XII. conceived, would be the gift of an IOU (2). And negotiable CHAPTER instruments, which are commonly treated as money for other purposes, may, like money, pass as donationes mortis causâ (r). The Courts lean against this sort of disposition. "Improvements in the law," says Lord Eldon, "or some things which have been considered improvements, have been lately proposed, and, if, among those things called improvements, this donatio mortis causâ was struck out of our law altogether, it would be quite as well" (s). Yet it has since been thrice held that a promissory note payable to order and not indorsed may pass as a donatio mortis causâ, and so too an unindorsed cheque (1). A donatio mortis causâ may be made subject to a condition or trust (u). A donatio mortis causâ resembles a legacy in these respects; that it is revocable during the life of the donor, that it is subject to debts on a deficiency of assets (r), that it is liable to duty (y), and that it may be made to the donor's wife. How it resembles a legacy. It differs from a legacy in these other respects; that it How it differs does not require probate, and that although it be of a specific from a legacy. chattel, yet the executor's assent is not necessary (z). 261; Hewitt v. Kaye, L. R., 6 Eq. 198; Beuk v. Beak, L. R., 13 Eq. 489; 41 L. J. 470; Byles on Bills, 6th American edition, p. 45. A distinction has been held to exist between cheques payable to order and those payable to bearer: the former being held capable of being subjects of a donatio mortis causâ. Rolls v. Pearce, L. R., 5 Chan. D. 730; In re Mead, L. R., 15 Chan. D. 651. It must be observed, however, that the sect. 75 of the Code apparently includes both, as the words are "the duty and authority of a banker to pay a cheque are determined by notice of his customer's death.' donatio of a banker's deposit receipt was not invalidated through having a cheque form on it. Duffin v. Duffin, [1890] 44 Ch. D. 76. A (q) Tate v. Hilbert, 2 Ves. jun. 111; 4 Bro. C. C. 286; 2 R. R. 175. For a cheque imports immediate payment; but a cheque to buy mourning has been held to be the subject of a donatio mortis causâ. () See Ranklin v. Weguelin, (*) Duffield v. Elies, 1 Bligh, N. S. 633 (A.D. 1827); 7 Taunt. 221; 30 R. R. 69. (t) Veal v. Veal, 29 L. J., Chan. 321; 27 Beav. 303; Rank- (u) Blount v. Burrow, 4 Bro. 406. (y) 44 Vict. c. 12, s. 38; Finance Act [1894], s. 2 (c). (*) Thompson v. Hodgson, 2 Stra. 777. CHAPTER XII. Execution. Larceny. A donatio mortis causâ differs from a gift inter vivos in these respects. It is revocable. It may be made to a man's wife; and it may be of a bond or mortgage deed, though neither the debt would have passed at law, nor equity have converted the donor into a trustee. Neither the Wills Act, 1 Vict. c. 26, nor the 44 Vict. c. 12, abolished donationes mortis causâ (a). Bills or notes could not at common law be taken in execution, at the suit of a subject; nor, if taken, could the sheriff or his assignee acquire a title against the other parties to the instrument, they being only assignable by the custom of merchants, in the way of ordinary mercantile transfer. And such as more nearly resemble money than securities, as bank notes, were, like money, not subject to be taken in execution (b). But now by the 1 & 2 Vict. c. 110, s. 12, money, bank notes, cheques, bills, and promissory notes, with all other securities for money, may be seized under a writ of fieri facias. The sheriff is to deliver the money and bank notes to the execution creditor, and is to receive payment, or to sue in his own name, being indemnified by the plaintiff, on the cheques, bills, or notes. But if the creditor, before receiving payment, proceeded against the person of the defendant, he forfeited the benefit of the security (c). Bills and notes are liable to be seized under an extent (d). Bills or notes are not the subjects of larceny at the common law; for it is said, that bills or notes are choses in action, and a chose in action cannot be stolen (e). But by a written paper, which is mere evidence of a right, resting in contract only, like a bill, note, bond, or executory agreement. A reason given in both these cases is this, that the documents are of no use to any but the owner, and therefore are not in danger of being stolen. On which it has been well remarked, that "if I steal a skin of parchment worth 18. it is felony, but when it has 10.0007. added to its value by what is written upon it, then it is no offence to take it away." R. v. Westbeer, 2 Stra. the 24 & 25 Vict. c. 96, s. 27, the stealing of any bill, note, warrant, or order for the payment of money, is made felony, of the same nature, and in the same degree, and punishable in the same manner, as larceny of any chattel of like value with the money due on the security. A conviction for the theft or receiving does not divest a holder in due course of his title to a negotiable instrument that had been stolen (f). CHAPTER XII. The embezzlement of bills or notes by clerks or servants Embezzleis felony (y). The embezzlement of bills or notes by agents, not being clerks or servants, or the selling, negotiating, or pledging them, in violation of the purpose for which, by a written direction, they were intrusted, and the disposing of them for the agent's own benefit, is a misdemeanour subjecting to penal servitude (h). ment. Where a man is both entitled and liable on the face of Effect of a a bill, or liable to contribute, though his liability do not transfer in appear on the face of the instrument, he cannot sue. But removing the technical difficulty may be removed by indorsement or difficulties in transfer (i), before the bill is due. technical suing. Eighthly, as to the circumstances under which equity Jurisdiction would restrain negotiation. A Court of Equity would of Court in interpose to restrain the negotiation of a bill unduly restraining obtained; for the defence at law might not be available as against an innocent indorsee for value, or time may destroy the evidence (k); and would, on equitable terms, decree a 1133. These exceptions are palpably capricious and unreasonable, and are not to be extended. Therefore, it has been held, that a pawnbroker's ticket may be the subject of larceny. R. v. Morrison, 28 L. J. 210. Mag. Ca. (f) Sect. 100; and Chichester v. Hill, 52 L. J.. Q. B. 160. (g) 24 & 25 Vict. c. 96, s. 68. (h) 24 & 25 Vict. c. 96. s. 75. It is no defence that the instrument is incomplete. R. v. Bowerman, [1891] 1 Q. B. 112. (i) See Steele v. Harmer, 15 L. J., Exch. 217; 14 M. & W. 831, and 4 Exch. 1, in error, and ante, p. 52. (k) Bromley v. Holland, 7 Ves. B.B.E. 20, 413; 6 R. R. 58: Bishop of 14 negotiations. CHAPTER bill void in its creation, or unduly obtained, to be delivered up to be cancelled (7), and in all the Courts this equitable jurisdiction now prevails (m). (1) 2 Ves. jun. 488; 7 Ves. 413; 2 Ves. & Beam. 302; Mackworth v. Marshall, 3 Sim. 368; Osbaldiston v. Simpson, 13 Sim. 513. So where the name of the payee, as indorser, was forged, a bona fide holder was restrained from suing the acceptor, and the Court directed the bill to be delivered up to be cancelled. Esdaile v. La Niruze, 1 Y. & C. 394 ; Jones v. Lane, 3 Y. & C. 281. (m) See post, Chap. XXVI., COLLATERAL REMEDIES. all cases. IT is in all cases advisable for the holder of an unaccepted Advisable in bill to present it for acceptance without delay; for, in case of acceptance, the holder obtains the additional security of the acceptor, and, if acceptance be refused, the antecedent parties become liable immediately. It is advisable, too, on account of the drawer, for, by receiving early advice of dishonour, he may be better able to get his effects out of the drawee's hands. But presentment for acceptance is not necessary in the case of a bill payable at a certain period after date. It is said, however, that it is incumbent on a holder who is a mere agent, and on the payee, when expressly directed by the drawer so to do, to present the bill for acceptance as soon as possible; and that, for loss arising from the neglect, the payee must be responsible, and the agent must answer to his principal (a). Where a bill is drawn payable at a certain period after When neces sight, presentment for acceptance is necessary, in order to sary. fix the maturity of the instrument (b). Where a bill expressly stipulates that it shall be presented for acceptance, or is drawn payable elsewhere than at the residence or place of business of the drawee, it must (a) Chit. 9th ed. 237; Poth. 128; Marius, 46. (b) "After sight" on a bill, means after acceptance (or protest for non-acceptance), not a mere private exhibition of the bill to the drawee. Campbell v. French, 6 T. R. 212; 3 R. R. 154. |