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1827.

HANCOCK

บ.

HODGSON.

tion were not negotiable, inasmuch as they were payable out of a particular fund, and not out of the pocket of the party himself. The only words in this deed that are calculated for an instant to raise a doubt, are those contained in the first covenant, which provides that the purchasemoney shall be paid and payable out of the monies to be raised by the company." If the covenant had stood without any other words, the plaintiffs must have looked for payment to that fund only. But we must look at the whole deed, which is to be construed most unfavourably to the covenantors. The defendants covenant to pay the sum of 1,000l., part of the purchase-money, by the following instalments-" 3007. at the time of executing these presents, the further sum of 2007. on or before the 22nd day of August instant, and the further sum of 500%., being the remainder of the above-mentioned sum of 1,000l., on or before two months from the date hereof, being the 3rd day of October next; and the balance of the said purchasemoney, that is to say, the sum of 3,500l., within twelve months from the date of these presents, by four quarterly and equal payments or instalments of 8751. each, the first instalment to be made on or before the 3rd day of December next, being the period of two months from the intended completion of the payment of the deposit of 1,000l. as aforesaid: Provided always, and it is hereby expressly agreed by and between the several parties hereto, that, in case there shall not have been received by the bankers of the said company, or by the directors for the time being, the deposits or instalments due from the several shareholders, so as to enable the said directors to pay the balance due on account of the said purchase-money at the times hereinbefore mentioned, then and in such case the directors shall be allowed, and are hereby allowed, a further time to pay such balance, until six months after the time or times when the said quarterly instalments become due." The meaning of this clearly is, that the directors are to pay the balance

of the purchase-money within twelve months, provided they have in the interim received sufficient from the shareholders to enable them so to do; but, if they have not, then they are to be allowed a further period of six months, at the expiration of which the money is to be paid at all events. Were this not the proper construction, the proviso would be useless.

Mr. Justice PARK.-The cases cited by my brother Taddy do not apply. A bill accepted payable out of a particular fund, or on a contingency, is not a negotiable instrument, but the acceptor may be sued upon it when the fund is available, or the contingency has happened. I am clearly of opinion that the defendants are liable upon this deed. They enter into an agreement with the plaintiffs to purchase certain property, and to pay a given price within a given time, subject to an extension of the period of payment in a certain event. It was not intended that the plaintiffs should be without remedy in case the directors of the company failed to receive the subscriptions of the shareholders; but, that, unless sufficient funds were thus raised, the defendants were to be allowed six months further credit than was originally stipulated for.

Mr. Justice BURROUGH.-I am of the same opinion. This is not like the case of a deed by a body corporate. The defendants covenant personally.

Mr. Justice GASELEE concurred.

Judgment for the plaintiffs.

1827.

HANCOCK

v.

HODGSON.

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1827.

Friday,

June 22nd.

dorsed has been

44.8.

CASES IN TRINITY TERM,

ROLT, Assignee of WELSFORD, a Bankrupt, v. WATSON.

Where a bill of THIS was an action of assumpsit for goods sold and deexchange unin- livered by the bankrupt before his bankruptcy to the defendant. The declaration was of Hilary Term, 7 & 8 Geo. 4.

lost by the drawer, he may recover against the acceptor in respect of the consideration.

The cause was tried before Lord Chief Justice Best, at the Sittings in London in the last Easter Term. The defence set up was, that, in October 1825, Welsford had drawn a bill upon the defendant, at three months' date, payable to his own order, for the amount of the goods in question, which bill, when due, the defendant offered to pay on its being delivered up to him. The bill was not produced, nor had the defendant ever been called upon to pay it.

On the part of the plaintiff, the bankrupt was called. He stated, that he had searched among his papers and could not find the bill, but that he had never paid it away, nor had he indorsed it.

His Lordship left it to the Jury to say whether the bill had been lost by the bankrupt, and whether or not he had indorsed it. The Jury found that the bill was lost, and that it had not been indorsed; and accordingly returned a verdict for the plaintiff-damages, 147. 10s., the value of the goods: leave being reserved to the defendant to move to set aside the verdict and enter a nonsuit.

Mr. Serjeant Merewether, in the last Easter Term, obtained a rule nisi to that effect.-He submitted that the plaintiff was not entitled to recover on the count for goods sold, the defendant having given his acceptance for their amount, which, until dishonoured, must be taken to be a satisfaction of the debt; particularly as there was no evidence that the defendant had had notice, before the action was commenced, that the bill had not been indorsed by the

bankrupt. He cited Champion v. Terry (a), where the plaintiff's traveller took a bill of exchange from the defendant, to whom it had previously been indorsed, in payment for goods sold, which bill being of greater amount than the price of the goods, the traveller gave the defendant the difference in bills, and the latter indorsed the bill to the plaintiffs in blank, and it was afterwards inclosed in a letter addressed to them, and put into the post-office, but was never received by them; and six months after it became due, the plaintiffs sued the defendant as the indorser-it was held, that the plaintiffs could not recover without proof of the destruction or total loss of the bill; and that they were also precluded from recovering the value of the goods on the counts for goods sold and delivered, as the defendant had given full value for the bill, and might still be compelled to pay its amount to a bona fide holder: and also the case of Hansard v. Robinson (b), where it was determined, that the holder of a bill of exchange cannot by the custom of merchants insist upon payment by the acceptor, without producing and offering to deliver up the bill; and therefore, that the indorsee of a bill, having lost it af ter he had shewn it to the acceptor, who had promised to pay it, could not in an action at law recover the amount from the acceptor, although the loss occurred after the bill became due, and the indorsee offered an indemnity.

Mr. Serjeant Wilde now shewed cause.-The question is decided by the finding of the Jury. Considering the lapse of time since the bill became due, and that it had never made its appearance, it might fairly be presumed to have been lost; and, as it was not indorsed by the payee, no one could sue upon the bill if even it were in existence. The reason of the decision of the cases wherein it has been

(a) 7 J. B. Moore, 13; S. C. 3 Brod. & Bing. 295.
(b) 7 Barn. & Cress. 90.

1827.

ROLT v.

WATSON.

1827.

ROLT

v.

WATSON,

held that the acceptor cannot be sued upon the counts for goods sold, after having given a bill for the amount, is founded upon the possibility of his being afterwards called upon to pay his acceptance. No such risk can arise in this case.

Mr. Serjeant Bosanquet, in support of his rule.-Where a bill has been lost, the proper course is, to give the acceptor notice of the loss, and demand a new bill, offering him an indemnity, in the mode pointed out by the statute 9 & 10 Will. 3, c. 17, s. 3. Here, the defendant had no notice that the bill when lost was in such a state (being unindorsed) that no subsequent liability could arise upon it; nor was any indemnity offered. In Pierson v. Hutchinson (a), it was held, that an action at law cannot be maintained against the acceptor of a bill which was lost after indorsement, and which does not appear to have been destroyed, although a bond of indemnity has been tendered to the defendant. In Powell v. Roach (b), Lord Ellenborough held it to be a good defence to an action on a bill, that it was not produced, or shewn to be lost or destroyed, though the party promised to pay it. There, the bill was in existence and shewn to the acceptor when due, and afterwards lost. In Dangerfield v. Wilby (c), the declaration contained counts upon a promissory note, and the money counts; the note was not produced at the trial; and it was contended for the plaintiff, that the note was only evidence of the consideration (which was stated to have been money lent) and that he might abandon the note and go for the consideration: but Lord Ellenborough said, that, as the note might still be in circulation, and the defendant liable to be called upon to pay it, the plaintiff was not entitled to recover; and in Mayor v. Johnson (d), where one half of a bank-note

(a) 2 Camp. 211; S. C. 6 Esp. 126.

(b) 6 Esp. 76.

(c) 4 Esp. 159.

(d) 3 Camp. 326.

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