Piggott, Mingay, Law, and Baldwin, in support of the rule.A party, purchasing a bill of exchange, is, like the purchaser of any other species of property, bound to inquire into the title of him from whom he buys. No person can derive title to this bill but he who claims under the real H. Davis; and it is indifferent whether the person indorsing the bill be or be not of the same name with the real payee; in neither case can any property be transferred but by him who has the title. If he bear the same name, primâ facie indeed he may be presumed to be the same person, till the contrary be shewn: but here the question was, Whether evidence should not have been received to prove the contrary? If such evidence be not admissible, it will follow that payment to a person of the same name with a legatee would discharge the executor, or a payment by a debtor to any person who had the same name as his creditor: but that cannot be pretended. This bill was drawn, in order to satisfy a debt due from Christian to the real H. Davis; and yet payment of this bill to the plaintiff can never be considered as a discharge of that debt, without the indorsement of that H. Davis. In all cases where a bill is drawn payable to A. B. or order, it is indispensably necessary to prove the handwriting of the payee, which was not in fact done in this instance. The necessity of this proof is apparent from the form of the declaration which after alleging that the bill was drawn in favour of H. Davis, avers that the said H. Davis afterwards indorsed to the plaintiff. If the negligence of either of the parties be resorted to as a ground for the determination of this case, the plaintiff seems to have been guilty of the greatest negligence in taking a bill from a person whom he did not know: whereas the transaction, as far as Christian was concerned, was carried on in the ordinary course of business. There is also another objection to the plaintiff's recovering, because he claims through a forgery: for the H. Davis who received the bill inclosed in a letter from Christian, must have known that it was not intended for him; and the circumstance of his bearing the same name with the payce would be no defence to him on a prosecution for forgery, since he put a false signature to an instrument with intent to defraud. Lord KENYON, Ch. J. The question here is, Whether the name of H. Davis, to whom the bill on the face of it was payable, shall or shall not convey a title to this plaintiff who gave a valuable consideration for it, and who discounted it with the name of H. Davis upon it, and with an assurance from the defendant that 1790. MEAD against YOUNG. 1790. MEAD against YOUNG. that it was accepted by him? If any fraud, or even neglect, could be imputed to the plaintiff, that would vary the case: but, circumstanced as these parties were, I think that, if the plaintiff cannot recover, it will put an insuperable clog on this species of property. I cannot distinguish this case on principle from that of Miller v. Race (a) where the innocent holder of a note, which had been taken when the mail was robbed, was held entitled to recover; that indeed was a note payable to bearer; but still the same principle must govern both cases. In this case the fault originated with the drawer of the bill, in not describing more particularly the person to whom he intended it should be paid. The plaintiff was not bound to send to Dunkirk to know whether the person who had possession of the bill was or was not the real H. Davis. There may indeed be some inconvenience the other way; but setting the inconvenience on the one side against that on the other, in my apprehension, it would throw too great a burden on persons taking bills of exchange to require proof of an indorsee that the person from whom he received the bill was the real payee. Such proof has never yet been required of an indorsee in such an action: therefore I think that, as there was no fraud, or want of due diligence on the part of the plaintiff, he is entitled to recover; however I give this opinion with some diffidence, as my Brothers have intimated that they are of a different opinion. ASHHURST, J. This is a case of considerable importance; and I think that we ought to grant a new trial, that the parties may have an opportunity of putting the question on the record. The present inclination of my opinion is with the defendant. In order to derive a legal title to a bill of exchange, it is necessary to prove the handwriting of the payee; and therefore though the bill may come by mistake into the hands of another person, though of the same name with the payee, yet his indorsement will not confer a title. Such an indorsement, if made with the knowledge that he is not the person to whom the bill was made payable, is in my opinion a forgery; and no title can be derived through the medium of a fraud or forgery. This is distinguishable from the case of Miller v. Race; for there the note was payable to bearer: In such cases the bearer, who purchases for a valuable consideration, and without notice of any fraud, is entitled to receive the contents of the bill; and payment to him is a discharge to the drawer. But in this case the bill was drawn payable to H. Davis, or order; and though the name of H. Davis (a) 1 Burr. 45%. were were indorsed on the bill, yet it was incumbent on the plaintiff, who claims through the payee, to be satisfied that that was the indorsement of the real payee. 66 BULLER, J. As the bill in this case is of great value, the parties may put this question in a mode to be decided by the dernier resort. As at present advised, I entertain the same opinion as my Brother Ashhurst. If we were to inquire whether any laches were to be imputed to the plaintiff or the drawer, I rather think the plaintiff is more in fault than any other person, in advancing his money to H. Davis, who was a total stranger to him. But, without going into any such inquiry, I am of opinion that it is incumbent on a plaintiff who sues on a bill of exchange, to prove the indorsement of the person to whom it is really payable: the general form of the declaration shews that it is so; for that is that, "the " said A. B. to whom, or to whose order, the payment of the said sum of money mentioned in the said bill was to be made after"wards, &c. indorsed the said bill, his own proper hand-writing "being thereto subscribed." Now here it is clear that the indorsement was not made by the same H. Davis to whom the bill was made payable; and no indorsement by any other person will give any title whatever. Then, Is there any thing in this case that estops the defendant from saying that the person who indorsed to him was not the real payee? Now the act of that person who indorsed, and who in so doing was guilty of a forgery, cannot prevent an innocent person from shewing the truth. Then it was argued that Christian was guilty of negligence, in not describing more particularly the payee; but I know of no authority which requires that to be done. This bill was drawn in the common form, payable "to H. Davis or order;" and the drawer could not foresee that it would get into the possession of any other H. Davis. If any other stranger had received this bill, and indorsed it over to the plaintiff, it is not pretended that such indorsement would have conveyed any title to the bill; and it cannot make any difference whether such stranger bear the same name with the real payee or not; for no person can give title to a bill but he to whom it is made payable. Independently of these reasons, I think that convenience requires that a determination should be in favour of the defendant. I have no difficulty in saying that this H. Davis, knowing that the bill was not intended for him, was guilty of a 5 forgery; for the circumstance of his bearing the same name with the payee cannot vary this case, since he was not the same person. Then if the plaintiff cannot recover on this bill, he will be induced to pro 1790. MEAD against YOUNG. secute the forger; and that would be the case even if it had passed through several hands, because each indorser would trace it up to the person from whom he received it, and at last it would come to him who had been guilty of the forgery: whereas if the plaintiff succeed in this action, he will have no inducement to prosecute for the forgery; the drawer, on whom the loss would in that case fall, might have no means of discovering the person who committed the forgery, and thus he would probably escape punishment. As far, therefore, as convenience can have any effect, it weighs strongly with me to receive the evidence. But at all events the plaintiff cannot recover, since he derives his title under a forgery. GROSE, J. I am of opinion that it was competent to the defendant to shew in evidence, that the person who indorsed to the plaintiff was not the person named as the payee in this bill of exchange; and I form that opinion as well on the substance of the transaction as on the form of pleading in such cases. A bill of exchange is only a transfer of a chose in action according to the custom of merchants; it is an authority to one person to pay to another the sum which is due to the first, and it is generally directed to be paid to the payee or his order. When the person on whom it is drawn accepts, he only engages by the terms of his acceptance to pay the contents of the bill to the person named in it, or to his order. The general form of the declaration, which is to be found in some of the old entries, also agrees with this doctrine, and points out what the law is: I observe indeed that this declaration is not drawn in the usual form, for the words "to whom or to whose order," are omitted; but still it is that the said H. Davis, that is, the same H. Davis who is mentioned in the former part of the declaration, as the payee, indorsed to the plaintiff. It clearly, therefore, appears, that as no person can demand payment of a bill of exchange but the payee, or the person authorized by him, the acceptor only undertakes to pay to them, and cannot be compelled to pay to any other person. If he pay the amount of the bill to any other person, he pays it in his own wrong, and such payment does not discharge his debt to the drawer. If this decision will prove a clog on the circulation of bills of exchange, I think it will be less detrimental to the public, than permitting persons to recover through the medium of a forgery. And that this was a forgery cannot be doubted, if we consider the definition of it; which is, the false making of any instrument, indorsement, &c. with in tent to defraud (a). It makes no difference whether the person Rule absolute. 1790. MEAD against YOUNG. (a) Vid. 2 Geo. 2. c. 25. s. I. Ross against HUNTER. Thursday, Nov. 18th. In an action by goods against the loss by the barratry of the master, proof that the person THIS HIS was an action against an underwriter upon a policy of the assured of insurance on goods on board the Live Oak, whereof was master underwriters for Joseph Rati, at and from Jamaica to New Orleans. The first a count in the declaration, which was in the usual form, contained an averment that the ship, "before her arrival at New Orleans, was, together with the goods, &c. by the barratry of the said Joseph “Rati, he then and there being master of the said ship, &c. run 66 away with and wholly lost to the plaintiff," &c. There was a second count in the declaration as upon a loss by the perils of the sea. who was described in the policy as master, and who was treated with and acted as such, carried the ship out of her course for fraudulent purposes of his own primâ facie, is sufficient to by in entitle th entitle the plain without shewing negatively that May owner, or that river any other person he was not the or It appeared at the trial that the Live Oak was put up Rati, who acted as master, as a general ship, at Kingston Jamaica in 1783, and that the plaintiff, amongst other persons, tiff to recover, shipped the goods in question, which were flour and other dry goods on board her. She sailed on the voyage insured in 1783, and arrived in June following at the Mouth of the Mississippi, which leads up to New Orleans in Spanish America, at the distance of about 35 leagues. When the captain had got thus far he dropped anchor; and went in his boat up the of it to establish. river to New Orleans, and on his return, without carrying the voyage insured ship to her port of destination, stood away for the Havannah. maica to New was. Such proof lies on the de fendant, wiching to avail himself And where the was from Ja Orleans, which lies up the river Mississippi, and the captain proceeded on his voyage as far as the mouth of that river, and tl en dropped anchor and went up the river in his boat for a fraudulent purpose of his own, held that the dropping of his anchor with such fraudulent intent was an act of barratry, and not merely a deviation. D VOL. IV. After 1 |