II. Who may transfer. indorsed in blank with B. his banker, to be received when due, and the latter raise money upon them by pledging them with C. another banker, and afterwards become bankrupt, A. cannot maintain trover against C. for the bills'; and the same doctrine extends to navy Liverpool; Bolton dealt with Caldwell and Co. and they prevailed with the house in London to let him make his bills payable there; Bolton kept no account but with the house in Liverpool, and they kept the account with the house in London, and the payments on Bolton's bills, when made, were carried by the house in London to their account with the house in Liverpool, and by the house in Liverpool, to their account with Bolton. In February 1793, he accepted bills payable at the house in London, to the amount of £19,702, and to enable the Liverpool house to provide for their payment, he indorsed to them, (amongst other bills) a bill for £4000, and another for £398; these two bills they remitted generally with many others to Forbes and Gregory, to whom they were considerably indebted, but before the latter bill arrived, both houses became bankrupt. The acceptances were payable before the indorsed bills; Bolton was obliged to pay all his own acceptances, and the assignees of Forbes and Gregory having refused to deliver up these bills, he brought trover for them. A special verdict was found, and after two arguments, the court were unanimously of opinion, that the assignees were entitled to keep the bills; they admitted, that as Forbes and Gregory were partners in the Liverpool house, they were to be considered as privy to the fact that the bills had been indorsed to that house, to enable it to provide for Bolton's acceptances; but they held, that the application which had been made of these bills, was the very thing which Bolton intended, and that therefore the privity of the London house, in the agreement made between him and the house at Liverpool, could have no effect on the transaction which, as between the two houses had undoubtedly changed the property in the bills, that for the purposes of providing for Bolton's acceptances, the house at Liverpool was entitled to deal with the acceptances as it thought fit, and they had therefore a right to remit them to Forbes and Gregory; and as they were indebted to Forbes and Gregory, in more than the amount, the assignees of Forbes and Gregory were entitled to keep them. Judgment for the defendants. Ramsbottom v. Cater, 1 Stark. 228. See also Payley on Prin. and Ag. 154, 5. 'Collins v. Martin, 1 Bos. & Pul. 648.-2 Esp. 520. S. C. The plaintiffs sent bills indorsed in blank to Messrs. Nightingales, to receive the money upon them; they borrowed money of the defendants, and pledged these bills as a security; they afterwards became bankrupt, and the plaintiff brought trover for the bills, there being no evidence that the defendants knew under what circumstances the bills had been left with Messrs. N. or how the plaintiffs account (he being in cash) stood with them. Eyre, C. J. thought the action would not lie, and nonsuited the plaintiff. On a rule nisi to set aside the nonsuit, it was urged, that though the Messrs. N. might have negotiated the bills, they could not pledge them; but after consideration the court was unanimous, that they had the power of binding the plaintiff as well by pledging as negotiating the bills, of which they were enabled to hold themselves out to the world as the absolute owners. See also Bolton v. Puller, 1 Bos. & Pul. 546, in which Eyre, C. J. said, "it is clear, that if indorsed bills are deposited with a banker, and they are by him negotiated to a third person, though the pur transfer. bills and exchequer bills; and though in general a II. Who may factor cannot pledge the goods of his principal', it is otherwise in the case of a bill. The fraudulent misapplication by bankers, brokers, and other agents, in pledging and misapplying the bills and other negotiable securities of their employers, not being cognizable by the criminal law, the statute 52 Geo. 3. c. 63. was passed to prevent such embezzlement, by which it is enacted, "That if any person, with whom as banker, merchant, broker, attorney, or agent, of any description whatsoever, with whom any ordnance, debenture, exchequer, navy, victualling, or transport bill, or other bill, warrant, or order for the payment of money, state lottery ticket, or certificate, seaman's ticket, bank receipt for payment of any loan, India bond, or other bond, or any deed, note, or other security for money, or for any share or interest in any national stock or fund, of this or any other country, or in the stock or fund of any corporation, company, or society, established by act of parliament or royal charter, or any power of at pose for which they were deposited should be ever so cruelly disappointed, the original owner can have no claim to recover them in trover, against such third person." Ex parte Pease and another, in the matter of Boldero and Co. 1 Rose, 238. in which the Lord Chancellor states the law to the same effect. See also Payley on Prin. and Ag. 154, 5. 'Goldsmyd and another v. Gaden and another, in Chan. 13th June, 1796, cited in Collins v. Martin, 1 Bos. & Pul. 649. The plaintiffs, who were brokers, advanced money on three navy bills, and a deposit of scrip, and though it afterwards appeared, that both navy bills and scrip were left by the defendant in the hands of the party depositing for a particular purpose, and were not his property, but the property of the defendants; yet, on a bill filed in equity, it was referred to the Master, to take an account of what was due to the plaintiffs, and an issue at law was refused by the Chancellor, who thought the question too clear to be disputed. See also as to navy bills, Jones v. Ryde, 1 Marsh. 157. Clayton's Case, 1 Meriv. 572 to 585. from which it also appears, that if one of several partners, bankers, improperly dispose of such bills, the firm will be liable for the amount." 3 Newsome v. Thornton, 6 East. 21. but see Roberts v. Eden, 1 Bos. & Pul. 398. This is now clearly settled in Martin v. Coles, 1 M. & S. 140. and Solly v. Rathbone, 2 M. & S. 298. See the distinctions in Payley on Prin. and Ag. 154, 5. * Walsh's Case, 4 Taunt. 258. 284. 2 Leach, 1054. S. C. See also. Clayton's Case, 1 Meriv, 579. II. Who may transfer. torney, for the sale or transfer of any such stock or fund, or any share or interest therein, or any plate, jewels, or other personal effects shall have been deposited, or shall be or remain for safe custody, or upon or for any special purpose, without any authority, either general, special, conditional, or discretionary, to sell, pledge, or transfer such debenture, &c. shall sell, negotiate, transfer, assign, pledge, embezzle, secrete, or in any manner apply to his own use or benefit, any such debenture, &c. in violation of good faith, and contrary to the special purpose for which the things hereinbefore mentioned, or any or either of them shall have been deposited, or shall have been or remained with, or in the hands of such person, with intent to defraud the owner of any such instrument or security, or the person depositing the same, or the owner of the stock or fund, share or interest to which such security or power of attorney shall relate, he shall be deemed guilty of a misdemeanor, and punished with transportation for any term not exceeding fourteen years, or undergo any other punishment, as the court in misdemeanors in general have discretion to inflict "." Where a bill or note has been made payable to, or indorsed to a feme sole who afterwards marries, or where it is made during the coverture, the right of transfer vests in her husband, he being by the marriage entitled to all her personal property 2. If a bill or note See this statute, post, Appendix. 3 Chitty on Crim. Law, 922, 3. and 985, 6. 2 Ante, 25, 6. Conner v. Martin, 1 Stra. 516.-Sel. Ca. 96. S. C. Rawlinson v. Stone, 3 Wils. 5. Miles v. Williams, 10 Mod. 245.— Hatchett v. Baddely, 2 Bla. Rep. 1081. Caudell v. Shaw, 4 T. R. 361.-Lavie v. Phillips, 3 Burr. 1776. Conner v. Martin, 1 Stra. 516. cited 3 Wils. 5. A bill was made payable to Susan Conner or order, while she was sole. She married, and during her coverture indorsed it to the plaintiff, and upon demurrer and argument, the court of Common Pleas held, that the feme covert could not assign the note because by the marriage, it became the sole and right property of her husband. Miles v. Williams, 10 Mod. 245. Per Parker, C. J. If a note be payable to a feme sole or order, and she marries, her husband is the proper person to indorse it. transfer. be made payable to a feme covert, it is in legal opera- II. Who may tion payable to the husband, and an effectual indorsement must in general be in his name'. But we have seen, that if the husband permit his wife to act as his agent, or to carry on trade as a feme sole, his authority to indorse may be presumed; and if a promissory note is made payable to a married woman, and she indorse it for value in her own name, and the maker afterwards promises to pay it, in an action against him by the indorsee it will be presumed that the nominal payee had authority from her husband to indorse the note in that forın, and the indorsement will be considered as vesting a legal title to the note in the plaintiff. If a man become a bankrupt, all his property in which he is beneficially interested, is vested by the assignment of the commissioners in the assignees, by relation to the act of bankruptcy, so as to defeat all intermediate acts done by him to dispose of his property, and consequently the right of transfer of a bill or note, is in general vested in them from the time of the act of bankruptcy; and the defect of title in the indorsee may be taken advantage of under the plea of nonassumpsit*; and after a secret act of bankruptcy committed by one of two co-partners, he cannot by an indorsement in the name of the firm, transfer negotiable securities which existed before the act of bankruptcy, unless under the circumstances presently mentioned; and it has been doubted, whether the solvent partner can in such case, without the concurrence of the assignees of the bankrupt, indorse the bill; and at least a 'Barlow v. Bishop, 1 East. 432.3 Esp. Rep. 266. S. C.-Ante, 25, 6. n. 4. Coates v. Davis, 1 Campb. 485.-Ante, 26. n. 1. 3 Pinkerton v. Marshall, 2 Hen. Bla. 335. Thomason v. Frere, 10 East. 418.-Ramsbottom v. Lewis, 1 Campb. 279.-Ante, 46. and notes. * Pinkerton v. Adams, 2 Esp. Rep. 611. admitted in Arden v. Watkins, 3 East. 322. Ante, 46.-Thomason v. Frere, 10 East. 418. Abel v. Sutton, 3 Esp. 107, 8.-Ramsbottom v. Lewis, 1 Campb. 299.-Ramsbottom v. Cater, 1 Stark, 288. From Abel. Sutton, it II. Who may transfer. declaration upon such an indorsement, should not state that the bankrupt joined in the indorsement '. But it has been adjudged, that if a trader deliver a bill for a valuable consideration to another, previously to an act of bankruptcy, and forget to indorse, he may indorse it after his bankruptcy; and if he and his assignees refuse, they may be compelled to do so by petition to the Chancellor, who will, in such case, order the costs of the petition to be paid out of the estate of the bankrupt. And as in general property, in which should seem, that after the act of bankruptcy of one of several partners, and the commission issued against him, the property in a bill can only be transferred by the respective indorsements of the assignees, and the solvent partner. Lord Kenyon there says, If a fair bill existed at the time of the partnership, but is not put into circulation till after the dissolution, all the partners must join to make it negotiable; the moment the partnership ceases, the partners are tenants. in common of the partnership property undisposed of from that period; and if they send any securities which belonged to the partnership, into the world after such dissolution, all must join in doing so. See observations, 1 Campb. 281. n. (b). In Ramsbottom v. Lewis, 1 Campb. 279. the declaration stated, that both partners drew and indorsed the bill, although one of the partners was then a bankrupt, and Lord Ellenborough held, that under such declaration, the indorsee could not recover. His lordship said. the declaration states that both parties drew and indorsed the bill, but upon this last supposition at the time of the indorsement, one partner had no longer any interest in it, and was incapable of exercising any act of ownership over it; the partnership had in fact then ceased to exist, and the solvent partner was to be considered as tenant in common of the bill along with the assignees of the other. However, in general, a transfer of partnership property made by the solvent member of a firm, after an act of bankruptcy committed by his partner, cannot be invalidated, 12 Mod. 246.--Fox v. Hanbury, Cowp. 448.-Smith v. Oriel, 1 East. 369.-Smith v. Stokes, 1 East. 364.-1 Mont. on Part. 154. 'Ramsbottom v. Lewis, 1 Campb. 279. 281. note supra. Smith v. Pickering, Peake's Ca. 50.---Anon. 1 Campb. 492.—Rolleston v. Herbert, 3 T. R. 411. and see also 1 Rose, 14. note (a). Smith . Pickering, Peake Ca. 50. Richardson and Hill drew a bill upon the defendant, payable to their own order, which the defendant accepted; the drawers delivered this bill to the plaintiffs for a valuable consideration, but forgot to indorse it; they afterwards became bankrupts, and then indorsed it. The plaintiffs, as indorsces, now sued the defendant as acceptor; Lord Kenyon was clearly of opinion that the indorsement was good, and the plaintiffs had a verdict. Anon. 1 Campb. 492, in notes. The bill was delivered to the indorsee, with the intent of transferring the property in it to him more than two months before the commission, but the indorsement was not in effect written upon it till within two months. Lord Ellenborough held, that the writing of the indorsement had reference to the delivery of the bill, and that the case was clearly within the statute. 3 Ex parte Greening, 13 Ves. jun. 206.-Cullen, 190. but see ex parte Hall, 1 Rose, 13, 14. |