Of proving under change becomes bankrupt, and the holder proves the amount of the bill under his commission, and after a commission, or against an insol vent, and of compounding with an acceptor, &c. afterwards admitted to prove the residue of his debt under the com mission against the drawers: but before any dividend was received under that proof, it appeared that no proceeding in nature of a commission of bankruptcy had issued against the acceptors, but their affairs were settled by a deed of composition, which the petitioner's agent had signed upon receiving the dividend in full discharge of the estate of the acceptors. The petition prayed, that the dividends under the commission should be paid to the petitioner. It was admitted there was no fraud; but the deed of composition was signed, and the dividend received by his agent without inquiry. The petition stated, that the assignees and the solicitor under the commission pressed the petitioner to apply and receive what might be obtained from the estate of the acceptors, representing, that he should prove for the residue; but, upon the affidavits there was no special undertaking; and the transaction appeared to originate in a mistake of all parties; supposing the proceeding at Hamburgh was in the nature of bankruptcy. The Lord Chancellor. The law is not disputed it was very well settled by Lord Thurlow upon great deliberation, that, if a person, having the security of drawer and acceptor, with effects, (a distinction much to be regretted, having given very mischievous au thenticity to accommodation paper) gives the acceptor time, and much more if the holder fully discharges the acceptor by composi tion, the holder can no longer make a demand upon the drawer, whether solvent or not; for this reason, that if the drawer could come upon the acceptor afterwards, the acceptor does not receive any benc fit by the composition. The nature of the contract must therefore be, that the holder shall so deal with the bill that no third person shall come upon the acceptor in consequence of his act. I remember Lord Thurlow said, he had consulted the Judges upon that case. The decision is therefore of very high authority. Lord Rosslyn was struck with this consideration, that if the holder did all he could substantially do for the benefit of the persons whose names were upon the bill, that was all that could be expected, and held that he should if he really acted for the benefit of the other parties by taking a composition from the acceptor, go on against the drawer. But the misfortune of that is, that the other parties have a right by law to consider what is for their benefit, and are the judges of that; and that has been carried so far, that the actual bankruptcy of the acceptor does not dispense with the necessity of notice to the drawer. That being the law, I felt a wish to find that part of the petition sustained, which represents, that the assignees and the solicitor pressed the petitioner to get what benefit he could in the affairs at Hamburgh, intimating that Le should afterwards prove under the commission. But the affidavits amount only to this, that the assignees and the solicitor, being persuaded that there was a bankruptcy at Hamburgh, and a dividend actually set apart, so that in bankruptcy it was to be considered as received in diminution of the proof, do make that representation; and that the petitioner shall receive dividends under that bankrupcy, before he comes to prove under the commission in this country, and the future dividends after proof. The petitioner accordingly sent to his agent at Hamburgh, not enquiring whether the proceedings there was a bankruptcy or a composition, and the agent signed the deed of composition, which, in respect to payments under it, actually discharges the acceptor. The question, whether the petitioner was by fraud drawn in, or required to sign the deed of composition, is a mere a commission, or wards compounds with and discharges the acceptor of proving under without the consent of the assignees of the indorser, against an insolhe thereby also discharges the indorser's estate, and the pounding with an proof of his debt must be expunged'. vent, and of com acceptor. On payment of the amount of a bill or note, it has 4thly. Of the receipt for payment been considered doubtful whether a person paying can insist on a receipt being given; but now the party it should seem is entitled to demand a receipt. It is usual to give a receipt on the back of the bill, and it has been said, that it is the duty of bankers to make some memorandum on bills and notes paid by them. Such receipt need not, like other receipts, be stamped s. Where a part is paid, the person paying should take care to have the partial receipt marked on the bill, or he may, as it is said, be liable to pay the amount again to a bonâ fide indorsee. Where an action was brought by the indorser of a bill (who had paid it to an indorsee) against the acceptor, he was nonsuited, although he produced the bill and protest, because he could not question of fact. The whole was a common mistake, under the apprehension of all, that it was a bankruptcy; but, that being misapprehension, the consequence from not knowing what the act was, must fall upon the person, who did the act, who therefore having, by himself or his agent, accepted a composition in full of the whole demand, is unfortunately, but effectually, under circumstances, that exclude any demand by him against the drawer's estate. Ex parte Smith, 3 Bro. Ch. Ca. 1. supra, 385, note 1.-Cooke, 168, 9.-Cullen, 158, 9.-1 Montague, 546: and ex parte Wilson, 11 Ves. jun. 410. supra 385, note 2. Cole v. Blake, Peake Ni. Pr. 179, 180.-See Green v. Croft, 2 Hen. Bla. 30, 1, 2. 1 43 Geo. 3. c. 126. s. 5. * Burbridge v. Manners, 3 Campb. 195. 544 Geo. 3. c. 98. Schedule A.-23 Geo. 3. c. 49. s. 4 and 7. In 55 Geo. 3. c. 184, Schedule, part 1. title Receipts, the exemptions are as follows: "Receipts or discharges given for any principal money due on exchequer bills. "Receipts of discharges written upon promissory notes, bills of exchange, or drafts or orders for payment of money, duly stamped according to the laws in force at the date thereof, or upon bills of exchange drawn out of, but payable in, Great Britain. "Receipts or discharges given upon bills or notes of the Governor and Company of the Bank of England. "Letters by the General Post, acknowledging the safe arrival of any bills of exchange, promissory notes, or any other securities for money." Cooper v. Davies, 1 Esp. Rep. 463. ceipt for payment. 4thly. Of the re- produce a receipt for the money paid by him to the indorsee upon the protest, according to the custom of merchants; though Holt, C. J. seemed to be of opinion, that if the plaintiff could have proved payment by any evidence, it would have been sufficient. As it has been held, that a general receipt on the back of a bill of exchange is primâ facie evidence of its having been paid by the acceptor, it would perhaps be advisable, in all cases when payment is made by a drawer or indorser, for the holder to state in the receipt by whom it was paid. In a late case, however, it was held, that the production of a bill of exchange, from the custody of the acceptor, is not primâ facie evidence of his having paid it, without proof that it was once in circulation after it had been accepted; nor is payment to be presumed from a receipt indorsed on the bill, unless such receipt is shown to be in the hand-writing of a person entitled to demand payment. But in another case *, it was held, that payment of money may be proved by the lender producing a check drawn by him upon his banker, in favour of the borrower, and indorsed by the latter, though without such indorsement it would not be evidence". Indorsements of partial payments made by the holder himself may, in some cases, be sufficient to take the case out of the Statute of Limitations. On this point Lord Ellenborough observed, "I have been at a loss to see the principle on which these receipts in the hand-writing of the creditor have sometimes been admitted as evidence against the debtor, and I am of opinion they cannot be properly admitted, unless they are proved to have been written at a time when the effect of them was clearly in contradiction to the writer's interest"." 'Mendez v. Carreroon, Ld. Raym. 742. 2 Scholey v. Walsby, Peake Rep. 25; but see Pfiel v. Van Battenberg, 2 Campb. 439. 3 Pfiel v. Van Battenberg, 2 Campb. 439. 4 Egg v. Barnett, 3 Esp. Rep. 196. 5 Aubert v. Walsh and another, 4 Taunt. 293. Rose v. Bryant, 2 Campb, 323. ceipt for payment. It has been considered, with analogy to the pre- 4thly. Of the resumption of payment of a bond after twenty years have elapsed, that a note payable on demand, and dated upwards of twenty years before the commencement of the action, may be presumed to have been paid; and that there will be a good defence under the general issue, the Statute of Limitations not having been pleaded'. But in an action by the payee of a bill of exchange, accepted by the defendant for a valuable consideration, the evidence that the plaintiff had been discharged as an insolvent debtor after the bill became due, and had given in a blank schedule, is not enough to shew that the bill had been satisfied". Upon payment or satisfaction of a bill or note, the party making such payment should take care that the instrument be delivered up to him, or he may be liable to an action by a third person, who has been an holder of the bill before it became due, for the recovery of the amount'. And where there is a competition of evidence upon the question, whether the security has been satisfied by payment, it has been held, that the possession of that security by the claimant ought to turn the scale, and entitle him to a verdict. A The effect of payment may in a great measure be collected from the immediately preceding paragraphs, and from what has been said with respect to a transfer of a bill of exchange after it has been paid. If a person, under a misapprehension of facts, pay a bill which he was under no legal obligation to discharge, as where the person whom he paid had been guilty of laches, which, had the bill not been paid might, in an action brought upon it, have been a sufficient 2 4 Duffield v. Creed, 5 Esp. Rep. 52.-Tidd. 6th ed. 22 to 25. Hart v. Newman, 3 Campb. 13. 3 Buzzard and another v. Flecknoe, 1 Stark. 323. Brombridge v. Osborne, 1 Stark. 374. 'See also Hull v. Pitfield, 1 Wils. 46.-Bacon v. Searles, 1 Hen. Bl. 88. See the beginning of chap. 5, of the 2d part, post. 5thly. Of the ef fect of payment, and of payment by mistake. 5thly. Of the of feet of payment, and of payment by mistake. ground of defence, he may, if prejudiced, perhaps, recover back the money, as had and received to his use'; but a bonâ fide holder, not guilty of laches, cannot in general be compelled to refund; and where the drawee of two forged bills accepted one and paid the other, it was decided, that he could not.recover back the amount from the bonâ fide holder'. But where the Victualling Office paid a forged victualling bill, and on discovery of the fraud called on the Bank of England, whom they had paid, and they called on the plaintiff, and he on the defendant, through whose hands it had passed, it was held, that the plaintiff was entitled to recover from him 3. Where A. paid a sum of money into his bankers for a specific purpose, and the bankers clerk, by mistake, paid this money to B. who had no right to it, it was held, that A. could not maintain an action against B. to recover it back, but must sue the bankers, and they sue B. And it appears to have been con 1 Ante, 507. 2 Ante, 307.-Price v. Neal, 1 Bl. Rep. 390.-3 Burr. 1354. ob served on in Jones v. Ryde, 1 Marsh. 160. Price v. Neale, 3 Burr. 1345.-1 Bl. Rep. 390. S. C. Two forged bills were drawn upon the plaintiff, which he accepted and paid. On discovering the forgery, he brought this action for money had and received, to recover back the money; but on a case reserved, the court held, that it would not lie; and Lord Mansfield said, it was incumbent on him to have been satisfied, before he accepted or paid them, that the bills were the drawer's hand. And in Smith v. Chester, 1 T. R. 655. Buller, J. says, when a bill is presented for acceptance, the acceptor looks to the hand-writing of the drawer, which he is afterwards precluded from disputing, and it is on that account that he is liable even though the bill is forged. Smith and others v. Mercer, 6 Taunt. 76.-1 Marsh. 453. S. C. A bill of exchange, with a forged acceptance, purporting to be payable at the house of A. and Co. bankers in London, with whom the supposed acceptor keeps cash, is indorsed to B. for a valuable consideration; B. indorses it to his agent in London, who presents it on the 23d of April, at the house of A. and Co. for payment; A. and Co. pay it, and send it on the 30th of April to the supposed acceptor, who disavows it; A. and Co. immediately give notice of the forgery to B., and demand repayment, which B. refuses; all parties are ignorant of the fraud. Held, that A. nd Co. by paying the bill, without ascertaining that the acceptance was genuine, were precluded from recovering the amount from B. Chambre, J. dissentiente. 3 Bruce v. Bruce, 1 Marsh. 165.—5 Taunt. 495. in notis. |