knew nothing, and about whom they made no enquiry, were guilty of negligence. The judgment of the court was pronounced by KING, J. This suit is instituted upon a check, drawn by the defendants, payable to the bearer. The defence is that, the check was lost, and received by the plaintiffs incautiously, not in the usual course of trade, and under circumstances of suspicion which should have excited enquiry. A judgment was rendered in favor of the plaintiffs in the court below, and the defendants have appealed. It appears that the bearer of the check lost it about 11 o'clock in the morning, and unmediately stopped its payment at the banking house on which it was drawn, and gave public notice of the loss. At about 2 o'clock of the same day, a stranger presented himself at the commercial house of the plaintiffs, purchased a lot of rosin for about $13, and offered payment in western country bills, which were refused. The stranger then produced the check in question, saying that it was all the money he had. It was received, and, after deducting the price of the rosin, $72 80 in cash, and a check for $270, were returned to the stranger. Upon presenting the check now in suit, payment was refused by the banker. The plaintiffs thereupon stopped the payment of the check which they had given, warned the public by notices inserted in a newspaper not to receive it, and took possession of the rosin. The check given by the plaintiffs had not been paid, nor had it reappeared up to the date of the trial in the low er court. The only question presented is, whether the plaintiffs took the check under circumstances which precluded a recovery. It was received by them in the usual course of their business, and in payment of a debt contracted at the time. The circumstances under which it was offered were not such as to excite suspicion, nor put the plaintiffs on enquiry whether the person presenting it was the bona fide holder. The receipt of checks drawn by others than the holders in payment of merchandize, appears to be of daily occurrence. The judge states that one of the witnesses deposed that he had received as many as thirty such in one day. If this be true, they constitute a large proportion of the circulating medium used in the daily trade of the city. When this universal usage is considered, the offer of such a check would not of itself necessarily excite the enquiry of the most prudent and cautious. The further fact that bills of western banks were first offered in payment, and that the check was only offered as an alternative when the bills were refused, was well calculated to disarm suspicion. No negligence has been disclosed from which bad faith can be inferred; and, in such cases the holder is to be protected, although the note or check may have been lost or stolen. Story on Promissory Notes, ss. 197, 382, and the authorities there cited. In the court below, the parties consented that the equity of the case should be gone into, and the judge rendered a decree in favor of the plaintiffs for the amount of the check, to be satisfied by the defendants reimbursing to the plaintiffs the amount actually paid by them, nnd indemnifying them against the appearance of the check for $270, which fully meets the justice of the case. Judgment affirmed. MARSH v. SMALL. WILCOX et al. . BEAL et al. The object of the rule under which, in every case of a presentment of a bill for acceptance, the drawee is entitled, if he require it, to twenty-four hours to consider wether he will accept, is not to enable him to enquire as to the holder's title, but to ascertain whether he have effects of the drawer, or the prospect of them, or other reason for honoring the bill; and the acceptance of a bill at once, without taking advantage of this delay. is not of itself evidence of negligence or incautiousness, in not enquiring as to the title of the holder." A PPEAL from the Third District Court of New Orleans, Kennedy, J. Lockett and Goold, for the appellants. Flower took the bill under suspicious circumstances, and not in the usual course of trade. When the maker of a note shows it got into circulation by fraud, the onus is on the holder. 6 Wendell, 615. 12 lb. 484. 13 Ib. 605. The holder must be such bond fide, have taken the paper innocently in the usual course of trade, and need not account for his possession unless suspicion be raised. 3 Kent, 80. Miller v. Race, 1 Burr, 452. Grant and Vaughan, 3 Burr, 1516. Peacock v. Rhodes, 2 Douglas, 613. 2 Camp, N. P. 5. 13 East, 135. Thurston v. McKown, Mass. To preclude equities, the note must be transferred in the usual course of business, and without circumstances calculated to put a prudent person on his guard. Snow v. Peacock, 2 Carr. and Payne; 13 Eng. Com. Law. Lapice v. Clifton, 17 La. 157. The claimant is not bound to show by what means he lost the bill, if it was taken under suspicious circumstances, although taken for value. Down v. Halling, 2 Carr. and Payne, 11; 12 Eng. Com. Law Rep. If the bill be taken under circumstances calculated to put a prudent person on his guard, although taken in the usual course of trade, no title is conferred. Slater v. West, 3 Carr. and Payne; 14 Eng. Com. Law. Rothschild v. Carney, 17 Eng. Com. Law, 403. Early v. Brockford, 25 Eng. Com. Law, 1186. Strange v. Wigney, 19 Eng. Com. Law, 202. The expression, usual course of trude," means that, the party shall take the bill in his business, and as a payment of a debt contracted at the time. Coddington v. Bay, 20 John. 651. Payne v. Cutter, 13 Wendell, 606. Stalker v. Mc Donald, 6 Hill, 93. Rosa v. Brotherson, 10 Wendell, 86. This rule is well settled. Nicholson v. Patton, 13 La. 217. The late Supreme Court adopted the rule laid down in Gill v. Cubitt, 3 Barn. and Cress, 466, and held that, in transactions like this, parties who buy negotiable paper with a view to profit, without making due enquiries as to the title of the seller, and merely because there are good names on the paper, take the risk of its being stolen. The doctrine was again recognized in Lapice v. Cliffton, 17 La, 158. See also Vairin v. Hobson, 8 La. 52. Dupeux v. Troxler, 8 La. 95. Story on Bills, § 194. Louisiana State Bank v. New Orleans Navigation Company, ante p. 294. Lanfear v. Blossman, 1 An. 156. In the case of Little v. Boutin, it was held that, negotiable instruments endorsed in blank, when stolen, were subject to the rules of law governing stolen property, as found in the Louisiana Code. Tested by these principles, the plaintiffs case is put beyond controversy. If the case be taken out of the commercial law, then the bill of exchange, being like any other thing, the sale of it to Flower, was null. He did not buy it at auction; nor did he buy it of a person in the habit of selling such things. The language of a recent case, clearly defines the position of Flower with reference to the broker June. "If, on the hypothesis of the defendants, Richards had no principal, he had no possession but that based on fraud; and being publicly known as a broker, every one traded with him for the article at his peril, unless he put himself in communication with its owner. Leverich v. Richards, 1 An. R. 357. Having shown that Flower took no title to the bill, the liability of Beal, its acceptor, remains to be considered. Two things must concur to charge him; 1. The fact that Flower had no title. 2. That Beal had due notice of this fact. The first is established. As to the second, the evidence shows, not only that he was notified as soon as the loss or theft was known to plaintiffs, but that an injunction was issued commanding him not to pay the bill. After notice of the bill's being lost, the drawer pays it at his peril. See note to Chitty on Bills, 528. The defendants complain that the bill was improperly remitted. The mode of remittance is conclusively shown to have been the usual one at the time. Grymes, on the same side. Eggleston, for the defendant Beal. Story says that, the payment of a lost or stolen note by the maker, which has been endorsed in blank, to a bond fide holder, for a valuable consideration, will discharge him. Story on Promissory Notes, secs. 381, 382, 383, 384, 137, 196, 197, note (1). He asserts the same doctrine in his work on Bills of Exchange, secs. 415, 416, 417, 193, 194. Hə says: For a considerable length of time, the doctrine prevailed that, if the holder took the bill under suspicious circumstances, or without due caution or inquiry, although he gave value for it, yet he was not to be deemed a holder bona fide, without notice." But this doctrine has been since overruled and abandoned, on the ground of its inconvenience and obstruction to the free circulation and negotiation of exchange and other transferrable paper. Note 3 to sec. 194. Wray, for the defendant, Flower. The mode of transmitting the bill show- were lost or stolen. Watts, on the same side. The judgment of the court was pronounced by SLIDELL, J. In November, 1838, Huntington, the agent at Vicksburg of Wilcor, Anderson & Co., of New Orleans, forwarded a letter addressed to the plaintiffs by a steamboat going to New Orleans. This mode of transmission was the one usually adopted at that time, the mail being very irregular. The letter contained the first of a bill of exchange for $1,500, dated at Vicksburg, November 23, 1838, payable at sixty days after date, drawn by Randolph upon Beal, to the order of Huntington. The bill was endorsed by Huntington, not specially, but in blank. It appears that, at that time, there was great carelessness about letters thus sent. They were thrown on the table of the steamboat upon the boat's arrival, with the exception of money-letters, which were given in charge to the clerk. Letters thus sent sometimes disappeared, which was the case with the letter in question; for the plaintiff never received it, but afterwards received the second of the bill. On the 28th November, the first of the set was presented at Beal's counting house, and accepted by his clerk. On the same day Flower bought the bill at a discount of $35, from one June; and, on the 24th December, 1838, got it discounted at the Bank of Louisiana, to which bank Beal paid it at maturity. On the 29th November, the plaintiffs presented the second of the bill for acceptance, which Beal refused on account of the prior acceptance. On the 21st January, 1839, the plaintiffs brought the present suit against Beal and Flower. It was charged that the bill had been stolen from the steamboat, that Beal accepted it without due caution and improvidently, and that it was discounted by Flower without due caution, or proper enquiry, and under circumstances which could not vest the property of the bill in him. Flower was enjoined against negotiating, and Beal against paying, the bill. Judgment was asked decreeing the bill to be paid to the plaintiffs, and for general relief. The cause was not tried until the year 1847, and, as an interval of eight years had elapsed, it is not surprizing that there is some uncertainty as to the person by whom the lost, or stolen, bill was presented for acceptance. The clerk of Beal, who accepted it under a power of attorney, says it was a man named WILCOX v. BEAL. WILCOX v. BEAL. June. Another clerk says it was not June, but an individual unknown to him, of perfectly genteel appearance. The argument of the plaintiffs' counsel assumed that June was the person who made the presentment; and was directed mainly to the points that he was a person of bad character, and also that the promptness of the acceptance was unusual. It is very clearly shown that June became a man of intemperate habits; but he had borne, for several years previously, a good character, and the testimony does not satisfy us that he had become a drunkard, and lost his reputation, at the time of the transaction. It was also urged that the nature of June's business made a presentment by him unusual, and should have excited the suspicions of the acceptor. It seems he was what the witnesses term a street broker; by which they explain themselves as meaning, one who goes about and sells bills and notes for a commission. We certainly cannot consider this as a circumstance throwing any imputation upon the good faith or even the prudence of the acceptor, especially when considered in connection with the business standing and social position of June, who had occupied an office in the commercial part of the town for a considerable time, doing a business which required the services of two clerks, and enjoying a good mercantile credit. We may also remark that, in a country where the distribution of labor is so imperfect as with us, and where people are in the habit of dealing in so many different ways, there was nothing to excite suspicion in the presentment of the bill by an individual pursuing the vocation which June then did. Objection was made to the acceptance of the bill as unusual, because made immediately. In England the practice appears to be, to allow the drawee til! the day after the presentment to determine whether or not he will accept; and Story, as he speaks without qualification, may be considered as recognizing it also as the american rule, that in every case of a presentment for acceptance the drawee is entitled, if he requires it, to have twenty-four hours to consider whether he will accept the bill or not; and that it is usual, in such cases, for the holder to leave the bill with him during that period. See Story on Bills, § 237. Chitty 305. But the reason of this rule is not that the drawee may make enquiry as to the holder's title, but that he may have an opportunity, before he determines whether he will accept or not, of examining his accounts and correspondence, and seeing whether he has effects of the drawer or the prospect of them, or other satisfactory reason for honoring the bill. The rule is one of mercantile courtesy to the acceptor, and for his convenience. And hence when the acceptor accepts at once, he must be considered as doing so because he is satisfied, without examination, that he has effects; and his promptness ought not to be imputed to him as a fault. Beal's book-keeper and agent, who accepted the bill, says the party was not requested to wait, because he knew the drawer's account was right, and had no su picion with regard to the holders. It is also in evidence that Beal was not in the habit of asking time for examination, being very well acquainted with the state of his accounts; and that the signatures of Randolph and Huntington were well known in his house. As to the acceptance then of this bill we conclude that, there was not mala fides on the part of the drawee, nor even negligence. The next enquiry is, whether Flower is to be considered a bond fide holder. The district judge so treated him, and the evidence is not such as to authorize us to disturb his opinion. The bill was for $1,500, and had about sixty days to run. He gave $35 less than the face of the bill. The rate appears from the evidence not unusual; and is not such a reduction as a man in bad faith, buying a stolen bill, would require. The fact that he bought from June, whose vocation and stand- WILCOX 17. BEAL. DUBUCH et al. v. WILDERMUTH, Administratrix, &c. The presenting of a claim to the representative of a succession is in the nature of an amicable demand, and is governed by the same rules. 3 407 45 769 |