CH. 20. produced like the one counted on; 3d, but need not be proved; 4th, plt. cannot give evidence the variance is his attor- Art. 21. ney's mistake. v Reintzel. 54. An endorser, obliged to take up a note-his remedy 7 Cranch against the maker-may have assumpsit, paying it after pro- 273, Morgan test, and for the amount of the note, with costs of protest : 1st count on a note in the common form under the statute of Anne; 2d for money paid &c.; and 3d a special count stating the whole case. Plea non-assumpsit, and verdict below for the plt.; deft. moved in arrest of judgment, alleging 3d count was bad; motion overruled &c.; error brought by the maker. Judgment for the endorser affirmed, though mainly objected, the count should have been founded on the note, so as to oblige the plt. to producs it at the trial; but the court observed it stated the plt. paid the note, and the court presumed it was so produced. 55. No set-off on a promissory note, payable at a bank; 9, Mandefor the maker, by making it there payable, authorises it to ad- ville v. Union vance on his credit to the owner, the sum named in it; 2d, Bank of it would be a fraud on the bank, to set up off-sets against the Georgetown. note, on account of any transactions between the parties. Action was debt by the bank against Mandeville, the maker of the note, endorsed to it. Special verdict found he made it Jan. 15, 1811, being always an inhabitant of Alexandria, for a valuable consideration, made it at said town, payable to C. J. Nourse, or order, sixty days after date; negotiable at said bank of Georgetown, payable at the bank of Potomac, in Alexandria for $410,51, negotiated accordingly, protested, due notice, &c. Judgment affirmed with damages, 6 per cent a year, &c. 56. A, one member of a commercial company, gives his promissory note to B, another member of it, to its use; B, in his own name may sue A, to recover to its use. 2d A declaration is on a joint note, and the defendant pleads it is the separate note of one of the defts., and was given to, and accepted by the plt., in full satisfaction of a debt; this plea is bad, as it amounts to the general issue. Though this note was given to Forrest, president of the company (of four or five hundred members) it could be sued only in his name, and as trustee of it. 8 Cranch 30, Van Ness v. Forrest. R. 13, Green $57. A note given for the price of land conveyed is good, 2 Wheaton's except the seller's title totally fail, and the promiser was igno- leaf v. Cook. rant of the defect; is held, if he knows of the incumbrance, or the title fails but in part. See Little v. Roberts, Ch. 1, a. 42, s. 7. See cases 2 Phil. Evid. 11; 11 Johns. R. 51. 58. A gave his note to a minor for his labour, he endorsed it to B for a valuable consideration; B knowing the endor 15 Mass. R. 272, Nightin- ington, 331. CH 20. ser was a minor; his father received the contents of A; he Art. 21. and the father both knowing of the endorsement Held, B could recover it of A, for a minor may endorse a negotiable note or bill, so as to pass the property; and his acts are voidable only. 15 Mass. R. 534, Bow Where partners in trade are liable to the endorsee of a negotiable note, made by one of them to C, in the name of their firm, though he endorse C's name, without his knowledge; 2 Phil. Evid. 14. $59. An officer may take and sue a negotiable note as man v. Wood. Collateral security on an execution; as where the deft. Wood had made such a note to Hodge, against whom the plt., a deputy sheriff, had an execution; H endorsed it blank as a pledge to the plt. ; he sold it at auction to himself, as the highest bidder, and returned the sale on the execution, then recovered the note of the deft. 5 Taun. R. 30, Bowes v. Howe in error. 5 Taun. R. 344, Gam mon v. Schmoll. 3 Caine's R. 137, Downing v. Back instoes. 2 Johns. R. 235, 242. 3 Day's Ca. 60. A plt. must declare, and state a presentment of e note, at a particular place, and a demand there, whenever it is so payable, unless the makers discharge the holder from such presentment and demand. Nor is this discharge shewn by an allegation they are insolvent, and have wholly refused then and thenceforth to pay, at the place specified, any of their notes; nor can it be intended from the allegation of refusal, there was a presentment. And if the drawee accept a bill to pay at a particular place, he is liable to pay there only; and the holder may reject such qualified acceptance; but if he accept it, he admits a condition precedent, that he must present it to the acceptor for payment at that place, and plead accordingly, and allege performance of this condition either in an action against the drawer or acceptor. § 61. A promissory note without words of negotiability, may, if the payee sue the maker, be declared on as a note within the statute. 62. A note to pay £40, in land at $2 an acre, may be given in evidence on the money count. Smith v. Smith, and an insolvent discharged in Rhode-Island, is no bar in NewYork, to a note made in Massachusetts. $ 63. Though a note be not negotiable, yet the contract 12, Codwise made thereon by endorsement extends to all future endorsees; and an endorsee may sue a remote endorser. & al. v. Glea son. 4 Day's Ca. 458, Sheldon v. Ackley. 9 Johns. R. § 64. The endorsee in his action against the maker of a note, is not obliged to order the attachment or execution to be levied on property, clearly insufficient to pay the debt, or lose his hold on the endorser to that amount. 65. Endorsee sues the endorser for default of the maker; 131, Simpson he cannot compel the maker to pay the costs of that suit: he is liable only for the amount of the note. v. Griffin. Сн. 21. Art. 1. $66. What payment of a due bill to the payee, bars the holders action. A gave one to B in N. York, thus: "due to B $170, value received." On it B endorsed his name, and delivered it to C; C, at Albany, demanded payment of it of 9 Johns. R. A; A said next week he would settle it in N. York; after- 64, 65, Me wards, A paid it to B in N. York, and took a receipt in full, ghan v. Mills. the due bill being still in his hands, C sued A in B's name on it. Held, there was not due notice of an assignment of the note, to charge A, with a fraudulent payment to B; and that C, the holder of the note, when he demanded payment of it, ought to have shown it, with the endorsement, to A, or explicitly stated that it had been assigned by B to C. Judgment for A. This was not a negotiable note; had it been one, the endorsement of B's name had been sufficient to pass the property. CHAPTER XXI. ACTION OF ASSUMPSIT. BILLS OF LADING. ART. 1. General principles. a Lickbarrow 2 Phil. Evid. § 1. It is settled in this case, after much discussion, that 5 T. R. 683, bill of lading is transferrable and negotiable by the custom of & al v. Mamerchants, and in this case the jury specially found, and which son & al. A. seems to be the law of the land, "that by the custom of mer- D. 1794. See chants bills of lading, expressing goods or merchandise to 46, Custom have been shipped by any person or persons, to be delivered of Merchants, to order or assigns, have been, and are, at any time after said goods have been shipped, and before the voyage is performed, for which they have been or are shipped, negotiable and transferrable by the shipper or shippers of such goods to any other person or persons, by such shipper or shippers, endorsing such bills of lading with his, her, or their name or names, and delivering or transmitting the same so endorsed, or causing the same to be so delivered or transmitted to such other person or persons; and that by such endorsement and delivery or transmission, the property in such goods hath been, and is transferred and passed to such other person or persons, and that by the custom of merchants, endorsements of bills of lading in blank, that is to say, by the shipper or shippers, with their names only, have been, and are and may be filled up by the person or persons to whom they are delivered, or transmitted CH. 21. as aforesaid, with words ordering the delivery of the goods or contents of such bills of lading, to be made to such person or persons, and according to the practice of merchants the same when filled up have the same operation and effect, as if the same had been made or done by such shipper or shippers, when he, she, or they endorsed the same bills of lading with their names as aforesaid." Two principles being thus established. 1. That a bill of lading is negotiable. 2. That the legal holder may fill up a blank endorsement, he may any time after the goods specified in it, and before the voyage is performed, transfer the property of them to himself by filling such blank, or to another by a further delivery or transmission of this bill of lading. 1 H. Bl. 357, § 2. In this case in the Exchequer, in error, it was held, 368. A. D. that "where the consignee of goods becomes insolvent, the 1790, Mason & al. . Lick- consignor may stop them in transitu, before the consignee barrow & al. gains possession. In such case also the consignor may stop the goods in transitu, though the consignee assign the bills of lading to a third person for a valuable consideration. The right of the consignor not being devested by the assignment.' in error. 2 T. R. 63, Lickborrow & al. v. Mason & al, A. D. 1787. 5 D. & E 683. 3. In this great contested case in the Court of Kings Bench there had been a judgment as to the first branch above, as in the Exchequer. But otherwise, as to the second branch, that is, as to this the court of King's Bench decided, "if the -6 D. & E. consignee assign the bills of lading to a third person for a valuable consideration, the right of the consignor, as against such consignee, is devested." And further, that "there is no distinction between a bill of lading, endorsed in blank, and an endorsement to a particular person," and afterward the judgment of this court of King's Bench was confirmed in the House of Lords. 20. A. D. 1794. 1 W. Bl. 628. -Lex. M. Am. 164. 4. In this case Fontaine, June 1766, shipped goods, value £400, from London to Liverpool, to be delivered to order or assigns and took bills of lading, and endorsed one to Swanwicke at Liverpool or order, this he endorsed to Scott, (pretending the goods were his own) as security for a debt of £800 he owed Scott &c. The goods had been consigned to Swanwicke as a factor only. The other bill of lading, a duplicate, had been endorsed to the deft, who on the arrival of 7D.& E 745. the ship got possession, having given the master security. Scott became a bankrupt. Verdict for the plt. New trial 364-Abbot was granted. Lord Mansfield held, first, it is clear, "that if 314-Cowp. there is an authority ever so general by endorsement upon a bill of lading, without declaring that the endorsee is factor, the owner (as between him and the factor) retains a lien till delivery of the goods, and before they are actually sold and turned into money." -1 H. BI.. 296. Second, that "if the factor pays over with notice to a third person, then it may be followed in the hands of such third person. But third, "if the goods be bona fide sold by the factor at sea, as they may be where no other delivery can be given, it would be good," and the vendee will hold them, though no actual possession is delivered, and the owner can never dispute with the vendee; "because the goods were sold bona fide, and by the owner's own authority." But the court thought this was not a fair transaction between Swanwicke & Scott, so a new trial was granted on this ground. CH. 21. Art. 2. 176,-4 Burr. Buller J. 5. A bill of lading is an acknowledgment under the hand 2 Mor. Ess. of the captain of the vessel, that he has received such goods, 2046.-1 T. which he promises to deliver to the person named in the bill. R. 216, per It is assignable in its nature, and by endorsement the property is vested in the assignee, and goods at sea may be so assigned. 1 D. & E. A bill to deliver to the agent of the shippers is to the shipper 745-1 Bos. himself, and goods are subject to his order, but the agent must be known to be such. & P. 564. 2 H. Bl. 504, Sleubey v. ART. 2. English cases. See above. And also in this case A at a foreign port, shipped goods to B, by the order, and on Heywardaccount of B, to be paid for at a future day, and the master Lex. M. Am. 165. See of the ship signed bills of lading accordingly. One of the bills Consignwas immediately sent to B, who, before the arrival of the ship, ments, Ch. sold the goods to C, and endorsed the bill of lading to him. 25. After the arrival of the ship, and a delivery was made of a part of the goods to C's agent; B became a bankrupt, not having paid to A the price of the goods. The court held, that by this delivery of a part of the goods, the transitu was at an end in respect to all the goods. Here then was an actual delivery of a part, art. 4, s. 4. signees of 2. June 1801, Brown, the bankrupt in London, gave an 3 East 92, order on Fritzing of Hamburgh to ship him a quantity of bees- Fiese & al. aswax. This he procured and shipped in a general ship on the Brown, v. account and risk of Brown, addressed to him; and the bill of Wray. lading was filled up to his order. He was a stranger to the persons who sold the beeswax. Invoice £750; for this Fritzing drew three bills on Brown, dated August 4, 1801, one £210, one £260, and one £280 payable to F's order at two usances, and informed Brown the same were drawn for the price of the wax, to be credited to him when the bills should be negotiated. Brown accepted them, and they were proved under his commission. August 10, 1801, he received the invoice and bills of lading, and September 2 committed an act of bankruptcy. September 3, Fritzing by his agent called at Brown's counting-house for security, and his brother delivered up to the deft., as such agent of Fritzing, the invoice and |