Miller v Race
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 1758 |
| Date | 31 January 1758 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 398
IN THE COURT OF KING'S BENCH
See 1 Bos. 649. 4 Durn. 30, 325. 1 Hen. Bl. 318. 3 Durn. 554, and S. C. cited and S. P. adjudged on a bill of exchange, payable to A. or bearer. 3 Burr. 1519.
S. C. 1 Sm. L. C. (11th ed.) 463. Adopted, Lichfield Union v. Grene, 1857, 1 H. & N. 889. Referred to, Crouch v. Crdit Foncier, 1873. L. R. 8 Q. B. 381; Goodwin v. Roberts, 1875-76, L. R. 10 Ex. 350; 1 App. Cas. 476; London & County Banking Company v. London & River Plate Bank, 1887-88, 20 Q. B. D. 238; 21 Q. B. D. 543.
milder versus race. Tuesday, 31st Jan. 1758. Bank notes, though stolen, the property of the person to whom they are paid, without knowledge of the larceny. [See 1 Bos. 649. 4 Burn. 30, 325. 1 Hen. Bl. 318. 3 Durn. 554, and S. C. cited arid S. P. adjudged on a bill of exchange, payable to A. or bearer. 3 Burr. 1519.] [S. C. 1 Sm. L. C. (llth ed.) 463. Adopted, Lichfteld Union v. Greene, 1857, 1 H. & N. 889. Eeferred to, Crouch v. Credit Fancier, 1873, L. R. 8 Q. B. 381 ; Goodwin v. Robarts, 1875-76, L, R. 10 Ex. 350; 1 App. Gas. 476; London County Banking Company v. London Itiver Plate Bank, 1887-88, 20 Q. B. D. 238 ; 21 Q. B. D. 543.] It was an action of trover against the defendant, upon a bank note, for the payment of twenty-one pounds ten shillings to one William Finney or bearer, on demand. The cause came on to be tried before Lord Mansfield at the sittings in Trinity term last at Guildhall, London : and upon the trial it appeared that William Finney, being possessed of this bank note on the llth of December 1756, sent it by the general post, under cover, directed to one Bernard Odenharty, at Chipping Norton in Oxfordshire ; that on the same night the mail was robbed, and the bank note in question (amongst other notes) taken and carried away by the robber ; that this bank note, on the 12th of the same December, came into the hands and possession of the plaintiff', for a full and valuable consideration, and in the usual course and way of his business, and without any notice or knowledge of this bank note being taken out of the mail. It was admitted and agreed, that, in the common and known course of trade, bank notea are paid by and received of the holder or possessor of them, as cash ; and that in the usual way of negotiating bank notes, they pass from one person to another as cash, by delivery only and without any further inquiry or evidence of title, than 1 BURR. 463. MILLER V. RACE 399 what arises from the possession. It appeared that Mr. Finney, having notice of this robbery, on the 13th December, applied to the Bank of England, "to stop the payment of this note:" which was ordered accordingly, upon Mr. Finney's entering into proper security " to indemnify the bank." [453] Some little time after this, the plaintiff applied to the bank for the payment of this note; and for that purpose delivered the note to the defendant, who is a clerk in the bank: but the defendant refused either to pay the note, or to re-deliver it to the plaintiff. Upon which this action was brought against the defendant. The jury found a verdict for the plaintiff, and the sum of 211. 10s. damages, subject nevertheless to the opinion of this Court upon this question-" Whether under the circumstances of this case, the plaintiff had a sufficient property in this bank note, to entitle him to recover in the present action 1 " Mr. Williams was beginning on behalf of the plaintiff.- But Lord Mansfield said, " that as the objection came from the side of the defendant, it was rather more proper for the defendant's counsel to state and urge their objection." Sir Richard Lloyd, for the defendant. The present action is brought, not for the money due upon the note; but for the note itself, the paper, the evidence of the debt. So that the right to the money is not the present question : the note is only an evidence of the money's being due to him as bearer. The note must either come to the plaintiff by assignment; or must be considered as if the bank gave a fresh, separate, and distinct note to each bearer. Now the plaintiff can have no right by the assignment of a robber. And the bank cannot be considered as giving...
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