1851.

BARBER

V.

RICHARDS.

case is distinguishable from Lloyd v. Howard, which only decided that there was no indorsement to the person in the situation of Brown. But if in that case there had been an allegation of an indorsement from the payee to the person who gave value for the bill, the latter might have recovered, that is, subject to the equities arising from the bill having been indorsed after it was due. By the law merchant every bonâ fide holder of a bill, notwithstanding any prior fraud, has full authority to transfer the bill or sue upon it.

POLLOCK, C. B.-I agree with the rest of the Court, and indeed I expressed a similar opinion at Nisi Prius. It would peril the law merchant with reference to bills of exchange, if we were to hold the doctrine now contended for. No doubt Courts of justice ought to repress all abuse of bills of exchange by persons whose only object is to defraud the public; but at the same time they ought not to forget the extreme importance to a commercial community that the negotiability of these instruments should not be restricted. A person who takes a bill indorsed generally is not bound to inquire whether the bill has been properly transferred or not. Lloyd v. Howard only decided, that where the holder puts his name on the bill and delivers it to another person for a special purpose, not intending to make the latter indorsee, that is not an indorsement to him. But it is quite clear that the delivery to him authorised him to apply it to the special purpose. In this case, as between Edwards and Tingey, there may have been no intention to give the latter a title; but there was an intention to give a title to the person to whom Brown might deliver it, and he delivered it to Tingey.

Rule refused.

1851.

POWELL v. HOYLAND.

TROVER for bills of exchange.-Plea, Not guilty.

At the trial, before Cresswell, J., at the Cheshire Spring Assizes, 1850, it appeared that the plaintiff had carried on the business of an ironmonger in partnership with one Dathan; and that, on the dissolution of the partnership in February, 1849, the plaintiff's share in the business was ascertained to be 8001., and bills for that amount, at various dates, were given to him by Dathan, who continued to carry on the business. In November, Dathan, being in difficulties, left his place of business, and was on the point of quitting the country, when he was stopped by some of his creditors, and proceedings were taken by Messrs. Yates & Co., who were large creditors of Dathan, to make him bankrupt. It being known that some of the bills were in the plaintiff's possession, Yates & Co. sent the defendant to demand them, supposing that the plaintiff's right to them could be impeached on the ground that they were given to him by way of fraudulent preference, although, on the trial, it was clear that he was entitled to them. The mode in which the bills were obtained was thus detailed in the evidence of Mrs. Phillips, the sister of the plaintiff :-"The plaintiff was ill in bed when the defendant came, on the 31st of December, 1849. The defendant asked if Mr. Powell lived there, and I said he did. Mrs. Powell said he was too ill to be seen. defendant said he must see him, as he had come on busiShe said, where from? He said, from Manchester;

ness.

The

and that he was come for some bills (the bills now in ques

given to the

plaintiff, and told him that he (the defendant) and his employers had no right to them; but the defendant, notwithstanding, handed them over to his employers. In trover for the bills: -Held, first, that the original taking was not a conversion, inasmuch as there was no such duress as would have avoided a contract, or have enabled the plaintiff to maintain trespass de bonis asportatis.

Secondly, that the defendant was guilty of a conversion by delivering the bills to his em ployers after notice of the facts.

1851.

POWELL

V.

HOYLAND.

tion) that Mr. Dathan had given him (the plaintiff). The defendant said, he must take the bills back with him; that, if he did not, the creditors would have about 3s. 4d. in the pound less to receive. Mrs. Powell said, 'Phillips, come up stairs with us;' and they all went to the plaintiff's room. The defendant told the plaintiff he had come for those bills. The plaintiff said, 'they are my own property; I have no right to give them up to you.' The defendant said, 'you must give them up. I must take them back with me, or else they will make Mr. Dathan bankrupt as soon as I return home.' The plaintiff said, 'I do not think I can give them up. Is there any one I can call in to consult with?' And I said, 'I was a stranger, and did not know any one.' Mrs. Powell said, 'I do not think there is any one but my brother, and he is not very well.' The defendant said, 'there is no time; I must return.' The plaintiff said, the notice was too short to part with so large a sum. The defendant said, if Mr. Powell did not give them up, he would be compelled to give them up, and the bankruptcy would cost Mr. Powell 2001. and the expenses would fall on him; and if he would not give them up, the Commissioner would be very severe with Mr. Powell. The plaintiff was then much agitated, and said he thought it was not right, and did not know what to do. He said he had never seen the defendant before, and that he gave them up to the defendant for the purpose of being given to Yates & Co. Hoyland got them, and took them away with him." After this, a demand was made on the defendant for the bills by a wit ness who was subsequently called, and who said he saw the defendant, and told him he had come to demand the bills which had been obtained surreptitiously from the plaintiff. The defendant said, that after what had been said to him on the 1st of January, at Manchester, Yates & Co. had no power to retain the bills, and he had made up his mind they would have to be given back; but that they were not then in his possession. The same witness further stated:

"On the 1st of January the defendant called on me in Manchester, and said he had been to the plaintiff, and had obtained bills that Powell held; and I expressed my astonishment that the plaintiff should have parted with them. I told him he had no right to the bills whatever. Mr. M., representing Yates & Co., was with him. I explained the manner in which the bills had been obtained from Dathan, and the consideration for them; and I said that they had no more right with them than I had; the defendant said, they conceived the bills had been obtained by fraudulent preference."

It was contended for the defendant, that there was no evidence to go to the jury of a conversion by him. The learned Judge thought there was; and, in his summing up, he directed the attention of the jury to the circumstances of the original taking of the bills by the defendant, as rendering him liable in the action. A verdict having been found for the plaintiff

In the following Easter Term, a rule was obtained to set aside this verdict, and for a new trial, on the ground of misdirection; against which—

Welsby and Atherton shewed cause in last Michaelmas Vacation (Dec. 3). There was evidence of a conversion. The plaintiff was clearly entitled to the bills; and the defendant obtained them from the plaintiff, then being in a weak and infirm state of mind and body, by threats and false representations, amounting in law to duress. The case resembles that of Grainger v. Hill (a), where it was held, that trover would lie for a ship's register, which had been obtained from the plaintiff by means of an arrest under a capias, which had been issued ostensibly for a debt, but in reality to frighten the plaintiff into giving up the register. [Parke, B.-Could trespass de bonis asportatis be main

(a) 4 Bing. N. C. 212.

1851.

POWELL

22.

HOYLAND.

1851.

POWELL

2.

HOYLAND.

tained for this taking?] Wherever the original taking is wrongful, the party injured has an option of suing in trespass or trover, which are convertible remedies. [Martin, B.-Leave and licence would be a good answer to an action of trespass.] Such a plea could only be supported by proof of free consent. Here the seeming consent is in truth no consent, since it was extorted by menaces and fraud[Parke, B.-Suppose a plea of not guilty only, where a person voluntarily delivers a chattel to another, how can the latter be said to take it vi et armis?] Here the plaintiff acted under the influence of fear, induced by fraud, so that in point of law the taking was in invitum. [Parke, B.-If the plaintiff had given his promissory note, could he, under these circumstances, have avoided it on the ground of duress? Unless there be such duress as would have vacated a contract, trespass could not be maintained; and it is difficult to see how an act of taking can be treated as a conversion, which would not be the foundation of an action of trespass. If a person, through the fraudulent representations of another, delivers to him a chattel, intending to pass the property in it, the latter cannot be indicted for larceny, but only for obtaining the chattel under false pretences.] The authorities shew, that where there is not only a semblance of consent but an actual consent, if it be obtained by fraud trover will lie. Thus, where goods are purchased with the fraudulent intention of never paying for them, the property in the goods does not pass to the vendee: Load v. Green (a). Or suppose goods were obtained from the owner by a person who made him intoxicated, that would be a wrongful taking, for which trespass would lie. So if a person obtained goods from an insane person, knowing him to be such. Here a fraud was practised on the plaintiff, who, from his state of health and nerve, was incapable of exercising a judgment.

At all events, the defendant was guilty of a conversion

(a) 15 M. & W. 216..