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the bill. There was then this discordance understood between the expression and the intention of the contracting parties.
No advantage resulted to any body from this regulation. The holder, as well as the accepter of a bill of exchange, drawn at sixty days' date, knew alike, the one, that he was not to present it, the other, that he was not to pay it, or to subject himself to its protest, before the seventieth day. This kind of deception in the expression of the bill was without an object, and it was an error, though it was the opinion of some commentators that these pretended ten days of grace were advantageous to commerce, and equally favourable to the holder, the drawer, and the accepter or debtor of the bill. In fact, nothing was more insignificant, more useless to the one as well as to the other.
By article 161. the law requires the drawer to demand payment of the bill the very day it becomes due, according to its tenor; and by article 162. that the protest in default of payment be made the next day, and if this next day be a legal holyday, on the following day. · Several tribunals and chambers of commerce have expressed a desire that three days should be granted, in which to make the protest. Whatever may be the weight of their opinion, and the confidence it inspires, it has been deemed proper to resist this wish, which has appeared to be less the fruit of reflection than of habit and the dominion of words.
In effect, it has just been shown that there was not really any days of grace in which to make the protest, since they rigorously belonged to the payer; that the very day of the actual maturity of the bill was the only day on which the protest must have been made. The new law, which ordains that the protest shall be made the next day, grants then a day more, consequently, a greater facility.
A decisive consideration, besides, is this, that it is of singular importance to commerce that the day of maturity, and that in which the protest must be made, be definitively fixed, and not subject to variation at the will of the holder.
If the latter could, at his pleasure, varrow or enlarge the time of maturity, by the right of making the protest several days sooner or later, the drawer and the endorsers would often be exposed to become the victims of the complaisance which he might have had to defer the protest; or rather usage would not fail to establish it as a regulation not to make the protest till the last day, and then the ancient system would revive.
Article 145. of the project presents an essential regulation on a point which the ordinance of 1673 had left to the common law, and on which the jurisprudence of the tribunals had varied ertremely.
It has appeared necessary that the legislature should pronounce upon it.
This article decides that he who pays a bill of exchange when due, and without objection, shall be presumed legally discharged.
Several decisions of the courts had adjudged differently. Ce Jebrated jurists were divided in opinion.
Pothier, Jousse, and others, who were attached to the principle, that no person can assign to another a greater right than he has himself, have maintained that the payment is not valid, if it be not made to the real creditor; that he who should pay on a false acquittance, or a false order, would not be discharged in regard to the real proprietor of the bill.
But are these principles, these rules of law from which it is pot permitted to deviate in ordinary civil affairs, applicable here?
A bill of exchange, that species of money stampt in the mint of commerce, launched into general circulation, which visits with such great rapidity so many cities and countries, which becomes in so short a space of time, the property of so great a number of persons, whose names and signatures are unknown to him who must pay it when due, on the day, at the very moment when it is presented to him—can it be subjected to the same rules ?
To render the application of the principles complete, it would not be sufficient to require the authenticity of the acquittance or the last order; it would be still necessary to require that of all the endorsers, regularly ascending from the last up to the first.
This regulation, if established as a positive law, would render
the payment of bills of exchange almost impossible, and would entirely destroy their circulation.
However, as it cannot be denied that a regulation which should declare, without restriction, that the payment of a bill of exchange at maturity, would be a valid discharge of the accepter, would also present some inconveniences, that it would seem to exempt the payer from all precaution, from all prudence; that it would in a manner assimilate a bill of exchange to a bill payable to bearer; that it would appear to raise against the real proprietor a perpetual plea in bar, insurmountable even in case of collusion between the payer and the holder, or in case of extreme negligence, bordering on collusion and fraud; therdawodaclares only that the payer is to be presumed validly discharged. He will have in his favour the legal presumption. The plaintiff will be bound to prove the facts by which he would undertake to accuse and render him responsible for the payment. The tribunals will do justice.
In what concerns the re-exchange and return charges, the project of the law now offered does not differ from the ordinance of 1673.
The whole principle of the ordinance on that subject, was expressed in article 5. of Title VI. declaring that,
“ A bill of exchange being protested, the drawer shall pay the re-exchange only of the place where the remittance shall have been made, and not of the other places where it shall have been negotiated, saving the right of remedy by the holder against the endorsers, for the payment of the re-exchange of the places where it shall have been negotiated by their order."
This principle receives no alteration, and is only found more developed in articles 179, 180, 181, 182, and 183. of the present law.
It might indeed, with strictness, have been considered that the drawer, in putting into commercial circulation a bill payable to order, is presumed really to have given the indefinite right to negotiate it in all places, that the re-exchanges are occasioned only by his failure in the obligation to have funds to meet it at maturity, and, consequently, the charge of all the re-exchanges accumulated, ought to be made to fall upon him.
But if, on due consideration, this had been but justice, that justice seemed to be too severe; and as each endorser has really profited, for his own interest, of the facility of negotiating the bill in any place which suited him, it has appeared to us that there would be more order, moderation, and even equity in the provision adopted, conformable in other respects to the most general commercial usage of Europe, as well as to our ancient ordinance.
By the side of, and, parallel as it were, with bills of exchange, moves and vides another species of commercial paper, the use of which has been singularly extended since the epoch of 1673; it is that of promissory notes.
The principal characteristic difference is, that bills of exchange can be drawn only from one place upon another place; instead of which, promissory notes are most frequently payable in the very place where they have been signed; so that there is no femittance of money from place to place, as in the case of bills of exchange ;-a characteristic difference, however, which is effaced under certain circumstances, that is to say, when a promissory note is made payable in a foreign domicil, instead of the residence of the maker.
In other respects, a promissory note circulates in common, the same as a bill of exchange, by means of endorsement; this endorsement equally transfers the property of it without any formality or notice of assignment. The parties who have put their names to the note, are mutually answerable the one for the other, the same as the parties to a bill of exchange; the holder is bound to perform the same duties and obligations, and under the same penalties. He will also have the same right, in default of payment, to take money at the place of payment at the rate of reexchange, and to redraw, from endorser to endorser, upon the places where the bill has been negotiated.
All this is thus decided and regulated in article 187. Section II.
These provisions have appeared to be the necessary consequence of the nature and functions of these instruments of writing, become of such great use in commercial operations, and which, concurrently with bills of exchange, fill all the channels of commerce, as they satisfy all its wants, all its conveniences.
Finally, gentlemen, the ordinance, by its article 21. under the title of bills of exchange, had fixed at five years the limitation of actions on account of bills of exchange, and was silent as to promissory notes. This left the limitation in regard to them to depend upou the terms of the common law, that is, at thirty years.
It has been considered that the rapidity of the progress of commercial affairs, a consideration which, without doubt, induced the legislature of 1673 to restrain to five years the limitation of actions in regard to bills of exchange, justified the convedience and the utility of the same provision with respect to promissory notes.
It is a just consequence of the similitude of functions and services of these two species of commercial paper.
Such, gentlemen, are the motives which have occasioned the project of the law which we now present to you; we hope that they will appear to you of sufficient weight to conciliate your suffrages and approbation.