was a complete exchange of securities, and that trover would not lie for the three bills of exchange.1 So A., B., and C. carried on trade in partnership, and A. was also in partnership with D. A., being indebted to the firm of A., B., and C., before the dissolution of that partnership, unknown to D., indorsed a bill, and paid over money, belonging to A. and D., in discharge of the private debt due from A. to A., B., and C., and immediately afterwards indorsed the same bill to a creditor of the firm of A., B., and C. The partnership between A., B., and C. having been dissolved; held, that neither A. and D. nor their assignee in bankruptcy, could maintain trover against B. and C. for the bill, nor assumpsit for the money paid by A.2 So if a promissory note is given, and other notes are left with the payee as security, and he indorses the former note and transfers the others to the indorsee, who converts them to his own use; the payee is not liable in trover, on tender to him of the amount of the note. So the owner of promissory notes delivered them to the defendant, upon a receipt promising to redeliver them on demand, and the latter collected them when due, and retained the proceeds; after which a receiver of the owner's property was appointed, who demanded the notes of the bailee. Held, the receiver could not maintain trover for the notes against the bailee. His proper remedy is for money had and received. So a party resident abroad drew a bill, and specially indorsed it to the plaintiff, a creditor, who transmitted it to the defendant, his agent. The agent procured the acceptance of the drawees, and then gave the plaintiff notice, that he had received instructions to pay him some money on account of his principal. Before any further communication, the agent was instructed by his principal not to pay over the bill to the plaintiff, until his accounts had been investigated. No investigation took place. Held, the bill had not become the property of the plaintiff, and he could not maintain trover for it.5 1 Hornblower v. Proud, 2 Barn. & Ald. 327. 2 Jones v. Yates, 9 Baru. & Cress. 532. 3 Soss v. Emerson, 3 Fost. 38. Hodges v. Lathrop, 1 Sandf. 46. 5 Brind v. Hampshire, 2 Gale, 33. 45. The loss of negotiable instruments, either casual, or by theft or robbery, has often given rise to questions of this nature. Thus, in an action of trover for a Bank of England note, it appeared that the note, dated 12th October, 1820, was lost by the plaintiff in London, in April, 1821, and in June, 1822, was presented for change to the defendant, a money broker in Liverpool, by a person then embarrassed, with whom the defendant was well acquainted, and he changed it by giving bills, which had some time to run, and cash, deducting a commission, without inquiring how the holder became possessed of it. Held, it was for the jury to say, whether the defendant had received the note fairly and bona fide, in the ordinary course of business, and for full value; and, a verdict being found for the plaintiff, the Court refused to disturb it.1 So the plaintiff was robbed of a pocket-book, containing, amongst other things, a bill of exchange. In advertising the loss, he merely stated, that "the pocket-book contained papers of no use to any person but the owner." The bill was shortly afterwards presented at the banking-house of the defendants, by a stranger, who stated that he was the son of the indorser. The defendants discounted it. In trover, held, in order to maintain the action, the plaintiff must have done all that his duty required, in advertising and making known his loss; and the defendants must have failed to act bonâ fide and with due caution in receiving the bill. Judgment for the defendants upon the verdict.2 So a bank-note was stolen from a servant of the plaintiffs. The robbery was advertised in the Hue and Cry Gazette, and in another paper. Some time afterwards the note was received for change, at the banking-house of the defendants in the country, from a stranger, who was not asked how he became possessed of it. In trover, held, the plaintiff must prove due notice of the robbery and want of due caution by the defendants, in taking the note. Judgment for the defendants upon the verdict.3 1 Egan v. Threlfall, 5 Dowl. & Ry. 2 Beckwith v. Corrall, 11 Moore, 335. 3 Snow v. Peacock, 11 Moore, 286. 46. But where, in 1830, the plaintiff had his pocket picked of a bank-note, at a public meeting; and the note was paid to the defendant, as he said, upon a bet on the Derby in 1832; but he could not say by whom; held, the plaintiff was entitled to recover in trover.1 So the plaintiff left, in a hackney coach in London, and lost, her reticule, containing a £100 bank post-bill indorsed in blank; and issued hand-bills proclaiming her loss. The defendant, a banker at Brighton, who had never heard of the loss, cashed the bill for a stranger eight days afterwards. The stranger, on being asked his name, said he was on a journey, and wrote on the bill a fictitious address in an illiterate hand. The defendant did not inquire at what inn he was staying. Held, that the defendant was liable for the amount to the plaintiff. So A., being possessed of a bank-note payable to himself or bearer, sent it in a letter directed to his correspondent. The mail was robbed, and the note came to the hands of the plaintiff, for a valuable consideration. He demanded payment of it of the defendant, (a cashier of the bank,) who refused to pay it, and kept the note. The plaintiff brought trover. Held, that he was entitled to recover.8 47. There are various other securities or written evidences of debt or of title, the wrongful appropriation of which has been made the ground of an action for tort. Thus one who loses, without culpable negligence, a state certificate indorsed in blank, may bring trover for it against one who has received it of the finder in good faith, and for a valuable consideration. So, where the pledgee of a bond delivers it to the pledger for a particular purpose, as to be exchanged for stock and to return the latter, and the pledger converts the bond to his own use; the pledgee may maintain trover for the bond. So, if an agent, intrusted by a stockholder to receive the yearly dividends, make a fraudulent sale of the stock, by means of a pretended power of attorney, 1 Easley v. Crocford, 10 Bing. 243. 2 Strange v. Wigney, 6 Bing. 677. 8 Miller v. Race, 2 Ken. 189. Biddle v. Bayard, 13 Penn. 150. 5 Hays v. Riddle, 1 Sandf. 248. transfer it by personating the proprietor, and abscond; the proprietor may recover the original price paid for the stock, in an action of trover against the vendee.1 So the bonds or certificates of the corporation of the city of Dublin, certifying that A. B. or the holder or bearer thereof, for the time being had become entitled to the principal sum of £100 chargeable on the estates of the corporation, with interest, &c.; are not instruments negotiable by delivery only. Trover, therefore, is maintainable by the owner against a transferee by delivery from a third person.2 48. But trover will not lie against the bona fide holder of an annuity ticket, lost by or stolen from a former proprietor, if regularly transferred to the defendant pursuant to the statute by which it was issued. So where the plaintiff, the holder of Prussian bonds, payable to bearer, and issued by the sovereign of that country to secure a national loan, deposited them for a special purpose with an agent, who pledged them to the defendant, without fraud on the part of the latter; held, trover did not lie. So, where a broker had obtained warrants of the West India Dock Company from the defendant by a fraudulent payment, and sent them into the market, where they were purchased by the brokers of the plaintiff for cash; held, the plaintiff might maintain trover, the warrants being negotiable and their transfer a constructive delivery of the goods. So A., one of the defendants, having taken shares in a mining company, it became necessary, in order to complete his title, that he should sign a deed of association in London by a certain day. Finding this inconvenient, he desired his son, the other defendant, to sign in his stead, and to let the shares stand in the son's name. The son executed the deed, and received a voucher, certifying him to be proprietor of seventy shares, not transferable without consent of the directors. The son afterwards sold the shares, and paid the proceeds to A., who had become bankrupt; and his 1 Monk v. Graham, 8 Mod. 9. 2 Gordon v. Cuming, 1 Hud. & Br. 54. 8 Devallar v. Herring, 9 Mod. 44. 641. 5 Gorgier v. Mieville, 4 Dowl. & Ry. assignees bring trover for the voucher and shares. Held, they had a legal title, on which assignees could maintain an action.1 49. Title-deeds constitute another species of written contract, which is often made the subject of an action for tort. Thus in trover for deeds and stamped pieces of parchment, the plaintiff, having contracted to purchase an estate of A., had the deeds prepared at his own expense, and sent them to A. for execution. A. executed, and gave them to a servant to be sent back; the servant delivered them to the defendant, an attorney, who had a demand upon A. for professional business. No directions were given to the defendant, to retain the deeds until the purchase-money should be paid. Some necessary parties refused to execute the deeds, and the plaintiff, having abandoned the contract, demanded them from the defendant, who refused to deliver them up, claiming to have a lien for his demand against A. Held, the plaintiff was entitled to the deeds, at all events cancelled, if not uncancelled.2 So the plaintiff, wishing to borrow money on a mortgage, delivered the title-deeds to A., the intended mortgagee, for examination, and said that he would pay all expenses. A. handed the deeds to the defendants, his own attorneys, to be investigated. The negotiation went off, and the defendants, being requested by the plaintiff to return his deeds, refused to do so, till he paid their bill of costs. On assumpsit to recover back the money so paid, held, the defendants did not act for both parties, and therefore had not a lien against the plaintiff as his attorneys; that, supposing the plaintiff liable to A. for the costs, A. could not communicate a lien to the defendants; that the undertaking of the plaintiff to A., if it amounted to a promise to pay these costs, did not entitle A.'s attorneys to detain the deeds, as it established no privity between them and the plaintiff; and that the plaintiff might have brought 1 Dawson v. Rishworth, 1 Barn. & Ad. 574. 2 Esdale v. Oxenham, 3 Barn. & Cress. 225. |