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time when he took it, the means of learning that the note was stolen, if bo had made use of those means: Raphael v. Bank of England, 17 C. B. 161.
WHERE THE WHOLE OF A BANK BILL HAS BEEN Lost, the loser must bear the loss, and is without remedy against the bank: Hinsdale v. Bank of Orange, 6 Wend. 378; Morse on Banking, 473; 2 Daniel on Neg. Inst., sec. 1693. The reason is obvious. Bank bills pass by delivery merely. Any person who takes them in good faith, for a valuable consideration, and in the usual course of business, may compel the bank to pay their amount. It is evident, then, that the bank would be liable to pay twice, if it could be made to pay both the loser and a bona fide holder. And there is no good reason why it should be compelled to suffer such a gross injustice, in order that the loser should be relieved from his misfortune.
WHERE PART OF A DIVIDED Note is Lost, the owner of the other part may, upon proof of the loss, recover from the bank the whole amount of the note. This subject is discussed in the note to Bank of United States v. Sill, 13 Am. Dec. 47. See also State Bank v. Aersten, 36 Id. 536; Murdock v. Union Bank of Louisiana, 38 Id. 197; 2 Daniel on Neg. Inst. 1695; Morse on Banking, 475. The latter author thinks that indemnity should be exacted in such cases. A bank can not escape responsibility by publishing notice that it will not be liable upon severed notes: Bank of United States v. Sill, 13 Am. Dec. 44; Martin v. Bank of United States, 4 Wash. C. C. 253; Morse on Banking, 477; 2 Daniel on Neg. Inst., sec. 1696.
IF BANK NOTE IS DESTROYED, the owner may, upon clear proof of its destruction and identity, recover the amount from the bank. This question is considered in the note to Edwards v. McKee, 13 Am. Dec. 482. See, in ad. dition, Ross v. Bank of Burlington, 15 Id. 664; Morse on Banking, 471; 2 Daniel on Neg. Inst., sec. 1694. In this country, where the bona fide holder of a bank bill that has been lost or stolen brings an action to recover the amount thereof, the burden of proving that he received it in the usual course of business, and without notice, is not imposed upon him: 2 Daniel on Neg. Inst., sec. 1680; Worcester County Bank v. Dorchester & M. Bank, 10 Cush. 488; Wyer v. Dorchester etc. Bank, 11 Id. 51; Louisiana Bank v. Bank of the United States, 9 Mart. (La.) 398. But a contrary doctrine is maintained in England: De la Chaumette v. Bank of England, 9 Barn. & Cress. 208.
BANK IS BOUND TO TAKE ITS Own Bills in payment of debts due to it, as long as it is solvent: 2 Daniel on Neg. Inst., sec. 1691; Morse on Banking, 462; Dunlap v. Smith, 12 III. 399; American Bank v. Wall, 56 Me. 167; Union Bank of Tennessee v. Ellicott, 6 Gill & J. 363; Commercial Bank of Columbus v. Thompson, 15 Miss. 443; Railey v. Bacon, 26 Id. 455; Niagara Bank v. Rosevelt, 9 Cow. 409; Exchange Bank v. Knox, 19 Gratt. 739; United States Bank v. Bank of Georgia, 10 Wheat. 333. And it has been held that the appointment of a receiver does not affect the right of the debtor to pay in the hills of the bank: Moise v. Chapman, 24 Ga. 249; American Bank v. Wall, 56 Me. 167. And even after the bank has obtained judgment against its debtor, he may discharge the debt with its issues: Abbott v. Agricultural Bank of Misnissippi, 19 Miss. 405.
SET-OFF,– Where the bank is insolvent the bill holder can set off against a debt due from him to the bank the bills held by him at their full nominal value, if he came into the possession of them prior to the insolvency: Morse on Banking, 463; 2 Daniel on Neg. Inst., sec. 1690; American Bank v. Wall, 56 Me. 167; Bruyn v. Receiver of M. D. Bank, 9 Cow. 413, note; Miller v. Receiver of Franklin Bank, 1 Paige, 444; Diven v. Phelps, 34 Barb. 224; Clarke
v. Hawkins, 5 R. I. 219; Exchange Bank v. Knox, 19 Gratt. 739. But if he bought up the bills after the insolvency, he will not be permitted to set them off against the debt due from him to the bank: Dickson v. Evans, 6 T. R. 57; Diven v. Phelps, 34 Barb. 224; Clarke v. Hawkins, 5 R. I. 219; Exchange Bank v. Knox, 19 Gratt. 739; Finney v. Bennett, 27 Id. 365. For determin. ing when a bank is to be considered insolvent within the rules above stated, Morse proposes the following criterion: “So long as the bills continue to be taken and paid away by the community in general, like the bills of other bauks, that is to say, so long as they continue in actual circulation as money, so long any person taking them as money should retain the right to set them off against the bank. When they no longer circulate as money, having a fixed value, but can only be passed by way of barter or exchange, becoming the subject in each case of a special bargain as concerns the valuation at which they shall be received, then it is time to say that the taker can no longer set them off for their full face value:" Morse on Banking, 465. Daniel вays “this criterion is supported by strong considerations:" 2 Daniel on Neg. Inst., sec. 1690.
AGENT TO COLLECT, WHEN MAY RECEIVE BANK BILLS: See the note to Martin v. United States, 15 Am. Dec. 130, 131, where this subject is dis. cussed.
BILLS OF INSOLVENT BANK, PAYMENT IN: See note to Ontario Bank v. Lightbody, 27 Ain. Dec. 188, where this subject is discussed; see also Loury v. Murrell, Id. 651; Corbit v. Bank of Smyrna, 30 Id. 635; Bayard v. Shunk, 37 Id. 441.
PAYMENT IN COUNTERFEIT BANK Bills is no payment at all, and the party who receives them may, upon discovering that they are spurious, treat the payment as null: Jones v. Ryde, 5 Taunt. 488; Young v. Adams, 6 Mass. 182; Mudd v. Reeves, 2 Har. & J. 368; Ramsdale v. Horton, 3 Pa. St. 330; Markle v. Hatfield, 3 Am. Dec. 446; Edmunds v. Digges, 42 Id. 561; Morse on Bank. ing, 482. But a bank which receives a forged note purporting to be its own is regarded as having adopted it: United States Bank v. Bank of Georgia, 10 Wheat. 333. Mr. Justice Story, in delivering the opinion of the court in that case, at page 343, said: “Many considerations of public convenience and policy would authorize a distinction between cases where a bank receives forged notes purporting to be its own, and those where it receives the notes of other banks in payment, or upon general deposit. It is bound to know its own paper and to provide for its payment, and must be presumed to use all reasonable means, by private marks and otherwise, to secure itself against forgeries and impositions.
The receipt by a bank of forged notes purporting to be its own must be deemed an adoption of them. It has the means of knowing if they are genuiue; if these means are not employed, it is certainly evidence of a neglect of that duty which the public have a right to require.” And a party who innocently pays away a counterfeit bank bill is not bound to take it back, unless it is returned to him within a reasonable time: Simms v. Clark, 11 Ill. 137; Union National Bank of Chicago v. Bal. denwick, 45 Id. 374; Thomas v. Todd, 6 Hill (N. Y.), 340; Pindall y. North western Bank, 7 Leigh, 617; Raymond v. Baar, 15 Am. Dec. 603.
What shall in such cases be considered a reasonable time is, of course, a question that must depend upon the facts of each particular case. In Thomas v. Todd, 6 Hill (N. Y.), 340, a delay from May 25th to July 4th was held not to be a reasonable time. In Pindall v. Northwestern Bank, 7 Leigh, 617, a delay of two months was held to prevent the plaintiff's recovery. And in Raymond v. Baar, 15 Am. Dec. 603, it was held that a delay of six months was groso negligence, which would prevent a recovery. These cases proceed upon the theory that such delay necessarily impairs the remedy over of the party from whom the counterfeit is received, and makes it difficult if not impossible for him to trace out the source from which he obtained it, or to find the guilty party and secure restitution from him. Discussing this question, in the case of Pindall v. Northwestern Bank, 7 Leigh, 621, Brocken brough, J., who delivered the opinion of the court, said: “The policy of the law requires that after the detection of the counterfeit character of the money (whether coin or bank notes), there should be no negligence or want of diligence on the part of the creditor who receives it, in giving information to the payer of the true character of the money, and in returning it to him and demanding payment. Indeed, justice to the debtor requires it. By giving him this notice, and returning it to him in a reasonable time, he will be perhaps enabled to ascer. tain from whom he received it, and to trace it back from holder to holder, till it shall be returned either to the original forger, or to him who passed it knowing it to be counterfeit. If the innocent receiver of the note neglects his duty in this respect, if he holds it up after he ascertains it to be counterfeit, without returning it in due time to the payer, he ceases to be innocent, or at least is more in fault than the innocent payer, and this neglect must necessarily affect his remedy.”
Bank BILLS ARE GOOD TENDER IF NOT OBJECTED TO at the time, on the ground that they are not money: Wright v. Reed, 3 T. R. 554; Owenson v. Morse, 7 Id. 64; Grigby v. Oakes, 2 Bos. & P. 526; Polglass v. Oliver, 2 Cromp. & J. 15; Gillard v. Wise, 4 Barn. & Cress. 134; Corbit v. Bank of Smyrna, 30 Am. Dec. 035; Welch v. Frost, 48 Id. 692; Bank of United States v. Bank of Georgia, 10 Wheat. 333; Morse on Banking, 460; 2 Daniel on Neg. Inst., sec. 1672 a; Ch. Bills, 524. The maker of a note has the right to tender in payment of such note, as equivalent to gold and silver coin, the bills issued by the bank to which the note is due, and the legislature can not deprive him of that right: Blount v. Windley, 68 N. C. 1; S. C., 12 Am. Rep. 616. But the doctrine that bank bills are a good tender, unless objected to at the time as not being money, applies only to current bills which are redeemed at the counter of the bank on presentation, and pass at par value in busi. ness transactions at the place where they are offered: Ward v. Smith, 7 Wall. 447.
WARRANTY.—There is no implied warranty either of title or of value in the circulation of bank notes. The person passing them only warrants that they are genuine and not counterfeit: Edmunds v. Digges, 42 Am. Dec. 561, and other cases cited in the note to that case.
BANK BILLS MAY BE SUBJECTS OF VALID DONATIO MORTIS Causa: See Bradley v. Hunt, 23 Am. Dec. 597, and note 603, where this subject is dis. cussed.
Bank BILLS MAY BE SEIZED AND TAKEN IN EXECUTION in this country: 2 Daniel on Neg. Inst., sec. 1673 a; Morrill v. Brown, 15 Pick, 173; Crano v. Freese, 1 Harr. (N. J.) 305; Holmes v. Nuncaster, 12 Johns. 395; Handy v. Dobbin, Id. 220; Lovejoy v. Lee, 35 Vt. 430; Spencer v. Blaisdell, 17 Am. Dec. 412; Prentiss v. Bliss, 24 Id. 631. But in England they could not be so taken prior to the passage of the act 1 and 2 Vict., c. 110, sec. 12.
STATUTE OF LIMITATIONS DOES NOT APPLY TO BANK Bills in the same way that it does to other promissory notes. Bank bills are intended to cir. culate as money; and in this country, when they come back to the bank they are again reissued: Morse on Banking, 466; 2 Daniel on Neg. Inst., sec. 1683; Dougherty v. Western Bank of Georgia, 13 Ga. 287; Long v. Bank, 81
N. C. 41. But if the bills of a bank have ceased to circulate as currency, and have ceased to be taken in and reissued by the bank, they no longer have that distinctive character from other contracts which excepts them from the operation of the statute of limitations: Kimbro v. Bank of Fulton, 49 Ga. 419. And in Bank of Memphis v. White, 2 Sneed, 482, it was decided that an ordinary bank note is not barred until six years from the date of a demand and refusal at the counter of the bank; and that the mere suspension of the bank is not equivalent to such a demand and refusal.
PRESENTMENT AND DEMAND.—Where bank bills are made payable generally, a suit may be brought on them without any prior demand. But when they are made payable at a particular place, the authorities are not agreed as to whether or not a demand is necessary at the place named. These author. ities hold that a demand must be made before bringing suit: Dougherty v. Western Bank of Georgia, 13 Ga. 287; Thurston v. Wolfborough Bank, 18 N. H. 391; Wilks v. Robinson, 3 Rich. 182; Bank of Memphis v. White, 2 Sneed, 482. While the following cases hold that an action may be sustained even thongh no demand has been made; but that, if the bank brings the money into court, and shows that it was willing and able to pay if a demand had been made before suit, it will not be compelled to pay either interest or costs: Barber v. Bell, 77 Ill. 491, citing the principal case; Bryant v. Damariscotta Bank, 18 Me. 340; State Bank v. Van Horn, 1 South. 382; Bank of Ni. agara v. McCracken, 18 Johns. 495; Ilaxtun v. Bishop, 3 Wend. 13. Neither Norse nor Daniel expresses a preference for either of the doctrines stated above; but Professor Ames, in speaking of the rule which requires the debtor to seek his creditor, says: “The absurdity of applying this rule to any negotiable paper is sufficiently obvious, and in the case of bank notes is so glaring that the courts have felt obliged to make an exception to the rule, and to hold that a bank note is not payable without a demand:” 2 Ames' Cas. on Bills & N. 62, note. If a demand is necessary, it must be made at the place designated in the bill, and during banking hours: Morse on Banking, 467; King v. Dedham Bank, 8 Am. Dec. 112; Ware v. Street, 2 Head, 609. And where the bills of a bank are payable on demand at a particular place, the holder is entitled to interest thereon from the time of the demand of payment and refusal to pay, not from the date of the suspension of the bank, or from the date of the bills: Ringo v. Biscoe, 13 Ark. 563; Bank Commissioners v. Lafayette Bank, 4 Edw. Ch. 287. But in Atwood v. Chillicotho Bank, 10 Ohio, 526, it was held that the holder is entitled to interest from the date of the snspension of specie payment by the bank.
PROTEST OF Bank BILL IS NOT NECESSARY on a failure of the bank to pay it on demand: Johnson v. Bank of Fulton, 29 Ga. 260. And see note to Dupré v. Richard, 43 Am. Dec. 219.
WHEN HOLDER OF Bank BILLS BRINGS THEM TO BANK FOR REDEMPTION he is not bound to present them one bill at a time, but may present them in parcels: Reapers' Bank v. Willard, 24 Ill. 433. The bank is not bound to keep open after its usual banking hours, in order to afford bill holders an op. portunity to present their bills for redemption. But on the other hand, the bank must afford reasonable opportunities to the bill holders to enable them to obtain redemption of the notes held by them. If the officers of the bank resort to evasive tricks and artifices for the purpose of hindering the persons presenting bills for redemption, they will be treated as having refused pay. ment on demand: People v. State Treasurer, 4 Mich. 27; Reapers' Bank v. Willard, 24 Ill. 433; Suffolk Bank v. Lincoln Bank, 3 Mason, 1. In the last case cited, the court decided that a bank is bound to keep its money counted,
or weighed, or employ servants sufficient to count it or weigh it so as to pay all demands made within the usual banking hours. But in Boatman': S. i. v. Bank of Missouri, 33 Mo. 497, it was decided that, for the purpose of determining in what description of coin, and in how many pieces of each re. spective denomination, payment might be legally made by the bank, it had a right to treat each bill as a distinct demand.
NEGOTIABILITY OF PROMISSORY Notes PAYABLE IN BANK Bills: See the note to Woolley v. Sergeant, 14 Am. Dec. 422; also, 1 Daniel on Neg. Inst., sec. 56. In England, promissory notes made payable in Bank of England notes are not regarded as negotiable: Bayley on Bills, 6th ed., 11; Ex parte Imeson, 2 Rose, 225; Rex v. Wilcox, reported in 1 Ames' Cas. on Bills & N. 39. In Canada, promissory notes made payable in Canada bills are not negotiable, although such bills are by law legal tender: Gray v. Worden, U. C., 29 Q. B. 535.
NOTES ISSUED BY STATE BANKS ARE NOT BILLS OF CREDIT within the meaning of the constitution of the United States: Morse on Banking, 485; Briscoe v. Bank of Kentucky, 11 Pet. 257; Jones v. Bank of Tennessee, 46 An. Dec. 541; McFarland v. State Bank, 37 Id. 761, note 769; and see note to Linn v. State Bank of Illinois, 23 Id. 78, where this subject is discussed. For cases holding a contrary doctrine, see Linn v. State Bank of Ilinois, Id. 71; Bank of Kentucky v. Clark, 28 Id. 345.
CURRENT BANK Notes are such as are convertible into specie at the coun. ter of the bank that issues them, and pass at par in the ordinary transactions of the country: Pierson v. Wallace, 7 Ark. 282; Lackey v. Miller, Phill. L. 26. Bank notes to be at par, within the meaning of the Pennsylvania statute imposing a forfeiture on banks for failure to keep their notes at par, must be ordinarily equal to gold and silver coin for all purposes, financial and commercial: Ilarrisburg Bank v. Commonwealth, 26 Pa. St. 451. The fact that the bills of a bank are below par does not make their circulation illegal: Robison v, Beall, 26 Ga. 17. Nor will the fact that the holder of a bank bill bought it at a discount prevent him from recovering its full amount from the bank that issued it: Robison v. Beall, 26 Ga. 17; Taylor v. Cook, 14 Iowa, 501.
Right of FINDER OF BANK BILL AS AGAINST HIS BAILEE.-The finder of a bank bill, as against a bailee to whom he has confided its care, has such a possessory interest in it as entitles him to recover it from the bailee, upon the latter's refusal to surrender it on demand: 2 Daniel on Neg. Inst., sec. 1674; Brandon v. lluntsville Bank, 18 Am. Dec. 48; Bridges v. Hawkesworth, 7 Eng. L. & Eq. 424; Tancil v. Seaton, 28 Gratt. 601. In Bridges v. Hawkes. worth, supra, the plaintiff picked up from the floor of the defendant's shop a parcel containing bank notes. He gave them to the defendant to keep until the owner should claim them. The defendant advertised, but no owner appeared. After the lapse of three years the plaintiff tendered to the defend. ant the costs of the advertisement, offered to give him indemnity, and re. quested him to give up the notes, and, on his refusal to do so, brought an action to recover them. The court held that he was entitled to them as against the defendant. The case of Tancil v. Seaton, supra, involved a simi. lar question, and Burks, J., delivering the opinion of the court in that case, said: “As a general rule, the bailee is not allowed to dispute the title of his bailor, and we see no good reason why the depositary of a lost bank note, as between himself and the finder, should be an exception to this rule, where the owner is unknown and there is no assertion of claim on his part against the depositary. To permit the latter, under such circumstances, against his contract of bailment, to withhold the note from the firder, and if the owner