1876 MISA H. L. (E.) directed a verdict for the Plaintiffs for £2090, the amount of principal and interest, but gave the Defendant leave to move to enter a nonsuit. A rule was accordingly applied for in Hilary Term, 1874, but was, on shewing cause, discharged. The case was carried to the Exchequer Chamber, and the judgment was affirmed by Justices Keating, Lush, Quain, and Archibald, Lord Coleridge, C.J., diss. (1). This appeal was then brought. V. CURBIE. Mr. Watkin Williams, Q.C., and Mr. Wood Hill, for the Appellant: There was a total failure of consideration as between Misa and Lizardi for the paper which Lizardi gave to the Respondents. Misa never received any value for his draft except the four bills, which were dishonoured. The consideration for the draft was the sending of the money to Cadiz-no money was sent, nothing was sent but valueless pieces of paper, so that if Lizardi had brought an action on the original order Misa would have had a complete defence to it on that ground. Lizardi could not, by merely transferring the draft, make it a better security or give it a higher title than belonged to it in his hands. The remedy on it was suspended till the four bills were duly honoured. It was not a bill of exchange, nor a promissory note, nor an order for the payment of money on demand, and gave no title to Lizardi to sue upon it until the bills, for which it had been given, had been honoured. His transferees stood in no better position than he did in respect of such an instrument; besides, they had not given any fresh credit, or advanced any money on account of it. The existence of a past debt was no sufficient consideration. The bankers were in fact merely Lizardi's agents to collect the money mentioned in the paper given to them by Lizardi, and so could not recover upon it: De la Chaumette v. Bank of England (2). The fact that Lizardi owed the Respondents a considerable debt at that time did not constitute them holders of this document for value; and it was not, in itself, a complete bill of exchange, or a promissory note, or a draft for payment of money on demand; it, therefore, was not a negotiable instrument so as to amount to a pro tanto payment of his debt. The (1) Law Rep. 10 Ex. 153. (2) 9 Barn. & C. 208. 1876 MISA บ. CURRIE. Respondents were Lizardi's bankers, so that, whatever was the H. L. (E.) legal character of the instrument, their only duty was to get in the money and to place it to his account. The cheque, which was given to the Plaintiffs by Misa's clerk, for which the original document was sent back, was therefore a cheque given entirely without consideration as between Misa and the Plaintiffs, and they had no valid title to enforce it. There could be no enforcement of the order for payment of the amount of the bills until the bills had been honoured. Till that time any remedy against Misa was suspended, he could not be said to owe any debt to Lizardi, and Lizardi's order for payment of their nominal amount was therefore an order made without legal consideration. In no way whatever was the original document of any value. It was not properly stamped. [As this was a point which had not been argued in the Court below, the objection was taken that it could not be introduced here. But it was answered that no new matter was proposed to be now introduced into the case, that the objection arose upon matter which was before the Court below, though this particular argument upon that matter was not there presented for consideration, and that consequently it might properly be discussed here; and the cases of Withy v. Mangles (1), Bain v. Whitehaven Railway Company (2), Marquis of Bristol v. Robinson (3), and Fitzmaurice v. Bayley (4), were referred to. The argument was allowed to proceed.] The original document was not a bill of exchange, a promissory note, or a draft for payment of money on demand within the provisions of the 33 & 34 Vict. c. 97, and the schedule thereto, and consequently was insufficiently stamped (ss. 48-49), and not only could not be used for any purpose whatever, but subjected the person who proposed to use it to a penalty under the 54th section of that statute. [THE LORD CHANCELLOR :-You say that the instrument was void under that statute, and being so void, could not, even constructively, constitute a valid consideration for the (1) 10 Cl. & F. 215. (3) 4 H. L. C. 1088. 1876 H. L. (E.) cheque sent by Pritchett.] Certainly. It was an instrument actually post-dated; it was given on the 13th and was dated on the 14th; it was payable therefore on the day after it was given, and could not be said to come within the description of any of the instruments mentioned in the statute on which this small duty was payable. MISA v. CURRIE. Mr. J. Brown, Q.C., and Mr. Murray, for the Respondents: There was value-there was good consideration-given for the document originally put into the hands of Glyn & Co., and that document was really an order for money payable on demand. Lizardi was greatly in debt to his bankers; they pressed him to reduce the amount of his debt, and he paid in this instrument as something of value to reduce that debt. The right to sue Misa for the price of the bills arose at once, and was not dependent on the bills being honoured. [THE LORD CHANCELLOR :-Their argument is that the original instrument was a mere direction to the bankers to collect the amount therein named, to be put to Lizardi's credit in his account with his bankers; but that it was not a payment to them.] That argument cannot be sustained-it is contradicted by the facts. He was in debt; they pressed him for payment of at least a part of his debt; he gave this instrument as part payment; it was received as in part payment, and the moment it was ascertained that it would be paid it was treated as a part payment. It was in form an order for payment of money on demand, and stated the sale of bills as the consideration for which the payment by Misa was to be made. As to the Plaintiffs in whose favour it was drawn, it was a perfectly valid order for the payment of money made upon a perfectly valid consideration. As to the date, no objection would arise on that; the money, by the well-known course of business, was not due till the 14th, and the order was therefore properly made payable on the 14th. It was consequently a draft payable on demand, and was therefore under the very words of the schedule to the statute, a "Bill of Exchange" (which words are used in the schedule as synonymous with a draft payable on demand), on which a stamp of 1d. is alone chargeable. 1876 MISA v. CURRIE. It was valid for all purposes, but even if it had not been in H. L. (E.) itself enforceable, Williams v. Jerratt (1) established that under the Stamp Acts the time means the time expressed on the face of the bill, and not the time when it is actually issued, and though upon a wrong stamp, it would still have been admissible in evidence to shew the state of dealings between the parties. This was payable to bearer, and according to Whitlock v. Underwood (2) a draft or note payable to bearer generally is in law payable on demand, and if so, the stamp here is quite sufficient: Byles on Bills (3). As to the right of a bona fide holder, Lord Chief Justice Cockburn, in Watson v. Russell (4), stated the law to be now quite settled that (5) "if a person puts his name to a paper, which either is, or by being filled up or indorsed may be, converted into a negotiable security, and allows such paper to get into the hands of another person, who transfers the same to a holder for consideration and without notice, such party is liable to such bona fide holder, however fraudulent, or even felonious, as against him the transfer may have been." Foster v. Pearson (6) had proceeded on the same principle. A post-dated cheque, payable to order, is not illegal: Emanuel v. Robarts (7). Here, if this cheque was post-dated, it was payable to order; but it was not post-dated-the money was due on the day of the date. All that any of the Stamp Acts have required is that a cheque, whether post-dated or not, shall be stamped. The order for payment of money given in this case was stamped in accordance with the 33 & 34 Vict. c. 97, schedule "Bills of Exchange," and formed a perfectly valid consideration for the cheque which was given to redeem it. Even Lizardi himself was not bound to wait till the time arrived for honouring the bills. His title to claim the value of what he had sold arose. The time for payment of the purchase-money had arrived on the 14th, and the bonâ fide holders of his order for payment were entitled to the money at once. The honouring of the bills and the payment of the price for them, were not mutual and (1) 5 B. & Ad. 32; see also Austin v. Bunyan, 6 B. & S. 687; and Bull v. O'Sullivan, Law Rep. 6 Q. B. 209. (2) 2 Barn. & C. 157. (3) 9th Ed. p. 204. (4) 3 Best & S. 34, at p. 40. (6) 1 Cr. M. & R. 849; 5 Tyr. 255. (7) 9 Best & S. 121. 1876 MISA v. CURRIE. H. L. (E.) dependent considerations: Pordage v. Cole (1); Roberts v. Brett (2). Unless deposited for a particular purpose, bills left at a banker's are subject to the banker's general lien: Brandao v. Barnett (3); and being so subject become valid securities in the banker's hands to be disposed of for his benefit. Here the original paper was not left with the bankers for a particular purpose, but was deposited as a security for payment-it was a security actually due-and it was given up on the sending of the cheque, and the title of the Respondents is therefore complete. Mr. Williams replied. LORD CHELMSFORD: My Lords, the question upon this appeal is whether the Respondents, Messrs. Glyn & Co., are entitled to recover from the Appellant, Misa, the amount of a cheque for £1999. 3s. drawn by him on his bankers, Messrs. Barnett, Hoare, & Co., in favour of Lizardi & Co. or bearer. The following are the material facts of the case:-[His Lordship stated them.] Upon these facts the Court of Exchequer held that Glyn & Co. were entitled to recover, and, upon appeal, the Judges in the Exchequer Chamber, with the exception of the Lord Chief Justice of the Common Pleas, agreed in that judgment. Upon the argument at your Lordships' Bar the Appellant contended: 1. That there was a failure of consideration between Lizardi and Misa. 2. That Messrs. Glyn & Co. were not holders for value of the cheque sued on, but were merely collecting the money for Lizardi as his bankers. In support of the first proposition it was argued by Mr. Watkin Williams that the true character of the contract between Lizardi and Misa was, that Lizardi should transmit a sum of £2000 to Cadiz for Misa, and that Misa would pay Lizardi £1999. 3s. fifteen days thence that Lizardi not having sent the money there was a total failure of consideration for Misa's cheque. It appears to me that this is an entire misapprehension of the nature of the contract, which was nothing else but a purchase of bills by Misa from (2) 11 H. L. C. 337. (1) 1 Wms. Saund. 319 h. (3) 12 Cl. & F. 787. |