Wilkinson v. Nicklin

Syllabus

THIS was an action brought-by the Indorfees of a Bil! of Exchange, drawn by M(Clenachan and Moore, upon George Barclay, of London, in favor of the defendants, and by them in-

tlorfed in blank, to Arthur Crammond, ⅛* Co. who, likewife, in-dorfed and difeounted them with their bankers, the.prefent plaintiffs, under the following circumitances. The defendants, having opened a commercial correfpondence with Arthur Crammond Sis’ Co. of London, remitted the bill of exchange in queftioi], to be paffed to their credit, • in their general account with thofe gentlemen. The bill was noted on the face of it for non-acceptance. It was afterwards, on the 4th of Auguit,i79<), paid in ihort, on account oí Arthur Crammond Cf Co. with their blank indorfement, to the banking houfe of the plaintiffs ; but, on the 19th of the fame month, the amount Was carried out tothe credit of Arthur Crammond (sf Co. as if it had been then difeounted by the plaintiffs ; and it was faid by a witnefs examined under a commiflion, that, after this difeount, the money had been duly paid upon the drafts of Arthur Crammond ts? Co.

The Counfel for the defendants {fated, that they propofed to fhew by evidence, that the bill of exchange was remitted on account of the defendants ; and that Arthur Crammond ⅛ Co. were invery great pecuniary embarraffments, at the time of the alledged difeount of the bill of exchange,-and had foomafterwards become bankrupt. . From thefe premifes, from the nature of the previous depofit, and, above all, from the diihonored ftate of the .bill, when it was depofited and difeounted, (which was enough to have prompted an enquiry into’the' real circumitances of the ■cafe) it was intended to argue, that the plaintiffs knew that the bill was, in fact, the property of the defendants; and that the eventual difeount was colourable and collufive, for the mere purpofe of recovering the damages, or of fecuring a pre-exifting balance due to the plaintiffs from.Arthur Crainmond ⅛ Co. who were on the eve of a public failure. > 3. 5T. Rep. 80. If the plaintiffs did know the fa£ts, they cannot be entitled to any more benefit from the poffelHon of the bills than Arthur Crammond ⅛" Co. themfelves,.

The Counfel for the plaintiffs (who had, indeed, anticipated the defence in their opening) Rrfifted, that the general, unreilrided, nature of the indorfement, had empowered Arthur Crammond izf'Co.. to pafs the bill to whomfoever they pleafed; and that whatever'might be the imputation on them for a breach of trult, it’could not affect the plaintiffs, who had paid a .valuable confi-deration for the bill; and who ought not to be charged with col-lufion and fraud, upon {trained ‘inferences, and flight prefump-tions. Their knowledge ’ of the tranfadtions between the de-fendants jmd Arthur Crammond ⅜ Co. has not been proved’; afl'd it would be a violation of the moft important commercial principles, of thd'moil authoritative adjudica)ions, to permit fuch a defence to be made, againit the claim of an indorfee. The dif-tiiiction between reftrided indorfements, and indorfements

which leave the bill to a free negotiation, has been fully efta^ blifhed; 2.Burr. 10.16. 1006. 7. and an indorfee in the latter' cafe, cannot be affeéted even by letters accompanying the bill. Rep. temp. Hardw. Nor does the reafon of the cafe in 3. T. Rep. 80. .(where the note was negbeiated after the term .of payment had elapfed) apply to a proteft for non-acceptance. Bills are often fo protefted, and yet are eventually paid. The ftrong-eft prefumption arifing upon a proteft for non-acceptance, is, that the drawee has not effects of the drawer in his hands, at the time of prefenting the billbut when a note has been pro-teged for non-payment, the fair prefumption is, that the drawer is either unable to pay it, or has a legal excufe for not paying it •, and the purchafer of the note, under fuch circumftances, has a reafonable warning, and muft take.it at his peril.