Doe, on Demise of Cheere and Others, v Smith
| Jurisdiction | England & Wales |
| Judgment Date | 22 November 1814 |
| Date | 22 November 1814 |
| Court | Court of Common Pleas |
English Reports Citation: 128 E.R. 905
Common Pleas Division
S. C. 1 Marsh. 359.
all other persons whatsoever, united or to be united, in covenant or partnership, exceeding the number of six persons, in England, to borrow, owe, or take up any sum or sums of money on their bills or notes payable at demand, or at any less time than six months from the borrowing thereof, during the continuance of the governor and company of the bank of England. Gibbs C. J. rejected the evidence of [794] the purpose for which the notes were made, thinking that if the company was warranted by their act in issuing notes payable to order, it could not be the intention of the act that an innocent indorsee for a valuable consideration should be bound to look to a fact of which he must necessarily be ignorant, viz, the reasons which induced the company to issue those notes, or should be affected by the circumstance that the makers of the notes had it in their minds to apply the money thereby raised, to one purpose or to another. He thought the statute must he considered as merely directory as to that point. The jury found a verdict for the Plaintiff subject to the points reserved. Vaughan Serjt. in this term, moved to arrest the judgment upon the first three points, and for a new trial on the fourth. He urged that it was never intended that this company should be erected into a banking company for general purposes, in repeal of the 8th & 9th W. 3, c. 20, s. 28, and therefore they were bound to bring themselves within the special power of this act, and to express in their notes whether they gave the payee an option of becoming a proprietor or did eat, and if they did, then they were bound to express the terms of the option, otherwise the notes were void. The Court intimated that where no option was expressed on the face of the note, it was sufficiently apparent that no such option was given : and that in such case the note needed not to differ in form from an ordinary promissory note. If it were intended to give to the holder an option of becoming proprietor, the note must express the terms of such option. Upon the first objection, that assumpsit would not lie against a corporation, the Court clearly agreed thereto, unless the act which authorized [795] the making of promissory notes, eo nomine, by a corporation, ex vi termini impliedly empowered the corporation to make a promise, which was therefore the point to be considered. They granted a rule nisi as well in arrest of judgment as for a new trial. On this day Best Serjt. was prepared to have shewn cause and Vaughan to support the rule, but The Court, without argument or discussion of the rule in arrest of judgment, made the rule fon a new trial Absolute. DOE, ON DEMISE OF CHEERE AND OTHERS, V. SMITH. Nov. 22, 1814. [S. C. I Marsh. 359.] A covenant that the lessee, his executors, or administrators will not assign, does...
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