favour of the depositary, the depositary is not to be considered as the transferee of an overdue bill (e). CHAPTER overdue check. This rule also applies to bankers' checks, transferred a Transfer of an long time after they are issued. The owner of a check on a banker for 501., having lost it, the check was paid five days after its date to a shopkeeper, who received the amount at the bank. Held, that the shopkeeper was liable to refund the money to the owner of the check; for, having taken it after due, he acquired no better title than the party from whom he took it, and that it lay on him to show that his assignor had a title. "A check," says Mr. Justice Holroyd, "is payable immediately, the holder of it keeps it at his peril, and a person taking it after it is due takes it also at his peril" (f). But a distinction has been taken between the transfer of a bill or note payable at a fixed period and overdue, and the transfer of a check some days old. For, in the case of such a bill or note, there is a fixed time for payment, after which it cannot possibly circulate without some suspicion; but there is no such fixed time in the case of a check. And, therefore, it has been held, that though the taking of a check six days old is a circumstances from which the jury may infer fraud, it is not conclusive evidence, so as to prevent the party taking the check from suing on it, or retaining it, or the money received upon it (g). on demand. A note payable on demand is not to be considered as of note payable overdue, without some evidence of payment having been demanded and refused (h). Although it be several years old, and no interest has been paid on it. "A promissory note," says Mr. Baron Parke, "payable on demand, is intended to be a continuing security: it is quite unlike a check, which is intended to be presented speedily" (i). (e) Atwood v. Crowdie, 1 Stark. 483 (f) Down v. Halling, 4 B. & C. 330; 6 D. & R. 445; 2 C. & P. 11, S. C. (g) Rothschild v. Corney, 9 B. & C. 388; 4 M. & R. 411; Dans. & L. 325, S. C. See Serrell v. Derbyshire Railway Company, 9 C. B. 311, and the Chapter on CHECKS. (h) Barough v. White, 4 B. & C. 327; 6 D. & R. 379; 2 C. & P. (i) Brooks v. Mitchell, 9 M. & CHAPTER Pleading. Equitable relief in case of an overdue bill. Burthen of proof as to time of indorsement. Transfer of a check drawn on the banker of the bearer. After abandonment of right by transferee. After payment by party ultimately liable. The fact that a note is overdue must distinctly appear in pleading (k). Though the maker of a bill or note assigned when overdue may resist payment at law, equity has a concurrent jurisdiction, and may, when justice requires, order the instrument to be delivered up to be cancelled, and restrain the holder from proceeding at law (1). The law, in the absence of any evidence on the subject, presumes a transfer to have been made before the bill was due (m). Where a banker on whom a check is drawn, is also the banker of the bearer, and the check is paid in, there are two characters in which the banker may have received it: he may have received it merely as agent of the bearer, like any other securities which the bearer may have paid in on account; or he may have received it as drawee, and so by receiving it have paid it. Prima facie, he must be taken to have received it as agent of the bearer (n), and will discharge himself by giving timely notice of nonpayment to the bearer (o); but if, while he keeps the check, the drawer pays in money, the banker is bound to appropriate that money to the payment of the check, though a larger balance is due to him from the drawer (p). Where a man, to whom a bill is transferred, sends it back as useless, that is an abandonment of his right as transferee, and he cannot, by getting the bill again' into his hands, acquire a right to sue without a new transfer (q). After payment, at maturity, by the acceptor or maker, bills or notes are extinguished and cannot be transferred (r), except promissory notes payable to bearer on demand, re (k) Cripps v. Davis, 12 M. & (1) Hodgson v. Murray, 2 Sim. (m) Parkin v. Moon, 7 C. & P. Byles on Bills, 5th American edition, p. 288. (n) Boyd v. Emerson, 2 Ad. & E. 184; 4 N. & M. 99, S. C. (0) Ibid. (p) Kilsby v. Williams, 5 B. & Al. 815; 1 D. & R. 476, S. C. (4) Cartwright v. Williams, 2 Stark. 340. (r) 55 Geo. 3, c. 184, s. 19. issued by the original maker, having taken out a licence for that purpose (s). And an accommodation bill paid by the drawer at maturity cannot be re-issued by him (t). And a note payable on demand, which has been paid, cannot be re-issued by the maker, although the indorsee have no notice that the note has ever been paid, or that payment has ever been demanded (u). CHAPTER XI. "But a bill of exchange," says Lord Ellenborough, "is By other parties. negotiable, ad infinitum, until it has been paid by or discharged on behalf of the acceptor. If the drawer has paid the bill, it seems that he may sue the acceptor upon the bill; and if, instead of suing the acceptor, he put it into circulation on his own indorsement only, it does not prejudice any of the other parties who have indorsed the bill, that the holder should be at liberty to sue the acceptor" (x). The drawer of a bill payable to his own order, indorsed it over, and, on the bill being dishonoured, paid it to the holder, and afterwards indorsed it again. Held, that this last indorsee might recover against the acceptor (y). But, where the bill is drawn payable to a third person, is indorsed by him, dishonoured and taken up by the drawer, who (the payee's indorsement still remaining) indorsed it to the plaintiff, it was held, that the plaintiff could not recover against the acceptor; for in this case the drawer had no title to indorse, and the payee could not be rendered liable (z). Until (s) Sections 14 and 24. a bill or note has been paid by the maker or acceptor, or on their behalf, it has not discharged its functions, and does not require a new stamp, though re-issued after due, and after it has been paid by an indorser. Callow v. Lawrence, 3 M. & Sel. 95. (t) Lazarus v. Cowie, 3 Q. B. 464; Parr v. Jewell, 16 C. B. 684. (u) Bartrum v. Caddy, 9 Ad. & E. 275; 1 Per. & D. 207, S. C. (x) Callow v. Lawrence, 3 M. & Sel. 95; and see Roberts v. Eden, 1 B. & Pul. 398, and the observations of Patteson, J., on that case in Bartrum v. Caddy, 9 Ad. & E. 275; 1 Per. & D. 207, S. C. Where the indorser had (y) Ibid.; Hubbard v. Jackson, cover. (z) Beck v. Robley, 1 H. Bl. 89, n. CHAPTER payment. If a bill or note be paid before it is due, and is afterwards indorsed over, it is a valid security in the hands of a boná After premature fide indorsee. "I agree," says Lord Ellenborough, "that a bill paid at maturity cannot be re-issued, and that no action can afterwards be maintained upon it by a subsequent indorsee. A payment before it becomes due, however, I think, does not extinguish it any more than if it were merely discounted. A contrary doctrine would add a new clog to the circulation of bills and notes; for it would be impossible to know whether there had not been an anticipated payment of them. It is the duty of bankers to make some memorandum on bills and notes which have been paid, and if they do not, the holders of such securities cannot be affected by any payment made before they are due” (a). After partial payment. Where there is a doubt whether or transferred. After a partial payment, at maturity, by the acceptor, or any other party really the principal debtor, the holder cannot recover of the acceptor more than the balance (b). A question sometimes arises whether a bill have been the bill were paid paid or transferred. Though the holder give to a person taking up the bill a general receipt, importing that he has received payment, evidence is admissible to show that such person taking up the bill paid the money, not as agent for the acceptor or drawer, but as indorsee (c). Transfer to acceptor. Transfer for part of sum due. A transfer to the acceptor before maturity does not extinguish the bill; the acceptor may re-issue it before it is due, and the parties whose names are on the bill will be liable to a subsequent holder (d). A bill or note cannot be indorsed for part of the sum remaining due to the indorser upon it, if the limitation of the sum for which it is indorsed appear on the indorsement itself. Such an indorsement is not warranted by the custom of merchants, and would be attended with this inconvenience to the prior parties, that it would subject them to a plurality of actions (e). It is conceived, that the effect of such an indorsement, when attempted, is to give the indorsee a lien on the bill, but not to transfer a right of action, except in the indorser's name (ƒ). But if a bill or note be indorsed or delivered for a part of the sum due on it, and the limitation of the transfer do not appear on the instrument, the transferee is entitled to sue the maker or acceptor for the whole amount of the bill, and is a trustee of the surplus for the transferer (g). CHAPTER If the bill have been partly paid, either by the acceptor For residue or by the drawer, who for this purpose is the agent of the unpaid. acceptor (h), the bill may be indorsed for the part remaining due (i). A release at maturity, like a payment at maturity, ope- After release. rates as a complete extinction of the bill. But a premature release to a party liable on the bill, will not discharge the releasee as against an indorsee for value before maturity of the bill and without notice (k). The holder cannot transfer after action brought, so as After action to enable his transferee to sue also, provided the latter brought. were aware that the first action had been commenced (1). But if the transferee had no notice, the transfer is good (m). foreign country Where a negotiable instrument is transferred abroad, by Transfer in a a mode of transfer valid here, but invalid there, or vice versa, a question may arise as to the validity to be attributed to such a transfer in our Courts. The general rule of law on this subject is, that a contract is to be governed by the law of the country where it is made or where it is to be per (f) So held in America. See Byles on Bills, 5th American edition, p. 291. (g) Reid v. Furnival, 1 C. & M. 538; 5 C. & P. 499, S. C. (h) Bacon v. Searles, 1 Hen. Bl. 88. (i) Hawkins v. Cardy, 1 Lord Raym. 360; Carth. 466, S. C.; and see Johnson v. Kennion, 2 Wils. 262. (k) Dod v. Edwards, 2 C. & P. 602. (1) Marsh v. Newell, 1 Taunt. 109; Jones v. Lane, 2 Y. & C. 281. But it should seem from a recent decision in the Queen's Bench that this defence cannot be (m) Colombier v. Slim, K. B., |