Page:The English Reports v1 1900.pdf/808

Upon this judgment a writ of error was brought, returnable in parliament; and on behalf of the plaintiffs in error it was contended (T. Erskine, F. Bower), that by the law and custom of merchants there are two species of negotiable instruments or bills of exchange, essentially different in their natures, the one payable to order, and the other to bearer; the former being only negotiable by indorsement, and the property in the latter being transferable by mere delivery. That instruments of this description are in the nature of specialties, and are by law permitted to be declared upon as such; and the count upon which the court gave judgment, setting forth and stating a bill payable to bearer, when the bill or instrument produced in evidence, purports to be a bill payable to order, was not supported by the evidence. That the legal effect of every instrument must arise out of and be collected from the words of it, and no parol evidence or extrinsic circumstances can give to it a meaning or operation, contrary to or different from that which appears on the face of the instrument itself. That in the case of [60] instruments, the property of which passes by indorsement, it is peculiarly necessary that there should be persons in existence, answering to the names indorsed upon such instruments; inasmuch as additional credit is derived to them from the number of indorsements made upon them, the consequent appearance of their having passed through an extensive circulation, and the apparent liability therefore of a greater number of persons to the payment of the money contained in them. That the facts found by the jury, amounted to the statement of a fraud and forgery, which can never give legal effect to an instrument, nor be the foundation of a contract within the custom of merchants; which custom must be founded in convenience, be consistent with reason, and sanctioned by usage; and consequently, as the count on which the judgment for the defendants in error was given, declared on a hill drawn according to the usage and custom of merchants, the evidence did not support such declaration. That judgment being given for the plaintiffs in error, on those counts which specially stated the circumstances that had been found by the jury; it follows, that they are entitled to it on that count, to the support of which the facts so found are the only evidence; otherwise it must be decided, that a transaction, which stated upon the record in an action upon the ease, is not sufficient to found a contract, or to make the party charged liable; will, when found specially by a jury, and put upon the record in the shape of a special verdict, be sufficient to found a contract and to support a count, stating a contract of a different nature.

On the other side it was said (E. Bearcroft, J. Mingay, A. Chambre), that it appeared by the special verdict, that the defendants in error were fair bona fide holders of the bill in question for a valuable consideration, and Livesey, Hargreave, and company, the drawers at the time when they drew the bill, as well as the plaintiffs in error, Messrs. Gibson and Johnson, when they accepted it, were found to have been perfectly informed of the non-existence of White, to whom, or to whose order, the form of the bill makes the contents of it payable. The defendants in error therefore were in a situation which entitled them to all the aid, which consistently with established legal principles, could be given by a court of justice; and the plaintiffs in error having acted under no mistake or misrepresentation, and not being in any respect interested in the existence or non-existence of White, had no equitable claim to be released from the effect of their engagement, or to prevent the application of any favourable rule of construction to support the demand of the defendants. That it is not necessary to the validity of deeds or contracts, that they can in all cases operate according to the words in which they are expressed; when the rules of law prevent such operation, the instrument may legally operate in a different manner to give effect to the legal intent of contracting parties. Thus words of demise may operate by way of confirmation, and vice versa, words of grant by way of covenant, and so in many similar instances. The intent of the drawers and acceptors of the bill in question, was to make a negotiable instrument; and if for want of an actually [61] existing payee, nominated in the bill, it could not be so indorsed as to be put into a state of negotiability by indorsement, there is no rule of law to prevent its being transferred by delivery, and having the effect of a bill expressed to be made payable to bearer, that being the only other method of negotiating bills of exchange; and it was conceived that the fifth count of the declaration, which states the bill according to its legal effect and operation, was properly adapted to the case, and that the judgment thereon was warranted by the verdict. By thus giving effect to the bill, justice is done betwixt