defendant; that the defendant, to secure it, and while Sarah Ann was unmarried, had made the promissory note for the amount payable to Sarah, then and still the wife of John Barnard, or order, and delivered it to her in trust and for the use and benefit of Sarah Ann; that before the bill became due, the plaintiff intermarried with Sarah Ann, and became thereby entitled to have the note indorsed to him, and that John and Sarah Barnard indorsed it to him. Pleas to each count severally, that the defendant did not make the promissory note in the three counts mentioned in manner, &c. On the trial before Lord Denman C. J. at the adjourned sittings at Guildhall after Trinity term last, it was proved that the note was payable to Sarah Barnard, and that John Barnard had indorsed it singly. The counsel for the defendant objected that Sarah Barnard ought to have indorsed also, but his Lordship overruled the objection, and a verdict was taken for the plaintiff, with leave for the defendant to move to set it aside and enter a nonsuit.

Godson now moved accordingly. In M'Neilage v. Holloway (a), it was held that the husband of a woman to whom a bill had been made payable while she was sole, and who had married before its maturity, might sue alone, without the wife's indorsement; but Abbott J. does not appear to have altogether assented to the reasons given by the rest of the court; and the authority of the case was questioned by him afterwards in Richards v. Richards (b). a woman who had advanced

(a) 1 B. & Ald. 218.

There it was held that
money, which she had

(b) 2 B. & Ad. 453.

received

1834.

MASON

against MORGAN.

1834.

MASON against MORGAN.

received as administratrix, to her husband, and had

taken a joint and several note from him and two others, payable to herself, by way of security, might sue the two others after her husband's death. [Patteson J. It has been held, that she could not indorse alone during her coverture (a).] That is admitted; but the indorsement of both husband and wife is necessary, that the continuation of interest from party to party may appear on the instrument.

Lord DENMAN C. J. A party who takes such an instrument is to satisfy himself that he takes it from the actual owner; and that is all he need do. There is no ground for the rule.

TAUNTON, PATTESON, and WILLIAMS Js. concurred.

(a) Connor v. Martin, 1 Str. 516.

Rule refused.

Saturday,
Nov. 8th.

A purchaser of

a bill for the price, which the vendor in

TARLETON, and BERKLEY, Assignee of POLLARD, a Bankrupt, against ALLHUSEN and Another.

goods accepted ASSUMPSIT for goods sold and delivered. Pleas, first, non assumpsit; secondly, a set off for goods sold and delivered. On the trial before Lord Lyndhurst C. B., at the last Northumberland assizes, the counsel for the plaintiff opened the following case. The goods

dorsed over; and the indorsee recovered judgment on the bill against the purchaser, but

did not take

in question were wheat, sold by the defendants for Tar

out execution; afterwards the vendor took up the bill and received a mortgage from the purchaser, from which, however, there were no proceeds. Held, that the vendor was not, in point of law, paid for the goods.

leton

leton and Pollard, who had previously purchased the
same wheat from the defendants at a higher price
than it produced on the ultimate sale. The price at
which Tarleton and Pollard purchased remained unpaid,
except so far as it was covered by the following trans-
action. Tarleton accepted a bill for 18007., which was
handed over by Pollard to the defendants; and this,
according to the plaintiffs' statement, was given and
taken as applicable to part of the price of the wheat,
which considerably exceeded 1800/.; but the defendants
insisted that the wheat was sold by them to Pollard only,
and that they took the bill from Pollard as applicable
to his general account, he being previously indebted to
them in more than that amount.
over by the defendants to Messrs. Backhouse and Co., who
recovered judgment upon it, when due, against Tarleton.
No execution was ever put in force upon this judgment;
but the defendants took the bill up, and afterwards took
from Tarleton a mortgage of certain property to the
amount of the bill, from which mortgage, however, they
had received no proceeds. On this statement, the Lord
Chief Baron nonsuited the plaintiffs.

The bill was indorsed

F. Pollock now moved for a rule to shew cause why the nonsuit should not be set aside, and a new trial had. The plaintiffs having been nonsuited on the opening of their own counsel, it may be assumed, for the purpose of the present motion, that the bill was given, as the plaintiffs say, to be applied to the price of the wheat, on the original purchase by Tarleton and Pollard, and on behalf of the two. The question is, whether this really amount to part payment: for, if not, it must be admitted that the plaintiffs cannot say that the wheat,

VOL. II.

D

at

1834.

TARLETON against ALLHUSEN.

1834.

TARLETON against

ALLHUSEN.

at the time of the last sale by the defendants, was the property of Tarleton and Pollard; or, at any rate, the defendants might claim to be unpaid vendors in possession, with a lien on the wheat; and, in either view of the case, they need not use their plea of set-off. [Patteson J. If they were unpaid vendors upon credit, they would have no lien, and then the plea would be necessary.] On any view of the case, the question is now whether, the defendants having received this bill for 18007., and having indorsed it over, and judgment having been recovered upon it against the acceptor, they are not, as between themselves and the acceptor, precluded from denying that they have received this 1800l. They have enabled Backhouse and Co. to establish a judgment debt against Tarleton, who is now no longer liable to be sued upon the bill. How can a man owe a debt, when the security, which has been given in payment for it, has been enforced, and is itself no longer capable of being the subject of an action?

Lord DENMAN C. J. It was at one time supposed that the law was as Mr. Pollock puts it (a); but there is now no doubt that judgment without satisfaction is no payment. We cannot grant the rule, unless some authority be shewn for it.

TAUNTON, PATTESON, and WILLIAMS Js., concurred.

Rule refused.

(a) See the arguments and judgments in Drake v. Mitchell, 3 East, 251.

1834.

ATKINS and Another against OWEN.

had and received.

ASSUMPSIT for money had and received.

On the

trial before Lord Denman C. J. at the last Devonshire assizes, it appeared that a person of the name of Studdy, being indebted to the plaintiffs, transmitted to them, in part payment, a bill for 1007., payable to his own order. Studdy had omitted to indorse this before transmitting it; and the plaintiffs sent it to the defendant, at whose house Studdy was then staying, with a request, according to the plaintiffs' case, that he would get it indorsed by Studdy. The defendant paid it to his own banker. The plaintiffs, in order to fix defendant with the receipt of the amount, proved that

the

Saturday,
Nov. 8th.

In an action by A. against o. for money

had and re

ceived, the

that 0. admitted having received

plaintiff proved

a bill which

was the property of A.,

and paid it into

his own bank

er's: the plain

tiff also pro

posed to prove

that O. had

received credit with his banker

for a bill similar

in amount, and

that there was

he had admitted his receipt of the bill, and his payment no correspond

banker's book, nor any credit

ing debit of it to his banker; they also proved a declaration by against 0. in the him that he had received it, not for the purpose of getting it indorsed by Studdy, but under circumstances entitling him to retain the amount. They further proposed to prove that the banker had carried to the credit

of the defendant the sum of 1007., and that this was

done on account of a bill, and that the bankers had not debited him with any countervailing charge; and also, that no other bill of the same amount had been placed to his credit. The counsel for the defendant objected to this evidence being gone into, unless the bill was produced; and the Lord Chief Justice nonsuited the plaintiffs.

given to 0. for

any bill to the same amount.

Held, that the proposed proof

was not ad

missible, A.'s bill not being produced.