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CASES BEFORE THE PRIVY COUNCIL.

1849.

THE BANK

OF BENGAL

บ.

bank notes or bills of exchange, whether such holder has received them as pawnee or otherwise;" and he cites, in support of this, the case of Collins v. Martin. Here the Bank were bond fide holders, for value, of the MACLEOD. notes, and their title ought not to be invalidated by any misapplication of the same by A. D. Macleod. The authorities referred to by Sir Lawrence Peel, as to bills wrongly endorsed, do not warrant the judgment of the Court. In Fearn v. Filica (a) the question was, whether the endorser had authority to endorse; and to the same effect are the cases of Adams v. Jones (b), Robinson v. Little (c), Robertson v. Kensington (d), Attwood v. Munnings (e), Sigourney v. Lloyd (f), and Goodman v. Harvey (g). The cases of Edie v. The East India Company (h), Ex parte Twogood (i), Walker v. M'Donnell (j), Smith v. Clarke (k). Smith's Mercantile Law, pp. 209-10 (4th Edit.), are strongly in our favour.

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The third issue was, whether the Respondent did, in fact, endorse the notes. The Court below held, that a party could not endorse to himself, as there could not be an endorsement without delivery, any more than he could sell to himself: and, therefore, that in fact he had not endorsed the notes. This is not law, as no delivery was requisite to complete the assignment. It was formerly thought by the Court of Exchequer, in Marston v. Allen (1) that delivery must be proved; but that case has been since over

(a) 8 Scott's N. R. 241. (c) 9 Q. B. Rep. 602.

(e) 7 Bar. & Cr. 278.

(g) 4 Ad. & Ell. 870.

(i) 19 Ves. 229.

(b) 12 Ad. & Ell. 455. 4 Per. & D. 474.
(d) 4 Taunt. 30.

(f) 8 Bar. & Cr. 622.

(h) 2 Burr. 1216.

(j) 11 Law Times, 270.

(k) Peake 225. 1 Esp. 180. (1) 8 Mee & Wel. 494.

1849.

THE BANK
OF BENGAL

v.

MACLEOD.

ruled. Hayes v. Caulfield (a), and Brind v. Hampshire (b).

There is also another objection, upon which, we submit, the Plaintiff ought to have been nonsuited, as it goes to the root of his title. Detinue was not the proper form of action, and will not lie in a case like this. Buller's Nisi Prius, tit. "Detinue," p. 48-9. A. D. Macleod deposited the notes in 1841, and the Bank sold them in 1842 the action was brought in 1846, at which time the Respondent had no right of possession.

Mr. Peacock, Q. C., for the Respondent.

Upon the argument of the Appellants, and the Judgment of the Court below, two questions arise: First, whether the endorsement was a blank endorsement; and secondly, whether there had been any negligence on the part of the Bank. I do not dispute the principle laid down in Foster v. Pearson (c), that a person taking Bills of Exchange bona fide for value, has a good title, though he take them without care or caution, except so far as the want of such care and caution may affect the bona fides of the transaction. The question, is, whether, when the notes were in the hands of A. D. Macleod, they were negotiable by bearer. If the notes had been payable to bearer, I should not deny that they were negotiable; but on the face of the notes it appears they were payable to James W. Macleod's order, and certainly he never endorsed them in blank. The third point raised by the issue, is, did the Respondent put a general endorsement on the notes. That must depend entirely on the power given to A. D.

(a) 5 Q. B. Rep. 81.
(c) 1 C. M. & R. 849.

(b) 1 Mee. & Wel. 365.

Macleod by his principal; which is, to "sell, endorse and assign," or to receive payment. If, therefore, A. D. Macleod had no power to do what he has done, the endorsement was necessarily void. The endorsement mentioned in the power of attorney was for the purpose of authorizing him, as agent for the purposes of a sale, and it is clear law, that a power to sell, does not give a power to pledge. De Bouchout v. Goldsmid (a). When a bill is offered for sale, it is incumbent on the party taking it, to inquire the authority for its transfer, and that disposes of the cases cited by the Appellants. In Collins v. Martin (b), and Brandao v. Barnett (c), the bills were payable to bearer. The taker of a bill from an agent must ascertain the authority of the agent, he must look at the power as much as if it was part of the bill, and must see that the agent does not act beyond his authority, as, if the agent does so, his acts are void. Attwood v. Munnings (d). Here the Bank took the word of A. D. Macleod only, that the notes were his own, and made him endorse them, making him also personally liable. Adams v. Jones (e). The note was then endorsed, but not delivered for the purpose of passing it. Endorsement is prima facie proof of delivery, but the delivery may be rebutted. Robertson v. Kensington (f). It is, however, said, that A. D. Macleod endorsed to himself, that he was both agent and endorsee, and that it must be presumed that he got the note back as a bond fide owner; but it is evident, that he had it merely as an agent, and in that case the Bank were bound to

(a) 5 Ves. 211.

(c) 12 Clk. & Fin. 787.
(e) 4 Per. & D. 474.

(b) 1 Bos. & Pul. 648.
(d) 7 Bar. & Cr. 278.

(f) 4 Taunt. 30.

1849.

THE BANK

OF BENGAL

บ.

MACLEOD.

1849.

make proper inquiries, and in not doing so they were THE BANK guilty of gross negligence. Crook v. Jadis (a), Backhouse v. Harrison (b), Foster v. Pearson (c), Haynes v. Foster (d), Alexander v. M'Kenzie (e).

OF BENGAL

v.

MACLEOD.

There is another objection, now urged for the first time, that detinue will not lie. Such objection cannot be entertained at the present stage of the appeal, it should, if tenable, have been urged in the Court below, it is now too late.-[Lord Brougham: This is a point purely technical, and if not taken in the Court below, cannot be taken here.-Mr. Greenwood: The point was taken by the second plea, that the Plaintiff had not sufficient interest to support the action.] Detinue was the proper form of action. Comyn's Dig., tit. "Detinue," 20. Williams v. Archer (f), where all the cases are collected.

Mr. Greenwood, in reply.

Their Lordships reserved Judgment until the following appeal, which arose out of similar circumstances, was argued, when they delivered a joint judgment in both appeals (g).

(a) 5 Bar. & Ad. 909.
(c) 1 C. M. & R. 849.

(e) 18 Law Journal, N. S. 94.
(g) See Post, p. 71.

(b) 5 Bar. & Ad. 1098.
(d) 2 Crom. & Mee. 237.

(f) 5 Com. Ben. Rep. 318.

ON APPEAL FROM THE SUPREME COURT
AT FORT WILLIAM IN BENGAL.

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7th July, 1849.

For marginal

note, see the

case of the Bank of Bengal v. Mac

p. 35.

THIS case, involving a similar question to the preceding appeal, was an action of trover brought by the Respondent against the Appellants, the Bank of Bengal, upon the conversion of eight promissory notes, or securities for the payment of money, by the GovernorGeneral of India in Council. The plaint contained leod, ante, one count, which charged the Defendants with the conversion of the eight promissory notes or securities of the 4 per cent. loan, commonly called Company's paper. The Defendants pleaded, first, not guilty; and, secondly, that the Plaintiff was not possessed of the notes of his own property. Upon these pleas issues were joined.

The cause came on for trial, on the 19th of November, 1847, before Sir Lawrence Peel, Chief Justice, and Sir John Peter Grant, and Sir Henry Wilmot Seton, Puisne Judges of the Supreme Court.

* Present: Lord Brougham, Lord Langdale, the Right Hon. Dr. Lushington, the Right Hon. T. Pemberton Leigh, and the Right Hon. Sir E. Ryan.

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