The privilege of summary execution, and of barring compensation, held to go together; the one being lost, so must the other.
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In one particular a bill of exchange differs widely from a bond. Lent money is intended to remain with the borrower for his behoof, as well as that of the lender, till the one chuse to pay, or the other to demand payment. The rule does not apply quod dies interpellat pro homine; for a term of payment is added not to bind the borrower to pay it at the day, but only to empower the lender to make a demand at any time after that day. The debtor is not in mora by not paying, until a demand be made by the creditor. But where a money transaction is established by a bill, prompt payment is expected. In this case dies interpellat pro homine. The acceptor is not to wait for a demand, but ought to offer the money, at the term of payment, and a place is added where he is to offer the money. The whole steps necessary in negociating a bill, depend on the foregoing principle. Where a bill is drawn payable to a third party, it is incumbent upon that third party to present the bill for acceptance, at or before the term of payment, without which the money cannot be paid at the time. If the acceptor offer not the money at the term, or within the days of grace, it is in him a sort of bankruptcy, which requires a protest by the porteur for not payment, and a notification by him to the drawer, of the dishonour of the bill: And if any of these steps be neglected, the risk of the acceptor's insolvency is justly laid upon the porteur. From these premisses it follows, that if a bond be assigned to a creditor, its understood to be in security only. The assignee who comes in place of the cedent, has the same privilege with the cedent to demand payment, or to continue the sum upon interest. But the nature of a bill is not changed by being indorsed to a creditor; and therefore he is bound to the same strict negotiation that a porteur is who purchases a bill with ready money. From the same premisses it follows, that a bill, before the term of payment, is considered as a bag of money, to pass from band to hand without obstruction. But as the acceptor has broke his engagement, if he suffer the term of payment to elapse without offering payment, a bill, after the term of payment, can no longer be considered as a bag of money. It degenerates into an ordinary security, resembling a bond after the debtor has suffered a denunciation to pass against him. No man will take such a bill in expectation of prompt payment, more than an assignment of a bond; and therefore every exception competent in the one case, ought to be equally competent in the other. For this reason, against a bill of L. 16 Sterling, accepted as the price of cattle, and claimed upon by an indorsee, for value, 18 months after the term of payment, compensation upon a debt due by the drawer to the acceptor, was found competent.
Some of the Judges were for sustaining compensation immediately after the term of payment. But the plurality were for continuing the extraordinary privileges of a bill as long as it can be the foundation of summary execution, that is, for six months. This case, therefore, must be considered as a precedent, putting the privilege of summary execution, and the privilege of barring compensation, upon the same footing, so as that both should be lost together.
