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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.

[The commencing of a suit by holder of a note against the maker, does not render notice to the endorser unnecessary. (a)

Where a note is void for illegality of consideration between the maker and payee, an innocent endorsee of the payee may recover against him, though there has been no demand or notice. (b)]

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 dishonor, 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.

Lord

(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 dishonor, for the answer being "not sufficient effects," shewed there were some effects there. Ellenborough thought notice unnecessary, and verdict for plaintiff. (145) Roscow 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 endorser, for payment, and he, being ignorant of their laches, paid it. He now sued the defendant as his endorser, 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.

[(a) Harwin v. Lowell, 2 S. Car. R. 193.]

[(b) M'Dugall, the payee of a note given to him for an illegal consideration by the maker, endorsed it to Copp. Copp, having failed in an action brought by him against the promiser, sued M'Dugall as endorser ;

and the court held, that the consideration between the maker and M'Dugall being illegal, Copp might maintain his action against M'Dugall, without proving a demand, and notice of non-payment. Sewall J. giving the opinion of the court, compared this to the case of a bill, where the drawer has no funds in the hands of the drawee or acceptor, "the endorser standing in the relation of the drawer, and the promisor being acceptor:" and said, "when the promise or acceptance is void, as it is in case of usury between the drawer and acceptor, if he will resort to that defence against his promise, the contract becomes, as it respects the endorser, a draft accepted without funds, that is, in the case of a promissory note." Copp v. M'Dugall, 9 Mass. R. 1.]

CHAP. VIII.

Payment of Bills and Notes-to and by whom, and when.

PAYMENT should be made to the (1) proprietor of the bill or note, or to some person authorized 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 himself, 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),

(1) Pothier, pl. 164.

[The payee of a note left it in the care of his son, with directions not to receive payment from the maker. The maker however, with a knowledge of these directions, paid the money to the son before it became due, and received the note from him. It was held that the payee might maintain trover for the note against the maker, because the son had no authority to receive the money. Kingman v. Pierce, 17 Mass. R. 247. See Cod. de Com. Liv. 1. Tit. 8. sec. 9. no. 2. 3.]

(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.

(3) See Pothier, pl. 166., and ante.

(4) See Connor v. Martin, ante, p. 77. n. (29), and Barlow v. Bishop, ante, p. 35. 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, 7 Term Rep. 707. A factor was indebted to his principal in £222, 18s.; the principal committed an act of bankruptcy, and drew, on his factor for £222, 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 £222, 18s. ; and on a case reserved,

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 payment.

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

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 defendant had judgment.

(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 £95, 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 bankrupt 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. 208. 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 £400, gave him, in August, 1805, his note for that sum, payable at twelve months, with interest half yearly. Part only of the money being paid, the defendant, in 1806, arrested Odell for the residue, and in Hilary Term, 1807, obtained judgment, which was affirmed on error the 5th of February, 1808; and the next day (the 6th of February) Odell paid the amount of the damages, interest, and costs. Odell had committed an act of bankruptcy on the 27th of January, 1808; on which a commission issued dated the 19th of February,

of trade and dealing, will be (10) valid; provided the party paid be ignorant of the bankruptcy or insolvency of the bankrupt.

The statute giving this protection to payments by bankrupts, mentions bills, but is silent as to notes.

Whether it extends to notes has not been decided; and it is in terms confined to bills drawn, &c. in the usual and ordinary course of trade.

But all payments by and to any bankrupt bonâ fide made more than two calendar months before the date of his commission, will, notwithstanding any prior act of bankruptcy, be (11) good; provided the party so paid or paying, had not any notice of such prior act of bankruptcy, or that the bankrupt was insolvent, or had stopped payment.

[Where a due bill or note is not negotiable, payment to the promisee personally is sufficient to discharge the promiser, although the instrument has been assigned to a third person, unless the promiser has "direct and positive notice of the assignment." (a)]

1808. In an action by his assignees to recover this money, the only question was, whether the payments by the bankrupt were protected by the 19 Geo. 2. c. 32. The court inclined to think that it was incumbent on the party receiving the money to shew that the payment was protected by the statute. But it being admitted that the note had been given for the balance of an account stated, consisting (inter alia) of money lent to the bankrupt, the court, without expressing any opinion as to whether the statute could be construed to extend to notes, held that this note could not be said to have been given in the ordinary course of trade and dealing. Postea to the plaintiffs.

(10) By 19 Geo. 2. c. 32. § 1. it is enacted, "That from and after the 29th of October, 1746, no person who is or shall be really and bonâ fide a creditor of any bankrupt, for or in respect of goods really and bonâ fide sold to such bankrupt, or for or in respect of any bill or bills of exchange really and bonâ fide drawn, negotiated, or accepted by such bankrupt, in the usual or ordinary course of trade and dealing, shall be liable to refund or repay to the assignee or assignees of such bankrupt's estate, any money, which before the suing forth of such commission, was really and bonâ fide and in the usual and ordinary course of trade and dealing, received by such person of any such bankrupt, before such time as the person receiving the same shall know, understand, or have notice that he is become a bankrupt, or that he is in insolvent circumstances."

(11) By 46 Geo. 3. c. 135. § 1. it is enacted, "That in all cases of commissions of bankrupt hereafter to be issued, all conveyances by, all payments by and to, and all contracts and other dealings and transactions by and with, any bankrupt, bonâ fide made or entered into more

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