A note which shows on SECTION V. has been refused, • gives Dall infirmitere Dictum: The fact that BROWN v. DAVIES. it was overdue would IN THE KING'S BENCH, FEBRUARY 5, 1789. have the sauce Reported in 8 Term Reports, 80.] effect. Tuis was an action by the indorsee of a promissory note against the maker. The plaintiff, at the trial before Lord Kenyon at the last sittings at Guildhall, rested his case upon the proof of the maker's and payee's handwriting. The note appeared upon the face of it to have been drawn on the 6th of October, 1788, payable to Sandal or order, and to have become due the 13th of November: it had Sandal's indorsement upon it, and had been noted for non-payment. Whereupon the defendant's counsel offered to prove these facts: that Sandal, having indorsed it in blank, delivered it to Taddy, by whom it had been noted for non-payment; that, on the 6th of December, Sandal, having been paid by the defendant, the maker of the note, took it up from Taddy, and afterwards, without the knowledge or consent o the defendant, negotiated it to the plaintiff. But his lordship being of opinion that, unless knowledge was brought home to this plaintiff, it would make no difference between these parties, rejected the evidence, and the plaintiff had a verdict. Le Mesurier moved in this term for a rule to show cause why there should not be a new trial, in order to let the defendant into proof of the above facts; and cited a case of Banks v. Colwell, at Launceston spring assizes, 1788, before Mr. Justice Buller. This was an action. by the indorsee of a promissory note, payable on demand against the maker. The defendant there was admitted to give evidence that the note had been indorsed to the plaintiff a year and a half afterwards; and to impeach the consideration by showing that it had originally been given for smuggled goods, and that payments had been made upon it at several times. But, though no privity was brought home to the plaintiff, Mr. Justice Buller was clearly of opinion that he ought to be nonsuited; for he said it had been repeatedly ruled at Guildhall that wherever it appears that a bill or note has been indorsed over some time after it is due, which is out of the usual course of trade, that circumstance throws such a suspicion upon it that the indorsee must take it upon the credit of the indorser, and must stand in the situation of the person to whom it was payable; and here it appeared that the consideration was illegal. Therefore, he nonsuited the plaintiff. The principle of that case cannot be distinguished from the present, according to which the plaintiff must stand in the situation of Sandal with respect to the fendant, and consequently was not entitled to recover. Erskine now showed cause, contending that there was no evidence offered to show that the plaintiff knew the note to have been satisfied; neither was there any circumstance attending it, which might reasonably lead a prudent man to suspect that it had: one or other of which was essentially necessary to disqualify the plaintiff from maintaining his action. For he had paid a valuable consideration for the note to the original payee, in whose hands it might properly be supposed to be. And this objection does not lie in the defendant's mouth, whose negligence in not taking up the bill, when he satisfied Sandal, had left it in the power of the latter to deceive an innocent third person. Le Mesurier said, in addition to his former argument, that there was a reasonable ground of suspicion on the face of the note; for the plaintiff received it after it was due, when it appeared to have been noted. LORD KENYON, C. J. I think this matter ought to be further in quired into. It did not strike me at the trial that there was this sus picious circumstance on the face of the note; for, if it appeared to have been noted for non-payment at the time the plaintiff received it, that ought to have awakened his suspicion, and led him to make further inquiries into the goodness of the note. ASHHURST, J. I think the rule laid down by my brother Buller, in the case in Cornwall, is a very safe and proper one: that where a note is overdue, that alone is such a suspicious circumstance as makes it incumbent on the party receiving it to satisfy himself that it is a good one, otherwise much mischief might arise. BULLER, J. There is this distinction between bills indorsed before and after they become due. If a note indorsed be not due at the time, it carries no suspicion whatever on the face of it, and the party receives it on his own intrinsic credit. But if it is overdue, though I do not say that by law it is not negotiable, yet certainly it is out of the common course of dealing, and does give rise to suspicion. Still stronger ought that suspicion to be, when it appears on the face of the note to have been noted for non-payment, which was the case here But generally, when a note is due, the party receiving it takes it on the credit of the person who gives it to him. Upon this ground it was that in the case in Cornwall I held that the defendant, who was the maker, was entitled to set up the same defence that he might have done against the original payee; and the same doctrine has been often ruled at Guildhall. A fair indorsee can never be injured by this rule; for, if the transaction be a fair one, he will still be entitled to recover. But it may be a useful rule to detect fraud whenever that has been practised. [Upon Lord Kenyon's appearing to dissent from the generality of the doctrine held by Mr. Justice Buller, he proceeded to observe:] My Lord thinks I have gone rather too far in something that I have said, but it is to be observed that I am speaking of cases where the note has been indorsed after it became due, when I consider it as a note newly drawn by the person indorsing it. LORD KENYON, C. J. I agree with that, with the addition of this circumstance, that it appears on the face of the note to have been dishonored, or if knowledge can be brought home to the indorsee that it had been so. But I should think otherwise, if no notice can be fixed on the party; at least, I am not prepared to go that length at present. GROSE, J. If collusion should be proved between the defendant and Sandal, then the former will not be entitled to set up this objection. But at present I am of opinion that a new trial ought to be granted. Rule absolute.1 1 It is now well settled that, while in general the legal title to a bill or note continues assignable after dishonor, the transferrer can nevertheless give no greater interest than he himself has in the paper to his transferee. Accordingly, any defence that would have been valid in an action on a bill or note by the transferrer is equally valid against the transferee of such paper, e. g.: — PAYMENT. Gordon v. Wansey, 21 Cal. 77; Elgin v. Hill, 27 Cal. 372; Capps v Gorham, 14 III. 198; McLain v. Lohr, 25 Ill. 507; Bates v. Kemp, 12 Iowa, 99; Kurz v. Holbrook, 13 Iowa, 562; Schuster v. Marden, 34 Iowa, 181; Davis v. Bradley, 26 La. An. 555; Hatch v. Dennis, 10 Me. 244; Gold v. Eddy, 1 Mass. 1; Baker v. Wheaton, 5 Mass. 509; Potter v. Tyler, 2 Met. 58; American Bank v. Jenness, 2 Met. 288; Mackay v. Holland, 4 Met. 69; Shipp v. Stacker, 8 Mo. 145; Kellogg v. Schnaake, 56 Mo. 136; Little v. Cooper, 3 Stock. 224; Merrick v. Butler, 2 Lans. 103; Reakert v. Sanford, 5 W. & S. 164; Perry v. Mays, 2 Bail. 354 (semble); Miller v. Bingham, 29 Vt. 82; Dunbar v. Harnesberger, 12 Wis. 373. FRAUD. Taylor v. Mather, 3 T. R. 83 n.; Tinson v. Francis, 1 Camp. 19; Coghlin . May, 17 Cal. 515; Thomas v. Kinsey, 8 Ga. 421; Bertrand v. Barkman, 18 Ark. 150 (semble); Stafford v. Fargo, 35 Ill. 481; Stricklin v. Cunningham, 58 Ill. 293; Whitwell v. Crehore, 8 La. 540; Butler v. Murison, 18 La. An. 363; Clarke v. Dederick, 31 Md. 148; Tucker v. Smith, 4 Greenl. 415; Howard v. Ames, 3 Met. 808; Kellogg v. Barton, 12 All. 527; Wheeler v. Barret, 20 Mo. 573; Livermore v. Blood, 40 Mo. 48; De Mott v. Starkey, 3 Barb. Ch. 403; Nellis v. Clark, 4 Hill, 124; Reed v. Warner, 5 Paige, 650; Bacon v. Burnham, 37 N. Y. 614; Long v. Rhawe, 748 CHARLES AND ANOTHER v. MARSDEN. [CHAP. IV A bill which has no other defects does not become IN THE COMMON PLEAS, MAY 20, 1808. [Reported in 1 Taunton, 224.] THIS was an action brought by the plaintiffs as indorsees of a bill of pleaded that he had accepted the bill for the use and accommodation of Atkinson, and without any consideration whatsoever for the same; so merely becauseCHARLES A ANOTHER becauseCHARLES AND Another v. MARSDEN. negotiated after maturity i. 6, the accomodated person has exchange drawn by Atkinson against the acceptor. The defendant the right to negotiate aw and that afterwards, and after the time when the bill became due and accomodation payable, Atkinson indorsed it to the plaintiffs, they well knowing at the time of such indorsement that it had been and was so accepted vill after dub by the defendant for the use and accommodation of Atkinson, and that the defendant had not ever received any consideration whatsoever for the same. The plaintiffs replied (with a protestation of the insufficiency of the plea) that Atkinson indorsed the bill to them before the time when it became due, and not after, as the defendant had alleged; and that, they prayed, might be inquired of by the country. The defendant demurred, and assigned for cause that the replication concluded to the country, whereas, inasmuch as the plaintiffs had offered an issue only on one of the facts set forth in the plea, and not on all, they ought to have concluded their replication to the court with a verification. 1 75 Pa. 128; McNeill v. M'Donald, 1 Hill (S. Ca.) 1; Goodson v. Johnson, 35 Tex. 622; Sargeant v. Sargeant, 18 Vt. 371; Gregory v. Hart, 7 Wis. 532. ILLEGALITY. Brown v. Turner, 7 T. R. 680; Bissell v. Gowdy, 31 Conn. 47; Green v. Louthain, 49 Ind. 139; Barlow v. Scott, 12 lowa, 63; Kurz v. Holbrook, 13 Iowa, 562; Kittle v. DeLamater, 3 Neb. 325 (semble); Southard v. Porter, 43 N. H. 379; Bell v. Wood, 1 Bay, 249. FAILURE OF CONSIDERATION. Boehm v. Sterling, 7 T. R. 423; Bryan v. Primm, 1 Ill. 33; Sawyer v. Hoovey, 5 La. An. 153; Snyder v. Riley, 6 Barr, 164; Diamond 1. Harris, 33 Tex. 634. See also Folsom v. Bartlett, 2 Cal. 163; Bowen v. Thrall, 28 Vt. 382. Similarly, no unauthorized transfer of dishonored paper will deprive the true owner of his title; a dishonored bill or note resembling in this respect an ordinary chattel. Goggerly ». Cuthbert, 2 B. & P. N. R. 170 (semble); Foley v. Smith, 6 Wall. 492; Texas v. White, 7 Wall. 700; Texas v. Hardenberg, 10 Wall. 68; Vermilye v. Adams Express Co., 21 Wall. 138; Gilbough v. Norfolk R. R., 1 Hughes C. C. 410; In re Sime, 3 Sawyer, 305 (semble); Bird v. Cockrene, 28 La. An. 70; Farrington v. Park Bank, 39 Barb. 645; Weathered v. Smith, 9 Tex. 622; Arents v. Commonwealth, 18 Grat. 750. But see Connell v. Bliss, 52 Me. 476, contra. A transfer after maturity may, however, remove a difficulty of procedure, e. g., partnership note, payable to the order of one of the partners, and therefore good in his hands only in equity, may be collected at law by an indorsee, irrespective of the time of transfer. Thayer v. Buffum, 11 Met. 398; Richards v. Fisher, 2 All. 527 Sherwood v. Barton, 36 Barb. 284. But see, contra, Calhoun v. Albin, 48 Mo. 304.— E.D. 2 8 4 Best, Serjt., in support of the demurrer, and Shepherd, Serjt., contra, largely investigated the doctrine upon this question, as it is to be collected from the several cases of Hedges v. Sandon,1 Baynham v. Matthews, Clarke v. Glass, Stanford v. Rogers, Smith v. Dovers' (which, per Lawrence, J., has been overruled), Hayman v. Gerrard." But the court suggested a doubt whether the plea could be supported, and desired them to turn their attention to that question. Best contended, on the authorities of Brown v. Davies, Boehm v. Stirling, and Taylor v. Mather, that the plea stated a sufficient defence to the action. MANSFIELD, C. J There is no allegation of fraud in this plea, nor any averment that the plaintiff did not give a valuable and full consideration for this bill: it must therefore be presumed that he did, and that there is no fraud in the transaction. He receives the bill from the proper hand which was entitled to have the possession of it, the person to whom it was payable. It is not necessarily to be inferred, because it was an accommodation bill, that there was an agreement not to negotiate it after it became due; but, if there was such an agree ment, it was the defendant's own fault that the bill was outstanding: for, even supposing that the drawer had undertaken to provide for the payment when the bill became due, the acceptor had a right to require that it should be given up. It happened through his permission there fore, if the bill gave the drawer any power to delude the indorsee. None of the cases cited go so far as to support this plea. HEATH, J. In this case, there was no inconvenience or mischief to the party. LAWRENCE, J. I remember a former case of a sham plea, where the pleader had raised a question of great difficulty, and, it being suggested that it was a sham plea, the court required an affidavit of the truth of the facts pleaded, considering it a most gross contempt to put questions of difficulty in the shape of a sham plea. Upon this intimation of the feeling of the court, the plea was afterwards abandoned, and the debt was paid. Not, indeed, that there is any difficulty in this question; for none of the cases cited go the length contended for. Where a party has obtained the bill by fraud, or where there is any prejudice to the drawer, those cases apply; but, unless in instances of this kind, the acceptor is not relieved. This case may fall within some general expressions which have been used by the court in giving judg ment, but those expressions are always to be taken with reference to the cases to which they were applied. One was a case of clear fraud: |