Volume IX. 1846. PARTRIDGE V. Bank of ENGLAND. thorise the receiving a bill of exchange. That analogy, however, applies only to a simple case of debtor and creditor. But the question in fact, and as raised by the declaration, turns on the duty of the Bank in its character of agent for the Government. As to the custom: Mr. Smith's inference from the authorities cited in his note on Miller v. Race (a), that no usage of trade can make an English instrument negotiable without words on the face of it extending its effect beyond one individual, cannot be supported. No doubt that is so as to bills of exchange in the first instance: but, after the drawer or payee has made his order, subsequent orders transfer the title from one indorsee to another without any thing more than the name of the indorser: Mr. Smith's view accounts for the difficulty he feels in explaining Renteria v. Ruding (b), which is indeed irreconcileable with the principle he asserts. [Cresswell J. It may be said that the order of the drawer or payee who first indorses is, when the indorsement is in blank, an order to pay to the holder.] The dividend warrants may well acquire a negotiability by custom that must have been the case with all negotiable instruments not made negotiable by statute: it is at first a question of evidence, but, after a time, one of law. The practice of the particular place and country makes the law in the case of the particular instrument, as explained (c) in Mr. Smith's note to Wigglesworth v. Dallison (d). A strong instance of this is Smith v. Wilson (e), where it was held allowable to explain a written lease by oral evidence that a "thousand" rabbits, (a) 1 Smith's Lea. Ca. 258, 260. (b) Moo. & M. 511. (d) 1 Doug. 201. 1846. PARTRIDGE v. there spoken of, were, by the custom of the country Queen's Bench. where the lease was made, understood to mean twelve hundred. [Cresswell J. Such a contract, made in that country, would mean twelve hundred, wherever the contract was afterwards taken: but your plea, as framed, requires that there should be one meaning of the warrant in London and another elsewhere.] It is contended that the custom, as laid, is bad for not making it a condition that the holder should have given value. But why should not a gift be enough, as it clearly is in the case of a bill of exchange or bank note? As to the suggestion that the bill might be stolen, the plea cannot negative all conceivable contingencies. [Cresswell J. You say your plea puts the instrument on the footing of a bill of exchange, made payable to order, and indorsed.] Even if the instrument were stolen, it would be enough, as in the case of a bill of exchange, if value had been given at any one step, and the holder were innocent. [Cresswell J. Can you dispense with bona fides too, as part of the description of the custom?] It is by no means clear that even that condition is essential. The custom as to bank notes might be described without it. All that is meant is that, primâ facie, delivery passes the right, no extrinsic objection being created. It is said that the custom is not shewn to have been prevalent at the time of the transaction. That objection cannot be taken after verdict; perhaps it could not be taken on general demurrer. And the plea states the transfer to have been made "according to the said usage and custom." That shews, at any rate after verdict, that the parties were merchants and bankers, and that the transaction took place in London. Bank of ENGLAND. Volume IX. 1846. PARTRIDGE V. Bank of ENGLAND. It is true, that it is not said, in express terms, that Ladbroke & Company were bonâ fide holders: but they are said to be "lawful bearers and holders:" that could not have been affirmed by the jury, except upon evidence that they were bonâ fide holders. Crompton, in reply. It is now contended that the plea rests on the non-production of the dividend warrant. That non-production is not averred: if it had been, the plaintiff would have replied that the defendants had the dividend warrant themselves. The plea, in fact, relies on the title of Ladbroke & Company. The declaration would have been faulty if it had complained that the Bank gave no dividend warrant: the complaint is that, being bound to pay in some way, they have not paid in any way. The statutes respecting dividend warrants prove nothing; the warrants are merely cheques by one officer on another. Even if the warrant were lost, the Bank must still pay: there would be no difficulty in giving a satisfactory voucher: no particular voucher is required by statute. It is true that, where a negotiable instrument is lost, the remedy at law is suspended. But that brings the question to the point whether this warrant be a negotiable instrument. It is impossible to construe this as a plea of payment: the averment is, that the defendants still hold the money for Ladbroke & Company. No answer has been given to the argument that Wakefield had not power to take the warrant as payment: and, to the authorities before cited on this point, may be added, Story, Commentaries on the Law of Agency, s. 98. p. 76 (London, 1839). The revocation of the authority sufficiently appears by the allegation that the plaintiff himself demanded payment. The course of proceeding might be stopped at any time p.4 1846. PARTRIDGE V. before a title was vested elsewhere; Story, Commentaries, Queen's Bench. &c., s. 465. p. 423.; s. 476. p. 430. The question, therefore, is whether on this record there appear a good title elsewhere. The cases cited as to custom are inapplicable: the attempt here is to give to a written instrument a meaning inconsistent with its terms, which cannot be done; Hutton v. Warren (a). The words "according to the said usage and custom are no more than prætextu cujus: they could not have been traversed: and they are consistent with a transfer at York by parties not merchants or bankers. Cur. adv. vult. TINDAL C. J., in this vacation (June 15th), delivered the judgment of the Court. This is an action on the case by a person in whose name certain sums of stock were standing in the books of the Governor and Company of the Bank of England, for nonpayment of the dividends due upon that stock. The declaration, in the two first counts, sufficiently shews the right of the plaintiff to recover payment, and the duty of the defendants to pay the dividends on the two sums of stock to which those counts respectively relate, and their breach of that duty. The third count is in trover, for dividend warrants. The defendants pleaded: 1. Not Guilty to the whole declaration; 2., to the third count, that the plaintiff was not possessed of the warrants; and, 3. and 4., special pleas of justification to the first and second counts, not substantially differing, except in so far as they apply to the first and second counts of the declaration respectively. The plaintiff joined issue on the first and second (a) 1 M. & W. 466.; S. C. Tyrwh. & G. 646. Bank of ENGLAND. 1846. PARTRIDGE V. Bank of ENGLAND. Volume IX. pleas, and replied to the third and fourth, after admitting the letter of attorney to Wakefield, &c., that the defendants committed the grievances of their own wrong, absque residuo causæ on which replications issues were joined. The jury found a verdict for the plaintiff on the plea of the general issue, and assessed damages on the first and second counts; and a verdict for the defendants on the plea of "Not possessed," and also a verdict for the defendants on the replications to the two special pleas (a). The case came before the Court of Queen's Bench upon a motion to determine whether, upon the facts proved at the trial, the verdict should be entered for the plaintiff or the defendants upon the third and fourth special pleas; when that Court directed such verdict to be entered for the defendants, and gave judgment for them. The case now comes before us upon a claim by the plaintiff to have judgment entered for him non obstante veredicto: and the question raised by the writ of error is whether the third and fourth pleas give a sufficient answer to the declaration. Each of those pleas, in effect, states that the plaintiff, before the dividends became due, by a certain deed poll, appointed one Francis Wakefield his attorney, to receive and give receipts for all dividends, due or to become due, for the plaintiff's stock, and to do all lawful acts for effecting the premises; that Wakefield, acting under the power of attorney, required the defendants to pay him the dividend; and that the defendants, at his request, delivered to him, and he accepted from the defendants, in payment of the dividend, a certain draft or order in writing of them the said defendants, (a) See pp. 401, 408, antè. |