forged or fictitious; he does not warrant the solvency of the parties to it. 2. But if he knew that the parties to it had failed, or if it be forged or fictitious, he is liable to refund payment to the transferee. Jones v. Ryde, 5 Taunt., 488. Bruce v. Bruce, 1 Marsh., 165. Gurney v. Womersley, 4 E. & B., 133. Gompertz v. Bartlett, 2 E. & B., 849. Fuller v. Smith, 1 C. & P., 197. 66 24. A Bill, Note, Chose-in-action, Obligation, or Valuable Security is included under the words "goods and chattels" or effects," in an Act of Parliament (a); or under an extent (b); or a writ of fieri facias (c); in a will, unless there be words to negative such an inference (d); and in the clause of "reputed ownership" in bankruptcy (e). (a) Slade v. Morley, 4 Co. Rep., 92b. Ford's case, 12 Co. Rep., 1. Clayton's case, Lytt., 86. Ryal v. Rowles, 1 Ves., sen., 348. (b) Byles on Bills, 3. (c) 1 & 2 Vict. (1838), c. 110, s. 12. (d) Anon., 1 P. Wms., 267. Campbell v. Prescott, 15 Ves., 500. Kendall v. Kendall, 4 Russ., C. C., 360. Parker v. Marchant, 1 Y. & Coll. C. C., 290. Belcher v. (e) Ryall v. Rowles, 1 Ves., sen., 348. Ex parte Colvill, Mont., C. B., 110. Bozon v. Bollond, M. & Bl., 74. Hornblower v. Proud, 2 B. & Ald., 327. Ex parte Burton, 1 Gl. & J., 207, Campbell, 8 Q. B., 1. Ex parte Richardson, Buck, 483. Barlett, 1 De G. & J., 127. Edwards v. Cooper, 11 Q. B., 33. Bullock v. Dodds, 2 B. & Ald., 258. Cumming v. Bailey, 6 Bing., 363. Harman v. Fisher, 1 Cowp., 117. 25. The property in an instrument remains in the owner until he has entirely parted with it: if he cuts it in two and sends one part by post, he does not lose the property in it till he has sent the other part, and he may reclaim the first part sent. Smith v. Mundy, 3 E. & B., 22. 26. 1. Instruments payable by a banker must, in general, be presented for payment during banking hours, otherwise such presentment is void (a). 2. But if the banker has a clerk stationed to give answers after hours, and the same answer is given as would have been given during hours, such presentment is sufficient (b). 3. Instruments payable by other persons may be presented for payment at any reasonable hour (c): between 8 and 9 p.m. is the latest hour yet decided to be reasonable (d). (a) Parker v. Gordon, 6 Esp., 41; 7 East., 385. Elford v. Teed, 1 M. & S., 28. Whitaker v. Bank of England, 1 C. M. & R., 744. (b) Garnet v. Woodcock, 6 M. & S., 44. Henry v. Lee, 2 Chit., Crook v. Jadis, 6 C. & P., 191. 124. (c) Barclay v. Bailey, 2 Camp., 527. Morgan v. Davison, 1 Stark., 114. Wilkins, v. Jadis, 1 Mo. & R., 41; 2 B. & Ad., 188. (d) Triggs v. Newnham, 1 C. & P., 631; 10 Moo., 249. 27. A Bill, Note, or Valuable Security may be the subject of donato mortis causa. Bank Notes. Drury v. Smith, P. Wms., 404. Ashton v. Dawson, 2 Coll. C. C., 363n. Clavering v. Yorke, 2 Coll. C. C., 363n. Miller v. Miller, 3 P. Wms., 356. Hill v. Chapman, 1 Bro. C. C., 612. Bills of Exchange. Rankin v. Weguelin, 27 Beav., 309. Promissory Notes payable to donor's order unindorsed. Veal v. Veal, 27 Beav., 303. Cheques. Lawson v. Lawson, 1 P. Wms., 440. Snellgrave v. Bayly, Ridg., ca. t. Hard., 202. Ward v. Turner, 2 Ves., sen., 431. Tate v. Hilbert, 2 Ves., jun., 111. Bouts v. Ellis, 17 Beav., 121. Bank Deposit Receipt. Witt v. Amiss, 1 B. & S., 109. Amiss v. Witt, 33 Beav., 19. 28. The rules relating to the transferee's title by delivery in lost and stolen instruments have already been given in Chap. xiii., § 4. To these cases may be added now that of Goodwin v. Robarts, L. R., 10 Exch., 357, in which scrip for foreign bonds was declared negotiable. 29. 1. If any Bill, Note, or Security for money be lost or destroyed, the right owner may sue any party to it, upon giving him an indemnity to the satisfaction of a court, judge, or master, against the claims of any other person upon it (a). 2. And such a security may be proved in bankruptcy (b). 3. If half of an instrument be lost or destroyed, the owner of In several text books of authority it is laid down absolutely that a cheque cannot be the subject of a gift mortis causá (Roper on Legacies, vol. i., p. 11; Williams on Executors, vol. i., p. 723; Byles on Bills, 9th Edit., p. 170; White and Tudor's lead. ca. in Eq., vol. i., p. 743), and in the case of Hewitt v. Kaye (L. R., 6 Eq., 198), Lord Romilly, M. R., laid it down as an absolute doctrine that a cheque is incapable of being made a gift mortis causá. But having been obliged to investigate the question in my Digest of the Law of Bills of Exchange, as prepared for the Digest of Law Commissioners, I was satisfied that the doctrine stated by the writers, and the decision of Lord Romilly, above mentioned, is erroneous; and I accordingly excluded the case of Hewitt v. Kaye from my Digest. My reasons for so doing are given at full length in that Digest; but are, of course, far too long to be inserted here. I merely state this that I may not be supposed to have overlooked the case of Hewitt v. Kaye. the other half may enforce payment of it with or without an indemnity (c). (a) 17 & 18 Vict. (1854), c. 125, s. 87. (b) Ex parte Greenway, 6 Ves., 812. (c) Mossop v. Eadon, 16 Ves., 430. Redmayne v. Burton, 2 L. T., N. S., 324. 30. 1. If any Valuable Security be lost in its transmission through the post, or by any conveyance which the person who should receive it directs, the loss falls upon him (a). 2. No action lies against the Postmaster-General for the loss of any instrument during its transmission through the post (b). 3. But any person in the employment of the post office is liable for any act of negligence or misconduct of his own (c). (a) Warwick v. Noakes, Peake, 98. Hawkins v. Rutt, Peake, 241. (c) Lane v. Cotton, 1 Ld. Raym., 646. Whitfield v. Lord Despencer, Cowp. 754. Rowning v. Goodchild, 2 W. Bla., 906. Of an I O U. 31. A mere acknowledgment of a debt not containing any promise to pay is usually termed an I O U, and is often in the following form I OU £100. To Mr. A. B. London, May 4, 1876.. C. D. 32. Such an acknowledgment, or an acknowledgment, or receipt for money lent or deposited to be accounted for, does not require a stamp. Fisher v. Leslie, 1 Esp., 425. Israel v. Israel, 1 Camp., 499. Childers v. Boulnois, D. & R. N. P. Ca., 8. Tomkins v. Ashby, 6 B. & C., 541. Beeching v. Westbrook, 8 M. & W., 412. Melanotte v. Teasdale, 13 M. & W., 216. Gould v. Coombs, 1 C. B., 543. 33. Nor does such a document require a stamp if it contains a promise to pay only interest on the sum due, and not the principal (a). But if it promises to pay the principal it must be stamped as a Note (b). (a) Melanotte v. Teasdale, 13 M. & W., 216. Smith v. Smith, 1 F. & F., 539. (b) Brooks v. Elkins, 2 M. & W., 74. Waithman v. Elsee, 1 C. 35. & K., 34. An IO U not having the name of any creditor on it is prima facie evidence in favour of the party who produces it. Fisher v. Leslie, 1 Esp., 427. Curtis v. Rickards, 1 M. & Gr., 46. Douglas v. Holme, 12 A. & E., 641. Fesenmayor v. Adcock, 16 M. & W., 449. 35. An acknowledgment of debt may be given as a donatio mortis causâ. Moore v. Darton, 4 De G. & Sm., 517. 36. A bill in equity lies to discover whether an IO U was given for a gaming debt (a): and equity will restrain an action on an IO U given for an illegal consideration (b). (a) Wilkinson v. L'Eaugier, 2 Y. & Coll., C. C., 366. ON BANKING OBLIGATIONS. 37. 1. A banker is a trader whose business consists in buying money, or money and Debts, in exchange for which he gives his own Credit. 2. A banker gives his Credit in two forms (a) His own PROMISSORY NOTES. (b) Credits in his books, termed in banking language DEPOSITS. 3. Banking Obligations are Bank Notes, Deposits, Cheques, Deposit receipts, Letters of Credit, Bankers' drafts, and Circular notes. 38. No banker who was not on the 6th of May, 1844, lawfully issuing his own notes; nor any banker then lawfully issuing his own notes who has become bankrupt, or discontinued the issue of bank notes; nor any person since that date, may become a party to any obligation payable to bearer on demand, in any part of the United Kingdom. 7 & 8 Vict. (1844), c 32, ss. 10, 11, 12. 17 & 18, Vict. (1854), c. 83, s. 11. 39. No banking partnership consisting of more than ten (a) persons in London, or within 65 miles thereof, may borrow, owe, or take up in England any sum or sums of money on their bills or notes payable on demand, or at any less time than six months from the borrowing thereof (b). (a) 20 & 21 Vict. (1857), c. 49, s. (b) 3 & 4 Will. 4 (1833), c. 98, s. 3. 40. A BANK NOTE is defined by Statute to be-" Any Bill Draft, or Note (other than Notes of the Bank of England) which shall be issued by any banker, or the agent of any banker, for the payment of money to the bearer on demand, and any Bill, Draft, or Note so issued, which shall entitle, or be intended to entitle, the bearer or holder thereof, without indorsement, or without any further or other indorsement than may be thereon at the time of issuing it, to the payment of any sum of money on demand, whether the same shall be so expressed or not, in whatever form and by whomsoever such bill, draft, or note, shall be drawn or made." 17 & 18 Vict. (1854), c. 83, s. 11. 41. The following establishments only may issue oligations payable to bearer on demand in England 1. The Bank of England. 2. Private banking firms which were lawfully issuing their own notes on the 6th day of May, 1844, and which have not become bankrupt, or discontinned such issue since that date. 3. Joint stock banks formed under Stat. 7 Geo. 4 (1826), issuing their own notes at a distance not less than 65 miles from London. 42. The following provisions relating to the issue of Notes by the Bank of England are at present in force 1. The Bank is divided into the banking department and the issue department. 7 & 8 Vict. (1844), c. 32, s. 1. 2. The issue department creates and issues to the banking department Notes in exchange for £15,000,000 of public securities and any amount of gold and silver coin and bullion, of which the silver coin and bullion must not be more than one fifth part. 7 & 8 Vict. (1844), c. 32, ss. 2, 3, 5. 3. The banking department may not issue notes to any person whatever except in exchange for other notes, or such as they have received from the issue department in terms of the Act. 7 & 8 Vict. (1844), c. 32, s. 2. 4. Any person may demand bank notes in exchange for standard gold bullion at the rate of £3 17s. 9d. per ounce. 7 & 8 Vict. (1844), c. 32, s. 4. 5. If any banker who was lawfully issuing his own notes on the 6th day of May, 1844, ceases to do so, the Crown in council may authorise the Bank to increase its issues on public securities to any amount not exceeding two-thirds of the amount of notes withdrawn from circulation. 7 & 8 Vict. (1841), c. 32, s. 5. |