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Or in case of a transfer by delivery by a person not entitled to make it. (16)
As in the instance of bills or notes which have been stolen or lost. (16)
To compel a plaintiff, however, to give such proof, it has been held necessary he should be apprized before the trial that such proof would be required from him. (17)
(16) Vide Anon. Miller v. Race, Grant v. Vaughan, ante, p. 106. n. (23). Peacock v. Rhodes, ante, p. 100. n. (11).
Solomons v. the Bank of England, 13 East's Rep. 135. n. Trover for a bank note for 500l. It appeared that the note had been fraudulently obtained by means of a forged draught, and therefore when presented for payment it was stopped by the bank, who informed the plaintiff of the circumstances. plaintiff had received it from his correspondents at Middleburgh, and by desire of the bank, wrote to them to learn how they came by it. In answer, they wrote that they had received it in payment for goods, from a stranger. The note was three years old, and was stated by the plaintiff to have been taken by him in reduction of a balance due to him from his correspondents; but how this was did not appear. Bank notes of this value were not usually current at Middleburgh. Lord Kenyon said that as it did not appear that the plaintiff had given a valuable consideration for the note before notice, he should consider him as agent to his correspondents, and he thought that they had not satisfactorily accounted for their possession of the note. The plaintiff consented to a nonsuit; and on a rule nisi to set it aside and cause shewn the court refused to interfere. See Lowndes v. Anderson, 13 East's Rep. 130.
(17) Paterson v. Hardacre, 4 Taunt. 114. In an action by indorsee against acceptor, the defence was, that an agent employed by defendant to get the bill discounted had appropriated it to his own use, and absconded: it was urged upon this
It is laid down in (18) some cases, that in an action against the indorser of a bill, the plaintiff must prove an application to the drawer for payment; but it (19) is now fully settled he need
And an offer, after the bill or note has become due, to give the holder another bill in lieu of it, is an (20) admission of the holder's title, so as to supersede the necessity of proving the indorsements or other special facts.
that plaintiff was bound to prove how he got the bill, and what consideration he gave for it; he was not prepared with such proof, and was allowed to take a verdict subject to the question, whether he was bound to give it? and on rule nisi for a nonsuit on this ground and time to consider, the court held that where such a defence was contemplated, it was incumbent on the defendant to give distinct notice to the plaintiff that such proof would be called for at the trial; and because no such notice had been given, the rule was discharged. (18) Vide Burr. 671.
(19) This was decided after two arguments in the case of a foreign bill in Bromley v. Frazier, Str. 441.; and in the case either of a foreign or inland bill, but which does not appear, in Lawrence v. Jacob, Str. 515.; and in the case of an inland bill, Heylin v. Adamson, Burr. 669.
(20) Bosanquet v. Anderson, 6 Esp. N. P. C. 43. Indorsee of a bill against the acceptor. The bill was drawn in favour of the drawer, who had indorsed it; and his indorsement and several others were stated in the declaration. The plaintiff proved the first indorsement, and that when the bill became due the defendant, being unable to take it up, came to the plaintiff and offered another in lieu of it. Lord Ellenborough held that this was an admission of the plaintiff's title, and dispensed with the proof of the several indorsements.
So (21) part payment of a bill or note after it has become due, without any objection being made for want of notice, or a (22) promise to pay,
(21) Sidford v. Chambers, 1 Stark. 326. Plaintiffs sued as indorsees of Niblock and Co., who were indorsees of Sheckles, to whom defendant had indorsed: they could not prove the indorsement of Sheckles, but they proved a letter from defendant to plaintiffs offering to substitute another bill, saying they had not money to take up the bill in question, and expressing a hope that it was not in the hands of Niblock and Co. Lord Ellenborough thought this evidence of the channel through which the bill had passed to plaintiffs, and made proof of the indorsement by Sheckles unnecessary; and plaintiff had a verdict.
Horford v. Wilson, 1 Taunt. 12. In an action by the indorsee against the drawer of a bill, which had been dishonoured by the acceptor, it appeared that the defendant had paid part of the money due upon the bill, without making any objection for want of notice of the dishonour; and the court held, upon a motion for a new trial, that from this the jury were warranted in presuming that due notice had been given.
(22) Lundie v. Robertson, 7 East's Rep. 231. Indorsee against an indorser of a bill. No evidence was given of presentment or notice; but it was proved that on being called upon by the plaintiff's clerk some months after the bill was due, the defendant said, "he had not the cash by him, but if the clerk would call in a day or two, and bring the account (meaning of the expenses) he would pay it ;" the bill was shewn him at the time. On a second application, he offered a bill on London for the debt and expenses, which was refused: he then said that "he had not had regular notice, but as the debt was justly due, he would pay it." Chambre J. thought this sufficient; and verdict for the plaintiff. On a rule nisi for a new trial, and cause shewn, Lord Ellenborough said the case admits of no doubt it was to be presumed primâ facie from the promise. to pay that the bill had been presented in time that due notice had been given that no objection could be made to payment and that every thing had been rightly done; this super
furnish grounds from which a jury may presume that it has been properly presented, that notice
seded the necessity of the ordinary proof: the other conversation does not vary the case; for though the defendant said he had not had notice, he waived that objection. Rule discharged.
See Gibbon v. Coggon, 2 Campb. N. P. C. 188., where, from the drawer's promising to pay a bill, Lord Ellenborough directed the jury to presume that it had been duly protested. See also Taylor v. Jones, 2 Campb. N. P. C. 105.
Greenway v. Hindley, 4 Campb. 52. In an action by the indorsees of a foreign bill against the drawer, it was proved that long after the bill became due defendant called on the holder, and said he came to arrange the payment; and on being shewn it, added, "it was regular, it was due from him and his partner, and that he was come to arrange for paying principal and interest." The declaration having alleged presentment and protest, it was urged that evidence ought to be given upon those points; but Lord Ellenborough said the defendant's acknowledgment was a sufficient foundation from which the jury might infer those facts; and verdict for plaintiffs.
Hodge v. Fillis, 3 Campb. 463. A bill was made payable in London, and accepted payable at Sir John Perring and Co.'s; and in an action against the acceptor, plaintiff had alleged presentment at Sir John Perring's, but could not prove it; Lord Ellenborough held the proof essential, unless there were something to dispense with it: plaintiff then proved that after the bill was due defendant promised payment, and Lord Ellenborough thought that made the other proof unnecessary; and verdict for plaintiff.
Wood v. Brown, 1 Stark. 217. In an action against the drawer of a bill, plaintiff proved a letter from defendant after the bill was due, in which he said he was an accommodation drawer only, and that the bill would be paid before the following term; Lord Ellenborough held that this made proof of notice of the dishonour unnecessary, and the plaintiff had a verdict without such proof.
has been duly given, and that a protest (where necessary) has been made.
And such presumption may be made (23), though the promise were not made to the plaintiff or in his presence, but to a subsequent indorsee who then held the bill or note.
Though there has been no due presentation, yet if there has been a subsequent application from an indorser for indulgence, it is for the jury to consider whether at the time of the application the indorser knew there had not been a due presentation. (24)
A nonsuit, without leaving that point to the jury, is improper. (24)
(23) Potter v. Rayworth, 13 East's Rep. 417. Indorsee of a note against the payee and indorser. It appeared that the note (which had been negotiated in the country) had been indorsed by the defendant to Fulford, by him to the plaintiff, by the plaintiff to Kirton, and by him to others, before it became due. A fortnight after it had become due, Kirton, who had taken it up, called on the defendant, who until then had received no notice of its dishonour: the defendant then promised Kirton to pay him the next day; having failed in this, Kirton resorted to the plaintiff, who paid the amount; and the defence now being the want of notice, the question was whether the plaintiff could avail himself of this promise so made to Kirton. Graham B. directed a verdict for the plaintiff; and on motion to set it aside, the court (Grose and Le Blanc Js. absent.) held that this promise was an acknowledgment by the defendant, either of notice, or that without notice he was the proper person to pay the note, and refused the rule.
(24) Hopley v. Dufresne, 15 East. 275. Indorsee against indorser; the bill was accepted payable at Hammersley's, and