fer. than two calendar months before the date of the commission, though II. Who made after a secret act of bankruptcy, provided the party had not no-may transtice of the prior act of bankruptcy, or that the bankrupt was insolvent or had stopped payment. Under this statute it is clear, that any indorsement or transfer of a bill or note, made after a secret act of bankruptcy, upwards of two months before the date of the commission, will be valid, provided the party in whose favour it were made had no notice of such act of bankruptcy or general insolvency. If a bill be indorsed by a bankrupt to a particular creditor, by way of fraudulent preference, even before an act of bankruptcy, it will be. invalid. The rule upon this subject is, that if the preference is not the 121 ] mere voluntary act of the party, but only consequential, as it is called, as where the act is done in the ordinary course of business, and upon the application of the creditor, or in pursuance of some prior agreement, which was not made in contemplation of bankruptcy, or were done to deliver the party from legal process, or from the threat and apprehension of it, or even from the pressure or importunity of the creditor, then it will not be void, though made the very moment before an act of bankruptcy committed. And where the preference is consequential merely, the creditor's or bankrupt's own knowledge or apprehension of his insolvency, is immaterial, that being frequently the very reason of the creditor's taking such measures against the bankrupt as are precisely the ground of justifying the act done by the bankrupt, in consequence of it. A trader cannot, in contemplation of bankruptcy, indorse a bill or note to his creditor, of his own accord, and without any application. But it is not sufficient to avoid the transaction, that the indorsement was made voluntarily, and that an act of bankruptcy ensues, it must also appear that he had the act of bankruptcy in contemplation at the time when the indorsement was made. Nor has it ever been held, that if a creditor press for payment of his debt, and thereby obtain transfer of a bill or note to him, that the intention of the bankrupt shall be called in aid to set it aside. If it were transferred through the urgency of the demand, or through the fear of prosecution, whatever may have been in the contemplation of the bankrupt, this will not vitiate the proceeding. Nor will the transaction, if bona fide, and not colourable, be impeached by the secrecy adopted in the transaction by the trader, to save his own credit in the view of the world. And where a trader, in contemplation of bankruptcy, and without solicitation, put three checks into the hands of his clerk. to be delivered to a creditor at the counting-house of the latter, but before they were delivered, the creditor called at the trader's, and demanded payment of his debt, upon which the checks were delivered to him, it was held that the intention to give a voluntary preference not being consummated, the delivery of the checks was valid. So where a creditor obtained a preference in contemplation of an intended deed of composition, and which preference would have been void as against the creditors under that deed, yet as the composition went off, it was decided, that the creditor might hold his securities against the assignees under a commission of bankrupt subsequently issued, but not contemplated at the time of the preference.m See the rule and cases upon this subject in Smith v. Payne, 6 T. R. 152.--Hartshorn e. Slodder, 2 Bos. & Pul. 589. Crosby v. Crouch, 11 East, 256. Cullen, 280, 1. CHITTY ON BILLS. k Crosby v. Crouch, 11 East, 256. 1 Bayley v. Ballard, 1 Campb. 416. Q may transfer. II. Who So there are cases in which a trader in insolvent circumstances may return bills of exchange to the party from whom he has received them though they would otherwise become the property of his assignees." If a promissory note be given to an uncertificated bankrupt, after the commission issued, and the assignees require the maker to pay them, the right to the note is thereby vested in the assignees, and an action cannot be supported by the bankrupt, unless indeed he acquired the note in respect of a contract made in his favour by the assignees or with their concurrence.p In case of the bankruptcy of a banker, bills deposited with him as agent, to obtain payment, do not pass to the assignees, unless the banker has discounted them, or advanced money upon the credit of them, in which case the assignees acquire the entire property in them if discounted, or have a lien on them pro tanto in case of a partial advance. But the effect of bankruptcy upon the property in bills, in the hands of the trader, will be more fully considered in the chapter relating to bankruptcy. On the death of the holder, the right of transfer is vested in his executor or administrator. (1) If thee xecutor or administrator indorse [123 the bill or note, without qualification, he would be personally liable in Graff and others, assignees, &c. v. Greffulke, 1 Campb. 89. If a trader, on receiving bills of exchange from one of his creditors abroad, to whom he is indebted beyond the amount of them, after becoming insolvent, but before commiting an act of bankruptcy deliver these bills with the consent of his other creditors, to an agent of the person who had remitted them for the use of the latter, if he should be ultimately entitled to them; this is a legal and valid transaction, and if a commission of bankruptcy afterwards issue against the tra der, his assignees cannot maintain an action against the trustee to recover the produce of the bills. Gladstone v. Hadwen, 1 M. & S. 517. Where S. obtained bills of exchange from the defendant upon a fraudulent representation, that a security given by him to the defendant (which was void) was an ample security, and on the next day, having resolved to stop payment, informed the defendant that he had repented of what he had done, and had sent express to stop the bills and would return them, and three days afterwards committed an act of bankruptcy, after which he returned to the defendant all the bills, (except one which had been discounted) and also two bank notes, part of the proceeds of such discount; and the defendant delivered back the security, and afterwards a commission of bankruptcy issued against S., and the assignees under such commission brought trover against the defendant for the bills and bank notes. Held, that the defendant was entitled to retain them. "Kitchen v. Bartsch, 7 East 53.-Smith's Rep. 58. S. C. P Coles v. Barrow, 4 Taunt. 754. Holt C. N. P. 174. Per Lord Ellenborough, in Giles . Perkins, 9 East, 14. Carstairs v. Bates, 3 Campb. 301; and see Parr v. Eliason, 1 East, 544, and cases there cited; and see 1 Bos. & Pul. 83, n. a; and see 1 Mont. 354, 5, &c. Ex parte Waring and others, 19 Ves. 345. Rawlinson v. Stone, 3 Wils. 1. 2 Stra. 1260. Barnes, 164. S. C. A note was payable to A. B. or order; A. B. died intestate, and his administrator indorsed it to the plaintiff. These facts appearing upon the declaration, the defendant demurred, and contended that the personal representative of the payee had no power to indorse a note, but the court of Common Pleas, after three arguments, and the Court of King's Bench, upon error brought, were unanimously of opinion that he had, and each court said it was every day's practice, and the constant usage for executors and administrators to indorse bills and notes payable to the order of their testators or intestates. (1) If an administrator to whom a bill of exchange, indorsed generally, is delivered for debt due to the intestate, die after it is due, and before it is paid, the administrator de bonis non of such intestate has the right to sue on it. Catherwood v. Chabaud, 1 Bara. & Cress, 150. case the bill should be dishonoured." Executors are not personally II. Who liable in case of the failure of a banker, in whose hands they have may transdeposited bills, part of the estate. * (159) If a bill has been made or transferred to several persons not in partnership, the right of transfer is in all collectively, and not in any individually; but where several persons are in partnership, the transfer may be made by the indorsement of one partner only, in which case the transfer is considered as made by all the persons entitled to make it. (159) And it has been held, that though such persons may not be in partnership, and only one has indorsed, yet that if the drawee accepted after the indorsement, he cannot dispute the regularity of the latter. In general we have seen that one partner may, without the express concurrence of the other parties, make a valid transfer of a bill, even in fraud of his co-partners. In the case of a bill payable to A. for the use of B., the right of transfer is only in A. because B. has only an equitable and not a legal interest." King v. Thom, 1 T. K. 487. Gibson v. Minet, 1 Hen. Bla. 622. Bayl. 62. The court held, that upon a bill payable to several as executors, they might sue as executors; and per Buller, J. no inconvenience can arise from their indorsing the bill; for if they indorse, they are liable personally, and not as executors; for their indorsement would not give an action against the effects of the testator. Rowth v. Howell, 3 Ves. 565, 6. Ante, 25, 28. Bayl. 55. Carvick v. Vickery, Dougl. 653, (n.) ante, 38. and Jones v. Radford, 1 Campb. 83. and see Williams v. Thomas, 6 Esp. Rep. 18. Ante, 35. Sel. Ni. Pri. 4th ed. 337. dorsed, could not now dispute the regu- Swann v. Steele, 7 East, 210. Ante, fer. Evans v. Cramlington, Carth. 5. 2 Vent. 307, Skin. 264. Company of Felt-makers v. Dovis, 1 Bos. & Pul. 101. note c. Smith v. Kendall, 6 T. R. 124. Selw. Ni. Pri. 4th ed. 337. A bill was payable" to Price or order, for the use of Calvert." Price indorsed it to Evans, after which an extent issued against Calvert, and the money due upon it was seized to the use of the king. These facts appearing upon the pleadings, two points were make upon demurrer; the one whether Calvert had such an interest in the money as might be extended, the other whether Price had power to indorse the bill, or whether he had only a bare authority to receive the money for the use of Calvert; and the Court of King's Bench, and afterwards the Exchequer Chamber, held that Calvert had not such an interest as could be extended, and that Price had power to indorse the bill, and judgment was given for the plaintiff. (159) If a negotiable note be made payable to two executors as such, it cannot be transferred by the indorsement of one of them; both must indorse the note to pass the property by assignment. Smith v. Whiting, 4 Mass. Rep. 334. (159) One partner may by an indorsement made by himself in the name of the partnership, entitle himself to sue as indorsee upon a negotiable note given to the partnership. Kirby v. Casswell, 1 Caines, Rep. 305. And an indorsement to a third person of such a note by one partner by writing the name of the firm on the back of the note, is a valid transfer. Kane v. Scofield, 2 Caines' Rep. 368. If one of the partners of a firm has been in the habit of indorsing the name of the firm on bills of exchange as security it is a fact from which the jury may legally infer that he had authority from the other partners; and the bona fide holder of such bill may recover against all the partners notwithstanding the indorsement of the name of the firm was expressly prohibited in the articles of partnership. Bank of Kentucky v. Brooking, 2 Litt. 45. a III. The transfer may made. Indorsements of bills are most usually made after acceptance, and time when before payment; but though the term "transfer," like the term "acceptance," supposes a pre-existing bill, a transfer may be made previously to the bill being completed. Thus it has been adjudged, that if a man indorse his name on a blank stamped piece of paper, such an indorsement will operate as a carte blanche, or letter of credit, for an indefinite sum, consistent with the stamp, and will bind the indorser for any sum to be paid at any time, which the person to whom he intrusts the instrument chooses to insert in it, (160) and such paper shall be considered a bill by relation from the time of signing and indorsing. So when in an action brought by the indorsee of a post-dated bill, drawn by the defendant and indorsed by the payee before the day on which it bore date, and the payee died before such date, the defendant contended that the bill did not acquire the character of a negotiable bill, within the custom of merchants, till the time it bore date, and that the payee who indorsed it, having died before that time, such indorsement conveyed no title to the plaintiff, and that the defendant as drawer, was not liable; upon a special case reserved; the Court of King's Bench were of opinion, that such indorsement before the date of the bill, was legal and valid, and notwithstanding such death of the indorser, the plaintiff was entitled to recover. Russell v. Langstaff, Dougl. 514. New some v. Thornton, 6 East, 21, 22. Collis v. Emett, 1 Hen. Bla. 313. 316. 319. Ante, 24, in notes. Per curiam, in Snaith v. Mingay, 1 M. & S. 87. Crutchley v. Clarence, 2 M. & S. 90. 1 Marsh. 29. and Usher v. Dauncey and others, 4 Campb. 98. See these cases in notes, ante, 54. Pasmore v. North, 13 East, 517. The defendant, on the 4th of May, 1810, drew a bill for 2007. on Brook and Co. dated the 11th of may, 1810, payable to Totty or order, 65 days after date. On the 5th of May, Totty indorsed this bill to the plaintiff for a valuable consideration, and on the same day died. After the 4th, and before the 11th of May, the defendant But there is an express provision in On received effects of Totty's to the amount (160) The same doctrine has been asserted in the United States. Violet v. Patton, 5 Cranch, 142. Putnam v. Sullivan, 4 Mass. Rep. 45. So where A. made a note with a blank for the sum, and sent it to the payee, and requested him to fill it up, it was held that the payee might lawfully fill up the blank and recover upon the note. Jordan v. Neilson, 2 Wash. Rep. 164. See ante, 36. 66 A. wrote his name on a blank paper and gave it to B. who made a note on the other side payable to C. or order, with interest, and signed it as promissor; C. afterwards received part payment of the note from B., and indorsed the amount on the note, and afterwards brought an action on non-payment of the residue against A., and wrote over his name in consideration of the subsisting connexion between me and my son-in-law B., I promise and engage to guarantee the payment of the contents of the within note on demand." It was held that C. had a right to fill up the indorsement so as to make A. responsible as a common indorser, or as a guarantor, warrantor or surety, liable in the first instance, and in all events as a joint and several promissor would be. S. J. Court of Massachusetts, Prec. Declar. 113 note. S. C. cited 3 Mass. Rep. 275. See and consult Herrick v. Carman, 12 John. Rep. 159. So the holder of a bill of exchange, with several indorsements in blank, has a right to strike out the names of the indorsers subsequent to the first, and to write over the name of the first indorser an assignment to himself; or the bill without such assignment will be considered as his property by his having it in his power to make it Ritchie & Wales v. Moore, 5 Munf. Rep. 3SS. 17 Geo. 3. c. 30. s. 1. that bills and notes for the payment of a less III. Time sum than five pounds, shall not be indorsed before the date thereof. of transfer. Although if a bill of exchange, payable at a certain time after date, be presented for acceptance and refused, and the holder thereof neglect to give due notice of such dishonour to the drawer or indorsers, they are discharged from liability to such holder, yet if before the specified time of payment he indorse the bill to a party, ignorant of the laches, for valuable consideration, such indorsee will not be thereby affected, [ 125 ] and may enforce payment from the drawer or prior indorsee. But if such indorsee, at the time he received the bill, knew of the dishonour, or took the bill after it was due, he will be affected by such laches and will not be entitled to recover. So where the holder of a bill, before • See observations on this statute, in Passmore v. North, 13 East, 517. # O'Keefe v. Dunn, 1 Marsh, 643. 6 Taunt. 305, S. C. per Gibbs, C. J. Heath and Dallas, Js. dissentiente Chambre, J. The payee of a bill of exchange presented it for acceptance which was refused, but no notice of such dishonour was given to the drawer, and the payee afterwards indorsed over the bill, without notice to the indorsee of such refusal to accept, and the latter again presented the bill for acceptance, which was again refused. Held, that the indorsee might recover on the bill against the drawer, notwithstanding the laches of the payee, by three, against Chambre, J.-Per Gibbs, C. J., he who takes a bill after it has arrived at maturity, takes it subject to all the defences which could have been made by any previous holder, for the bill being unpaid its date is notice to him sufficient to put him on inquiry, but if he takes the bill before it is due, he takes it not subject to the same infirmity of title, because he then takes it without notice of any suspicious circumstances that may break in upon his remedy against any former holder. This is the general law, but there may be circumstances that may make it otherwise. A holder is not bound to present a bill for acceptance, there is nothing therefore on the face of an unac cepted bill to awaken a suspicion that it has been presented for acceptance and refused. But it is said, the general law is, that where notice is requisite, if notice be not given the drawer, and all persons claiming to be entitled to have notice of the dishonour, are discharged. I think that is a begging of the question; if a holder comes to the question that the drawee will not accept, or will not pay the bill when it becomes due, and omits to give notice, he shall never sue the drawer, because his neglect prevents the drawer from using diligence in withdrawing from the drawee the effects which were destined to satisfy the bill. But I am of opinion, that if the bill is passed for a valuable consideration, without notice of that defect of title, he who so in nocently takes the bill is not guilty of any breach of duty towards the drawer, and is therefore not affected by the omission; Roscoe v. Hardy, 12 East, 434, is mainly distinguishable from the present case, in respect that the bill there continued up to the time of its maturity in the hands of a holder who had neglected to give that notice at the time when the bill was first refused acceptance; and the holder, I agree, had thereby, as to his own claim, discharged the drawer, I am of opinion that the circumstance of the bill continuing in the same hand, materially differs that case from the present. I therefore think that the present plaintiff not having had notice that the bill had been presented for acceptance and dishonoured, before she took it is entitled to recover. & Crossly v. Ham, 13 East, 498. The defendant, for the accommodation of Clark, indorsed two bills drawn by Clark, in America, upon Dickenson and Co. in London, for 4501. each, in favour of the defendant, dated 10th of February, 1804, and payable 60 days after sight; these bills were paid over by Clark to Parry, in February, 1804. The defendants Parry and Clark, then, and until after the 14th of April, 1808. resided in America. On the 1st of March, Parry indorsed and remitted the bills to his agents in London, with directions to make a payment to the plaintiff, to whom he then and still was indebted. On the 26th April, the bills were presented for acceptance, dishonoured, and protested for non-acceptance, and notice thereof was given to the defendant. The plaintiff having been advised of the remittance by a letter from Parry, dated on the 12th of April, applied to Parry's agent for 4507.; and on the 6th of June they delivered one of the bills to the plaintiff, apprising him of its dishonour, and that therefore he took the bill subject to all its infirmities. The bill became due on the 28th of June, and payment being refused, this action was brought. The defendant, however, produced at the trial an instrument signed by Parry, dated 14th April, 1804, by which he agreed that the defen |