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![handle is hein.slavery/ssactsengr0287 and id is 1 raw text is: 14C.B.(N.S.)258. LONIDES V. THE UNIVERSAL MARINE INSURANCE CO. 445
according to the case of Williams v. Jarrett, 5 B. & Ad. 32, 2 N. & M. 49, to which
my Brother Willes referred, the instrument is to be taken to have been drawn accord-
ing to the date appearing upon the face of it. This instrument, therefore, is properly
stamped as a bill of exchange, and whether post-dated or not, is a valid instrument.
WILLES, J. I concur with my Lord as to both points. The first is disposed of
by the remark that the statutes 55 G. 3, c. 184, s. 13, and 21 & 22 Vict. c. 20, s. 1,
apply only to drafts payable to bearer, which are void if post-dated. Drafts payable
to order, not being affected by either of those enactments, fall within the law as to bills
of exchange, which have been repeatedly held not be rendered void by post-dating,
though that should have the effect of making the instrument require a less stamp
than if it had been dated correctly and payable at the same time: Williams v. Jarrett,
5 B. & Ad. 32, 2 N. & M. 49. Whether the drawer be subject to a penalty or to be
sued for the difference of stamp-duty, is a question upon which it is unnecessary to
offer an opinion.
As to the second point, the general rule of law is undoubted, that no one can
transfer a better title than he himself possesses: Nemo dat quod non habet. To [258]
this there are some exceptions; one of which arises out of the rule of the law-merchant
as to negotiable instruments. These, being part of the currency, are subject to the
same rule as money: and if such an instrument be transferred in good faith, for value,
before it is overdue, it becomes available in the hands of the holder, notwithstanding
fraud which would have rendered it unavailable in the hands of a previous holder.
This rule, however, is only intended to favour transfers in the ordinary and usual
manner whereby a title is acquired according to the law-merchant, and not to a
transfer which is valid in equity according to the doctrine respecting the assignment
of choses in action, now indeed recognized and in many instances enforced by courts
of law : and it is therefore clear that, in order to acquire the benefit of this rule, the
holder of the bill must, if it be payable to order, obtain an indorsement, and that he
is affected by notice of a fraud received before he does so. Until he does so, he is
merely in the position of the assignee of an ordinary chose in action, and has no better
right than his assignor. When he does so, he is affected by fraud which he knew of
before the indorsement.
KEATING, J. I am of the same opinion. The cheque in question, being payable
to order, was properly stamped for the purpose of being admissible in evidence.
The cases cited by Mr. Karslake, where post-dated cheques were rejected, proceeded
on the ground that they were made payable to bearer on demand. They are therefore
not applicable here. As to the other point,-I think the plea was made out. The
plaintiff sues as indorsee of the bill in question. The plea in substance is, that the
defendant was defrauded of it by the person to whose order it is made payable, and
that the plaintiff had notice of that fact [259] before the instrument was indorsed
to him. The question is, when was the bill first indorsed to the plaintiff. It must
be recollected that the plaintiff is suing in a court of law, and that the right to sue
in a court of law upon a negotiable instrument is not complete without a written
indorsement. Now, before the plaintiff's right to sue was rendered complete by a
written indorsement, he had notice of the fraud. The subsequent indorsement, there-
fore, transferred no title to sue. The rule must be discharged.
Rule discharged.
IONIDES v. THE UNIVERSAL MARINE INSURANCE COMPANY. May 2nd, 1863.
[S. C. 32 L. J. C. P. 170; 8 L. T. 705; 10 Jur. N. S. 18; 11 W. R. 858. Referred
to, Marsden v. City and County Assurance Company, 1866, L. R. 1 C. P. 240; Dent v.
Smith, 1869, L. R. 4 Q. B. 452 ; Inman Steanship Company v. Bischoff, 1882, 7 App.
Cas. 676. Approved, Anderson v. Marten, [1908] A. C. 340.]
Goods consisting of 6500 bags of coffee, valued at 25,0001., on board the ship
Linwood, were insured on a voyage from Rio de Janeiro to New Orleans, and
thence to New York; the policy containing the following warranty,- Warranted
free from capture, seizure, and detention, and all the consequences thereof or of any
attempt thereat, and free from all consequences of hostilities, riots, or commotions.-
At the time of the ship's departure from Rio, the Northern States of America (called
federals ) were at war with the Southern States. (called confederates ). The ship](ViewImageLocal?handle=hein.slavery/ssactsengr0287&div=1&collection=&method=preview&ext=.png&size=3)