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 bill has not taken it after it became due; for in that case he takes the bill subject to all its equities. See ante, p. 345. 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 (z). 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 (a) 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 (z) Miller v. Race, 1 Burr. 452. (a) Lawson v. Weston, 4 Esp. N. P. C. 56. (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. in Crook v. Jadis (b), 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 (c), 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 (d). But it is now clearly settled that gross negligence only is not a sufficient answer, where the party has given consideration for the bill; and that gross negligence may be evidence of mala fides, but is not the same thing (e); and that the owner of a bill is entitled to recover upon it, if he has come by it honestly; and that that fact is implied primâ facie by possession, and that to meet the inference so raised, fraud, felony, or some such other matter must be proved (ƒ). : Defendant, on the 22nd (g) 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 bonâ 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 negotiable 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 (b) 3 Nev. & M. 257; 5 B. & Ad. 909; recognized in Backhouse v. Harrison, 5 B. & Ad. 1098; 3 Nev. & M. 188. (c) 10 Bingh. 243; 3 M. & Sc. 700. (d) 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. (e) Goodman v. Harvey, 4 A. & E. 870; 6 Nev. & M. 372, recognized in Uther v. Rich, 10 A. & E. 784. (f) Per Lord Denman, C. J., in Arbouin v. Anderson, 1 Q. B. 498; 1 G. & D. 403. (g) Grant v. Vaughan, 3 Burr. 1516; 1 Bl. R. 485, S. C. 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 (h). 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 (i), 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 Miller v. Race, and Grant v. Vaughan, it has been holden (k), that a bill with a blank indorsement having been stolen and negotiated, 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 (1) 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. This decision rests entirely on the consideration that the action, an action on the case, was founded on a contract, not on a general duty implied by law. The contract creates a duty, and the neglect to perform that duty, or the non-feasance, is a ground of action upon a tort (m). 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 (n), in (h) Hinton v. 235. 2 Show. (i) Anon. B. R. London Sittings, M. 10 Will. III. Salk. 126. Ld. Raym. 738, S. C. (k) Peacock v. Rhodes, Doug. 633. (1) Marzetti v. Williams, 1 B. & Ad. VOL. I. 415. (m) Per Tindal, C. J., delivering the judgment of the Exchequer Chamber in Boorman v. Brown, 3 Q. B. 526; 2 G. & D. 793. (n) Whitaker v. Bank of England, 1 Cr. M. & R. 744. 2 B 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. (o), 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 (p); 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 (9), made payable to their intestate's order. Where a bill of exchange has been indorsed by the payee to A. and B. as executors (r), 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 (s), and A. and B. are not partners to make it negotiable, 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 (t), 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. (0) Evans v. Cramlington, Carth. 5. (r) King v. Thom, 1 T. R. 487. (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. VI. Of Presentment for Payment, and herein of the Days of Grace, p. 371; Non-payment and Notice thereof, p. 373; Protest, p. 380. 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 of foreign bills of exchange, the custom is (u), that three days (11) are allowed for payment of them, and if they are not paid on the last of the said days, the party ought immediately to protest the bill, and return it, and by this means the drawer will be charged; but if he does not protest on the last of the three days of grace, there, although he upon whom the bill is drawn fails, the drawer will not be chargeable; for it shall be reckoned his folly that he did not protest, &c. But if it happens that the last of the said three days is a Sunday, or a great holiday, as Christmas-day, &c., upon which no money used to be paid, there the party ought to demand the money on the second day: otherwise it will be at his own peril, for the drawer will not be chargeable." Good Friday is to be considered as a Sunday or Christmas-day (x). By stat. 7 & 8 Geo. IV. c. 15, s. 2, bills of exchange becoming due on a day appointed by proclamation for fast or thanksgiving are payable on the day preceding and by sect. 3, Good Friday, Christmas-day, and every such day of fast or thanksgiving is to be considered, as regards bills of exchange and promissory notes, as Sunday. The foregoing passage from Lord Raymond's Reports, mentions only foreign bills of exchange; but it was said, by Lord Kenyon, C. J., in Brown v. Harraden, 4 T. R. 152, that it had been settled (u) Per merchants in evidence at Guildhall, Trin. 7 Will. III. coram Holt, C. J., Tassel v. Lewis, Lord Raym. 743. (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. Usances 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 non-acceptance. (11) Three days, exclusively of the day on which the bill becomes due, every where, except at Hamburgh, where that day makes one of the days. of grace. Chitty, 140. |