Grant v Vaughan
| Jurisdiction | England & Wales |
| Judgment Date | 05 July 1764 |
| Date | 05 July 1764 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 957
IN THE COURT OF KING'S BENCH
S. C. 1 Black. 485.
See Bull. 273. 3 Durn. 177. 4 Durn. 155. 1 H. Bl. 317. 4 Bosanq. 649. 3 Bosanq. 561.
Referred to, Goodwin v. Robarts, 1875-76, L. R. Ex. 357; 1 App. Cas. 476; Bechuanaland Exploration Company v. London Trading Bank [1898], 2 Q. B. 675.
grant versus vaughan. Wednes. 4th and Thurs. 5th July 1764. [S. C. 1 Black. 485.] Bearer of a bill of exchange, may maintain an action against the drawer. [See Bull. 273. 3 Durn. 177. 4 Burn. 155. 1 H. Bl. 317. 4 Bosanq. 649. 3 Bosanq. 561.] [Eeferred to, Goodwin v. Bobarts, 1875-76, L. R. 10 Ex. 357; 1 App. Cas. 476; Bechuanaland Exploration Company v. London Trading Sank [1898], 2 Q. B. 675.] Upon shewing cause why a verdict which had been given for the defendant should not be set aaide (upon payment of costs,) and a new trial granted - the case appeared to be this - The defendant Vaughan, a merchant in London, gave a cash-note upon his banker, to one Bicknell a husband of a ship of his : which note was dated " London, 22d October 1763," and directed to Sir Charles Asgill, who was Vaughan 's banker; and was worded thus - "Pay to ship 'Fortune,' or bearer," so much. Bicknell, by some accident, lost this note. The person who found it, or who at least was in possession of it (however he might obtain that possession,) came, four days after the note was payable in London, to the shop of Grant the plaintiff, who was a tradesman at Portsmouth, and bought five pounds worth of tea of him and gave him this note in payment, desiring to have the change out of it. Grant (the plaintiff) stept out, to make inquiry " who this Vaughan might be : " and upon being informed " that he was a very good man and that it was his hand-writing," he readily gave the change out of the note, retaining the price of the tea. Vaughan, upon being apprized [1517] that Bicknell had lost the note, sent notice to Sir Charles Asgill, " not to pay it." Whereupon Grant, being refused payment, brought his action upon the case against Vaughan, and inserted two counts in his declaration ; one, upon an inland bill of exchange ; the other, an indebitatus aaaumpait for money had and received to his use. The cause was tried by a special jury of merchants ; who found for the defendant. Sir Fletcher Norton and Mr. Dunning argued on the part of the plaintiff; and Mr. Morton, Mr. Eyre (Recorder of London,) and Mr. Wallace, on the defendant's part. On the part of the defendant it was insisted - That an action could not be maintained oh either of these two counts. That this is not a negotiable note ; but only an authority to receive so much cash. That Grant did not take it upon the credit of the drawer; but upon the credit of the person who gave it him in payment. That such a draught as this cannot be considered as a negotiable bill of exchange : for it was not accepted, nor indorsed : nor was it protestable, nor intitled to any day of grace. It is only a mere contrivance or convenience between the banker and the person who keeps cash with him. And Mr. Wallace not only insisted that these cash-notes are never intended to be generally negotiable ; but even supposed them to be confined within the extent of the bills of morality, at furthest. A bill of exchange to A. or bearer, is a bill of exchange to A. himself : but is not negotiable. And there is * no instance (as the recorder said) of any custom of merchants, " for a bill of exchange being made payable to bearer," generally. In 3 Lev. 299, Norton v. Coggs, in C. B. P. 3 W. & M. on an action brought by the bearer of a goldsmith's note payable to B. or bearer, the custom " to pay to the bearer " was holden too general. In 1 Salk. 125, Hodges v. Steward, P. 5 W. & M. B. R. the first point resolved is, " that a bill of exchange payable to J. S. or bearer, is not assignable by the contract; so as to enable the indorsee to bring an action, if the drawer refuse to pay." [1518] The preamble to 3, 4 Ann. c. 9, does not say one word about notes payable to bearer. It begins thus - " Whereas it has been held, that notes in writing whereby the party promises to pay unto any other person, or his order, are not * Sed vide 2 Shower, 235, Hintoris case, 34 C. 2, B. R. 958 GRANT V. VAUGHAN 3 BCBR. 1519. assignable, &c." And though the words, " or unto bearer" are slipt into the enacting part of the first clause, yet no part of the whole statute bears any relation to them. In the case of Morris v. Lee, Tr. 11 G. 1, B. E. (which was an action brought by the indorsee of a note " to be accountable to A. or order, for 1001.") the " Court observed that the words or order" was the proper expression used in such notes, and mentioned in the Act of Parliament, where it intended the note should be indorsable or negotiable. Arguments therefore arising from cases upon notes of hand will not prove much in the present case. And upon the second count, the plaintiff can have no pretence, they said, to recover against Mr. Vaughan: he can only resort to the person from whom he received or purchased the note. This note is not like a banker's note payable to bearer. However, even upon one of them, the bearer can not recover as bearer: for which, they cited the case of Walmesley v. Child*1 If a bill is payable " to bearer" only, the original advancer of the money may indeed maintain an action against the drawer upon an indebitatus assumpsit, for money had and received to his use: but no other person can do so, though he comes by it fairly and upou a valuable consideration. And for this they cited the abovementioned case of Hodges v. Steward, in 1 Salk. 125. The plaintiffs counsel insisted that this bill or note was in its nature negotiable ; and that auch bills were in fact always considered as negotiable and actually negotiated, and commonly circulated as cash. And if they be, from the nature of the contract, negotiable, the finding of the jury cau not alter the law : it is not the province of the jury, but of the Court, to determine what is or is not an inland bill of exchange or a promissory note, within the statute. If the jury founded their verdict on law, they have mistaken the law : if on fact, it is directly contrary to the notoriety of the fact; and bank-notes alone are a full and sufficient proof of that. And it is not to be conceived, that they are negotiable within the bills of mortality, and not negotiable beyond or out of them : if they are negotiable any where, they must be so every where. [1519] They object " that it is nob a bill of exchange, because it is not accepted, nor can be protested, nor is intitled to a day of grace, nor is indorsable." But it is a negotiable instrument; it is not necessary that it should be a bill of exchange. An inland bill of exchange is...
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