Mode of present ment. Circumstances arising between actual payment. On presentment for payment, the bill, unless paid, must not be left, and if it be, the presentment is not considered as made until the money is called for'; and though it has been holden that bankers are not guilty of neglect by giving up the bill to the acceptor, upon his delivery to them of his check on another banker; this doctrine may now be questionable 3. If at any instant before the actual payment of a presentment and bill or check, given upon a condition, the drawer discover that the condition has not been performed, he may stop the payment thereof to the party who has thus eluded the condition; and a banker who, upon presentment of a bill or check for payment, cancels the acceptance or drawer's name by mistake, may yet, upon discovering his error, before actual payment, effectually resist such payment as if he had not so cancelled the draft, and where the drawee of a bill, on presentment for payment, said this bill will be paid, but we cannot allow you for a duplicate protest, and the holder refused to receive payment without the charges of such protest, it was held that the drawee was not bound to pay the bill. So where bankers, at whose house by the terms of the accept six and seven in the evening, when no one was there but a girl left to house at that time. and Hayward v. Bank of England, 1 Stra. 550.-Bayl. 102.—Russell v. Hankey, 6 T. R. 13. Hayward kept cash at the bank, and paid in a banker's note; the runner to the bank of England left it the next morning, and called for the money in the afternoon, but in the interval the banker had stopped; and though this appeared to be the usual practice at the bank, King, C. J. said, it was dangerous to suffer persons to deal with notes in that manner, and that the Common Pleas were of that opinion in the like case, and he directed the jury to find for the plaintiff, which they did. Sed vide Turner v. Mead, 1 Stra. 416. and Hoar v. Da Costa, 2 Stra. 910. 2 Russell v. Hankey, 6 T, R. 13, 3 See post, 367, 8. Wienholt v. Spitta, 3 Campb. 376. 5 Raper v. Birbeck, 15 East. 17.-Fernandez v. Glynn, 1 Campb. 426. ante, 230. arising between presentment and actual payment. auce the bill was payable, had received money for the Circumstances express purpose of taking up the bill two days after it became due, and upon tendering it to the holders, and demanding the bill, found that it had been sent back protested for non-payment, to the persons who indorsed it to the holders, it was decided that such bankers, having received fresh orders not to pay the bill, were not liable to an action by the holders for money had and received, when, upon the bill's being got back and tendered to them, they refused to pay the money. But we have seen, that if one banker present for payment to another banker a check on him in the usual course, and the latter marks it as approved, importing that it shall be paid the next day, at the clearing-house, this is binding on the latter, and is equivalent to an acceptance, and he must at all events pay it 2. If the maker of a promissory note pay money into the hands of an agent to retire it, and the agent tenders the money to the holder on condition of having it delivered up, and the note being mislaid, this condition is not complied with, and the agent afterwards becomes bankrupt, with the money in his hands, it has been decided, that the maker is still responsible on the note 3. ment; and 1st, by and to whom it may be made. PAYMENT of a bill may not only be made by the Sect. 2. Of pay acceptor, but also by any other party to it, and even by a total stranger, as in the case of a payment supra protest, which will be spoken of hereafter; and that of payment by the bail of either of the parties 5. 'Stewart and another v. Fry and another, 1 Moore Rep. 74.—i Holt, C.N P. 372. S. C. ante, 254. When money is to be considered as particularly appropriated to payment of a bill, sec 14 East. 582. 590. 2 Robson v. Bennett, 2 Taunt. 388, ante, 351. Sect. 2. Of payment; and 1st, by and to whom it may be made. 3 Payment should always be made to the real proprietor of the bill', or to one of several partners, or to some person authorized by him to receive it, as a factor, &c. 3; and payment to the payce will, consequently, be inoperative, if he have ceased to be the proprietor of it,, by having indorsed it to another person, and the drawee has notice of the fact. And if a bill be payable to A. B. only, and not negotiable, it is said that A. B. in person must appear to demand payment. If the holder of a bill die, payment. should not be made to his personal representative, unless he has a power of administering his effects". But payment to a person having obtained probate of a forged will of a deceased party will be valid. On a bill payable to A. or order, to the use of B. payment should be made to A. or his indorsee, and not to B.3. If a bill be beneficial to a minor, payment to him would be valid; but a payment to a married woman, after knowledge of that fact, would not discharge the person making it ". When a bill is indorsed to a person merely for the purpose of receiving payment for the indorser, and the authority given to the indorsee is afterwards revoked, either by the party himself, or by operation of law, as by his death, it is said that payment to the indorsee will not discharge the person making it, if he had notice of the revocation"; this doctrine, however, is objected to by Beawes, in his Cramlington v. Evans, 2 Vent. 310.-Carth. 5. S. C.-Marching ton v. Vernon, 1 Bos. & Pul. 101. n. c.-Smith v. Kendall, 6 T. R. 123, 4. ante, 160. 25. 9 Poth. pl. 166.—Bayl. 143. 19 Id. 167.-Barlow v. Bishop, 1 East. 167.-Bayl. 143.-Ante, "Poth. 168. et Mar. 72, 3. sed quære, Tate v. Hilbert, 2 Ves. jun. 114, 5. 118. 121.-16 Ves. jun. 450. ante, 220, 1.-2 Bos. & Pul. 277. ment; and 1st, vy may be made, Lex Mercatoria', and it must certainly be confined Sect. 2. Of pay to the single case of an indorsement to an agent, for and to whom it the purpose of his receiving payment for his principal. Payment of debts should not in general be made to the agent of an attorney 2. But in ordinary cases, the mere production of a bill of exchange, note, or check, is in general sufficient to warrant the payment to the person who produces it, and this without reference to the circumstance of his being the habitual agent of the same party. We have seen, that in general when the holder of a bill or note indorsed in blank, or payable to bearer, loses or is robbed of it, and the person finding or stealing it, presents it to the drawee at the time it is due, and he pays it without knowing of the loss or robbery, such payment will discharge him; and although he had notice of such fact, yet if the person presenting the bill to him was a bonâ fide holder, such notice would not invalidate the payment. But a payment before a bill or check is due, will not discharge the drawee, unless made to the real proprietor of it; and therefore, where a banker paid a check the day before it bore date, which had been lost by the payee, it was adjudged that he was liable to repay the amount to the person losing it; and it is perhaps advisable, that an acceptor should in no case pay a bill before it is due, or after notice from the drawer or indorser not to pay it'. And if bankers pay a check, under circumstances which ought to have excited their suspicion, and induced them to make inquiries before paying it, they cannot take credit for the amount in their account Pl. 219. Yates v. Frecklington, Dougl. 622. 3 Owen v. Barrow, New. Rep. 103. Per Mansfield, C. J. Anon. 12 Mod. 564. Pal. P. & A. 181. * Anon. 12 Mod. 564.—2 Ld. Raym. 930.-Pal. P. & A. 181. 5 Ante, 190, 1. 6 Ante, 192. 7 Com. Dig. tit. Merchant, F. 7.-Mar. 129, 130. Bacon v. Searles, 1 Hen. Bla. 89.-Mar. 129.-Com. Dig. tit. Merchant, F. 7.-Ante, 192. Sect. 2. Of pay ment; and 1st, by and to whom it may be made. with their customer'; and where a person pays a sum of money into a banker's for a special purpose, viz. to pay a particular bill, and the banker's clerk, by mistake, pays the money to the holder of another bill, he may sue the bankers for the amount, but not the party to whom the payment was made. Where a bill, transferrable only by indorsement, and not indorsed, is lost by the person entitied to indorse, no other person can transfer the interest in the bill; and consequently a payment by the drawee, even to a bona fide holder, will not in such case be protected. Payment to a person or his order, after the knowledge of his having committed an act of bankruptcy, would be ineffectual. Thus it has been holden, that if a banker pay the draft of a trader keeping cash with him, after notice of an act of bankruptcy, the assignees may recover the money paid, either from the banker 5, or from the payee of the check, if such payee had notice of the bankruptcy, unless the payment were by compulsion of law7, but still until a commission has issued against the holder, there is no defence to an action at his suit; and after action bonâ fide brought 1 Scholey v. Ramsbottom, 2 Campb. 485. antc, 192. 2 Rogers a. Kelly, 2 Campb. 123. 3 Mead v. Young, 4 T. R. 28.-Ancher v. The Governor and Company of the Bank of England, Dougl. 337. et ante, 190, 1. 4 Kitchen v. Bartsch, 7 East. 53, ante, 149, &c.-Cooke's Bankrupt Laws, 584, 5. 5 Id. ibid.--Vernon v. Hankey, 2 T. R. 113.-3 Bro. 313. 7 14 Ves. jun. 557.-1 Mont. 316.; but see Blogg v. Phillips, 2 Campb. 129. Prichell and others v. Down and others, 3 Campb. 131. Held that where two partners have stopped payment, and a commission of bankrupt is taken out against one of them, a debtor to the firm, who knows of the stoppage, cannot refuse to pay money due to them on the ground that the other may have cominitted an act of bankruptcy, in which case his assignees might call upon the debtor to pay a moiety of the money a second time. Per Lord Ellenborough, C. J. The defendants are not under the protection of the act 46 Geo. 3. c. 135. s. 1. but before it was passed they could not have justified refusing to pay the balance in their hands, under similar circumstances, to whatever subsequent inconvenience the payment might have exposed them. Till the party has actually become a bankrupt, and a commission has been taken out against him, he may sue his debtors. |