CHAPTER Execution. Larceny. A donatio mortis causâ differs from a gift inter vivos in these respects. It is revocable. It may be made to a man's wife; and it may be of a bond or mortgage deed, though neither the debt would have passed at law, nor equity have converted the donor into a trustee. Neither the Wills Act, 1 Vict. c. 26, nor the 44 Vict. c. 12, abolished donationes mortis causâ (u). Bills or notes could not at common law be taken in execution, at the suit of a subject; nor, if taken, could the sheriff or his assignee acquire a title against the other parties to the instrument, they being only assignable by the custom of merchants, in the way of ordinary mercantile transfer. And such as more nearly resemble money than securities, as bank notes, were, like money, not subject to be taken in execution (x). But now by the 1 & 2 Vict. c. 110, s. 12, money, bank notes, cheques, bills, and promissory notes, with all other securities for money, may be seized under a writ of fieri facias. The sheriff is to deliver the money and bank notes to the execution creditor, and is to receive payment, or to sue in his own name, being indemnified by the plaintiff, on the cheques, bills, or notes. But if the creditor, before receiving payment, proceeded against the person of the defendant, he forfeited the benefit of the security (y). Bills and notes are liable to be seized under an extent (2). Bills or notes are not the subjects of larceny at the common law; for it is said, that bills or notes are choses in action, and a chose in action cannot be stolen (a). But by evidence of a right, resting in contract only, like a bill, note, bond, or executory agreement. A reason given in both these cases is this, that the documents are of no use to any but the owner, and therefore are not in danger of being stolen. On which it has been well remarked, that "if I steal a skin of parchment worth 1s. it is felony, but when it has 10,000l. added to its value by what is written upon it, then it is no offence to take it away." Rex v. Westbeer, 2 Stra. 1133. These exceptions are palpably capricious and unreason XII. the 24 & 25 Vict. c. 96, s. 27, the stealing of any bill, CHAPTER note, warrant, or order for the payment of money, is made felony, of the same nature, and in the same degree, and punishable in the same manner, as larceny of any chattel of like value with the money due on the security. A conviction for the theft or receiving does not divest a holder in due course of his title to a negotiable instrument that had been stolen (b). The embezzlement of bills or notes by clerks or servants Embezzleis felony (c). The embezzlement of bills or notes by agents, not being clerks or servants, or the selling, negotiating, or pledging them, in violation of the purpose for which, by a written direction, they were intrusted, and the disposing of them for the agent's own benefit, is a misdemeanour subjecting to penal servitude (d). ment. Where a man is both entitled and liable on the face of a Effect of a bill, or liable to contribute, though his liability do not transfer in appear on the face of the instrument, he cannot sue. But removing technical the technical difficulty may be removed by indorsement or difficulties in transfer (e), before the bill is due. suing. Eighthly, as to the circumstances under which equity Jurisdiction would restrain negotiation. A Court of Equity would in- of Court in terpose to restrain the negotiation of a bill unduly obtained; restraining for the defence at law might not be available as against an negotiations. innocent indorsee for value, or time may destroy the evidence (f); and would, on equitable terms, decree a bill void able, and are not to be extended. Therefore, it has been held, that a pawnbroker's ticket may be the subject of larceny. Reg. v. Morrison, 28 L. J. 210, Mag. Ca. (b) Chichester v. Hill, 52 L. J., Q. B. 160. (c) 24 & 25 Vict. c. 96, s. 68. (d) 24 & 25 Vict. c. 96, s. 75. (e) See Steele v. Harmer, 15 L. J., Exch. 217; 14 M. & W. 831, and 4 Exch. 1, in error, and ante. (f) Bromley v. Holland, 7 Ves. 20, 413; Bishop of Winchester v. Fournier, 2 Ves. jun. 483; 3 Ves. 757; 9 Ves. 355. As to the par ties to the suit, see Toley v. Carlon, XII. CHAPTER in its creation, or unduly obtained, to be delivered up to be cancelled (g), and in all the Courts this equitable jurisdiction now prevails (h). (g) 2 Ves. jun. 488; 7 Ves. 413; 2 Ves. & Beam. 302; Mackworth v. Marshall, 3 Sim. 368; Osbaldiston v. Simpson, 13 Sim. 513. So where the name of the payee, as indorser, was forged, a bona fide holder was restrained from suing the acceptor, and the Court directed the bill to be delivered up to be cancelled. Esdaile v. La Nouze, 1 Y. & C. 394; Jones v. Lane, 3 Y. & C. 281. (h) See post, Chap. on ACTION, at p. 402. It is in all cases advisable for the holder of an unaccepted bill to present it for acceptance without delay; for, in case of acceptance, the holder obtains the additional security of the acceptor, and, if acceptance be refused, the antecedent parties become liable immediately. It is advisable, too, on account of the drawer, for, by receiving early advice of dishonour, he may be better able to get his effects out of the drawee's hands. But presentment for acceptance is not necessary in the case of a bill payable at a certain period after date. It is said, however, that it is incumbent on a holder who is a mere agent, and on the payee, when expressly directed by the drawer so to do, to present the bill for acceptance as soon as possible; and that, for loss arising from the neglect, the payee must be reponsible, and the agent must answer to his principal (a). CHAPTER Advisable in all cases. Where a bill is drawn payable at a certain period after When necessight, presentment for acceptance is necessary, in order to ṣary. fix the maturity of the instrument (b). Where a bill expressly stipulates that it shall be presented for acceptance, or is drawn payable elsewhere than at the residence or place of business of the drawee, it must (a) Chit. 9th ed. 237; Poth. 128; Marius, 46. (b) "After sight" on a bill, means after acceptance (or protest for non-acceptance), not a mere private exhibition of the bill to the drawee. Campbell v. French, 6 T. R. 212. On a note CHAPTER be presented for acceptance before it can be presented for XIII. When to be made. payment. In no other case is presentment for acceptance necessary in order to charge any party to the bill (c). Subject to the other provisions of the Code, when a bill payable after sight is negotiated, the holder must either present it for acceptance, or negotiate it, within a reasonable time; if he do not do so, the drawer and all indorsers prior to that holder are discharged: what time is reasonable depends upon the nature of the bill, the usage of trade with respect to similar bills, and the facts of the particular case (d). Plaintiff on Friday the 9th at Windsor, twenty miles from London, received a bill on London, at one month after sight, for 100l. There was no post on Saturday. It was presented on the Tuesday. The jury thought it was presented within a reasonable time, and the Court concurred (e). A bill drawn by bankers in the country on their correspondents in London, payable after sight, was indorsed to the traveller of the plaintiffs. He transmitted it to the plaintiffs after the interval of a week, and they, two days afterwards, transmitted it for acceptance. Before it was presented to the drawees, the drawer had become bankrupt; the drawees, consequently, refused to accept. Had the bill been sent by the traveller to the plaintiffs, his employers, as soon as he received it, they would have been able to get it accepted before the bankruptcy. "This is," says Lord Tenterden, "a mixed question of law and fact; and, in expressing my own opinion, I do not wish at all to withdraw the case from the jury. Whatever strictness may be required with respect to common bills of exchange, payable after sight, it does not seem unreasonable to treat bills of this nature, drawn by bankers on their correspondents, as not requiring immediate presentment, but as being retainable (c) Code, s. 39 (3). When the holder of a bill drawn payable elsewhere than at the residence or place of business of the drawee, has not time with reasonable diligence to present for acceptance before the day it falls due, the delay caused by presenting for acceptance before presenting for payment is excused, and the drawers and indorsers are not discharged. Code, s. 39 (4). V. (d) Code, s. 40. The other provisions seem to be those relating to excuse of presentment. See s. 41 (2); Muilman D'Eguino, 2 H. Bla. 565; Fry v. Hill, 7 Taunt. 395; Shute v. Robins, 1 M. & M. 133; 3 C. & P. 80; Mellish v. Rawdon, 9 Bing. 416; 2 M. & S. 570; Ramchurn v. Radakissen, 9 Moore, P. C. 46. (e) Fry v. Hill, 7 Taunt. 395. |