NEGLIGENT1 ESCAPE. The omission2 to take such a care of a prisoner as a gaoler is bound to take, and in consequence of it, the prisoner departs from his confinement3, without the knowledge or consent of the gaoler, and eludes4 pursuit.
2. For a negligent escape, the sheriff or keeper of the prison is liable to punishment in a criminal case; and in a civil case, be is liable to an action for damages at the suit of the plaintiff. In both cases, the prisoner may be retaken. 3 Bl. Com. 415.
NEGOTIABLE. That which is capable of being transferred by assignment; a thing, the title to which may be transferred by a sale and indorsement or delivery.
2. A chose in action was not assignable at common law, and therefore contracts or agreements could not be negotiated. But exceptions have been allowed to this rule in relation to simple contracts, and others have been introduced by legislative5 acts. So that, now, bills of exchange, promissory notes, bills of lading, bank notes, payable6 to order, or to bearer, and, in some states, bonds and other specialties7, may be transferred by assignment, indorsement, or by delivery, when the instrument is payable to bearer.
3. When a claim is assigned which is not negotiable at law, such, for example, as a book debt, the title to it remains8 at law in the assigner, but the assignee is entitled to it in equity9, and he may therefore recover it in the assignor's name. See, generally, Hare & Wall. Sel. Dec. 158 to 194 Negotiable paper.
NEGOTIABLE PAPER, contracts. This term is applied10 to bills of exchange and promissory notes, which are assignable by indorsement or delivery.
2. The statute11 of 3 & 4 Anne (the principles of which have been generally adopted in this country, either formally, or in effect,) made promissory notes payable to a person, or to his order, or bearer, negotiable like inland bills, according to the custom of merchants.
3. This negotiable quality transfers the debt from the party to whom it was originally owing, to the holder12, when the instrument is properly indorsed, so as to enable the latter to sue in his own name, both the maker13 of a promissory note, or the acceptor of a bill of exchange, and the other parties to such instruments, such as the drawer of a bill, and the indorser of a bill or note, unless the holder has been guilty of laches in giving the required notice of non-acceptance or non-payment. But in order to make paper negotiable, it is essential that it be payable in money only, at all events, and not out of a particular fund. 1 Cowen, 691; 6 Cowen, 108; 2 Whart. 233; 1 Bibb, 490, 503; 1 Ham. 272; 3 J. J. Marsh14, 174, 542; 3 Halst. 262; 4 Blackf. 47; 6 J. J. Marsh, 170; 4 Mont. 124. See 1 W. C. C. R. 512; 1 Miles, 294; 6 Munf. 3; 10 S. & R. 94; 4 Watts15, 400; 4 Whart. R. 252; 9 John. 120; 19 John. 144; 11 Verm. 268; 21 Pick. 140. Vide Promissory note. Vide 3 Kent. Com. Lecture 44; Com. Dig. Merchant, F 15, 16; 2 Hill, R. 59; 13 East, 509; 3 B. & C. 47; 7 Bing. 284; 5 T. R. 683; 7 Taunt16. 265, 278; 3 Burr. 1516 6 Cowen, 151.
4. To render a bill or note negotiable, it must be payable to order, or to bearer. When it is payable " to A B only," it cannot be negotiated so as to give the indorsee a claim against any one but his indorser. Dougl. 615. An indorsement to A B, without adding " or order," is not restrictive to A B alone, he may, therefore, assign it to another; Str. 557; or he may indorse it in blank, when any attempt, afterwards, to restrain its negotiability will be unavailing. Esp. N. P. Cas. 180; 1 Bl. Rep. 295. Vide Blank Indorsement; Indorsment.
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