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Note. It is safe to endorse the interest or partial payment on the back of the instrument, drawing the same; for the record stands good though the loose receipt be lost, and the instrument, if conveyed, carries with it all its evidences. Much miscbief, litigation, and loss has been occasioned, by loose and incorrect transactions of this kind.
5. A RECEIPT FOR THE PAYMENT OF A LAST OBLIGATION.
$100.00. Received, Utica, July 4, 1886, of A B, one hundred dollars in full for his note of the same amount, 'dated Utica, May 4, 1886, at two months, payable to the order of CD, and by him endorsed, which note appears now to be mislaid or lost. And I hereby obligate and bind myself to save harmless the said A B, and C D, or either of them, from all costs and damages which they or either of them, may sustain in regard to said note,
Note. This receipt is good in the hands of A B, or C D, against the note in question, in the hands of PP, but not in the hands of any one to whom P P may have transferred it; nor is it of any avail if P P is irresponsible. Therefore, A B may withhold payment without subjecting himself or his endorser, CD, to any expense, until he is indisputably indemnified; or he may withhold payment altogether until the note is produced.
Had the lost obligation been a sealed instrument, the above receipt would not control it under any circumstances; for a discharge from a bond or other specialty, must be by a release under seal.
NOTE. An order is a species of draft implying a command, as from A to B, to pay over, deliver money or some specific article to a third person as C:--there are several kinds of them.
AN ORDER TO PAY MONEY ON SIGHT. $100.00
Utica, July 4, 1886. SIR:-On sight hereof, pay to A B, or his order, the sum of one hundred dollars, being for value received, and place the same to the account of
Your Obedient Servant, C D, Esq.- Rome.
PP. Note. In law, this order is regarded in all respects, as a promisory note; A B may order it paid to bearer, and pass it off as a bank bill. C D, however, may refuse to pay it; the holder then has his remedy on the drawer and the endorser. But C D may accept the draft, to pay on time with the holder's consent, but this act of the holder exbonerates the drawer and endorser from all responsibility, though the acceptor should never pay.
2. ORDER AND DISCHARGE OF DEBT. $100.00
Utica, July 4, 1886. SIR:- Please
to the order of A B, the sum of one hundred dollars, and that amount endorsed hereon, shall be your discharge in full of all demands, from
Your Obedient Servant, CD, Esq.-Rome.
PP. Note. On payment of this draft, C D obtains a full discharge from P P of all debt, except some specialty under seal or note not yet due. Should he acct pt to pay at a future time by the consent of the holder, he is bound to make his promise good; yet, should he fail, the holder cannot resort to P P for payment, because the condition of the draft is changed without the consent of the draw
Nor can the holder come back to P P, should C D refuse to accept or pay, unless he can prove that a valid consideration was given for the order, inasmuch as value received is not expressed on the face of the draft:-Hence, it is always safe to use the phrase when an adequate consideration is given for an order. If no value is given, and the draft is not accepted, it of course belongs to P P.
3. THE FORM OF A CHECK. $100.00
Utica, July 4, 1886. Cashier of the Bank of Ulica,
Pay A B, or bearer, one hundred dollars.
PP. Note. This is the form of an order, commonly called a check, on the cashier of a Bank, to draw out money deposited in the name of PP. Here the law presumes value received, and if the bank re. fuse payment, then P P is holden to the bearer. Should the Bank pay the check, and subsequently find that P P had no funds on deposite, no claim could lie against the receiver of the money, Should the bank pay more or less than the amount of the check, and the receiver leave the bank before the error is detected, if ever corrected it is by the mutual agreement of the parties; therefore, it is safe for the receiver to count his money with care, before he leaves the bank or the presence of the teller. The possession of the check by the bank, is sufficient proof of the payment.
4. BILLS OF EXCHANGE. NOTE 1. A Bill of Exchange is nothing more nor less than an order for the payment of money; it is drawn, however, in a more formal manner, and applied to more extensive and remote mercantile purposes. In their nature, all bills of exchange are alike, but in their use they are generally distinguished into two kinds; to wit: foreign bills and domestic bills.
Foreign bills are those drawn on persons residing beyond the seas or out of the country; they usually consist of three, call a set of bills, these are of like tenor and date but numbered from one to three.
Domestic bills are also called inland bills. They are drawn in one town or place, on persons residing in another town or place, but in the same country. Both kinds may be drawn at sight or on time,
1. A FOREIGN BILL ON TIME, £100-0-0, sterling money. Uticu, July 4, 1886.
Ninety days after sight, for value received, pay this my first Bill of Exchange, ( second and third of the same tenor and date unpaid,) to the order of A B, being for one hundred. pounds sterling money, and place the same, without further advice, to the account of your
Obedient Servant, C D, Esq. merchant,--London.
PP. Note 2. The remaining two of the set, are drawn in the same words, except in that part which is enclosed in the parenthesis, which, in the second, reads first and third unpaid, and in the third, first and second unpaid, and they are numbered 1, 2, 3, Each bill of the set being endorsed by A B, is sent to London by separate con.eyances, for the purpose of safety, either of which reaching that city and being duly honoured, discharges the whole set.
Each bill, on coming to the hands of the agent or factor in London, is presented to C D for acceptance, who, if he accepts, writes to that affect across the face of the bill, with the date; but if he neglects to accept, the bill is then taken to a notary public, and protested for non acceptance. At the end of ninety days, it is again presented to C D for payment; and if paid, the cost of the protest is added; but if not paid, it is again taken to a notary public and protested for non payment. It is then taxed with protests, postage, commission, &c. and hurried back to its last owner on this side of the Atlantic, who immediately presents it, loaded with other postages, interest and ten per cent damages, to P P or A B for payment.
The other parts of the set, on reaching London, pass through the same forms; and unless paid, returned to this country and taxed as the first, except the ten per cent and interest.
Should C D accept and pay either of the set, he would be enti. tled to six day's grace, called in that country, usance; and had they been drawn on sight, the same usance would obtain. The ten per cent. damages was originally a mercantile regulation, which long since passed into a law, designed to prevent impositions of drafts where there were no funds,
2. INLAND BILL ON TIME. $100.00.
Utica, July 4, 1886. Sixty days after sight, for value received, pay to the order of A B, at the Bank of Rochester, one hundred dollars, and place the same to my account, as per advice from your
Humble Servant, C D, Esq. merchant,-Rochester.
PP. NOTE 1,
This draft, on reaching Rochester, is immediately presented to C D and accepted or protested, the same as a foreign bill, but if returned dishonoured, no damages are taxed. Being made payable at the bank, it must be present there on the day it
falls due, and up to the close of the 63d day, on which it becomes payable.
Should the holder at Rochester, vary the conditions of the draft in any respect to accommodate C D, or receive a part of the amount, without the consent of the parties attached to it, it does away their responsibility.
NOTE 2. An untold amount of business is carried on in almost all parts of the world, through the medium of bills of exchange, both foreign and domestic, in which the is frequently little else than a fictitious capital employed. But the operation is hazardous and often attended with serious mercantile disasters. Hence, the ten per cent. damages on foreign bills, and hence, also, the extreme caution necessary in transactions of every kind of exchange.
5. PENAL BONDS. Note 1. A penal bond, like a promisory note, is evidence of debt. It is an instrument, however, of a more extended and regular form, of greater solemnity and of higher powers; it has the sanction of a penalty and the presence of a seal, and it is not affected by the statute of limitation. The ordinary form is here subjoined,
Know all men by these presents, thar I, A B, of Utica, in the county of (neida, and state of New York, farmer, am held and firmly bound to C D, of the city and county of New York and state aforesaid, printer, in the penal sum of one hundred dollars of the lawful money of the United States of America, to be paid to him or his certain attorney, his executors or administrators or assigns, to which payment, well and truly to be made, I bind myself, my heirs, executors and administrators firmly by these presents, signed with my hand and sealed with
seal. Dated at Utica aforesaid, this 4th day of July, A. D. 1886.
The condition of this bond is : uch, that if the above bounden A B shall, well and truly pay, or cause to be paid to the above mentioned CD, the sum of fitty dollars, with lawful interest thereon, in one year from the date hereof, then this obligation is to be void and of no effect, otherwise it is to remain and be in full force and virtue. Signed, sealed and delivered in presence of E T,
A B. G H. Note 2. In law, this bond can be controled by no instrument of less solemnity than itself It is transferable only by assignment, and it is then subject to any offset in the hands of A B. up to the time in which he receives note of the transfer. If collected by process of law, the action must be brought in the name of C D. Originally, a default in prompt payment, forfeited the whole penalty; modern equity courts, first relaxed that rigour, and at the present day, the
obligee can recover at law nothing more than the sum conditioned to be paid, with legal interest thereon:--the penalty therefore is a mere nulity.
6, BILL OF SALE, Know all men by these presents, that I, A B, of Utica, in the county of Oneida and state of New York, merchant, have, for and in consideration of one hundred dollars to me in hand paid by C D, of Rome, in the county and state aforesaid, the receipt whereof is hereby acknowledged, bargained, sold and delivered, and by these presents do bargain, sell and deliver, unto the said CD, my frame house, known as No. 33, Hill street, so called in the town of Rome aforesaid, with the lot or parcel of ground on which said house now stands, being twenty feet on said Hill street and extending back forty feet; to have and to hold the aforesaid bargained premises unto him said CD, his executors, administrators or assigns for ever.
And I, the said A B, for myself, my heirs, executors and adniinistrators, shall and will, by these presents, warrant and defend the same unto the said C D, his executors, administrators or assigns, against all persons claiming by or under me.
In witness whereof I have hereunto set my hand and affixed my seal, this fourth day of July, A. D. 1886.
In presence of E. F.
A B G. H.
Note. In describing the bargained premises, it is necessary to identify them by some general and known character or appellation which cannot be easily mistaken.
In case of the sale of lands, it is safe to refer to the previous deed, and make out the meets and bounds,
It was formerly necessary for the vender to take the property, or some part of it in the name of the whole into his hands and make a formal delivery before competent witnesses, to the vender;—but the practice has gone out of use.
7. FORM OF A LEASE, Note 1. A lease is a deed in writing wherein a real consideration is granted, generally for a limited period, upon the payment of rent or the performance of some specific condition.
This Indenture made this fourth day of July, in the year of our Lord one thousand eight hundred and eighty six, between A B, of Utica, in the county of Oneida and state of New-York, of, the first part, and C D, of Rome, of the county and state aforesaid of the second part, witnesseth;—that the party of the first part, for and in consideration of the repts, covenants and agree