acceptor, on the morning it became due, according to the custom of their house; and more particularly so, as he had made it payable there. As to the promissory note for 1000l. given by the plaintiffs' testator to the defendants, it was never intended to be a negociable security, but a continuing loan, renewable every three months, and must therefore be considered as a debt due to them from the testator to the amount of the money originally advanced to him. Besides, it always remained in their custody, and is conclusive to shew that a loan of money was the consideration for which it was given, and that it was to remain with them as a collateral security. At the time of the death of Stevens he had not sufficient assets in the hands of the defendants to cover their demands on him; and they might at any time, on the balance of accounts, deduct the amount of the note as so much money advanced by them to his use; and if they were entitled to deduct it as against him, they had a clear right to set it off as against his executors in this action. No fraud can be imputed to the defendants; and even if their set-off cannot be considered as available, they had a right to retain the balance of the testator's cash account to cover a debt due to themselves on the note, and more particularly so, as the testator could not have drawn it out without accounting to them for the 10007. he had originally borrowed. Although in Evans v. Prosser it was determined that a plea of set-off must state that the plaintiff was indebted to the defendant at the commencement of the action, yet here, the loan continued nine or ten years from the time of the original transaction between the parties. If the defendants had indorsed the note to a third person, they would have been li able, in case Stevens had made default in payment; but as it remained with them as a security for the sum originally advanced, when they found it to be unproductive on his death, they were remitted to their original right, and 1822. ROGERSON บ. LADBROKE 1822. ROGERSON v. LADBROKE. might appropriate the balance in their hands to the loan made by them, as if the note had never been given. Mr. Serjeant Vaughan in reply was stopped by the Court. Lord Chief Justice DALLAS.-This case embraces two distinct questions. With respect to that as to the bill of exchange for 4677., I entertained no doubt whatever at the outset ; and after having heard the argument of my brother Vaughan, I still continue of the same opinion, and think there is no ground whatever for saying that the defendants were not fully entitled to pass it in account. What then are the facts with respect to that bill? It was drawn on the plaintiffs' testator, and accepted by him, payable at the house of the defendants; and it appeared that it had been duly discounted by them. That at nine o'clock in the morning of the day on which it be came due, it was written off, according to their regular course of business, by which it was intended to be paid by them on account of the acceptor in the course of that day. It is quite clear that the defendants, as bankers, had a right to do so, provided it was done before they had notice of the death of the testator, so as to reimburse themselves the amount of the bill they had before discounted out of his funds in their hands when it became due. That appearing to have been the case, the argument of my brother Vaughan with respect to this point cannot be maintained; and it further appears, that the defendants caused the entry to be properly and regularly made in the pass book, according to their usual practice. With respect to the second question, as to the note for 1000ễ., I confess I at first felt a little difficulty. But the sum advanced by the defendants to the testator Stevens, cannot be taken as constituting one continued loan for which his promissory note to that amount can be considered as a collateral security; for when each note was given, three months' discount was taken by the defendants. Every note so given, constituted a distinct and separate loan or transaction. Further, however, it is quite clear that the defendants were not entitled to sue on the last note given by Stevens until it became due, and this clearly appears on their having allowed a rebate of interest, or re-allowance of discount. The last note therefore formed altogether a different contract from the original loan, as the whole discount was deducted when the note was given, and from which time it had three months to run before it would become due. The defendants, however, on the death of Stevens, endeavoured to raise a new contract or transaction, by deducting the difference of the discount between the day on which the note was given and the remainder of the time it had to run. This too they attempted to do, after they had notice of the death of the maker, and without any previous consent on his part. This therefore cannot be considered as a set-off, as it was a debt due in a different right. Besides, it might have been paid after the death of the testator, out of his assets. I am therefore of opinion, that the defendants had no right to alter the course of the note, or change the nature of the transaction; and consequently that the plaintiffs are entitled to recover its amount in the present action. Mr. Justice PARK.-I am of the same opinion on both points. With respect to the bill of exchange, I have never entertained the least doubt. It appears that the entry, as to its being written off, was duly made in the defendants' ledger at nine o'clock in the morning of the day when it became due. The items in the pass book might have been made subsequently; as it appears the practice was for the clerk to enter bills and checks, not according to the order in which they were received in the first 1822. ROGERSON บ. LADBROKE. instance, but after they had all been collected together in the course of the day. Any objection therefore as to the entry in the pass book makes no difference whatever, and there can be no doubt but that the defendants, as bankers, had a right to write off the bill before they had notice of the death of the testator. With respect to the loan of 1000/. it stands on a wholly different ground. It appears that the note had nearly eight weeks to run after the death of the testator, before it would become due, and there was a general cash balance between him and the defendants. The latter, therefore, having taken discount for the three months the note had to run from the time it was given, they could not, after the death of the maker, enter a rebate of such discount, and call on his executors for payment thereof as for a present debt. By their having taken the discount in the first instance, it operated as a suspension of any remedy they might have on the note until it became due. Mr. Justice BURROUGH.-There can be no doubt whatever as to the bill of exchange. The defendants, as bankers, had a right to apply it as they did as early as they pleased on the morning of the 4th March. It is immaterial when the entry was made in the pass book; for as the law had given them a right to write it off at the opening of their house on that morning, it makes no difference at what subsequent part of the day the entry in that book was made. With respect to the 1000. it appears to me to be a hard case. According to common sense, the defendants might have applied the balance of Stevens's in their hands to the payment of the sum secured by the note to them; but the law will not allow them so to apply it, as it could not be set off until the day on which it became due. I remember the case of Tegetmeyer v. Lumley (a), which was tried before Lord Mans (a) Willes's Rep. by Durnford, 264. n. field, at the sittings after Easter Term, 25 Geo. 3. and Here, it is a hard case on Judgment for the plaintiff, for 9547. 10s. Id. (a) Willes's Rep. by Durnford, 264. n. See also Selw. Ni. Pri. Vol. I. 3d edit. 140. Bull. Ni. Pri. 7th edit. by Bridgman, 180, (a). |