounting were allowed, it would fall out, when both Styles are put to some Bills of Exchange, and but one Style to others, though all from one place, and of one day, That there would be two or three days difference between the falling due of the one and of the other; as suppose one Bill Dated at Paris the 6 January. 27 December. All Merchants will conclude (the real Date according to both Styles being thus expressed) That this Bill would fall due the 27 February. Whereas another Bill Dated at Paris the 6 January, if the 2 Usance be reckoned as in France, and then the 10 days substracted, that Bill would fall due the 24 February. Now that both these Bills being Dated on the same day at the same place, payable at the like Usances, should not fall due on one and the same day in London, would be very incongruous and unreasonable. It is true, That according to this Rule, It will fall out (in regard of the difference of the month of February) That some Bills that vary 2, 3, or 4 days in their Date, will fall due on one and the same day: Bills Dated at Roven the 7, 8, 9, and 10 January, will all fall due in London the last of February: The 7 January New Style is the 28 December Old Style, and 2 Usances from the 28 December is the 28, that is (except in the Leap year) the last of February: The 8, 9, and 10 January New Style is the 29, 30, and 31 December Old Style, and to reckon 2 Usances from the 29, 30, and 31 of December, would be the 29, 30, and 31 February, if February had so many days; but because that month hath but 28, or at most but 29 days, they must all fall due the last of February. And whereas some would account the two first of those Bills to be due the 26 and 27 February, The same would be inconsistent with the General and Universal Received Custom, That every Usance is to be taken for a month as it falls in the Calendar; and as to go beyond the month would be an addition, so not to go to the extent of it, would be a diminution of the 2 Usances; according to the Proverb, Where it is not to be had, the King must lose his Right: So where the days cannot be found in the month, there they must be content with what there is. But it doth not from hence follow, that any shall lose or abate of his Right where it may be had, and no more doth it in this Case; and therefore they ought to reckon as far as the month will bear. If any shall say, That the 29 December wants 2 days of the end of that month, and that therefore the Bill must fall due 2 days before the end of the second month following; It is a Method not known or practised amongst Merchants, and would occasion new Disputes never heard of: For by the same reason it may be pretended, That a Bill Dated in Roven the 28 February, shall not be due in London till the 20 April, because that day is 10 days before the end of the month, as the 18 February was, on which the Bill was Dated. Thirdly, That this latter way of Accounting, according as the months fall out in England, from the true Date of the Bill, was the ancient practice, and the other way never insisted on till within these 30 years last passed; as also that in France and other Parts, on Bills from England, they first find out the true Date, and then reckon the 2 Usances: As for instance: A Bill Dated at London the 26 December, at 2 Usance, will be accounted due at Roven the 5 March, thus, the 26 December Old Style is the 5 January New Style, and 2 Usances from the 5 January is the 5 March; whereas if they accounted according to the other way, it would be thus, 2 Usances from the 26 December is the 26 February, and the 26 February Old Style is the 8 March New Style: So the Bill should not be due at Roven till the 8 March, whereas in truth, according to the practice there, it is due the 5 March: Also Bills Dated in London the 18, 19, 20, and 21 December, at 2 Usance, are accounted due at Roven the last of February. And thus much hath been lately certified from the said place. Many persons, because of the Disputes about the way of accounting the time, do calculate both ways, sometimes one way, sometimes the other, according as they find their interest and advantage, which occasions much inconvenience and disorder; and therefore it is proposed, That the latter way of accounting beforementioned ought to be only practised, as being most reasonable, most certain, and the truly ancient Custom and Practice. Second Case. Bills of Exchange are drawn from Paris, payable in London at 2 Usance, and bear Date the 10 March, 10 July, 10 December. Some do calculate these Bills thus: The 10 March is the 28 February, 2 months from the 28 February is the 28 April; and so they make these Bills to fall due the 28 April, 30 August, 30 January. But others affirm, That these Bills ought to be calculated after this manner, viz. The 10 March is the last of February, 2 Usances from the last of February is the last of April; and accordingly they are due the 30 April, 31 August 31 January, and not before. For reason hereof they say, It is by Universal Custom and Practice amongst Merchants acknowledged, That Usance from France is one month, according as the months are in the Calendar, and that the difference between Old Style and New Style is 10 days; so that always the 10th of one month New Style is the last of the former month Old Style, and a Bill being Dated the last of one month they must reckon to the last of the two months following, or else they do not allow two full Calendar months for the 2 Usances, which undeniably ought to be done. Obj. It is Objected, That if so, than it would fall out, that two Bills which differed but one day in their Date, should differ three days in the time of their falling due; as suppose one Bill Dated the 9 March, that would fall due the 27 April, and another Bill Dated the 10 March should not fall due till the 30 April. Answ. It is Answered, First, That where Bills are of one and the same Date and Time, there it would be incongruous and unreasonable if they should not fall due on the same day: But where there is a difference in the Date, though but of a day, there is not the like Reason, because of the inequality of the months, which are to be taken as they fall. Secondly, This Objection may be retorted; for suppose two Bills were Dated, one on the 10 March, the other on the 11 March, according to their manner of accounting, the one would be due the 28 April, and the other not till the 1 May; so that there would be the like difference: Whereby it is evident, That this Objection is of no weight or consideration. Third Case. Bills of Exchange Dated in Paris and payable in London, are not made at Usance or double Usance, according to the ordinary course, but after this manner, viz. Au quinçieme du mois prochain payez. On the 15 of the next month pay, etc. An quinçieme de May prochain payez. On the 15 of May next pay, etc. Per tout le mois d' Aoust payez. In all the month of August pay, etc. Au fin du mois prochain payez. On the last of the next month pay, etc. Au fin d' Aoust prochain payez. On the last of August next pay, etc. The Style not being inserted, the Question on such Bills is according to what Style those expressions shall be taken. Some would have to be reckoned according to the Foreign Style, alleging, That the Drawer at Paris speaks the Language of that place, when by his Bill he saith, On the 15 of the next month pay; and so the Bills abovementioned should be due the 5 of the next month, the 5 of May, the 21 of August, the 20 or 21 of the next month, according as it hath 30 or 31 days, and the 21 of August next. Others do affirm, That such expressions are to be understood and taken according to the Style in the place where the Bills are payable; for though the Drawer make the Bills in Paris, yet by his Bill he speaks to one in London, at London; and till the Bill come to London to the Party on whom it is drawn, it may be said to be silent, but then being presented to him for Acceptance or Payment, it speaks with authority, and must be answered, either with a refusal, or else with compliance. So that what construction would be made of a Parisians Word or Order, if he were in person at London, and should say to his Factor, On the 15 of the next month pay, etc. the same aught to be made of the like expression in his Bill; and accordingly such Bills are, and aught to be accounted due and payable on the 15 of the next month, the 15 of May, the 31 of August, the last of the next month, and the 31 of August next. This last way of reckoning when such Bills are due, according to the Style where the Bills are payable, is conceived most agreeable to Reason and the Nature of Exchange, and aught to be the only Method and Rule in such Cases. However it were better that persons would always take care, that the Style, according to which such expressions are by them intended, should be inserted in the Bills, which would prevent all inconvenience: And if they neglect so to do, they must only blame themselves if it answer not to their apprehensions and occasions. The following Rules were in former times by all generally received as the Custom of Merchants. First, That Usance, whether it be one month or three months, according to the Custom of the Place where the Bill is drawn, The months are always to be accounted according to the Calendar, whether the months contain in them more or less days. Secondly, That these Usances are to be accounted from the true and real Date of the Bills, according to the Style and reckoning of the place where the Bills are payable. Thirdly, That New Style being always 10 days before Old Style, it must always be, that the 10th of one month New Style is the last of the former Old Style; and that Usance being a full month, it must extend from the last of one month to the last of the next, etc. Fourthly, That for all Bills payable at a certain day or time, mentioned in the Bill of Exchange itself, if there be no declaration in the Bill what Style is thereby intended, it ought to be understood according to the Style of the place where the Bill is to be paid. By these Rules, as being the Custom of Merchants in London, it is conceived, That all Questions touching the falling due of Foreign Bills of Exchange, may and aught to be determined. FINIS. Sir, YOu are desired seriously to peruse and examine the Matters contained in this Paper, and to return your Thoughts thereupon in Writing, wherein you agree, and wherein you differ, with the Reason thereof; and what else you have observed of the Custom of Merchants therein. Dated this 18 of August, 1671. To Mr. _____ Merchant in London. Pray let your Answer be left at Mr. Benjamin Billingsley's, a Bookseller, at the Sign of the Printing Press on the South-west Walk of the Royal Exchange.