after stating the case: It is well established that when a man’s property has been obtained from him by actionable fraud or covin, the owner can follow and recover it from the wrong-doer as long as he can identify or trace it; and the right attaches, not only as to the wrong-doer himself, but to any one to whom the property has been transferred otherwise than in good faith and for valuable consideration.
Edwards v.
Culberson,
It is said by Lord Mcmsfield in the case of Clark v. Shee and another, First Cowper’s Reports, p. 200: “Where money or notes are paid bona fide upon a valuable consideration, they shall never be brought back by the true owner; but where they come mala fide into a person’s hands, they are in the nature of specific property, and if their identity can be traced and ascertained the party has the right to recover.”
And as said by
Andreios, -Judge,
in
Newton v. Porter,
This case is an apposite authority in support of the principle as applied to the facts of the case before us.
The verdict of the jury having established a clear right in the plaintiff against the defendant Summers, we think that upon this finding and the other facts of the case it is equally clear that the payment of the check should be restrained until the rights of the parties are finally determined. The facts show that Summers is insolvent and Fuller a non-resident of the State. Pomeroy’s Eq. Rem., vol. 1, sec. 365;
Parker v. Grammer,
In Parker v. Grammer it is held: “Where there is reason to apprehend that the subject of the controversy in equity will be destroyed, or removed, or otherwise disposed of by the *107 defendant pending the suit, so' that the complainant may lose tbe fruit of his recovery, or be hindered or delayed in obtaining it, the Court, in aid of the primary equity, will secure the fund by the writ of sequestration and injunction, until the main equity is adjudicated at the hearing of the cause.” And this principle is now embodied in our statute on the subject. Eevisal 1905, sec. 806.
The property in controversy being represented by a cashier’s check, a negotiable instrument, the rights of the plaintiff and defendant will largely depend upon our statute on negotiable instruments, Eev. 1905, vol 1, ch. 54. Under this statute these checks, whether certified or otherwise, are classed with bills of exchange payable on demand; and if negotiated by endorsement for value without notice, and within a reasonable time, a holder can maintain the position of a holder in due course. Ch. 54, Eevisal 1905, secs. 2335 and 2336.
As pertinent to this inquiry, secs. 2201 and 2202 of this chapter are as follows: ■
“A holder in due course is a holder who has taken the instrument under the following conditions: (1) That the instrument is complete and regular upon its face; (2) that he became the holder of it before it was overdue and without notice that it had been previously dishonored, if such was the fact; (3) that he took it in good faith and for value; (4) that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person .negotiating it.” Sec. 2201.
“Where an instrument payable on demand is negotiated an unreasonable length of time after its issue, the holder is not deemed a holder in due course.” Sec. 2202.
And sec. 2343 of the same chapter provides that in determining what is a reasonable or unreasonable time regard is to be had to the nature of the instrument and the facts of the particular case.
*108 , What constitutes reasonable time will vary under the facts and circumstances of different cases, and tbis statute expresses as definite a rule as could well be established or considered desirable.
On the facts of this case we think, and so hold, that so far as time is concerned,-this negotiation was undoubtedly within a reasonable time.
Again, it will be noted that the defendant Fuller, according to the claim made by him, purchased and paid for this cheek partly in a pre-existing debt due from Summers to himself.
Many of the courts have heretofore denied that such an indebtedness was sufficient consideration to constitute one a holder for value within the meaning of the law merchant. Our statute on this question, however, sec. 2113, enacts “that an antecedent or pre-existing debt constitutes value, and is . deemed such whether the instrument is payable on demand or at a future time.”
If defendant’s statement is accepted, no objection can be made, therefore, to the consideration because same was in part a pre-existing debt, this being declared sufficient by the express terms of the statute.
We think, however, there was error in the charge of his Honor on the second issue, as to the burden of proof, which entitles the plaintiff to a new trial.
This issue is not very well framed to present the question as to whether defendant Fuller was a holder in due course. It would seem to be desirable that the issue should be drawn so as to present the question affirmatively and in more precise terms:
“Was defendant Fuller a purchaser of the check in good faith for valuable consideration and without notice of any infirmity in the instrument or defect in the title of Summers ?”
*109 But, in whatever form presented, the burden of the issue is not on the plaintiff, as stated by the Court, but on the defendant.
By sec. 2208 of said ch. 54 it is enacted: “Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. But the last-mentioned rule does not apply in favor of a party who became bound on the instrument prior to the acquisition of such defective title.”
The evidence and the verdict on the first issue established that the title of defendant Summers, who negotiated the check to defendant Euller, was defective.
This having been established, the burden was on the defendant, claiming to be a purchaser in good faith for value and without notice to make this claim good by the greater weight of the evidence.
The statute, in this respect, only enacts the law as it has always existed, which puts the burden in such case on the person claiming to be a holder in due course.
Bank v. Burgwyn,
Eor this error in the charge there will be a new trial on the second issue, and it is so ordered.
New Trial.