commonly used, although it is intended to be made payable to the person whose order is mentioned.

A bill payable to the order of A. is payable to A. (d), if he does not order it to be paid to any other person; and where no such order appears, it will be presumed that none was made. Defendant had given a bill under his hand to pay to E. G. or order a sum of money (e), and E. G. by indorsement ordered part of the money to be paid to plaintiff, upon which an action was brought; and a special custom among merchants was laid in the declaration according to the plaintiff's case: upon demurrer to an insufficient plea, which defendant had pleaded, it was adjudged a void custom, and that the declaration was ill; for where a man's contract hath subjected him to only one action, it cannot be divided so as to subject him to two or more. It was admitted, however, that if the plaintiff had acknowledged the receipt of the residue, the declaration would have been good.

In order to derive a legal title to a bill of exchange payable to order, it is necessary for the indorsee, in an action against the acceptor, to prove the hand-writing of the payee or first indorser (f); and, therefore, though the bill may come into the hands of another person of the same name with the payee, yet his indorsement will not confer a title, although the payee be not particularly described in the bill (g); such an indorsement, if made with the knowledge that he is not the person to whom the bill was made payable, is a forgery, through the medium of which a title cannot be derived.

With respect to bills payable to bearer, or bills payable to order, but indorsed in blank, both which pass by delivery; if an assignee take them, without any knowledge (8) of defect of title, bonâ fide, and for a valuable consideration, such assignee is entitled to payment. This proposition, as far as it affects bills payable after sight, or after date, and not on demand, must be understood with this restriction, viz. that the party seeking to recover on such bills has not taken them after they became due; for in that case he is subject to all the equity to which the party from whom he took them was liable. See ante, page 325.

(d) Smith v. M'Clure, 5 East, 476. (e) Hawkins v. Cardee, Salk. 65; Carth. 466; Lord Raym. 360, S. C.

(f) Smith v. Chester, 1 T. R. 654. (g) Mead v. Young, 4 T. R. 28; per three justices, Kenyon, C. J., diss.

(8) See Good v. Coe, cited in argument, in Boehm v. Sterling, 7 Term R. 427, where the plaintiff had taken the note, on which he sued, for a valuable consideration, three months after it was due; and it appearing that the note had been lost by the true owners, and that the person from whom the plaintiff received it had notice of this, Lord Kenyon held, that the plaintiff was not entitled to recover.

The following case, decided on a promissory note, will illustrate this position: Trover for a bank note of 217. 10s. payable to A. or bearer, on demand (h). A. being possessed of the note, sent it by the general post, under cover, to B. in Oxfordshire. The mail was robbed, and the note stolen. The note in question afterwards came into the hands of plaintiff for a valuable consideration, in the course of his business, and without notice that it had been stolen. The plaintiff having delivered the note to defendant, who was a clerk in the Bank, for payment, he refused either to pay the money or re-deliver the note, whereupon this action was brought. On a case reserved, the court were of opinion, that plaintiff had sufficient property in the note to maintain this action: that a contrary determination would be attended with injurious consequences to commerce, since bank notes are constantly treated and considered as money, and paid and received as cash, and it was necessary that their currency should be established and secured. So where a bill of exchange (i), with a blank indorsement, had been lost by the holder, and afterwards was discounted by the plaintiffs, (who were bankers,) in the usual course of their business, without notice, for a person unknown to them, the plaintiffs were permitted to recover against the acceptor, upon proving the consideration which they had paid for the bill, which Kenyon, C. J., thought necessary. N. The holder had advertised the bill, but it did not appear that plaintiffs had ever seen the advertisement.

In cases of this description, Lord Tenterden, C. J., used to direct the jury to find for the defendant, if they thought that the plaintiff had taken the bill or note under circumstances which ought to have excited the suspicions of a prudent man. See Gill v. Cubitt, 3 B. & C. 466, and Down v. Halling, 4 B. & C. 330. But in Crook v. Jadis (j), where the C. J. Denman had left it to the jury to say, whether there had been gross negligence on the part of the plaintiff in taking a bill, the court were of opinion that this was a more accurate mode of submitting the question than the language adopted in Gill v. Cubitt, and Down v. Halling. In Easley v. Crockford (k), it was left to the jury to find, whether the defendant had used due caution in taking a bank-note of the amount of 2007., and the jury having found that he had not, the court refused to disturb the verdict (1). But it is now clearly settled that gross negligence only is not a sufficient answer, where the party has given consideration for the bill; gross negligence may be evidence of mala fides, but it is not the same thing (m).

56.

(h) Miller v. Race, 1 Burr. 452.
(i) Lawson v. Weston, 4 Esp. N. P. C.

(j) 3 Nev. & M. 257; 5 B. & Ad. 909 ; recognized in Backhouse v. Harrison, 5 B. & Ad. 1098; 3 Nev. & M. 188.

(k) 10 Bingh. 243; 3 M. & Sc. 700.

(1) See also Foster v. Pearson, 1 Cr. M. & R. 849, and 5 Tyrw. 255; Snow v. Peacock, 3 Bingh. 406; Snow v. Sadler, 3 Bingh. 610.

(m) Goodman v. Harvey, 4 A. & E. 870; 6 Nev. & M. 372, recognized in Uther v. Rich, 10 A. & E. 784.

Defendant, on the 22nd (n) October, 1763, gave Bicknell, who was husband of a ship belonging to defendant, a cash-note, or check on his banker, which was worded thus: "Pay to ship Fortune or bearer, 701.” B. lost the cash-note, which having been offered to plaintiff, a grocer at Portsmouth, on the 25th October, 1763, in the course of business, he took it bona fide, and gave a valuable consideration for it, without notice of the loss. Defendant having directed his banker not to pay the cash-note, an action was brought and plaintiff declared, first, as on an inland bill of exchange, and secondly, for money had and received. Verdict for defendant. A motion was made for a new trial, which, after argument, was granted; the court observing, that notes of this kind were negociable by delivery, and as plaintiff came fairly by the note in question, for a valuable consideration, he was entitled to recover. And per Yates, J., "It has been doubted, whether that species of action, where the plaintiff declares upon the note itself, as upon a specialty, was proper, but here is a count for money had and received. The question, whether plaintiff can maintain this action, depends upon the note's being assignable or not. The original advancer of the money manifestly appears to have had money in the hands of the drawer; and therefore he was certainly entitled to bring this action; and if he transfer his property to another person, that other person may also maintain the like action. Bicknell must, under the circumstances of the case, be considered as having delivered this instrument to plaintiff, which is tantamount to indorsement; and there is not any doubt of his having come by it fairly, bonâ fide, and for a valuable consideration. Case on a bill of exchange payable to I. S. or bearer, against the drawer (o). Upon evidence, ruled by Lord Pemberton, that plaintiff must entitle himself to it on a valuable consideration, (though among bankers they never make indorsements in such case,) for if he come to be bearer by casualty or knavery, he shall not have the benefit of it. A bank-bill payable to A. or bearer, being given to A. and lost (p), was found by a stranger, who transferred it to C. for a valuable consideration. C. got a new bill in his own name. Per Holt, C. J.-" A. may have trover against the stranger, who found the bill, for he had not any title, though payment to him would have indemnified the bank; but A. cannot maintain trover against C. by reason of the course of trade, which creates a property in the bearer." A bill of exchange, payable to order, with a blank indorsement, stands on the same footing as a bill payable to bearer; both passing by delivery. On this principle, and on the authority of the preceding cases of

(n) Grant v. Vaughan, 3 Burr. 1516; 1 Bl. R. 485, S. C.

(0) Hinton v.

2 Show.

(p) Anon. B. R. London Sittings, M. 10 Will. III. Salk. 126. Ld. Raym. 738, S. C.

Miller v. Race, and Grant v. Vaughan, it has been holden (q), that a bill with a blank indorsement having been stolen and negociated, the innocent indorsee thereof, for a valuable consideration in the usual course of business, without notice, might recover against the drawer.

A banker is bound (r) to pay a check drawn by a customer within a reasonable time after he (the banker) has received sufficient funds belonging to the customer; and the customer may maintain an action of tort against the banker for refusing payment of a check under such circumstances, and is entitled to have a verdict for nominal damages, although he cannot prove that he has sustained any actual damage.

Where a customer of the Bank of England was in the habit of making his acceptances payable at the Bank, and one of such acceptances being presented for payment at eleven o'clock in the morning, was dishonoured, for want of assets, and was presented again by a notary at six in the evening, when the same answer was given by a person stationed for that purpose; it was holden (s), in an action for dishonouring the bill, that the Bank, although they had, before six o'clock, received assets, were not bound to pay the bill, it being after the usual hours of business.

Of the Party in whom the Right of Transfer is vested.-Defendant drew a bill of exchange upon A. (t), payable at so many days' sight to B. or order, for the use of C.; B. indorsed this bill to plaintiff for value received: this bill was accepted, but payment having been refused, plaintiff brought this action as indorsee, against defendant as drawer. Defendant, after oyer of the bill, pleaded that C. (the cestui que use,) was an officer in the excise, and indebted to the king in such a sum, and that upon an exchequer process, at the suit of the king, the sum mentioned in the bill was extended in his hands: upon demurrer, it was adjudged by the court for the plaintiff (u), first, because C. had an equitable and not a legal interest to have the money, for he could not maintain an action against the acceptor. Secondly, the indorsement was for value received of plaintiff by B., and so B. received the money to which C., as cestui que use, had an equity; but the sum demanded by plaintiff is not that sum, but another due to him for value received, in which sum C. was not concerned, for which reason the money now in demand was not extendible. This judgment was affirmed in error in the Exchequer Chamber. E. 2 Will. & Ma. See 2 Vent. 307. See remarks on this case in Sigourney v. Lloyd, 8 B. & C. 630.

It is the constant usage of merchants for administrators to indorse and assign over bills of exchange (v), made payable to their intestate's order. Where a bill of exchange has been indorsed by the payee to A. and B. as executors (w), they may declare as such in an action against the acceptor. When a bill of exchange is drawn, payable to A. and B. or their order (x), and A. and B. are not partners: to make it negociable, the bill should be indorsed by A. and B., such being the usage of merchants (9); but in such case, if the bill be indorsed by A. in the name of himself and B., and afterwards the drawee accepts the bill so indorsed (y), it is not competent to him to object, that the bill has not been regularly indorsed. See Porthouse v. Parker, post, tit. "Partners," Sect. IV.

VI. Of Presentment for Payment, and herein of the Days of Grace, p. 350; Non-payment and Notice thereof, p. 352; Protest, p. 359

WHERE bills of exchange are drawn payable at usance (10), or a certain time after date, or after sight, such bills ought not to be presented for payment at the expiration of the time mentioned in the bills, but at the expiration of what are termed days of grace. In an action against the drawer of a bill of exchange, the evidence being that the bill had been demanded from the acceptor on the day preceding the last day of grace; the plaintiff was nonsuited. Wiffen v. Roberts, 1 Esp. N. P. C. 262. Kenyon, C. J. “In case

(v) Per Denison, J., 3 Wils. 4.
(w) King v. Thom, 1 T. R. 487.

(x) Carvick v. Vickery, Doug. 653, n. (y) Jones v. Radford, 1 Campb. 83, n.

(9) As the property in a bill of exchange passes to the holder, when he pays the consideration, and as indorsement is merely evidence of the transfer, a trader, who before his bankruptcy has parted with a bill for a valuable consideration, but omitted to indorse it, may indorse it after his bankruptcy and such indorsement will be a sufficient title to the party to whom it was delivered. Smith v. Pickering, Peake's N. P. C. 50.

(10) This term signifies the time which, by the usage of the countries between which the bills are drawn, is appointed for the payment of them. Poth. s. 15. See a table of usances, Chitty, 142, 143. Üsances are calculated exclusively of the date of the bill. Chitty, 143. The computation of time, when expressed by months, is by calendar months. Chitty, 143. Where bills are payable so many days after sight, the days are computed from the day the bills are accepted, or protested for nonacceptance.