But the holder will be precluded from recovering for the consideration, if it appear that the bill or note has been, by (60) laches, made to operate as a satisfaction of the debt or demand for which it was given; or if he originally received the bill or note (61) as cash, and took upon himself the risk

made his note for 10l. payable to the defendant or order, at a time which elapsed before the commencement of the suit: and that the defendant, before the note became due, indorsed it to the plaintiff " for and on account of the said sum of 4l. 14s. 6d., and the sum of 5l. 5s. 6d.," paid by the plaintiff to the defendant, and that the plaintiff accepted the note " for and on account" of those sums. To this plea there was a general demurrer, and it was urged, that the plea ought to have alleged that the note was received in satisfaction of the debt. But the court, on argument, held the plea good, and advised the plaintiff to withdraw his demurrer, and reply; which he did.

Dangerfield v. Wilby, 4 Esp. N. P. C. 159. The declaration contained a count upon a note made by the defendant, payable to the plaintiff and the money counts. At the trial the note was stated to have been lost, but no evidence of that fact was offered. It was proved, however, that on the money being demanded, the defendant had apologized for not having paid the money on account of the note. This was the whole of the plaintiff's case; and he contended that the note was only evidence of the consideration (which was stated to have been money lent), and that he might abandon the note, and go for the consideration. But Lord Ellenborough said, that as the note for any thing that appeared in evidence was in existence, it might still be in circulation, so that the defendant might be subjected twice to the payment of the same demand; without therefore proving the note lost, the plaintiff was not entitled to recover. Nonsuit.

(60) Vide ante, cap. vii. p. 171, 2.

(61) In Owenson v. Morse, 7 Term Rep. 66. ante, p. 291.n.(58) Lord Kenyon said, "If the defendant had agreed to take the notes as payment, and to run the risk of their being paid, that would have been considered as payment whether the notes had

of its being paid; or if it was transferred to him by way of (62) sale; unless indeed, in the two latter cases, it be proved that the person transferring the bill or note (63) knew at the time, that it was of no value.

or had not been afterwards paid." See also Clark v. Mundal, 1 Salk. 124.

(62) Fydell v. Clarke and another, 1 Esp. N. P. C. 447. The plaintiff had been in partnership with his brother R. Fydell; and the latter, on his own account, but in the partnership name, drew certain notes to the amount of 8000l. which he discounted with Hurlock and Co. bankers. The plaintiff, after his brother's death, voluntarily paid the 8000l. to the bankers, supposing that his brother had received the amount of these notes in money: he afterwards discovered that they had only given other bills and notes, which they had not indorsed, in lieu of his brother's notes, some of which bills and notes to the amount of 4300l. proved unproductive; and to recover that sum the present action was brought against the defendants, who were trustees of the insolvent estate of the bankers, and who had reserved funds to answer the event of the action. Lord Kenyon said, that the bankers by not indorsing the bills and notes, had refused to pledge their credit to their validity, and that R. Fydell must be taken to have received them on their own credit only; and that therefore the action could not be supported. Nonsuit.

Ex parte Shuttleworth, 3 Ves. 368. Newton gave the bankrupt before his bankruptcy, cash for a bill, but refused to allow the bankrupt to indorse it, thinking the bill better without his He now proved the amount under the commission, and on petition to have the debt expunged, the chancellor granted the petition, observing that this was a sale of the bill.

name.

(63) In Fenn v. Harrison, 3 Term Rep. 759. Lord Kenyon said, " It is extremely clear that if the holder of a bill send it to market without indorsing his name upon it, neither morality or the laws of this country will compel him to refund the money for which he sold it, if he did not know at the time that it was not a good bill. If he knew the bill to be bad, it would be like

A bill or note will satisfy a preceding debt, if the holder makes it his own by laches. (64)

As by not presenting it for payment when due; (65)

Though it were taken from a third person; (65) And in such case plaintiff must prove the bill was duly presented; (65)

But he need not prove notice to such third person of the bill's dishonour. (65)

sending out a counter into circulation to impose upon the world, instead of the current coin. In this case, if the defendants had known the bill to be bad, there is no doubt but that they would have been obliged to refund the money.

(64) Bridges v. Berry, 3 Taunt. 130. Defendant accepted a bill for 119l, due 20th October, but did not pay it: plaintiff was the holder: defendant afterwards lodged in plaintiff's hands as a security, a bill drawn by defendant upon one Ivory, for 117l. 11s. 2d. and paid plaintiff the difference: this bill was dishonoured, but no notice thereof was given to defendant: action by plaintiff on both bills. It was admitted at the trial that defendant was discharged from the second bill, but it was urged that he continued liable on the first: but Mansfield C. J. and the court held he did not, and nonsuit; and rule to set it aside refused. See Swinyard v. Bowes, ante, p. 233. note (114).

(65) Bishop v. Rowe, 3 Maule, 362. Plaintiff sued the drawer and acceptor of a bill, and proved the necessary facts: defendant gave in evidence that after the bill was due, and part paid, one Tucker, who had been connected with the bill, but had not indorsed it, drew for the balance on Lewis at two months, and gave plaintiff the draught: plaintiff could not prove that the draught was presented for payment, but he nevertheless had a verdict: the court however thought that proof essential, and granted a new trial. On the second trial plaintiff gave this proof, but he could not prove that he had given notice to Tucker of the dishonour: the point was saved, whether he was bound to give this proof? and on rule nisi for nonsuit, and

:

If the holder of a bill or note employ a particular agent to get it discounted, but refuse to indorse it, and the agent guarantee its payment, the principal will (66) not be bound by such guarantee; and not being bound, a subsequent promise by him to pay the amount of the bill or note, will be (66) nudum pactum.

But if no restraint be imposed on such agent, the principal (66) may be bound by his guarantee; at least such guarantee will be a (66) sufficient consideration to support a subsequent promise by the principal to pay the bill or note.

cause shewn, the court held it sufficient for him to prove presentment and non-payment, for that shewed there had been no payment in fact; and if the defendant insisted there had been such neglect as amounted to payment in law, he should have shewn it. The rule was discharged.

(66) Fenn v. Harrison, 3 Term Rep. 757. and 4 Term Rep. 177. The defendants employed F. Huet to get a bill discounted, but said that they would not indorse it; F. H. employed his brother James H. and said he would indemnify him if he would indorse it; James indorsed it, and the plaintiffs discounted it; the bill being dishonoured the plaintiffs applied to the defendants who promised to take it up, but did not; and this action for money had and received and money paid, was brought against them. Lord Kenyon told the jury, that if they thought that James H. had made himself answerable as agent for the defendants, that was a sufficient consideration for their promise. A verdict was found for the plaintiffs; and on a rule nisi for a new trial, and cause shewn, Lord Kenyon inclined to think the verdict right; because though the agent had exceeded his authority, he thought the principal bound by what he did: the other judges differed, because F. H. was a particular agent only: and the rule was made absolute. On the next trial it did not appear that the defendants had told F. H. that

In case of a transfer by delivery, no action can be brought against the deliverer, except on account of the consideration.

If a bill or note be destroyed by fire or other accident, an action may perhaps be brought thereon as if it were in esse. (67)

But if a bill or note be lost, there can be no remedy upon it at law, unless it was in such a state when lost that no person but plaintiff could have acquired a right to sue thereon. (68)

As if it were specially indorsed to plaintiff, and had no indorsement from him upon it. (69)

they would not indorse the bill. A verdict was found for the plaintiff, and on a rule nisi for a new trial, and cause shewn, the whole court thought the verdict right, because as F. H. was not restrained as to the mode of getting the bill discounted, the defendants were bound by his act. But Buller and Grose Js. said, that if the facts had been the same, they should have continued of their former opinion. Rule discharged.

(67) See Piersonv. Hutchinson, infra. Mayor v. Johnson, post. p. 300.

(68) Pierson v. Hutchinson, 2 Campb. N. P. C. 211. In an action by an indorsee against the acceptor of a bill, it appeared that the bill had been lost after indorsement, and the plaintiff had offered the defendant an indemnity. But Lord Ellenborough nonsuited the plaintiff, saying, that if the bill had been proved to have been destroyed, he should have had no difficulty in receiving evidence of its contents, and in directing the jury to find for the plaintiff; but that having been lost, after indorsement by the payee, it might still be in the hands of a bonâ fide indorsee for value, who might sue the defendant upon it. And as to the indemnity, he said a court of law could not enquire into its sufficiency. - S. P. ruled by Lord Eldon. See ex parte Greenway, 6 Ves. 812.

(69) Long and another v. Bailie, 2 Campb. N. P. C. 214. This was an action against the acceptor of a bill of exchange,