be decided upon the demurrer is, whether a holder for value taking a bill which is over due, without notice that the instrument is an accommodation acceptance, is not entitled to recover. [Cresswell J. The question is, whether an indorser can give a better title than he himself has.] In Charles v. Marsden (1 Taunt. 224) it was held not to be a sufficient defence to plead that the bill was accepted for the accommodation of the drawer without consideration, and indorsed to the plaintiff after it became due. In Stein v. Yglesias (5 Tyrwh. 173; 1 C. M. & R. 565; 1 Gale, Exch. Rep. 98; 3 Dowl. P. C. 252), it was pleaded that the bills were accepted for the accommodation of the indorser, and without any consideration for such acceptance. The plea was held to be bad, on the ground that it did not state that the bill had been accepted before it became due, and that there was nothing to shew that the defendants intended to limit the negotiation of the bill to the time before it became due. The plaintiff would have his remedy over against the party accommodated. It lay on the defendant to shew that the power of indorsing, and thereby raising money, was limited to the period during which the bill was running. The defendant is not entitled to notice of nonpayment. Tinson v. Francis (1 Campb. 19), which will be relied on for the defendant, was a case of gross fraud.

[103] Talfourd Serjt., contrà. This is a point of considerable importance. In Tinson v. Francis it was held that an indorser of a promissory note for value, who had received the note after it became due from an indorser who had not given value, could not sue the maker.

In Brown v. Daries (a), where a promissory note was indorsed to the plaintiff after it became due, it was held that the maker was entitled to go into evidence to shew that the note was paid, as between him and the payee. In that case Buller J. says, "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 its own intrinsic credit. But if it is over due,

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. Generally when a note is due, the party receiving it takes it on the credit of the person who gives it to him." "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."

The law as laid down by Buller J. is not, it is true, adopted to its full extent by Lord Kenyon, who was not prepared to go the same length where the indorsee cannot be fixed with notice of the dishonour of the note or bill. But the contract and the understanding upon the drawing of a bill of exchange is, primâ facie, that the party shall have the benefit of the time during which the bill has to run, and not for an indefinite period.

TINDAL C. J. Upon these pleadings the plaintiff must be taken to be a holder for value, without notice [104] of any defect in the title of his indorser. Upon the authority of the cases,-without saying what would be my opinion if the question were res integra,-I think the plaintiff is entitled to judgment. In Charles v. Marsden the plea stated, that, at the time of the indorsement, the plaintiffs knew that the bill had been accepted by the defendant for the accommodation of Atkinson, the payee; that, therefore, was a stronger case than the present. I do not see much force in the argument, that the circumstance of the bill being overdue when it is indorsed puts the indorsee in the same position as the indorser, who, in the case of a bill drawn for his accommodation, cannot sue at all. I do not think that the holder is precluded from suing in all cases of accommodation bills indorsed after the time at which they purport to be payable. Nothing dehors the bill, as payment, &c. ought, I think, to affect an indorsee for value. In Stein v. Yglesias it was said, without disapprobation on the part of the court, that the defendant was bound to allege want of consideration for the indorsement.

COLTMAN J. I am of the same opinion. In Charles v. Marsden, Lawrence J. says, "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 judgment, but those expressions are always to be taken

(a) 3 T. R. 80. And see Borough v. Moss, 5 Mann. & Ryl. 296; Burrough v. Moss, 10 Barn. & Cressw. 558.

with reference to the cases to which they were applied. One was a case of clear fraud, another was a smuggling transaction. In the present case, it is to be supposed that the party persuades a friend to accept a bill for him, because he cannot lend him money. Would there be any objection if, with the knowledge of the circumstance that this is an accommodation bill, some person should [105] advance money upon it before it was due? Then what is the objection to his furnishing the money on it after it is due? For there is no reason why a bill may not be negotiated after it is due, unless there was an agreement for the purpose of restraining it. But if there had been such an agreement, it should have been stated in the plea; and it might then have been a defence; but that is not so here. This bill, then, must be presumed to be given in order that the party may raise money on it in the ordinary way. I see nothing in the transaction prejudicial to the acceptor, and the plea is bad in substance."

ERSKINE J. I am of the same opinion. It must be taken here that the plaintiff was a holder for value. The circumstance that the bill was overdue might have operated as evidence that the bill was an accommodation bill, but it should have been so averred. A jury might infer that the bill was accepted upon an understanding that it was not to be negotiated after it became due. But that would not be an inference of law; it should therefore have been made the subject of an averment. In the absence of such an averment, the question is, whether the mere fact of the bill being an accommodation bill prevents it being negotiable after it becomes due. It is said that a bill indorsed after it becomes due, is taken by an indorsee subject to all the equities. The question is, whether the matter of defence set up, is an equity which attaches to the bill. The drawer of this bill could not sue the acceptor. If the plaintiff has given consideration there is no equity to attach to him. Then is this an equity with which the bill is encumbered? It seems to me that no equity attaches to the bill; because it was placed in the hands of the drawer, for the very purpose of raising money. Looking at the cases of Charles v. Marsden and Stein v. Yglesias I think the [106] plaintiff's right to recover is not concluded by the facts disclosed in this plea.

CRESSWELL J. I am of the same opinion. Had this been res integra, I am not prepared to say that I should have come to the same conclusion. I should have thought it a case of doubt. By the law merchant, an indorsement may give to the indorsee a better title than the indorser had. It is said that the indorsee of a bill which is over due, takes it subject to all the equities; perhaps a better expression would be that he takes the bill subject to all its equities. That brings it to the question, whether this is an equity which attaches to the bill. In Charles v. Marsden the court said, that there was no reason why a bill should not be negotiated after it became due, unless there was an agreement for the purpose of restraining it. v. Crowdie (a) is consistent with the law as laid down in Charles v. Marsden. Judgment for the plaintiff.

[107] FRENCH v. MAULE. April 30, 1842.

Attwood

Where the master has fixed the amount of security for costs to be given by a plaintiff resident in Ireland, the court refused to interfere to reduce the amount.

In this action, which was brought on an attorney's bill for 2751. 13s. 11d., it appeared that, as the plaintiff resided in Ireland, a judge's order had been obtained to stay the proceedings in the cause till he should give security for the costs; and it having been sworn on the part of the defendant, that it was necessary for his defence that several witnesses of a superior station in life should be brought over from Ireland,

(a) 1 Stark. N. P. C. 483. In that case Lord Ellenborough ruled, that the acceptor of accommodation bills may reclaim them in the hands of the indorsee of the party for whose accommodation they were accepted, if, at the time they fall due, the balance of accounts, as between the indorser and the indorsee, to whom they have been remitted on account, be in favour of the indorser; but that, if not so reclaimed, the indorsee acquires a lien for subsequent advances made by him to the indorser; and the court refused a rule for a new trial.

the master, to whom the matter had been referred, fixed the amount of the security at 4001.

Shee Serjt. applied for a rule calling on the defendant to shew cause why the amount of security for costs to be given by the plaintiff in this cause should not be reduced. He submitted that requiring security in so large a sum amounted to a denial of justice, and that the defendant might have the witnesses examined on interrogatories, according to the suggestion of Patteson J. in Kent v. Poole (7 Dowl. P. C. 572).

Per curiam. This is not a case in which we ought to interfere with the discretion of the master, the subject being one so much more within his experience, than within that of the court. There is nothing to shew that the view which he has taken of the matter is erroneous. Rule refused.

[108] BULMER AND OTHERS v. GILMAN AND OTHERS. April 30, 1842.

[S. C. 4 Scott, N. R. 781; 11 L. J. C. P. 174.]

A parliamentary agent, entrusted with the passing of a local bill through parliament, who puts a construction on an order of the House of Lords which is doubtful in its terms, such construction being different from that which is adopted by the standing orders committee and by the House, whereby it becomes necessary to abandon the bill,-is not guilty of such gross negligence as to disentitle him to recover a remuneration for his labour in passing the bill through the House of Commons.

Assumpsit, for work and labour, care and diligence, as attorneys, in and about soliciting and passing a certain bill in and through the Commons' House of Parliament, and in and about other businesses, &c. with counts, for money paid, and on an account stated.

Pleas; first, non assumpsit.

Secondly (to the first count), that the work and labour, care, and diligence by the plaintiffs done, performed, and bestowed for the defendants, as in the said first count mentioned, were by the plaintiffs done, performed, and bestowed in so careless, negligent, and insufficient a manner, that the same, from the time of the doing and performing thereof, and from thence until the time of the commencement of this suit, became and were, and from thence hitherto have been, and still are, wholly useless and unbeneficial to the defendants; and the defendants, by and through such carelessness, negligence, and inefficient conduct of the plaintiffs, as aforesaid, derived no benefit whatsoever from the same. Verification.

Thirdly (to the second count), that the sum, so paid by the plaintiffs for the use of the defendants, as in the second count mentioned, was money paid by the plaintiffs, for, in, about, and in respect of, work and labour by the plaintiffs done and performed for the defendants; and that such work and labour were done and performed by the plaintiff's in a careless, &c. (as in last plea); and from which last-mentioned work and labour, and the money paid by the plaintiffs, for, in, about and in respect thereof, by and through such carelessness, [109] negligence and ignorance of the plaintiffs as aforesaid, the defendants had derived no benefit whatever (a). Verification. Replication (to the second and third pleas), de injuriâ.

At the trial before Tindal C. J., at the Middlesex sittings after last Michaelmas term, the following facts appeared :

The plaintiffs are parliamentary agents; and the action was brought by them against the defendants, who were attorneys, residing in Norwich, for conducting a bill "for better paving, lighting and improving the city of Norwich and county of the same city," through the House of Commons, in the years 1838 and 1839. There were

(a) The plaintiff had moved to strike out the first plea or the second and third. On shewing cause it was agreed that the pleas should stand, the plaintiff to be at liberty to reply de injuriâ. Quære, whether the special pleas would not have been bad, on demurrer, as amounting to the general issue. See Hill v. Allen, 2 M. & W. 283; Randall v. Ikey, 4 Dowl. P. C. 682; Cooper v. Whitehouse, 6 C. & P. 545.

other acts in existence for similar purposes, but their operation was confined to the city of Norwich.

The following are the standing orders of the House of Lords, made in 1838 as to private bills :

Standing orders, the compliance with which must be proved before the Standing Orders Committee, in all bills for railways included in the second class, and in any other bill included in any of the three classes, which may be opposed; and before the committee on the bill, in any other case.

"1. That notices shall be given in all cases where application is intended to be made for a bill included in any of the three classes above mentioned.

"2. That such notices shall be published in three successive weeks in the months of October and November, or either of them; and in the case of such railway bills as are included in the second class, in lieu of [110] those months, twice in the month of February, and twice in the month of March, immediately preceding the session of parliament in which application for the bill shall be made, in the London, Edinburgh, or Dublin Gazette, as the case may be, and in some one and the same newspaper of the county in which the city, town, or lands to which such bill relates shall be situate, or if there is no newspaper published therein, then in the newspaper of some county adjoining or near thereto.

"3. That if it be the intention of the parties applying for a bill to levy any tolls, rates or duties, or to alter any existing tolls, rates or duties, the notices shall specify such intention.

"4. That on or before the 31st day of December, immediately preceding the application for a bill, by which any lands or houses are intended to be taken, or an extension of the time granted by any former act for that purpose is sought for, application in writing (and in cases of bills included in the second class in the form set forth in the appendix marked (A)) be made to the owners, or reputed owners, lessees, or reputed lessees, and occupiers, either by delivering the same personally, or by leaving the same at their usual place of abode, or, in their absence from the United Kingdom, with their agents respectively; and that separate lists be made of such owners, lessees and occupiers, distinguishing which of them have assented, dissented, or are neuter, in respect thereto."

The three classes of bills referred to in the above orders, are as follows:

"1st Class. Bills for inclosing, draining, or improving lands. . . for paving, lighting, watching, cleansing, or improving cities or towns... relating to poor-rates, or the maintenance or employment [111] of the poor; and bills for altering any act passed for any of the said purposes, except such bills as are included in the third class of bills.

"2d Class. Bills for making, maintaining, varying, extending or enlarging any bridge, turnpike road, cut, canal, reservoir, aqueduct, waterwork, navigation, tunnel, archway, railway, pier, port, harbour, ferry or dock; and bills for altering or amending any act passed for any of the said purposes, except such bills as are included in the third class of bills.

"3d Class. Bills relating to county rates, gaols or houses of correction; . . . and bills to continue or amend any former act passed for any of the purposes included in the two preceding classes, where no further work than such as was authorized by any former act is proposed to be made."

The following notice had been prepared by the plaintiffs;

"Notice is hereby given, that application is intended to be made to Parliament in the next ensuing session, for leave to bring in a bill to alter, amend, enlarge and repeal certain of the powers and provisions of an act passed in the forty-sixth year of the reign of His late Majesty, King George the Third (46 G. 3, c. lxvii.), intituled 'An Act for better paving, lighting, cleansing, watching and otherwise improving the city of Norwich.' And also of an act passed in the sixth year of His late Majesty, King George the Fourth (6 G. 4, c. lxxviii.), intituled 'An act for amending and

enlarging an act of His late Majesty, for better paving, lighting, cleansing, watching and otherwise improving the city of Norwich.' Dated, this 8th day of November, 1838. "CHAS. S. GILMAN, Solicitor,

"Norwich."

[112] But in consequence of a letter from one of the defendants, suggesting that this notice was insufficient by reason of its not stating that it was intended to extend the powers of the existing acts to the hamlets, &c. in the county, and to levy rates on the owners and occupiers thereof, the notice was re-settled, and duly published, in the following form;

"Notice is hereby given, that application is intended to be made to Parliament in the next ensuing session, for leave to bring in a bill to alter, amend, extend and enlarge the powers and provisions of an act passed in the forty-sixth year of the reign of His late Majesty King George the Third, intituled 'An act for better' &c., and also of an act passed in the sixth year of the reign of His late Majesty King George the Fourth, intituled 'An act for amending,' &c.

"And notice is hereby also given, that it is intended to insert in the proposed bill a power for enabling the owners and occupiers of houses, lands and hereditaments, in the parishes, hamlets, liberties, precincts and places, within the county of the said city, to extend the powers and provisions of the said bill to the said parishes, hamlets, liberties, precincts and places, or to certain parts thereof.

"And notice is hereby further given, that it is intended, by the said bill, to take powers for raising money, for the purposes thereof, by rates on the owners and occupiers of houses, lands and hereditaments within the said city and county.

"Dated, this 8th day of November, 1838."

On the 9th of March, 1739, the bill was read a first time in the House of Commons. The preamble stated, that "Whereas an act was passed in the forty-sixth year of the reign of King George the Third, intituled 'An act for better,' &c. And whereas an act was passed in the sixth year of the reign [113] of King George the Fourth, intituled An act for amending,' &c. and whereas the said recited acts, so far as relates to the watching of the said city, have ceased, in consequence of a notice, given in conformity with the provisions of the act for regulating municipal corporations in England and Wales (5 & 6 W. 4, c. 76, s. 88): and whereas since the passing of the herein before-first-recited acts, the inhabitants in the suburbs of the said city, usually called the county of the city of Norwich,-which comprise eight parishes or hamlets, the liberty of the town-close, and parts of certain parishes, the residues whereof are within the said city,-have very greatly increased, and a large number of houses have been erected, and several new streets formed therein; and it would tend much to the comfort and convenience of the inhabitants, were the powers of the hereinbeforerecited acts enlarged, and extended to the said suburbs: and whereas the powers and provisions of the said two several first hereinbefore-recited acts have been found, in many respects, defective, and insufficient for the purposes intended; and it is expedient that the same should be repealed, and that other powers and provisions should be granted and made for better paving, lighting, cleansing and improving the said city and suburbs, and for removing and preventing nuisances and annoyances therein: but the same cannot be effected without the authority of parliament," &c.

By sect. 62 the commissioners were empowered to cause streets, &c. to be lighted with oil or gas; and by sect. 67, they were authorized to recover rents for gas (b).

Section 96 was as follows:- "And be it further enacted, that for the purpose of making the narrow parts of the squares, crescents, terraces, roads, streets, [114] lanes, ways, passages, and places, safe and commodious for carriages and passengers, and for opening proper communications between the said squares, &c. or any of them, and for stopping up unnecessary communications between the said squares, &c. or any of them, and for altering or widening any road or roads within the said city or county, and for altering, widening, and improving the present communications between the said squares, &c. or any of them, and for otherwise improving the said city and county, it shall be lawful for the said commissioners to treat and agree with such person or

(b) These sections are not set out at length, as the question arising upon them was not discussed on the motion for a new trial. See post, p. 121.