actions'; and when the drawer of a bill has paid part, IV. Mode of it may be indorsed over for the residue.

Upon a transfer, whether by indorsement or bare delivery, the bill should be delivered to the assignee ; and in all cases of a transfer of a bill drawn in sets, each part should be delivered to the person in whose favour the transfer is made, otherwise, the same inconveniencies may follow, which we have seen may arise upon a neglect to deliver each of them to the payee. A delivery, however, is not essential to vest the legal right in the payee or indorsee, and it need not be alledged in pleading; and if, after acceptance, the acceptor should improperly detain the bill in his hands, the drawer might nevertheless sue him on it, and give him notice to produce the bill, and in default of production give parol evidence of its contents. It is not necessary for the holder to give any notice to the acceptor of the indorsements, nor need such notice be averred in pleading'.

1

2

Beawes, pl. 286. Sed quære supra, last note.

Johnson v. Kennion, 2 Wils. 262.-Hawkins v. Cardy, 1 Salk. 65.-Ld. Raym. 360.-Carth. 466.-12 Mod. 213. S. C.-Callow v. Lawrence, 3 M. & S. 95.

Hawkins v. Cardy, Ld. Raym. 360.-Carth. 466.-12 Mod. 213. Salk. 65. In an action upon a bill drawn by the defendant for £46. 198. payable to Blackman or order, the declaration stated that Blackman indorsed £43. 4s. of it to the plaintiff; the defendant pleaded an insufficient plea, upon which the plaintiff demurred, but the whole court held the declaration bad, because the bill could not be indorsed for less than all the money due thereon, and the plaintiff discontinued his action; and per Gould, J. in Johnson v. Kennion, 2 Wils. 262. where the drawer of a bill has paid part, you may indorse it over for the residue, otherwise not, because it would subject him to a variety of actions.

Ante, 81, 122.-Bayl. 68.

Churchill v. Gardner, 7 T. R. 596.--Smith v. M'Clure, 5 East. 476.-2 Smith's Rep. 443. S. C.

Churchill v. Gardner, 7 T. R. 596. In an action by the payee of a bill, against the acceptor, the declaration stated, that the drawer made his certain bill of exehange, but there was no allegation that he delivered it to the plaintiff, and the defendant demurred specially for that cause; but the court was clearly of opinion, that there was no foundation for the objection; the delivery of the bill to the plaintiff being sufficiently implied in the allegation, that the drawer "made

transfer.

V. The effect of a transfer; and the right which

in

The nature of a transfer of a bill, note, or check, the right which it vests in the assignee, and the obligation which it imposes on the person making it, may, it imposes on the a great measure, be collected from what has been preand how that obviously said.

it vests in the assignee; and the obligation which

person making it;

ligation may be discharged.

With respect to the right of such assignee, whether by indorsement or delivery, he has such an interest in the bill or note that he may effect a policy of insurance to secure the due payment'; and though he has no direct legal or equitable lien upon property deposited by the drawer with the acceptor to cover the liability of the latter, in respect of his acceptance; yet, on the bankruptcy of the drawer and acceptor, the arrangement of the property between the two estates, may indirectly render such an equity available. If the holder is a debtor to either of the parties to a bill, who he expects will become a bankrupt, it is most advisable for him not to negotiate such bill, because if he be the holder at the time of the bankruptcy, he may set off the amount of the bill against the claim of the assignees upon him for the amount of his debt, whereas, if he be not the holder at the time of the act of bankruptcy, he cannot set off the amount, but must pay the whole of his own debt to the assignees, and when the bill has been returned to him, can only prove and receive a dividend upon the same. We have already seen, that a person who receives a bill, with notice that it is to be negotiated only upon certain terms, holds the bill subject to such terms, and therefore where A., a creditor of B., having deeds in his possession as a security for the debt, received a bill indorsed by B. for the purpose of getting it discounted, but neglects to do so, he cannot appropriate the bill to his own use, and maintain an action upon it against the acceptor*; but if a bill be transmitted to an holder, in order that he

Tasker v. Scott, 6 Taunt. 234.

2 Ex parte Waring, 2 Rose, 182.
a Post tit. bankruptcy.

4 Delaney v. Mitchell, 1 Stark. 439.

fer, &..

may get the same discounted and take up another bill V. Effect of transwhich is falling due, and to which he was a party, if he do not succeed in getting such bill discounted, but pays the other, he may retain the transmitted bill and sue the parties thereto, in order to reimburse himself the amount of the bill which he took up'.

With respect to the liability of the party transferring a bill, it is said that a transfer by indorsement, is equivalent in its effect to the drawing of a bill, the indorser being in almost every respect considered as a new drawer on the original drawee'; on which principle it is said to have been decided, that a promissory note indorsed may be declared on as a bill of exchange; and if the drawee refuse to accept, the indorser is immediately liable to be sued. A transfer by indorsement, vests in the indorsee a right of action against all the precedent parties whose names are on the bill; and after the bill has been duly indorsed by the payee in blank, it is transferrable by mere delivery,

'Walsh v. Tyler, sittings at Guildhall, in K. B. coram Lord Ellenborough, after Michaelmas Term, 1817. Declaration on a bill of exchange, dated 18th March, 1817, for £50, payable three months after date, drawn by John Shaw on the defendant Tyler, and indorsed by him to the plaintiff. The defence was, that Shaw the drawer, sent the bill to the plaintiff to be discounted, and with a request to send up the amount to Shaw, in order that he might take up a bill for £77. 10s. then falling due, and that the plaintiff did not send up the money; and afterwards the bil! for £77. 10s. having been returned to and paid by him, he proved the amount under Shaw's commission. Per Lord Ellenborough, This affords no defence. If the produce of the bill was to have been applied for another purpose, then the plaintiff had no right to retain the bill or sustain this action; but the plaintiff being unable to discount the bill, and having been compelled to pay that to which he was a party, he had a right to protect himself by applying the bill in question to cover his own advance. Mr. Scarlett for the plaintiff.

2

Smallwood v. Vernon, 1 Stra. 479.-Hill v. Lewis, 1 Salk. 133. Williams v. Field, 3 Salk. 68.-Claxton v. Swift, 2 Show. 441.-S.C. id. 495. 501.-Heylyn v. Adamson, 2 Burr. 674.-Anonymous, Holt. 115.-Claxton v. Swift, Skin. 255.-Anonymous, id. 343.-Hill v. Lewis, id. 411.-Luke v. Hayes, 1 Atk. 282.-Haly v. Lane, 2 Atk. 182.-Gibson v. Minet, 1 Hen. Bla. 587.-Houle v. Baxter, 3 East. 182.-Ballingalls v. Gloster, id. 482.

3 Brown v. Harraden, 4 T. R. 149. cites Buller v. Cripps, 6 Mod. 29, 30.

Ballingalls v. Gloster, 3 East. 481.--Starey v. Barnes, 7 East.

V. Effect of trane and the holder may sue all parties to the bill; but

fer, &c.

unless the payee, or the drawer, when the bill was

payable to his order, has first indorsed it, a party who becomes possessed of it, can only sue the person from whom he obtained it'. As the act of indorsing is similar to that of drawing, the obligation which it im poses on the indorser to the indorsee, and the mode in which that obligation may be extinguished, by the holder's laches or otherwise, is in all cases exactly similar to that which a drawer of a bill is under to the payee; for, as observed by Lord Ellenborough, C. J., when it is laid down, that an indorser stands in all respects in the same situation as a drawer, all the consequences follow which are attached to the situation of the latter'. The indorser, however, is not under any liability in any instance to the acceptor, unless indeed in the case of an acceptance for his honour. An indorsement also imposes the same obligation on the person making it, although the bill contain no words rendering it assignable. And we have seen, that if an agent indorse in his own name without qualifying his indorsement, he will be personally liable even to his principal 6.

A transfer by delivery, without any indorsement, when made on account of a pre-existing debt, or for a valuable consideration passing to the assignor at the

Anonymous, Ld. Raym. 738.-Miller v. Race, Burr. 452.—Grant v. Vaughan, id. 1516.—Peacock v. Rhodes, Dougl. 633.

3

2 Ibid. Lambert v. Oakes, Holt, 117.-Ante, 136, 7, 8.

Ballingalls v. Gloster, 3 East. 483.--Starey v. Barnes, 7 East. 435. * Poth. pl. 111, 112.

Hill v. Lewis, 1 Salk, 132.-Edie v. East India Company, Burr. 1226.-Lambert v. Oakes, Holt, 117.-Cooke's Bank. Law, 173.

Hill v. Lewis, 1 Salk. 132. Moor drew one note payable to the defendant or his order, and another payable to him generally, without any words to make it assignable; the defendant indorsed them to Zouch, and Zouch to the plaintiff; the first objection was, that the plaintiff had been guilty of laches, but the jury thought he had not, and it was then urged that the second note was not assignable. And Holt, C. J. agreed, that the indorsement of this note did not make him that drew it chargeable to the indorsee, for the words "or to his order," give authority to assign it by indorsement, but the indorsement of a note which has not these words, is good so as to make the indorser chargeable to the indorsce.

Ante, 36.

time of the assignment, as where goods are sold to V. Effect of transfer, &c. him', imposes an obligation on the person making it to the person in whose favour it is made, similar to that of a transfer by indorsement; a distinction was indeed once taken between the transfer of a bill or check for a precedent debt, and for a debt arising at the time of the transfer, and it was held that if A. bought goods of B. and at the same time gave him a draft on a banker, which B. took without any objection, it would amount to payment by A., and B. could not resort to him in the event of the failure of the banker 3. But it is now settled, that in such case, unless it was expressly agreed at the time of the transfer, that the assignee should take the instrument assigned, as payment, and run the risk of its being paid, he may, in case of default of payment by the drawee, maintain an action against the assignor, on the consideration of the transfer. And, where a debtor in payment of goods gives an order to pay the bearer the amount in bills on London, and the party takes bills for the amount, he will not, unless guilty of laches, discharge the original debtor . And

'Owenson v. Morse, 7 T. R. 64.-Ward v. Evans, Ld. Raym. 928. Lambert v. Oakes, 12 Mod. 244.-Anonymous, id. 408.-Puckford . Maxwell, 6 T. R. 52.

Ward v. Evans. Ld. Raym. 928.-Anonymous, 12 Mod. 408.Ward v. Sir Peter Evans, id. 521.-Moor v. Warren, and Holme v. Barry, 1 Stra. 415.-Turner v. Mead, id. 416.-semb. contra.—Anonymous, 12 Mod. 517.

3 Clerk v. Mundall, 12 Mod. 203.—1 Salk. 124.-3 Salk. 68. S. C. Anonymous, id. 408.-Anonymous, id. 517.-Anonymous, Holt, 298, 9. et post.-Vin. Ab. tit, Payment, A.-Cooke's Bank. Law, 173. *Owenson v. Morse, 7 T. R. 65, 66.-Popley v. Ashley, Holt, 122. ante, 125 to 130.

5

Ex parte Dixon, cited in 6 T. R. 142, 3, and ante, 128, 9, &c. Ex parte Blackburne, 10 Ves. 204.-1 Mont. 142. 149, 150. acc.— Vernon v. Roverie, 2 Show. 296.-Bolton v. Reichard, 1 Esp. Rep. 106. contra.

Owenson v. Morse, 7 T. R. 64. The plaintiff bought some plate of the defendant, and gave him some country bank-notes in payment; the notes were dishonoured, on which the defendant refused to de liver the plate. The plaintiff brought trover and insisted that the notes were payment, but on a case reserved, the court held that they were no payment unless the defendant had agreed to take them as payment, and run the risk of their being paid. Nonsuit entered, See also Tapley v. Martens, 8 T. R. 451.