After a foreign bill has been protested for non-payment, any person may pay it (under protest) for the (12) honor of the drawer or of an endorser (b); and he is entitled to demand repayment not only from the person for whose honor he made the payment, but from (13) all other parties who are liable to that person.

[Where one bill of a set having been protested for nonpayment, and returned, the drawee afterwards makes payment to the holder on another of the set, such payment is good. And if a party to the bill, ignorant of this payment, subsequently pays the bill, to the person to whom the protested bill of the set has been returned, he may recover back such payment, as money had and received to his use. (c)]

than two calendar months before the date of such commission, shall, notwithstanding any prior act of bankruptcy committed by such bankrupt, be good and effectual to all intents and purposes whatsoever, in like manner as if no such prior act of bankruptcy had been committed; provided the person or persons so dealing with such bankrupt had not at the time of such conveyance, payment, contract, dealing, or transaction, any notice of any prior act of bankruptcy by such bankrupt committed, or that he was insolvent or had stopped payment." [(a) Meghan v. Mills, 9 Johns. R. 64.]

(12) Beawes, 2d ed. pl. 50. and vide ante, p. 100.

[(b) A person who wishes to pay a bill tor the honor of any party to it, must be ready at the time and place of payment.

An action was brought against Henderson and Cairns as endorsers of a bill drawn in the United States upon a house in London. Frears and Cairns, of Birmingham, were the agents of the defendants. After acceptance had been refused by the drawees, Frears informed Wallis, the holder of the bill, that if it was not paid, he and his partner would pay it, and requested Wallis to let them have the bill, if not paid by the drawees, which he promised to do. Payment having been refused by the drawees, Frears called on Wallis, and offered to pay the bill and expenses, if Wallis would let them have the bill. Wallis informed him that he had sent the bill to the post-office to be sent to America. The defendants had funds in the hands of Frears and Cairns, with which they might have taken up the bill. Per Curiam. "The facts stated afford no ground of defence. If the agents meant to carry into effect the agreement with Wallis, they should have stood ready to pay and take up the bill in London where it was payable. Indeed the agreement with Wallis was a nudum pactum; the agents were not compellable to pay at any time." Denston v. Henderson, 13 Johns. R. 322.]

(13) Beawes, 2d ed. pl. 57., vide ante, p. 100., and Mertens v. Winnington, post, p. 213. n. (3), Hall v. Pitfield, post, p. 213. n. (4), and ex parte Lambert, post, p. 214. n. (5).

[(c) Durkin and Henderson having a bill in London, endorsed and sent it to M'Bride their agent at New York for him to sell it. M'Bride endorsed and sold it to the defendants. They endorsed and sent it to

Payment of a bill or note should not be made (14) before it has become due ;

If it be, it is at the peril of the person paying.

A check upon a banker was lost, and paid to a stranger the day before it bore date; the banker was obliged to repay the money to the loser. (15)

Pigou and Co. of London, in payment of a debt from them to Pigon and Co. for about the amount of the bill. The first of the set having been duly presented was sent back to the defendants at New York, under protest for non-payment. And M'Bride, on notice being given him, paid the defendants the full amount of the bill and 20 per cent. damages. The defendants on the same day made a remittance to Pigou and Co., being partly to pay the balance on account of which the bill was remitted. The drawees of the bill had however, previously to the payment in New York, paid the amount with interest and charges to Pigou and Co. on the second of exchange; but this was not known to M'Bride when he paid the bill. Durkin and Henderson brought an acton for money had and received to recover back the amount paid by M'Bride. Per Curiam. "The payment by the drawees must be considered as valid, although it was after protest for non-payment, because Pigou and Co. were the holders of the bill as general endorsees, and the legal title was in them. The notice to M'Bride, the bill having already been paid by the drawees, and the subsequent payment by him, were consequently founded in mistake. It was upon the assumption of a fact which did not then exist. The plaintiffs are entitled to recover back the whole sum paid, and the 20 per cent. inclusive and interest." Durkin v. Cranston, 7 Johns. R. 442.]

(14) Marius, 4th ed. p. 31., who observes, that if the drawee pay a bill before it has become due, and it appear that the payee was merely the factor or agent of the person who delivered it to him, and that person countermand the payment before the maturity of the bill, but after such payment by the drawee the latter may be obliged to repay the money." [See also Cod. de Com. Liv. 1. art. 144. 145. Tit. 8. § 9.] (15) See Da Silva v. Fuller, Chitty, 2d ed. 112. n.

CHAP. IX.

Remedy on Bills or Notes, by Action.

UPON a non-acceptance or non-payment, the holder of a bill or note may sue all the persons liable to him on account of such non-acceptance or non-payment, and he may sue them either at the same time or successively.

[The pledgee of a bill or note to whom it has been en dorsed, may maintain an action upon it, against any of the prior parties. (a)

So an agent to whom a note has been endorsed for collection, may bring an action upon it in his own name. (b) Where a note is payable to A, "agent of B," A may sue it in his own name. (c)

upon

So the payee of a note, who is an officer and member of a company consisting of many persons, must sue in his own. name, though his official character be stated in the note; and it is no defence that the defendant is a member of the same company. (d) (e)

[(a) Bowman v. Wood, 15 Mass. R. 535.] [(b) Little v. Obrien, 9 Mass. R. 423.]

(c) Buffum brought a suit against the maker of a note, and styled himself in his writ, agent of the Providence Hat Manufacturing Company, and declared that the defendant, “for value received of the said company, promised the said Buffum, as agent thereof to pay him," &c. to his damage in his said capacity, &c. By the court. "The contract was with the agent personally, and his adding his character to his name in the writ and declaration, amounts only to a description of his person. Let the defendant be called." Buffum v. Chadwick, 8 Mass. R. 103.]

[(d) Forrest, president of a commercial company consisting of four or five hundred members, sued Crossfield and Van Ness in his own name upon a note payable to Forrest, president of the commercial company, and taken on account of goods of the company sold by them. Van Ness was a partner in the commercial company. Marshall C. J. giving the opinion of the court, said, "The principle that a company cannot sue its members does not apply to this case; nor does the principle, that a partner cannot sue à partner on a partnership transaction, apply to any case where a note in writing is given for money, not to a firm, but to an individual member. The legal title is in Forrest, who recovers in his his own name, as a trustee for the company.” Van Ness v. Forrest, 8 Cranch, 30.]

[(e) But where a bill was endorsed to the treasurer of the United

When a person endorses a bill or note to another, and it afterwards comes back to the possession of the endorser, he shall be presumed to be the rightful holder, and need not produce any receipt or re-endorsement in order to maintain. an action upon it. (a)

The endorsee of a negotiable note cannot bring a suit upon it in the name of an endorser without his consent. But the assignee of a note not negotiable may bring an action upon it in the name of the payee. (b)]

An endorser, an acceptor for the honor of an endorser or drawer, or the (1) drawer, is, after payment by him, holder;

States, it was held that an action might be brought upon it it in the name of the United States.

A bill purchased by the United States was endorsed to Tucker, "treasurer of the United States," who received it in that capacity, for their account. Tucker endorsed the bill as treasurer to Willinks and Van Staphorst, who presented it for acceptance and the bill being dishonored, returned it to the Secretary of the Treasury. In an action by the United States against an endorser of the bill, Livingston J. delivered the opinion of the court. "If it be generally true, that where a bill is endorsed to the agent of another for the use of his principal, an action, cannot be maintained in the name of such principal, (on which point no opinion is given,) the government should form an exception to such rule, and the United States be permitted to sue in their own name, whenever it appears, that they alone were interested in the subject matter of the controversy."

"It is next said that the title of the United States was divested by Tucker's endorsing the bill to Willinks and Van Staphorst, which endorsemeut appeared upon the bill at the trial, and is still on it. The mere returning of this bill, by Willinks and Van Staphorst to the Secretary of the Treasury, is presumptive evidence of the former having only acted as agents or as bankers of the United States. But if this agency were not established, the opinion of the court would be the same. After an examination of the cases on this subject, (which cannot all of them be reconciled), the court is of opinion, that if any person who endorses a bill to another, whether for value or for the purpose of collection, shall come to the possession therof again, he shall be regarded, unless the contrary appear in evidence, as the bona fide holder and proprietor of such bill, and shall be entitled to recover, notwithstanding there may be on it one or more endorsements in full subsequent to the one to him, without producing any receipt or endorsement back from either of such endorsees, whose names he may strike from the bill or not, as he thinks proper." Dugan v. The United States, 3 Wheat. R. 172.] [(a) See Dugan v. The United States, supra. Welch v. Lindo, 7 Cranch, 159, is contra.]

[(b) Mosher v. Allen, 16 Mass. R. 451.]

(1) Louviere v. Laubray, 10 Mod. 36. The plaintiff drew a bill upon the defendant, which the defendant accepted, but afterwards refused to pay; upon this the bill was endorsed to the plaintiff, and the question was, whether he could maintain an action as endorsee? and, per Parker

but he holds in his original capacity, not (2) as upon a transfer from the person he has paid.

So the bail of any of the parties who are sued, or (3) any persons who pay the bill or note on account of any of the parties, become, on payment, holders; and they hold as upon a transfer from the person for whom they made the payment, not (4) as upon a transfer from the person they have paid. (a)

C. J., upon evidence that he had effects in the hands of the defendant enough to answer the bill, and consequently that the acceptancee was not upon the honor of the plaintiff, the action is well brought, but if there were no effects, the action would not lie; and the plaintiff recovered.

Symonds v. Parminter, 1 Wils. 185. 4 Bro. Parl. Cas. 604. The plaintiff drew a bill upon the defendant to the order of Cleer and Co., which the defendant accepted, but did not pay; the plaintiff paid it, and brought this action. The declaration stated that the plaintiff drew the bill; that the defendant accepted it, but did not pay it; that the plaintiff became liable, and paid it; by reason whereof the defendant became liable, and promised. The defendant demurred, and afterwards moved in arrest of judgment, and contended that the action would not lie; but the court, after two arguments upon the demurrer, and one on the motion in arrest of judgment, were of opinion that it would, and judgment was given for the plaintiff. The defendant brought a writ of error in parliament, but did not appear at the bar to support it, and the judgment was affirmed.

(2) Bishop v. Hayward, 4 Term Rep. 470. The plaintiff declared upon a note payable to himself or order, endorsed by him to the defendant, and by the defendant endorsed back again to him, and obtained a verdict; a rule was granted to shew cause why the judgment should not be arrested, on the ground that according to the statement in the declaration the plaintiff would be liable upon his endorsement to pay the defendant the sum for which the verdict was given; and upon cause shewn, the court held the objection good, because as the plaintiff had not stated it to be otherwise, his endorsement was to be considered as a legal existing endorsement: had any circumstances existed which exempted the plaintiff from answering upon his endorsement to the defendant, they should have been disclosed on the record. And see Louviere v. Laubray, ante, p. 212. note (1).

[But see Britten v. Webb, infra.]

(3) Mertens v. Winnington, Espinasse, 112. A bill was drawn by the defendant, and endorsed by Burton, Forbes, and Gregory; the plaintiff paid it for the honor of Burton, Forbes, and Gregory, and brought this action against the defendant as drawer; the defendant contended that a person who paid for the honor of one of the parties could only sue that party; but Lord Kenyon said, "he was to be considered as an endorsee paying full value for the bill," and he directed the jury to find for the plaintiff.

(4) Hall v. Pitfield, B. R. H. 17 Geo. 2. The endorsee of a note sued the maker, and on payment by his bail permitted them to sue the endorser in his (the endorsee's) name, but the court held that the payment