Bill or note as evidence of debt. if at all, in satisfaction of a larger claim, and if the money is kept, it is a question of fact as to the terms upon which it is so kept. Accord and satisfaction imply an agreement to take the money in satisfaction of the claim in respect of which it is sent." 1 When an action is brought by the holder of a dishonoured bill, note, or cheque against an immediate party liable thereon, he may sue on the consideration as well as on the instrument, and use the instrument as evidence. 3 Thus in an action on the money counts, where the plaintiff was both drawer and payee of the bill, and the acceptor was the defendant, it was held that the bill was evidence that the defendant was indebted to the plaintiff in the amount of the bill. Aliter, if drawer and payee were different persons, for then the primâ facie presumption would be that the acceptor owed the money to the drawer and not to the payee. Where an action for money lent was brought on a conditional note by payee against maker, it was held the instrument was no evidence of money lent. "An ordinary promissory note," says Bayley, B., "is evidence of money lent as between the payee and the maker, but then it must be a promissory note payable at all events." 5 In 1844, defendant gave plaintiff a note for 237., which was expressed to be for interest to date on a note for 1177. In an action on an account stated, this was held to be evidence of a subsisting debt of 1177. in 1844.6 In an action by a special indorsee against his indorser, the bill or note, perhaps, is not sufficient evidence, because presentment and notice of dishonour are ordinarily condi 1 Day v. McLea (1889), 22 Q. B. D. 610, C. A. at p. 613. 2 As to immediate and remote parties, see ante, p. 95. 3 Thompson v. Morgan (1811), 3 Camp. 101; cf. Rhodes v. Gent (1821), 5 B. & Ald. 244, at p. 245, as to account stated. 4 Early v. Bowman (1831), 1 B. & Ad. 889. 5 Morgan v. Jones (1830), 1 Cr. & J. 162, at p. 167; cf. Fryer v. Rowe (1852), 12 C. B. 437 (account stated). 6 Perry v. Slade (1845), 8 Q. B. 115. 1 tions precedent to liability, but if those conditions are fulfilled, the instrument is primâ facie evidence of the debt.2 If the indorsement were in blank, the instrument of itself would be no evidence that the indorser was indebted to the holder.3 1 Burgh v. Legge (1839), 5 M. & W. 418; cf. Jardine v. Payne (1831), 1 B. & Ad. 663, unstamped bill. 2 Burmester v. Hogarth (1843), 11 M. & W. 97, at p. 101; cf. Watkins v. Wake (1841), 7 M. & W. 488. 3 Ibid. NEGOTIABLE SECURITIES FOR MONEY. Negotiable securities for money. The law relating to negotiable securities for money, other than bills, notes, and cheques, is as yet very imperfectly developed, and is, therefore, unsuited for presentation in a codified form. The best plan seems to be to note the main decisions on each class of instrument which either is, or has been sought to be treated as, negotiable. The history of the doctrine of negotiability up to 1875 is exhaustively traced in the judgment of the Exchequer Chamber in Goodwin v. Robarts. The case is of great importance as showing the progressive character of the law, so that instruments which at one time are not negotiable, may, by the usage of the money market, afterwards become so.2 The tests of negotiability are thus stated by Blackburn, J., who says: "It may, therefore, be laid down as a safe rule that where an instrument is by the custom of trade transferable, like cash, by delivery, and is also capable of being sued upon by the person holding it pro tempore, then it is entitled to the name of a negotiable instrument,' and the property in it passes to a bona fide transferee for value, though the transfer may not have taken place in market overt. But that if either of the above requisites be wanting, i.e., if it be either not accustomably transferable, or, though it be accustomably transferable, yet, if its nature be such as to render it incapable of being put in suit by the party holding it pro tempore, it is not a 'negoti 1 Goodwin v. Robarts (1875), L. R. 10 Ex.337; affirmed 1 App. Cas. 476 (foreign scrip). 2 Compare the gradual rise of a quasi-negotiability in documents of title to goods as shown by the successive Factors Acts. See Chalmer's Sale of Goods, able instrument,' nor will delivery of it pass the property in it to a vendee, however bona fide, if the transferor himself have not a good title to it, and the transfer be made out of market overt."1 This statement appears to require qualification in two respects, for first, an instrument, not otherwise negotiable, may be made negotiable by statute; and secondly, foreign government bonds to bearer may undoubtedly be negotiable, yet the holder cannot sue the foreign government upon them in the Courts of this country; but the explanation may be that the exemption of a foreign government from suit in this country is a personal exemption, and does not arise out of any defect of title on the part of the holder. As regards instruments which are "accustomably transferable," it is to be noted that the quality of negotiability is an incident annexed by the usage of the English money market, and is not determined by the law of the place of issue.2 The issue of bank notes is subject to certain statutory Bank notes. restrictions for the protection of the limited monopoly given to the Bank of England, ante, p. 64, and for stamp purposes they are also subject to special regulations, post, p. 354. But as regards negotiability, bank notes are on the same footing as other promissory notes payable to bearer on demand. This has been unquestioned law since the leading case of Miller v. Race,3 decided in 1791, where Lord Mansfield says that bank notes "are treated as money, as cash, in the ordinary course and transaction of business by 1 Crouch v. Crédit Foncier (1873), L. R. 8 Q. B. 373, at p. 381, citing the notes to Miller v. Race, 1 Smith's L. C. 9th ed. p. 491; cf. Simmons v. London Joint Stock Bank, (1891) 1 Ch. 270, at p. 294, per Bowen, L.J., and on appeal, per Ld. Herschell, (1892) A. C. at p. 215. 2 Picker v. London and County Bank (1887), 18 Q. B. D. 515, C. A. (Prussian bonds); cf. Colonial Bank v. Cady (1890), 15 App. Cas. 267; and in court below, 38 Ch. D. at p. 404. 3 Miller v. Race (1791), 1 Burr. 452; 1 Smith's L. C. 9th ed. p. 491, and notes. Bank notes. the general consent of mankind, which gives them the credit and currency of money to all intents and purposes. . . . It has been quaintly said that the reason why money cannot be followed is because it has no earmark, but this is not true. The true reason is upon the account of the currency of it, it cannot be recovered after it has passed in currency." Thus, where a money-changer in Paris, twelve months after he had received notice of a robbery of bank notes at Liverpool, changed one of the stolen notes in Paris for a stranger, whom he merely required to produce his passport and write his name on the note, it was held that he got a good title, and the fact that he forgot to consult the notice was not evidence of fraud or notice, which alone could affect his title.1 Foreign bonds to bearer. In Glyn v. Baker, in 1811, East India bonds belonging to the defendant were misappropriated by his bankers, who replaced them with bonds belonging to the plaintiff. The bonds were not in terms negotiable, though they were indorsed in blank by the payee. It was held that they were not negotiable, and that the defendant could not retain the substituted bonds as against the plaintiff. as was pointed out in Goodwin v. Robarts, "the inconvenience which would have arisen from this decision was remedied by the immediate passing of 51 Geo. 3, c. 64, by which bonds of the East India Company were made transferable by delivery." 3 But, In Gorgier v. Mieville, in 1824, Prussian Government bonds payable to bearer, were wrongfully pledged by the plaintiff's agent. On proof that these bonds were treated as negotiable in the London money market, it was held that the plaintiff could not recover them from the pledgee, who had acted in good faith. This case has been frequently approved and followed. 1 Raphael v. Bank of England (1855), 17 C. B. 161. 2 Glyn v. Baker (1811), 13 East, 509. 3 Goodwin v. Robarts (1875), L. R. 10 Ex. 337, at p. 354. |