transfer. ing. So when in an action brought by the indorsee of a III. Time of post-dated bill, drawn by the defendant and indorsed by the payee before the day on which it bore date, and the payee died before such date, the defendant contended that the bill did not acquire the character of a nego tiable bill, within the custom of merchants, till the time it bore date, and that the payee who indorsed it, having died before that time, such indorsement conveyed no title to the plaintiff, and that the defendant, as drawer, was not liable; upon a special case reserved, the Court of King's Bench were of opinion, that such indorsement before the date of the bill, was legal and valid, and that notwithstanding such death of the indorser, the plaintiff was entitled to recover. But there is an express provision in 17 Geo. 3. c. 30. s. 1. that bills and notes for the payment of a less sum than five pounds, shall not be indorsed before the date thereof3. Although if a bill of exchange, payable at a certain time after date, be presented for acceptance and refused, and the holder thereof neglect to give due notice of such dishonour to the drawer or indorsers, they are discharged from liability to such holder, yet, if before the specified time of payment he indorse the 'Per curiam, in Suaith v. Mingay, 1 M. & S. 87.-Cruchley v. Clarence, 2 M. & S. 90.-1 Marsh. 29. and Usher v. Dauncey and others, 4 Campb. 98. See these cases in notes, ante 70, and 138. Pasmore v. North, 13 East. 517. The defendant, on the 4th of May, 1810, drew a bill for £200, on Brook and Co. dated the 11th of May, 1810, payable to Totty or order, 65 days after date. On the 5th of May, Totty indorsed this bill to the plaintiff for a valuable consideration, and on the same day died. After the 4th, and before the 11th of May, the defendant received effects of Totty's to the amount of about £130, to answer this bill. On the 12th of May, the defendant advised the drawees of the bill having been drawn, and of Totty's death, and desired them not to accept or pay the bill. Acceptance and payment were accordingly refused: and this action was brought against the drawer. A verdict was found for the plaintiff, subject to the opinion of the Court of King's Bench on a case reserved. The court, after adverting to the 17 Geo. 3. c. 30. as to bills for less than £5, and to the 48 Geo. 3. c. 149. as to post-dating drafts upon bankers, held clearly that the plaintiff was entitled to recover for the whole amount of the bill, and he had judgment accordingly. * See observations on this statute, in Pasmore v. North, 13 East. 517. M III. Time of transfer. bill to a party, ignorant of the laches, for valuable con- 1 O'Keefe v. Dunn, 1 Marsh. 613.-6 Taunt. 305, S. C. per Gibbs, C. J. Heath and Dallas, Js. dissentiente Chambre, J. The payee of a bill of exchange presented it for acceptance which was refused, but no notice of such dishonour was given to the drawer, and the payce afterwards indorsed over the bill, without notice to the indorsee of such refusal to accept, and the latter again presented the bill for acceptance, which was again refused. Held, that the indorsce might recover on the bill against the drawer, notwithstanding the laches of the payee, by three, against Chambre, J.-Per Gibbs, C. J. He who takes a bill after it has arrived at maturity, takes it subject to all the defences which could have been made by any previous holder, for the bill being unpaid its date is notice to him sufficient to put him on inquiry, but if he takes the bill before it is due, he takes it not subject to the same infirmity of title, because he then takes it without notice of any suspicious circumstances that may break in upon his remedy against any former holder. This is the general law, but there may be circumstances that may make it otherwise. A holder is not bound to present a bill for acceptance, there is nothing therefore on the face of an unaccepted bill to awaken a suspicion that it has been presented for acceptance and refused. But it is said, the general law is, that where notice is requisite, if notice be not given the drawer, and all persons claiming to be entitled to have notice of the dishonour, are discharged. I think that is a begging of the question; if a holder comes to the question that the drawer will not accept, or will not pay the bill when it becomes due, and omits to give notice, he shall never sue the drawer, because his neglect prevents the drawer from using diligence in withdrawing from the drawee the effects which were destined to satisfy the bill. But I am of opinion, that if the bill is passed for a valuable consideration, without notice of that defect of title, he who so innocently takes the bill is not guilty of any breach of duty towards the drawer, and is therefore not affected by the omission; Roscoe v. Hardy, 12 East. 434, is mainly distinguishable from the present case, in respect that the bill there continued up to the time of its maturity in the hands of a holder who had neglected to give that notice at the time when the bill was first refused acceptance; and the holder, I agree, had thereby, as to his own claim, discharged the drawer, I am of opinion that the circumstance of the bill continuing in the same hand, materially differs that case from the present. I therefore think that the present plaintiff not having had notice that the bill had been presented for acceptance and dishonoured, before she took it, is entitled to recover. 2 Crossley v. Ham, 13 East. 498. The defendant, for the accommodation of Clark, indorsed two bills drawn by Clark, in America, upon Dickenson and Co. in London, for £ 450 each, in favour of the defendant, dated 10th of February, 1804, and payable 60 days after sight; these bills were paid over by Clark to Parry, in February 1804. The defendants Parry and Clark, then, and until after the 14th of transfer. a bill, before it was due, having tendered it for accept- III. Time of ance, which was refused, kept it till due, when it was presented for payment and refused, and then returned to an indorser, who not knowing of the laches paid it; it was held that his ignorance of such laches when he paid the bill did not entitle him to recover, either against the drawer or prior indorsers, who had thus been discharged by the laches of the holder'. There is no legal objection to the validity of a transfer of a bill made after the time appointed for the payment of it. In this case it is said, that the in April, 1808, resided in America. On the 1st of March Parry indorsed and remitted the bills to his agents in London, with directions to make a payment to the plaintiff, to whom he then and still was indebted. On the 26th April, the bills were presented for acceptance, dishonoured, and protested for non-acceptance, and notice thereof was given to the defendant. The plaintiff having been advised of the remittance by a letter from Parry, dated on the 12th of April, applied to Parry's agents for £450; and on the 6th of June they delivered one of the bills to the plaintiff, apprising him of its dishonour, and that therefore he took the bill, subject to all its infirmities. The bill became due on the 28th of June, and payment being refused, this action was brought. The defendant, however, produced at the trial an instrument signed by Parry, dated 14th April, 1804, by which he agreed that the defendant, on paying one of the bills in London, should be exonerated from paying the other; and the defendant proved his having, on the 2d of July, paid one of the bills, which then remained in the hands of Parry's agents, who delivered it upon payment. This agreement was until the 2d of July unknown to the plaintiff and Parry's agents. A verdict was found for the plaintiff, and a case reserved for the opinion of the court. The court (Le Blanc, J. absente) held, that the plaintiff having taken this bill after its dishonour, had taken it with all its infirmities, and subject therefore to the agree ment between Parry and the defendant. Postea to the defendant. See observations on this in the last note. Roscoe v. Hardy, 12 East. 434.-2 Campb. 460. S. C. Acceptance of a bill was refused; of this, however, the holders gave no notice, but when the bill became due, again presented it for payment, and that being refused they called upon the plaintiff, an indorser, for payment, and he being ignorant of their laches paid it. He now sued the defendant as his indorser, who set up the laches of the said holders as a defence, and the plaintiff was nonsuited. On motion to set aside this nonsuit, it was urged that the plaintiff ought not to be prejudiced by the laches of subsequent holders, of which he was ignorant, without the means of information. But the court held that his ignorance, which had prevented his availing himself of this laches as a defence, could not alter or revive the liability of the defendant, who had been discharged by the same laches. See the observations on this case by Gibbs, C J. in O'Keefe v. Dunn, 1 Marsh. 622. and 6 Taunt 305. Ante, 162, n. 1. 2 Mutford v. Walcot, 1 Lord Raym. 575. Dehers v. Harriot, 1 Show. 163.-Boehm v. Sterling, 7 T. R. 430.-Dehers v. Harriot, 1 III. Time of transfer. dorsement is equivalent to the act of drawing a bill payable at sight'. But bills under five pounds cannot be indorsed after they are due. And there is a material distinction between a transfer made before a bill is due, and one made after that time; in the first case, the transfer carries no suspicion on the face of it, and the assignee receives it on its own intrinsic credit, nor is he bound to inquire into any circumstances existing between the assignor and any of the previous parties to the bill, as he will not be affected by them3. But when a transfer of a bill is made after it is due, whether by indorsement or mere delivery, it is settled*, that at least it is to be left to the jury upon the slightest circumstance, to presume that the indorsee was acquainted with the fraud, or had notice of the circum Show. 163. A bill was indorsed to the plaintiff after it was due, and he had judgment without any objection on this ground. Mutford T. Walcot, 1 Ld. Raym. 575. Holt, C. J. said, he remembered a case where a bill was negotiated after the day of payment, and he had all the eminent merchants in London with him at his chambers, and they all held it to be very common and usual, and a very .good practice. Dehers v. Harriot, 1 Show. 164. 217 Geo. 3. c. 30. s. 1.—Bayl. 62. 3 Per Buller, J. in Brown v. Davis, 3 T. R. 82.-Per Gibbs, C. J. in O'Keefe v. Dunn, 1 Marsh. 621, 2.-6 Taunt. 305, ante, 162, note 1. + Brown v. Davis, 3 T. R. 80.-Roberts v. Eden, 1 Bos. in Pul. 399.-Tinson v. Francis, 1 Campb. Ni. Pri. 19.--Brown . Davis, 3 T. R. 80. Davis drew a note payable to Sandall or order; Sandall indorsed it to Taddy, and he had it presented and noted for non-payment. Davis then paid the money to Sandall, and he took up the note from Taddy, but instead of returning the note to Davis, indorsed it to Brown. Brown thereupon sued Davis, and on Davis's offering to prove these facts, Lord Kenyon thought they would not amount to a defence, unless it could be proved that Brown knew them when he took the note, and he rejected the evidence; but upon a rule nisi for a new trial, and cause shewn, Lord Kenyon said, be thought there ought to be further inquiry, it did not strike him at the trial that the note had been noted before Brown took it, and that that circumstance ought to have awakened Brown's suspicion. Ashhurst and Buller, Js. thought that the party taking a note after it was due, was to be considered as taking it on the credit of the person from whom he received it, and that whatever would be a defence against the giver, would be a defence against the receiver; upon which Lord Kenyon said, he agreed with that, if the note appeared on the face of it to have been dishonoured, or if knowledge could be brought home to the indorsee, that it had been so, but otherwise he was not prepared to go that length. Grose, J. said, if collusion could be proved between the defendant and Sandall, the defendant would not be entitled to insist on the objection, but as the case then stood he thought there ought to be a new trial. Rule absolute. transfer. stances which would have affected the validity of the III. Time of bill, had it been in the hands of the person who was holder thereof, at the time it became due; and though the indorsee may have been ignorant of the fraud, yet any objection which might have been taken against the bill when in the hands of the indorser, may be taken against him, if the bill or note when he took it, appeared upon the face of it to have been dishonoured'; and though Lord Kenyon, C. J. in this case, appears to have been of opinion, that the mere circumstance of a bill being over due, is not sufficient to affect the indorsee; and though in Columbies v. Slim2, the Court of K. B. held, that an indorsement, after action brought on a note over due, would nevertheless give the indorsee a right of action, unless he had notice of the action; yet Buller, J. and Ashhurst, J. were of opinion, in the first mentioned case, that when a note is over due, its being out of the common course of dealing, is alone such a suspicious circumstance, as makes it incumbent on the party receiving it, to satisfy himself that it is a good one, and that if he omit to do so, he takes it on the credit of the indorser, and must stand in the situation of the person who was holder at the time it was due; and the latter opinion appears now to prevail. This rule equally applies to the case 'Id. ibid. 2 Trin. 12 Geo. 3. 18 Vol. MS. paper books, page 62. 3 Banks v. Colwell, cited 3 T. R. 81.-Brown v. Turner, 7 T. R. 630.-Tinson v. Francis, 1 Campb. 19.-Boehm v. Sterling, 7 T. R. 427.-Good . Coe, cited 7 T. R. 427, 429. Bayl. 63. Banks v. Colwell, cited 3 T. R. 81. Indorsee of a note payable on demand against the maker. The notes were given for smuggled goods, part of it was paid, and it was not indorsed to the plaintif till a year and a half after it was given, no privity was brought home to the plaintiff, but Buller, J. was clearly of opinion he ought to be nonsuited, and said it had been repeatedly ruled at Guildhall, that if a bill or note was indorsed over after it was due, the indorsee took it on the credit of the indorser, and stood in his situation. Sed vide Morris v. Lee, Bayl. 233, n. b. Brown v. Turner, 7 T. R. 630. Pritchard paid some stock-jobbing differences for the defendant, and drew on him for the amount; defendant accepted the bill, and after it became due, Pritchard indorsed it to the plaintiff, for a prior debt. A question was made, whether the illegality of the original transaction vitiated the bill; |