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So upon a note payable at a banker's, notice of non-payment need not be given to the maker. (144)

A person who has been once discharged by laches from his liability on a bill or note, is always discharged. And therefore where two or more parties to a bill or note have been so discharged, but one of them, not knowing of the laches, pays it, he pays it in his own wrong, and (145) cannot recover the money from another of such parties.

On motion for a new trial, Abbot C. J. expressed a strong doubt whether notice need, in any case, be given to the acceptor, because the banker was his agent; but he and the other Judges held, that where the effects were insufficient, as here, notice was not necessary. Rule refused.

Treacher v. Hinton, 4 Barnew, 413. Indorsee against acceptor, on bill addressed to defendant at Plymouth, and accepted by him, payable at Sir John Lubbock and Co.'s, bankers, London. Plaintiff proved the acceptance, and presentment at Sir John Lubbock's, but there being no evidence of notice to defendant of the bill's dishonour, Abbot C. J. nonsuited plaintiff, with leave to move to enter a verdict for plaintiff: rule nisi accordingly; and on cause shewn, the court thought the notice not necessary; that the acceptance was not a cheque upon the banker, but merely made the banker the acceptor's agent, and then it was his duty to see that his agent did his duty.

(144) Pearse v. Pemberthy, 3 Campb. 261. Action against the maker of a note payable at Were, Bruce and Co.'s: the place of payment being a material part of the instrument, it was urged that defendant should have had notice of the note's dishonour, for the answer being "not sufficient effects," shewed there were some effects there. Lord Ellenborough thought notice unnecessary, and verdict for plaintiff.

(145) Roscoe v. Hardy, 12 East. Rep. 434. Acceptance of a bill was refused; of this however the holders gave no notice, but when the bill became due, again presented it for payment, and that being refused, they called upon the plaintiff, an indorser,

for payment, and he, being ignorant of their laches, paid it. He now sued the defendant as his indorser, who set up the laches of the holders as a defence; and the plaintiff was nonsuited. On motion to set aside this nonsuit, it was urged, that the plaintiff ought not to be prejudiced by the laches of subsequent holders, of which he was ignorant, without the means of information. But the court held that his ignorance, which had prevented his availing himself of this laches as a defence, could not alter or revive the liability of the defendant, who had been discharged by the same laches.

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PAYMENT should be made to the (1) proprietor of the bill or note, or to some person authorised by him to receive payment.

If the proprietor die, payment should be made to his (2) personal representative; if he become bankrupt to his assignees; if he be an infant, to his guardian; and payment to the (3) infant him

(1) Pothier, pl. 164.

(2) A bonâ fide payment of a debt to a person who has the probate of a will purporting to be the creditor's, will discharge the debtor, if the creditor be dead, though the will afterwards turn out to be a forgery, and the probate be annulled on that ground; because such payment is made on the authority of the probate but it is otherwise (per Ashhurst and Buller Js.) if the creditor be living, because in such case the probate is a mere nullity. Allen v. Dundas, 3 Term. Rep. 125.

self, may be good; at least if it be beneficial to him.

In the case of a married woman, payment should be made to (4) her husband.

Payment to a bankrupt will be (5) good, if made bonâ fide, and without notice of the bankruptcy and accepting a bill drawn by a trader, after a secret act of bankruptcy (6), will be protected as much as payment, though the bill do not become due until it is notorious that a commission against him has issued. The acceptance, which creates an obligation to pay, is within the protection of 1 Jac. 1. as much as actual



(4) See Connor v. Martin, ante, p. 111. n. (31), and Barlow v. Bishop, ante, p. 41. n. (7)

(5) By 1 Jac. 1. c. 15. § 14. it is provided "That no debtor of the bankrupt be hereby endangered for the payment of his or her debt, truly and bonâ fide, to any such bankrupt, before such time as he shall understand or know that he is become a bankrupt."

(6) Wilkins v. Casey, 7Term Rep. 711. A factor was indebted to his principal in 2227. 18s.; the principal committed an act of bankruptcy, and drew on his factor for 2221. 18s.; the factor did not know of the act of bankruptcy, and accepted the bills: before they became due, a commission issued, notwithstanding which the factor paid them; the assignees sued the factor for the 2227. 18s.; and on a case reserved, insisted that though the statute (1 Jac. 1. c. 15.) would protect a payment before notice of the bankruptcy, it would not a mere acceptance. Sed per Lord Kenyon, the statute ought to receive a liberal construction; giving goods in exchange would have been a payment, though not in money; and so is giving an acceptance, if the bill be paid when due. The other judges concurred, and the plaintiff had judgment.

And payment to a bankrupt, or accepting on his account, even after a commission issued, will be as much protected as a payment before, if the party paying or accepting knew nothing, and had not the means of knowing, of such commission. (7)

And payments to a bankrupt are entitled to a different consideration from payments by; vacating the former makes the party pay twice, vacating the latter only puts one creditor on the same footing with the rest.

Payment by a bankrupt to a bonâ fide creditor in respect of a (8) bill really and bonâ fide drawn, negotiated, or accepted by the bankrupt in the (9) usual and ordinary course of trade and dealing,

(7) Sowerby v. Brooks, 4 Barnew. and Ald. 523. On 7th October a commission issued against Carbutt, but it was not gazetted till 5th November. 30th October Sowerby accepted a bill drawn on him by Carbutt for 951, 4s., a sum he owed Carbutt; he had no reason to suppose at that time that the commission had issued, or that Carbutt was a banker or insolvent. Carbutt's assignees sued Sowerby for the old debt, and he relied on his acceptance, which he paid when due, as a discharge the court of common pleas thought it no discharge, on the ground that the issuing of the commission was notice to all the world of the bankruptcy; but the facts being stated in a special verdict, the court of king's bench on error thought otherwise, and reversed the judgment.

(8) See 19 Geo. 2. c. 32. § 1. post, p. 258. n. (10). The statute only mentions bills; whether it may be construed to extend to notes, has not been decided. See Harwood v. Lomas, infra.

(9) Harwood and another v. Lomas, 11 East's Rep. 127. Odell being indebted to the defendant in 400l., gave him,


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