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are transferrable.

now completely settled', that the decisions tending to I. What bills, &c. support this doctrine, and the reasoning on which they were founded, were equally erroneous. In short, it is now well established that bills, whether payable to order, or to bearer, are equally negotiable from hand to hand ad infinitum; and that the transfer vests in the assignee a right of action on the instrument assigned, sustainable in his own name".

"or

But in general, unless the words "or order," " bearer," or some other words authorising the payee of a bill, or note, to assign it, be inserted therein, it cannot be transferred so as to give the assignee a right of action against any of the parties except the indorser himself, unless the negotiable words were omitted by mistake, and in which case they may be supplied 3. It may however be collected from the cases relative to bills payable to fictitious persons, that any words in the bill, or extraneous facts, from whence it can be inferred that the person making it, or any other party to it, intended it to be negotiable, will give it a transferrable quality against that person. And in all cases, though no words authorising a transfer be inserted in a bill or note, yet it will always have the same operation against the party making the transfer, as if he had power to assign 5; for the act of indorsing

'Grantv. Vaughan, 3 Burr. 1516.-1 Bla. Rep. 485. S. C.Hinton's Case, 2 Show. 235. Vaughan gave Bicknell a draft upon his banker, payable to Ship Fortune or bearer; the draft came to the hands of Grant, who sued Vaughan upon it. The defendant contended that the draft was a mere authority to receive the money, and not negotiable; and that point and another being left to the jury, they found for the defendant, but upon application for a new trial the court held that it was negotiable, and a new trial was granted, in which the plaintiff recovered. See also Miller v. Race, Burr. 452. Hill v. Lewis. 1 Salk. 132, 3.-Ante, 85.

4

Kershaw v. Cox, 3 Esp. Rep. 246.-Ante, 131, 2.

* Minet v. Gibson, 3 T. R. 481.-1 Hen. Bla. 569. S. C.-Vide, ante, 83, 4, in notes.

' Hill v. Lewis, 1 Salk. 132. Moor drew one note payable to the defendant, or his order, and another payable to him generally without any words to make it assignable; the defendant indorsed them to Zouch, and Zouch to the plaintiff; the first objection was, that the *plaintiff had been guilty of laches, but the jury thought he had not, and it was then urged that the second note was not assignable; and

are transferrable.

1. What bills, &c. a bill is equivalent to that of a new drawing'; and a transfer by mere delivery, unless where it is otherwise agreed or understood from the nature of the transaction, imposes on the person making it an obligation to his immediate assignee, similar to that created by indorsement. East India certificates are not indorseable, so as to transfer the legal interest; and it was held that East India bonds were not transferrable so as to pass the legal interest to the purchaser, but this has been altered by a late statute3. A doubt was once suggested, whether a check or draft on a banker were negotiable out of the bills of mortality; but it is now settled, that this instrument is as negotiable as a bill of exchanges; and it seems, that a bill or note payable to bearer, may be transferred and declared on as indorsed 6.

The law having in general already determined when a bill is assignable, and the mode by which the transfer is to be effected, it is the province of a court 7, and not that of a jury, to decide on the negotiability of these instruments, unless in new cases where the law merchant is doubtful, when evidence of the custom may be received 3.

Holt, C. J. agreed, that the indorsement of this note did not make him that drew it chargeable to the indorsee; for the words "or to his order," give authority to assign it by indorsement, but the indorsement of a note which has not these words is good, so as to make the indorser chargeable to the indorsee.

Id. ibid. Smallwood v. Vernon, Stra. 478.-Balingnalls v. Gloster, 3 East. 482.

2 Williamson v. Thomson, 16 Ves. jun. 450.

3 Glynn v. Baker, 13 East. 509-51 Geo. 3. cap. 64.-As to a navy bill see M'Lieshe v. Ekins, Say. 73. cited 13 East. 515. n. (a). Grant v. Vaughan, 3 Burr. 1517.

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5 Boehm v. Stirling, 7 T. R. 430.

Waynan v. Bend, 1 Campb. N. P. 175. In an action against the maker of a promissory note, payable to T. L. or bearer, the defendant averred an indorsement by T. L. and Lord Ellenborough held that the plaintiff having stated such indorsement though unnecessarily, was bound to prove it; and that the plaintiff could not recover on the money counts, as he was not an original party to the bill.

7 Edie v. East India Company, 2 Burr. 1224.-Grant v. Vaughan, 3 Burr. 1523, 8.

8

Stone v. Rawlinson, Willes, 561.-Edie v. Erst India Company, 2 Burr. 1216.-1 Bla. Rep. 295. S. C.-Carvick v. Vickery, Dougl

are transferrable.

When a bill or note has been unduly obtained, the 1. What bills, &c. negotiation of it may be restrained by a court of equity: which has a peculiar jurisdiction, to prevent a party from being sued at law upon a security which has been improperly obtained, and to order it to be delivered up to be cancelled. But at law, except in the instance of a warrant of attorney, there is no jurisdiction to order the security to be vacated, and the contracting party must, at the risk of losing the evidence which might establish his defence, wait till the party who holds the security thinks fit to try the validity of the instrument in an action; and should he be nonsuited, he will still be at liberty to proceed de novo upon his security; but a court of equity will. often decree instruments to be delivered up to be cancelled, although the objection to their validity might be taken advantage of at law, for fear that the evidence to impeach them may be lost, or a vexatious use made of them 3. But as the party applying for relief seeks equity, he must observe it, and therefore the court, in affording relief, will compel him to pay

Bromley v. Holland, 7 Ves. jun. 20.—Jervis v. White, id. 413.—Newman v. Milner, 2 Ves. jun. 483.-Hammersley v. Purling 3 Ves. jun. 757-Berkeley v. Brymer, 9 Ves. jun. 355.

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* Newland v. Milner, 2 Ves. jun. 488. Plaintiff prayed a discovery, injunction, and delivery of a bill of exchange; upon the answers and evidence, the right being clear, the court refused an opportunity of trying it at law, and decreed an immediate delivery.--See also Jervis T. White, 7 Ves. jun. 413.

Sir Edward Smith v. Haytwell, Ambl. 66. Bill to be relieved against a promissory note given upon a marriage brokage agreement; on motion the defendant was restrained from parting with or assigning the note, till answer or further order. See also 3 Bro. C. C. 477.Prac. Reg. Ch. 233.

v. Blackwood, 3 Anstr. 851. An injunction was granted to prevent the negotiating a note obtained at play, upon affidavit before service of the subpoena. See also Newman v. Franco, 2 Anstr. 519. Andrews v. Berry, 3 Anstr. 624.-Newland on Contracts, 491, 2, 3, 4. Burrows v. Jemimo, 2 Eq. Ca. Abr. 525, pl. 7. Where the acceptance of a bill of exchange became void, by the law of a foreign country, and was vacated by a competent court there, a perpetual injunction was granted against proceedings here.

Berkeley v. Brymer, 9 Ves. jun. 355. Affidavits cannot be read in support of an injunction to restrain the negotiation of a bill; and from Iveson v. Harris, 7 Ves. jun. 257, it appears that an injunction is not binding upon a person not party in the cause.

3 Id. ibid. and see other cases in Newland on Contracts, 493, 4,

are transferrable.

II. Who may transfer.

1. What bills, &c. what may be justly due, and will impose on him such equitable terms as the justice of the case may require '. With respect to the persons who may transfer a bill, or note, whoever has the absolute property may assign it if payable to order2. In general a valid transfer can only be made by the payee, or the person who is legally interested in the instrument or by his agent, and consequently an indorsement by a person of the same name is inoperative, (except against the party making it, and the subsequent indorsers) although the person entitled to transfer the instrument was not particularly described in it. And we have seen that an indorsement by an infant payee will not pass any interest in the bill against himself, though the acceptor and subsequent indorsers will in general be liable. The same rule applies to the right of transferring a bill made payable to bearer or to order, and

1

Byne v. Vivian, 5 Ves. jun. 604.-Newland on Contracts, 494, 5. Fitzroy v. Gyllim, 1 T. R. 153.-Hindle v. O'Brien, 1 Taunt. 413.Benfield. Solomon, 9 Ves. jun. 84.

Per curiam, in Stone v. Rawlinson, Barnes, 165.-Willes, 560. S. C.

3 Mead. Young, 4T. R. 28.-Gibson v. Minet, 1 Hen. Bla. 607. A bill payable to Henry Davis, or order, was sent by the post, and got into the hands of a wrong Henry Davis, who indorsed it to the plaintiff; there was no description of Henry Davis on the bill, in addition to his name, nor was any fraud imputable to the plaintiff. This was an action against the acceptor, and on his offering evidence to shew that the Henry Davis who indorsed the bill was not the person in whose favour it was drawn, Lord Kenyon was of opinion, that the evidence was inadmissible, and he retained that opinion after cause shewn against an application for a new trial, but Ashhurst, Buller, and Grose, Justices, held, that unless the indorsement was made by the person to whom the bill was really payable, it was a forgery, and could confer no title, and that therefore it was competent for the defendant to shew, that the person who indorsed the bill was not the person in whose favour it was made, and a new trial was accordingly granted.

Ante, 26.-Taylor v. Croker, 4 Esp. Ni. Pri. Ca. 187. In an action against the acceptor of a bill, drawn by Eversfield and Jones, on -the defendant, and payable to their own order, and indorsed by them to one S. and by him to the plaintiff; it appeared that both the drawers were infants at the time of drawing the bill, but Lord Ellenborough held, that though that might have been a good defence, had the action been brought against the drawers themselves, it was no defence in the present action. Verdict for the plaintiff, but quære if the infant afterwards dissent to his indorsement, whether such defective transfer of his interest in the bill would not defeat the plaintiff's claim,

transfer.

indorsed in blank, if the person to whom it is assigned It. Who may or pledged, knew at the time he became the holder, that the person making the transfer had no right to make it'. If, however, the holder had no knowledge of that circumstance, and took the bill bonâ fide, either absolutely or as a pledge, such transfer will be as operative, and will convey the same rights, as if it had been made by a person authorized to make it; for it would be a great clog on the negotiability of bills and checks, if the holder were bound in every instance where there are no suspicious circumstances, to inquire into the right of the person making the transfer'. Therefore if indorsed bills be delivered to a person for a particular purpose, and he negotiate them to a third person who does not know the trust, the latter will become beneficially entitled to the bills, however fraudulent the conduct of the agent'; and if A. deposit bills

'Roberts and others v. Eden, 1 Bos. & Pul. 398. The plaintiffs were assignees of the indorsee of a promissory note, made by the defendant, payable to one Hunt or order, on demand for money borrowed, and who indorsed it over to the bankrupt. Hunt and the defendant afterwards settled accounts, but the promissory note was not mentioned, it was given in evidence that the note had passed several times between Hunt and the bankrupt, but upon one occasion, Hunt told him, that it must not be negotiated, as he should want it when he settled accounts with defendant. The jury upon the trial, found a verdict for the defendant, and upon a motion for a new trial, the court held, that the verdict was right, and that the evidence was decisive to shew that the note was not negotiated to the bankrupt, but only deposited with him as a pledge, and that it must remain in his hands subject to the same equity as if it were in the hands of the original payee.

Grant v. Vaughan, Burr. 1516. The defendant gave a cash note upon his banker, to one Bicknell, payable to Ship Fortune, or bearer. Bicknell lost it, and the plaintiff afterwards took it bonâ fide in the course of trade, and paid a valuable consideration for it. The banker (in consequence of an order from the defendant) refused to pay it, upon which the plaintiff brought this action. Lord Mansfield left it to the jury to consider, first, whether the plaintiff came to the pos session of the bill fairly and bonâ fide; and secondly, whether such draft was in fact and practice negotiable, and the jury found for the defendant; but upon an application for a new trial, and cause shewn, the court were of opinion, that the second point ought not to have been left to the jury, because it was clear that such drafts were negotiable, and if the jury thought the plaintiff took the note fairly and bonâ fide, of which there appeared to be no doubt, he was entitled to A new trial was accordingly granted, in which the plain

tiff recovered.

3 Bolton . Puller, 1 Bos. & Pul. 539. Forbes and Gregory, traders in London, were also partners in the house of Caldwell and Co. in

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