i«]^^:^^ (Sorn^ll Ham ^riynnl Slibtaty Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022476703 Cornell University Library KD 1695.C43 1896 A digest of the law of bills of exchange 3 1924 022 476 703 A DIGES^T OF THE LAW OF BILLS OF EXCHANGE, A DIGEST OP THE LAW OP BILLS OF EXCHANGE, PEOMISSOEY NOTES, CHEQUES, AND NEGOTIABLE SECUEITIES. HIS HONOUR JUDGE CHALMERS, DRAUGHTSMAN OF THE BILLS OF EXCHANGE ACT, 1882 ; EDITOR OF THE INDIAN NEGOTIABLE INSTRDMENTS ACT, 1881, THE BANKRUPTCY ACTS, 1883, 1890, &C. FIFTH EDITION. LONDON : STEVENS AND SONS, LIMITED, 119 & 120, CHANCEEY LANE, gJato flobUshtrs ani gooketlUxe. 1896. BRAEBUEY, AQHEW, & CO. I.D,, PBINTEKS, LONDON AND TONBHIDGE. PEEFACE TO FIFTH EDITION. In the present Edition I have noted up the cases bearing on the subject of the Work, which have been decided since the last Edition was published, and I have re-written and en- larged some of the notes. M. D. CHALMEES. County Cotjet, Biemisgham, Pebrumy, 1896. CONTENTS. Table of Cases . xiii Table op Cases overruled xxxi List of Abbkeviations xli iNrEODTJCTION TO ThIED EDITION xliii Pkeliminaey. Short title of the Act Commencement and local extent Interpretation of terms FOEM AND InTBEPEBTATION OF InSTEUMENTS. Bill of exchange defined Inland and foreign hills ...... Effect where different parties to biU are the same person Address to drawee ..... Certainty required as to payee "What bills are negotiable . Sum payable . . ... BiU payable on demand . BiU payable at a future time . Omission of date in bill or acceptance Ante-dating and post-dating . Computation of time of payment Case of need Special stipulations by drawer or indorser . Definition and requisites of acceptance . Time for acceptance General and qualified acceptances . Incomplete instrument or blank signature . Delivery Contracts on bill are contracts in writing . SECTION OF TIJE ACT. PAGE 1 1 . — 1-2 2 3 4 15 5 17 6 18 7 19 8 24 9 26 29 30 32 33 34 38 39 40 45 46 49 52 57 10.... 11.... 12.... 13.... 14.... 15.... 16 17.... 18.... 19 20.... 21 VUl CONTENTS. Capacity and Authokity or Parties. Capacity of parties Disatilities of bankers Signature essential to liability Partners Forged or unauthorised signature . . . • Procuration signatures Person signing as agent or in representative capacity . COKSIDBBATION FOE BiLLS. Value defined Holder for value , Accommodation bill or party Holder in due course Presumption of value and good faith Eules as to impeachment of value ... SECTION OP [THE ACT. PAGE . 22 60 — 64 23 65 — 67 24 71 25 75 26 77 27.. 28.. 29., 30., 80 83 87 88 93 95 Transfer of Bills. Negotiation of biU Requisites of a valid indorsement Conditional indorsement .... Indorsement in blank and special indorsement . Restrictive indorsement. . . ., . Negotiation of overdue or dishonoured bill Negotiation of bill to party already liable thereon Eights of the holder Rights of action and proof .... Transmission by act of law .... Transfer by assignment 31.. 32.. 33.. 34.. 35.. 36., 37. 38., .102 -.105 .109 ,.110 ..112 ..116 ..120 ..121 ..122 ..125 ..129 General Duties of the Holder. Presentment for acceptance, when necessary Time for presenting bill payable after sight Rules as to presentment for acceptance Non-acceptance after customary time for consideration Dishonour by non-acceptance, and its consequences Duties as to qualified acceptances . Rules as to presentment for payment Excuses for non-presentment and delay . Dishonour by non-payment Notice of dishonour and eflFect of non-notice Rules as to notice of dishonour . Excuses for non-notice and delay . Noting or protest of bill .... Duties f holder as regards payor . ■39 131 40 133 41 134 42 138 43 139 44 140 45 142 46 148 47 151 48 152 49 154 50 163 51 170 52 176 CONTENTS. IX Liabilities of Pakties. Funds in hands of drawee Relations of holder and drawee Eelations of drawer aud drawee Liability of acceptor Liability of drawer Liability of indorser Who liable as indorser Measure of damages against parties to dishonoured bill Transferor by delivery and transferee Accommodation party and person accommodated SECTION OF THE ACT. PAOB 53 179 — 180 — 181 54 183 55 185 — 186 56 188 57 190 58 194 — 196 DiSOHAEGE OF BiLLS. Payment in due course 59 199 Banker paying demand draft whereon iudorsomeut is forged 60 208 Coincidence of right and liability 61 210 Express waiver . . . . . . 62 211 Cancellation ... ... 63 212 Alteration of bill .64 213 Discharge of surety by dealings with principal . . — 218 Renewal — 224 Giving biU as payment of debt — 225 Acceptance and Payment for Honoue. Acceptance for honour Liability of acceptor for honour .... Presentment to acceptor for honour or case of need Pajrment for honour Lost Insteitments. Holder's right to duplicate of lost bill Action on lost bill ... ... Bill in a Set. Rules as to sets . . ... Conflict of Laws. Rules where laws conflict ... Cheques on a Bankee. Cheque defined Presentment of cheque for payment Revocation of banker's authority to pay . Eelations of banker and customer . . General and special crossings defined . 65 226 66 228 67 229 68 230 69 233 70 233 71 235 72 238 73 245 74 247 75 249 — 251 76 254 CONTEiNTS. SKCTION OF Chequbs on a Banker — contiirmed. the act. page By whom cheque may be crossed 77 255 Crossing a material part of cheque 78 256 Duties of banker as to crossed cheques .... 79 256 Protection to banker and drawer where cheque is crossed 80 258 Effect of "not negotiable" crossing .... 81 258 Protection to collecting banker 82 259 PEOiwissoRY Notes. Promissory note defined .... Delivery necessary to complete note . Joint and several notes Notes payable on demand ..... Presentment for payment .... Liability of maker Application to notes of provisions as to bills of exchange Supplementary. Good faith .... Signatures by agents Seal or signature of corporation Computation of time When noting equivalent to protest Protest by householder . Dividend warrants may be crossed Repeals General savings .... Saving of summary diligence in Scotland Construction of act with other acts or documents Amendment of Scotch law of evidence . Schedules to Act. Schedule I. — Form of protest by householder Schedule II. — Enactments repealed . . 83.. ...261 . 84.. ...265 . 85.. ...265 . 86.. ...267 . 87.. ...268 . 88.. ...269 e 89... ...270 . 90... ...272 . 91... ...274 . — ... ...278 . 92... ...279 . 93... ...279 . 94... ...280 . 95... ...'280 . 96... ...281 . 97... ...281 . 98... ..284 . 99... ..284 100... ..285 286 287 Statute of Limitations. Rules as to limitations 289 Securities for Bills of Exchange. Rights of drawer Rights of drawee or acceptor Rights of holder Rule in Ex parte Waring . Rights of surety on bill . . 295 296 . 298 . 300 2 2, 302 CONTENTS. XI Payment by Bill, Note or Cheque. General rule as to payment . . . , Bill or note as collateral security . Conditional payment .... Creditor holding higher security . BiU or note as absolute payment By bill for less sum than debt Cheque sent in settlement received ou account PAGE 304 304 305 306 308 309 309 Negotiable Seoukities foe Money. Tests of negotiability . Bank notes Foreign bonds to bearer Non-liability of foreign government Circular notes .... Debentures Dividend warrants Exchequer bills Post office orders .... Scrip Share certificates and transfers . Warranty of title and genuineness 312 313 314 317 318 318 322 322 323 324 324 326 Appendix I. Forms. 329 Appendix II. Statutes . 334 INDEX 365 TABLE OF CASES CITED. • A. Abbott V. Hendricks, 14 Abel V. Sutton, 71 Abrey v. Crux, 14, 54, 57, 200, 211 Ackerman v. Ehrensperger, 194 Adansonia Co., Be, 65, 66 Agra Bank, Ex parte, 182, 279 — In re, 179, 251 — V. Hoflfmann, 251 — V. Leighton, 98, 123 Alcocku. Smith, 117, 118, 241 Alderson v. Langdale, 217 Aldous V. Cornwell, 216 Alexander v. Burchfield, 177, 247, 248 — V. Sizer, 42, 78, 341, 342 — V. Thomas, 31 Allen V. Davis, 82 - — V. Edmundson, 144, 149, 159, 160, 164, 165 — V. Kemble, 186, 240, 241, 242 — V. Mawson, 9 — V. Sea Fire and Life Assur- ance Co., 17 — V. Suydam, 132 Alliance Bank, Ex parte, 300 — V. Kearsley, 67 Alsager v. Close, 56, 99 Amner v. Clark, 16 Amory v. Mery weather, 116 Ancher v. Bank of England, 113 Ancona v. Marks, 5, 6, 124 Anderson v. Hillies, 309 — V. Weston, 33, 71, 119 Anderton v. Beck, 152 Angle V. N. W. Ins. Co., 91 Anglo-Greek Navigation Co., Be, 123 Angrove v. Tippett, 292 AnseU v. Baker, 200 Arbuthnot, Ex parte, 299 Archer v. Bamford, 98 Armfield v. Allport, 33 — V. London and West- minster Bank, 253 Armitstead, Ex parte, 128 Armstrong v. Christiani, 157 — V. Gibson, 100 Arnold v. Cheque Bank, 53, 56, 72, 74, 182, 206, 208 Arthur v. Clarkson, 97 Ashling V. Boon, 359 Ashpitel V. Bryan, 21 Asprey v. Levy, 197 Astley V. Johnson, 95, 97 Atkins V. Wardle, 41, 341 Atkinson v. Hawdon, 217 Attenborough v. Clarke, 85, 87, 304 — V. Mackenzie, 121, 203 Att.-Gen. v. Bouwens, 315 — V. Pratt, 182 Attwood V. Griffin, 216 — V. Munnings, 75, 76 — V. Rattenbury, 123, 124 Atwood V. Crowdie, 85 Aulton V. Atkins, 130 Austin V. Mead, 130 Awde V. Dixon, 49, 51, 90 Aylesford v. Morris, 83 Ayrey v. Feamsides, 28 B. Backhouse v. Charlton, 250 Bagnall v. Andrews, 197 Bailey v. Bidwell, 93, 94 — V. Bodenham, 155, 156, 247 TABLE OF CASES CITED. Bailey v. Edwards, 219 — V. Porter, 146, 157 Bain v. Gregory, 157, 159 Bainbridge v. Hemingway, 98 Baines v. Wright, 223 Baker, Ex parte, 156 — v. Birch, 149 — V. Dening, 276 — V. Martin, 197 Baldwin v. Richardson, 164 Balfour v. Ernest, 76 — V. Sea Ass. Co., 80 Bamfield v. Tupper, 293 Banco de Lima -v. Anglo-Peruvian Bank, 297 Banco de Portugal v. Waddell, 18, 125, 281, 349 Bank of Australasia v. Breillat, 68, 69 Bank of Bengal v. Macleod, 76 Bank of Brazil, Ex parte, 192 Bank of England ■«. Newman, 195 — V. Vagliano, 3, 22, 23, 72, 74, 252 Bank of Ireland v. Archer, 44 — V. Perry, 300 Bank of Scotland v. JDomin on Bank, 213 Bank of Utica v. Smith, 112 Bank of Van Dieman's Land v. Bank of Victoria, 54, 132, 135, 138 Bann v. Dalzell, 194 Banner, Ex parte, 295, 296, 297, 300 — ■;;. Johnston, 13, 296, 299, 300, 301 Barter & Co., Re, 341 Barber v. Mackrell, 224 — V. Richards, 6, 56, 83, 99 Barclay, Ex pcvrte, 224 — v. Bailey, 144 Barker v. Sterne, 51 Barnard, Re, 41 Barrington, In re, 106, 129 Bartholomew v. Hill, 167 Bartlett v. Benson, 112 — -0. Hawley, 78 Bartley v. Hodges, 242 Bartrum v. Caddy, 201 Bateman v. Joseph, 165 — V. Mid Wales Ry. Co., 63,64 Batson v. King, 59, 197, 198, 220 Bawden v. Howell, 124 Baxendale v. Bennett, 49, 50, 55 Beak v. Beak, 250 Beale v. Parish, 157 Beaumont D. Greathead, 201, 203 266, 304 Bechervaise v. Lewis, 88, 123, 197, 303 Beck V. Peirce, 62 Beckett v. Tasker, 62 Beckham v. Drake, 65 Beech v. Jones, 197 Beecham v. Smith, 261, 264 Beeching v. Gower, 15, 145 Beeman v. Duck, 184, 185 Begby v. Levi, 34 Belcher v. Campbell, 5, 128 Belfast Bank v. Doherty, 62, 94 101 Bell V. Banks, 221 — V. Buckley, 225 — V. Frankis, 167 — V. Gardiner, 80 — V. Lord Ingestre, 54, 55, 56 Bellamy v. Majoribanks, 254 Belshaw v. Bush, 200, 306 Benedict v. Cowden, 216 Bentinck v. Dorrien, 141 — V. London Joint Stock Bank, 317 Benton v. Martin, 55 Berg V. Abbott, 147 Berridge v. Fitzgerald, 153, 156, 164, 165 Berry v. Alderman, 93 Besant v. Cross, 58 Bethell, Re, 151, 291 Beveridge v. Burgis, 165 Biokerdike v. BoUman, 167 Bidder v. Bridges, 309 Bignold, Ex parte, 149, 151, 215 Billing V. Devaux, 44, 182 Birchall v. Bullough, 359 Bird, Ex parte, 196 Birmingham Bank, Ex parte, 276 Bishop, Ex paiie, 106, 197 — V. Balkis Co., 324 — V. Ohitty, 136, 177 — V. Curtis, 127 — V. Hayward, 121 — V. Young, 270 Bissell V. Fox, 209, 260 Black V. Ottoman Bank, 152, 221 TABLE OF CASES CITED. XV Blackman v. Lehman, 31 Blain, Ex parte, 2 Blaine v. Bourne, 113 Blakeley Ordnance Co., In re, 320 Blanckenhagen v. Blundell, 21 Blewitt V. Tritton, 359 Bobbett '-■. Pinkett, 208, 258 Boddington v. Scblencker, 145 Bodenham v. Hoskyns, 251 Boehm v. Garcias, 43, 48 Bolognesi's Case, 64 Bolton V. Dngdale, 28 Bonar v. Mitchell, 271 Borradaile v. Lowe, 167 Bosanquet ■!;. Forster, 5 Bottomley v. Nuttall, 305 Bounsall v. Harrison, 120 Bourdin v. Greenwood, 293 Bowes, Be, 87 — V. Howe, 149 Boyd V. Emmerson, 252 — V. Fitt, 182 Boys, In re, 56, 87, 304 Boyse, In re, 10, 13, 291 Bi-adlaugli v. De Ein, 111, 240 Bradley v. Bardsley, 215 Braithwaite v. Coleman, 167 — V. Gardiner, 184 Brandao v. Barnett, 86, 282, 323 Bransby v. East London Bank, 252 Bray v. Hadwen, 162 Brett, Ex parte, 296 — v. Levett, 165 Brice V. Bannister, 9, 130 Bridge V. Batchelor, 196 Bridges V. Berry, 131, 153, 308 Brind v. Hampshire, 53 Bristow u Sequeville, 240 British. India Co. v. Inland Ee- venne, 319, 355 British Linen Co.-w. Caledonian Ins. Co., 181 — V. Cairuthers, 180 — V. Eainey, 180 Britt V. Lawson, 146, 269 Broad, Re, Ex parte Neck, 295, 297 Broddelius v. Grisohotti, 358 Bromage v. Lloyd, 53, 54, 55 — V. Vaughan, 159 Bromley v. Brunton, 250 Brook V. Hook, 72, 73 Brooks V. Elkins, 261 — V. Mitchell, 119, 246, 268 Brown's Estate, Re, 291 Brown & Co. v. Inland Eevenue, 356 Brown v. Butchers' Bank, 276 — V. Curtis, 170 — V. Davies, 117 — V. Langley, 59 — V. Rutherford, 201, 291, 293 — Shipley & Co. v. Kough, 297 — V. Watts, 358 Brownell v. Bonney, 166 Brutt V. Picard, 215 Bryant v. Banque du Peuple, 76 — V. Eastman, 109 Buchanan, Ex parte, 128 Buck V. Eobson, 13, 355 Buckley, Ex parte, 267 — V. Jackson, 113 Bulkeley v. Butler, 203 BuU V. O'SuUivan, 34 Bult V. Morrell, 41 Burbridge v. Manners, 161, 199, 203 Burchfield v. Moore, 185, 187, 196, 199, 208, 213, 214, 216, 217 Burdon v. Benton, 80, 83 Burgh V. Legge, 154, 165, 311 Burmester v. Barron, 156 — ■;;. Hogarth, 187, 311 Burrows v. Jemino, 242 Butcher v. Stead, 81 Butler V. Crips, 17 Butterworth v. Le Despencer, 144 Buxton V. Jones, 145, 146 Byrom v. Thompson, 215 C. Caldecott, Ex parte, Be Maple- back, 73 Callow V. Lawrence, 112, 115, 201, 204 Calvert v. Baker, 216 Cama. Ex parte, 80 Camidge v. AUenby, 170, 195, 309 Campbell v. French, 37, 38 — V. Hodgson, 57 — V. Webster, 167, 176 Cannam v. Farmer, 61 Card well v. Martin, 215 Carew v. Duckworth, 165, 168 XYl TABLE OF CASES CITED. Carlss V. Tattersall, 215, 218 Carlill V. Carbolic Co., 81 Carlon v. Kenealy, 26 Carlos V. Fancourt, 11, 12, 31, 32 Carr v. Nat. Bank, 180 Carrick, Ilx parte, 298, 299 Carrier u Sears, 100 Carruthers v. West, 117 Carter v. Burley, 161 — V. Flower, 154, 167 — V. White, 50, 152, 170, 221 Carviok v. Vickery, 108 Castrique v. Bernabo, 140, 152, 291 — V. Buttigieg, 39, 55, 97 — V. Imrie, 21 3 Caton V. Caton, 276 Caunt V. Thompson, 147, 154, 157, 165, 167, 169 Chalmers, Ex parte, 295 — V. Lanion, 116 Chamberlain v. Young, 17, 20 Chambers v. Miller, 200, 207 Chapman v. Black, 224 — V. Cottrell, 239, 266 — V. Keane, 154, 156 — r. Rose, 272 Chard v. Fox, 159 Charles, In re, 125 — V. Blackwell, 72, 75, 209, 253 Charman, Ex parte, 29 Chamley u Grundy, 178 Chartered Bank v. Dickson, 246, 267, 270 Chasemore v. Turner, 293 Cheek v. Roper, 135 Chester v. Dorr, 118 Chichester v. Hill, 339 Childs V. Monins, 78 Citizens' Bank of Louisiana v. New Orleans Bank, 179, 182, 298 City Bank v. Luckie, 300, 301 Claridge v. Dalton, 219 Clark V. Pigott, 124 Clarke, Ex parte, 187 — V. Whitaker, 104 Clayton v. Gosling, 31 Clegg V. Levy, 240 Clement v. Cheeseman, 130, 251 Clerk V. Blackstock, 216 Clifford V. Parker, 218 Clode V. Bayley, 163 Clutton V. Attenborough, 22 Cocks V. Masterman, 208 Coddington v. Davis, 151 Cohen v. Hale, 249, 306 — V. Mitchell, 128 Cole 1). Jessop, 143 Colehan v. Cooke, 31, 32, 58, 261 Coilen V. Wright, 77 OoUins V. Martin, 85 Collinson v. Lister, 90 CoHis V. Emett, 49, 186 CoUott 1). Haigh, 87 Colonial Bank v. Cady, 313, 324, 326 Colson V. Arnot, 91 Coltman, Ee, 101 Commercial Bank of South Aus- tralia, 2?e, 82, 192 — V. Ehind, 253 Committee of London Clearing Bankers v. Inland Revenue, 361 Concha v. Marietta, 244 Conflaus Quarry Co. v. Parker, 318 Connor v, Martin, 126 Conova v. Earl, 107, 124 Conro V. Port Henry Iron Co., 67 Cook V. Lister, 115, 168, 184, 200, 201, 205, 211, 218 — V. Satterlee, 10, 262 — V. Wright, 80 Cooper V. Meyer, 184, 185 — V. Waldegrave, 242 Coppin V. Gray, 292 Corbett v. Clark, 13 Cordery v. Colville, 166 Comes V. Taylor, 178 Cote, Ex parte, 5, 53, 54 Counsell v. Lond. and West. Dis- count Co., 307 Courtauld v. Sanders, 78, 341 Courtoy v. Vincent, 127 Coward v. Hughes, 80 Cowasjee v. Thompson, 308 Cowie V. Sterling, 21 Cowper's Trustees v. Nat. Bank of Scotland, 253 Cox V. Troy, 52 Cranley v. Hillary, 176 Crears v. Hunter,' 80 Cripps V. Davis, 200, 294 Cromwell v. Hewitt, 189 Crook V. Jadis, 272 Crosse v. Smith, 145, 146, 159 Crossley v. Ham, 120 TABLE OF CASES CITED. XVll Crouch V. Credit Fonoier, 102, 103, 121, 122, 27S, 282, 313, 321 Crowe V. Clay, 131, 178, 217, 234, 305, 308 Crowfoot V. Gurney, 28 Croydon Gas Co. v. Dickinson, 223 Crutchly v. Mann, 49, 50 Cumber v. Wane, 309 Gumming v. Shand, 181, 182, 253 Gundy V. Marriott, 169, 199, 217, 358 Gunliffe v. Whitehead, 104 Cunningham & Co., L., Be, 75, 279, 341 — V. Smithson, 43 Gurlewis v. Clarke, 309 — V. Gorfield, 166 Gurrie v. Misa, 81, 82, 86, 89, 96, 123, 225, 305 Currier v. Lockwood, 262 Cutts V. Perkins, 182 D. Da Costa v. Cole, 27 Dando v. Boden, 190 Darnell v. Williams, 96 Davidson v. Cooper, 214 Davies v. Edwards, 294 — 0. Humphreys, 292 — V. Jenkins, 61 Davis V. Clarke, 40 — V. Gyde, 307 Davison, Be, 266, 307 — V. Robertson, 69 Dawes v. Harness, 99, 100 Dawkes v. Lord Deloraine, 12 Dawson v. Morgan, 192 — 17. Prince, 74 Day V. Longhurst, 4 — V. McLea, 310 — V. Nix, 98 Deacon v. Stodhart, 201, 230 Dean v. James, 304 De Bergareche v. Pillin, 144 Decroix v. Meyer, 25, 46, 48, 217, 283 Dehers v. Harriot, 30 De ]a Chaumette v. Bank of Eng- land, 82, 89, 96, 123, 240 De la Torre v. Barclay, 211 Delaware Bank v. Jervis, 195 Dent V. Dunn, 194 Denton v. Peters, 6, 54, 56, 85, 97 De Tastet v. Baring, 193 Deiiters v. Townsend, 116 Dever, Ex parte (No. 1), 297, 299 — (No. 2), 295, 300, 301, 302 Deverill v. Burnell, 144 Dewhurst, Ex parte, 300, 301 Dickens v. Beal, 167 Dickin, Ex parte, 296 Dickinson v. Valpy, 69 Dillon, Be, 130 — V. Kimmer, 224 Dingwall v. Dunster, 211 Dinsmore v. Duncan, 214, 262 Dixon V. Bovill, 10 Dobie V. Larkan, 184 Dod V. Edwards, 203 Doman u Dibdin, 28 Dominion Bank v. Anderson, 213 Don v. Lippmann, 240, 292 Douglas, In re, 125 Downes v. Church, 236 — V. Richardson, 7, 215 Drain v. Harvey, 58 Drake v. Mitchell, 307 Drayton v. Dale, 185, 270 Dresser v. Missouri Co., 82, 95 Druiflf V. Parker, 55, 189 Drury v. Macaulay, 11, 262 Dugan V. United States, 112 Dumont v. Williamson, 39 Duncan, Fox & Go. v. N. & S. Wales Bank, 178, 134, 187, 205, 223, 302, 303 Duncan v. Scott, 99 Dunn V. O'Keefe, 140, 153 Dutton V. Marsh, 78, 278, 341 E. Earl V. Peck, 82 Early v. Bowman, 310 East V. Smith, 154, 155, 159 East India Co. v. Tritton, 208 East of England Banking Co., In re, 150, 191 Easton v. Pratchett, 96 — V. London Joint Stock Bank, 316 Eastwood V. Bain, 77 — V. Kenyon, 80 Edge V. Bumford, 104, 234 b XVIU TABLE OF CASES CITED. Edie V. East India Company, 25, 113, 282 Edis V. Bury, 9, 18 Edmonds v. Blaina Co,, 319 Edmunds v. Bushel], 67 Edwards, Ex parte, 72 — V. Barnard, Ee Barnard, 41 — V. Chancellor, 80, 224 — V. Dick, 101 — V. Walters, 212 Edwin V. Lancaster, 219 Elford V. Teed, 135, 144 Ellis V. M'Henry, 242 Ellison V. CoUingridge, 9 Ellston V. Deacon, 69 Elsam V. Denny, 204 Elsworth V. Brewer, 204 Emblin v. Dartnell, 270 Emmanuel v. Eobarts, 252, 282 Emmett v. Tottenham, 6, 125 English Credit Co. v. Arduin, 182 — Investment Co. v. Brun- ton, 319 Esdaile v. La Nauze, 73, 74 — V. Sowerby, 149, 165 Essenlow v. Dillenback, 30 European Bank, Ex paHe, 88, 197, 223 — In re, 85 Evans v. Cramlington, 113, 114 — V. Whyle, 195 Everard v. Watson, 157, 158 Ewin V. Lancaster, 58, 218, 219 Exon V. Russell, 268 E. Fairchild v. Ogdensburg Rail. Co., 17 Fairclough v. Pavia, 98, 112, 116, 188 Faith V. Richmond, 66 Fanshawe v. Peet, 46, 48, 217, 283 Farquhar v. Southey, 216 Fenn v. Harrison, 65, 195, 197 Fenton v. Blackwood, 224 Fentum v. Pocock, 220 Ferris v. Bond, 19, 266 Fesenmayer v, Adcock, 264 Fessard v. Mugnier, 304 Field V. Carr, 5 Fielder v. Marshall, 9, 18, 42 Fine Art Society v. Union Bank, 323 324 First National Bank v. Hall, 109 — V. Word, 303 Firth V. Brooks, 248 — V. Thrush, 159, 162, 163 Fisher ■». Calvert, 12, 13, 365 — V. Roberts, 259 Fitch V. Jones, 46, 94, 95, 100, 101, 283 Fleet V. Perrins, 126 Plight V. Reed, 80, 224 Flower v. Sadler, 100 Foakes v. Beer, 309 Foley V. Hill, 251 Follett V. Moor, 262 Poote V. Brown, 170 Forbes v. Marshall, 66, 264 Ford V. Beech, 200 Forman v. Jacob, 67 — V. Wright, 96 Forster v. Mackreth, 30, 34, 70, 246, 252, 275 Foster v. Dawber, 93, 211, 212 — V. Jolly, 14, 57, 58 — V. Julien, 150 — V. Mackinnon, 49, 50, 277 — V. Parker,. 168 — V. Ward, 210 France v. Clark, 50, 51, 323, 325 Eraser v. Jordan, 221 Preakley v. Fox, 210 Frith V. Forbes, 297 Froutz V. Roberts, 100 Fry V. Hill, 133 Fryer v. Eowe, 290, 310 Fuller V. Smith, 196 Furze v. Sharwood, 158 G. Gale V. Walsh, 172 Garden v. Bruce, 292 Gardner v. Maynard, 204 — V. Walsh, 216, 217, 266 Garland v. Jacomb, 69, 184 Garnett v. M'Kewan, 252 — V. Woodcock, 144 Garrard v. Cottrell, 197 — V. Lewis, 28, 61 Gaskin v. Davis, 26 Gates V. Beecher, 146, 157 Gatty V. Fry, 29, 34, 352 TABI.E OF CASES CITED. XIX Gay V. Lander, 264 Geary v. Physic, 276 General Estates Co., In re, Ex parte City Bank, 320 Gen. S. Amer. Co., Ex parte, 302 — In re, 183, 192 Greorge, In re, Francis v. Bruce, 212 — V. Surrey, 276 Geralopulo v. Wieler, 175, 230, 280 Gibb V. Mather, 142, 145, 146, 216, 262, 269, 270 Gibbs V. Fremont, 186, 187, 242 — V. Society des Metaux, 242 Gibson, Ex parte, 31, 342 — V. Hunter, 21 — V. Minet, 21 Giddings v. Giddings, 55 Gilbey, Ex parte, 128 GUI V. Cubitt, 272 Gladwell v. Turner, 161, 163 Glasscock v. Balls, 200, 201, 268 Glennie v. Imri, 98 Glyn V. Baker, 314 — u Hood, 13 Goddard v. O'Brien, 309 Godfray v. Coulman, 134 Goggerley v. Cuthbert, 56 Goldshed'e v. Cottrell, 309 Goldsmid v. Hampton, 9, 51 Gomersall, Be, 34, 86, 117, 273 Gomez, Ex parte, 295, 297, 302 Gompertz v. Bartlett, 195, 327, 358, 359 Goodall V. Dolley, 166 — V. Polhill, 163, 231 Goodman v. Harvey, 120, 272 Goodwin v. Robarts, 25, 181, 246, 251, 271, 282, 312, 314, 315, 318, 321, 322, 324 Gore V. Gibson, 62 Gorgier v. Mieville, 314 Goring V. Edmonds, 190, 221 Goss V. Nelson, 31 Gothenburg Com. Co., In re, 297 Gould V. Coombes, 261 — V. Eobson, 218 Goupy V. Harden, 39 Grant v. Da Costa, 14 Graves v. American Bank, 72, 202 — V. Key, 118, 201 Grav V. Johnston, 251 — V. Megrath, 302 Gray v. Milner, 18 — V. Raper, 78, 341 — V. Seckham, 85, 197, 303 Green v. Carlill, 126 — V. Humphreys, 294 — V. Steer, 128 Greenough ?;. M'Clelland, 219,220 Gregory v. Eraser, 358 Grey v. Cooper, 61, 63 Griffin •». Weatherby, 12, 143, 179, 236, 356, 359 Griffiths V. Kellog, 277 Guardians of Lichfield v. Greene, 195 Guepratte v. Young, 238 Gunn V. Bolckow Vaughan, 295, 305, 306 Gurney v. Evans, 66, 68 — u Womersley, 196, 327 Gwinnell v. Herbert, 188, 270 H. Halifax Union v. Wheelwright, 206, 209 HaU V. Cole, 219 — V. Featherstone, 93 — u Fuller, 206 Hallett's Estate, Be, 115, 251 Hallifax v. Lyle, 184 Halstead v. Skelton, 47, 48, 177 Hamelin v. Bruck, 213, 214, 215, 216 Hamilton v. Spottiswoode, 9, 11 Hanbury v. Lovett, 49, 216 Hannum v. Richardson, 39 Hansard v. Robinson, 178, 234 Harding v. Edgecumbe, 293 Hardy v. Veasey, 253 — V. Woodroofe, 149 Hare v. Henty, 248, 249 Harmer v. Steele, 111, 183, 199, 201, 210 Harpham v. Child, 159 Harris v. Amery, 70 — • V. Parker, 145 Harrison, Ex parte, 106 — V. Dickson, 191 — V. Ruscoe, 154, 155 — V. Walker, 128 Harrop v. Fisher, 104, 106, 111, 275 Hart V. Stephens, 126 b 2 XX TABLE OF CASES CITED. Harvey v. Cane, 26 — u Martin, 44 Hatch V. Searles, 50, 51, 250 — V. Trayes, 14, 93 HaussouUier v. Hartsinck, 12 Hawkes v. Salter, 155, 161 Hawkins v. Cardy, 107 — V. Ward, 94 Hawley v. Beverley, 197, 203 Hay jj. Ayling, 100, 224 Hay and Kyd v. Powrie, 221 Hay ward, Ex parte, 9, 51, 52 Heilbut V. Nevill, 70, 72, 107, 108 Henry v. Lee, 144 Herald v. Connah, 41 Herbert v. Sayer, 128 Herrick v. Woolverton, 268 Heseltine v. Siggers, 315 Hewitt V. Kaye, 250 — V. Thompson, 164 Heylyn v. Adamson, 262, 270, 271 Heywood v. Pickering, 147, 156, 247, 248 Hickie's Case, 299, 302 Hicks V. Beaufort, 166 Highmore v. Primrose, 14 HiU V. Halford, 12 — V. Heap, 149, 151 — ■;;. Rnyds, 180 — V. Wilson, 14, 58, 80 Hills V. Parker, 87 Hilton V. Fairclough, 161 Himmelman v. Hotaling, 119 Hindhaugh v. Blakey, 44 Hine v. Allely, 145, 146, 161 Hirschfield v. Smith, 27, 112, 161, 216, 243, 244 Hirschman v. Budd, 215 Hitchcock V. Edwards, 34, 91 — V. Humfrey, 152, 169 Hoare v. Cazenove, 228, 229 Hobbs V. Cathie, 356 Hogarth v. Latham, 50 — V. Wherley, 275 Hogg V. Skeen, 73, 94 Holbrow V. Wilkins, 169 Holcomb V. Wyokoff, 95 Holdsworth v. Hunter, 17, 237 HoUiday v. Atkinson, 96, 130 Holmes v. Durkee, 121 — V. Jaques, 20, 21 — V. Kerrison, 290 — V. Kidd, 116 — V. Staines, 167 Honey, Expwrte, 266, 349 Hooper v. Keay, 253 — V. Treffry, 97 — V. Williams, 262, 264 Hopkins v. Abbott, 262 — V. Ware, 152, 249, 308 Hopkinson v. Forster, 180, 246, 298 Hopley V. Dufresne, 151 Hornblower v. Proud, 80, 129 Home V. Rouquette, 240, 243 Hostater v. Wilson, 263 Houlditch V. Cauty, 158 Houle V. Baxter, 199 Housego V. Oowne, 158, 159 Howard v. Duncan, 73 Howden v. Haigh, 100 Howe, In re, 125 Hubbard v. Gurney, 58 — V. Jackson, 121, 204 Huber ■». Steiner, 243 Hughes, Ex parte, 119 Hunt V. Gray, 217 Hunter v. Jeffery, 21 — V. Wilson, 83 Huntley v. Sanderson, 181, 292 Hutton V. Ward, 191 I. Hsley V. Jones, 182 Imbert, Ex pwrte, 299 Imeson, Ex parte, 10 Imperial Loan Co. v. Stone, 62 Imperial Land Co. of Marseilles, Be, 320 Ingham v. Primrose, 55, 91, 203 206, 211, 212 Inman v. Clare, 12, 299 Innes v. Munro, 224 Ireland v. Livingston, 295 J. Jackson v. Collins, 167 — V. Hudson, 19, 41 — V. Ogg, 290 — V. Shanks, 99 — V. Slipper, 262 Jacobs, In re, 199, 219, 222 — V. Benson, 20 Jagger Iron Co. v. Walker, 224 TABLE OF CASES OITED. XXI James v. Catherwood, 239 Jameson v. Briek and Stone Co., 128 Jardine v. Payne, 311, 358 Jefferies v. Austin, 55 Jefferys v. Boosey, 2 Jeffryes v. Agra Bank, 84 Jenkins v. Tongue, 125 Jennings v. Koberts, 159 Jenny v. Herle, 12 Jeune v. Ward, 44, 139 Jewell V. Parr, 205 Johnson v. Robarts, 86 — ». Windle, 72 Joint Stock Discount Company, Ex parte, 300 Joint Stock Discount Company, In re, 199 Jones, Ex parte, 63 — V. Broadhurst, 121, 123, 178, 183, 186, 201, 204, 205, 206 — V. Goodwin, 189 — V. Gordon, 34, 82, 89, 93, 94, 99, 125, 274 — V. Gretton, 223 — V. Hibbert, 96 — V. Lane, 99 — -v. Look, 250 — V. Merionethshire Building Soc, 100 — 1). Peppercorn, 86 — v. Ryde, 196 — V. Simpson, 28 — V. Whitaker, 218, 219 Jonmenjoy v. Watson, 76 Julian V. Shobrooke, 46 Jury V. Barker, 11, 59 E. Keane v. Beard, 26, 188, 245 Kearney v. W. Granada Company, 235 Reams v. Durell, 99 Keene v. Keene, 194 Keith V. Burke, 166 Kelly, Ex parte, 297 — V. Solari, 207 Kelner v. Baxter, 76 Kemp, Ex parte, 84, 129 — V. Balls, 204 Kempson v. Ashbee, 83 Kendal i). Wood, 207 Kendrick v. Lomax, 224 Kennedy v. Thomas, 36, 152 Kennerley v. Nash, 214 Kibble, Ex parte, 62 Kilby V. Rochussen, 166 KUgour V. Finlyson, 71 Kilsby V. WiUiams, 252 Kimbro v. Bullit, 69 King V. Bickley, 157 — V. Crowell, 145 — V. Hoare, 266 — V. Holmes, 147 — V. Milsom, 93 — V. Smith, 70, 71 — V. Zimmerman, 234 Kingston, Ex parte, 86 Kinyon v. Stanton, 247 — V. Wohlford, 55 Kirk V. Blurton, 42, 66, 70 Kirkwood v. Smith, 262, 356 Klein wort ?;. OomptoirD'Escompte, 259 Knight V. Clements, 218 Knill V. WUliams, 215 Kymer v. Laurie, 252 Laffin V. Siusheimer, 41 Lafitte V. Slatter, 168 Laing v. Barclay, 181 — V. Stone, 191, 194 Lambton, Ex parte, 295, 300, 301 Lamert v. Heath, 327 Lampleigh v. Braithwaite, 81 Lancaster Bank v. Taylor, 104 Land Credit Company, In re, 75, 76, 279 Lane v. Kreckle, 270 Lang V. Smyth, 315 Langton v. Lazarus, 213 Latham v. Chartered Bank of India, 219, 299 Latouche v. Latouche, 80 Latourette v. Williams, 126 Latter v. White, 53 Law V. Parnell, 111, 123, 124 Lawrence v. Walnisley, 221 — V. Wilcocks, 190 Laws V. Rand, 247 Lazarus v. Cowie, 205 Leach v. Hewitt, 167 xxu TABLE OF CASES CITED. Leadbitter v. Farrow, 66, 79 Leake v. Young, 305 Leather v. Simpson, 97 Leavitt v. Putnam, 115 Lebel v. Tucker, 16, 63, 187, 240 Lecaan v. Kirkman, 166 Lee V. Hayes, 95 — V. Zagury, 117, 123, 224 Leeds Bank v. Walker, 2, 214, 216 Leftley v. Mills, 118, 202, 280 Legge V. Thorpe, 176 Leniere v. Elliott, 264 Leonard v. Wilson, 66 Levi's Case, 300 Levieson v. Lane, 69 Lewis V. Bright, 61 — V. Lyster, 224 — V. Parker, 119 — V. Eeilly, 70, 71 Lichfield Union (Guardians of) v. Greene, 263, 308 Lilley v. Rankin, 101 Lindley v. Lacey, 59 Lindo v. Unsworth, 161 Lindus v. Bradwell, 41, 43, 65, 67, 275 — V. Melrose, 341 Lithgow V. Lyon, 191 Little V. Slackford, 11 Liverpool Bank v. Walker, 78 Lloyd V. Ashby, 42 — V. Davis, 98 — V. Howard, 6, 56, 57, 99, 116 — V. Sigoumey, 114 Loaring, Ex parte, 306 Loder's Case, 300 Lomas v. Bradshaw, 83 London & Birmingham Bank, Be, 306 London & Bombay Bank v. Nar- raway, 123 London & County Bank*. Groome, 119 London & County Bank v. Biver Plate Bank, 80, 89, 316, 325 London & Provincial Bank v. Roberts, 215 London & Biver Plate Bank v. Bank of Liverpool, 208 London & Sub. Bank v. Walkin- shaw, 200 London & S. W. Bank v. Went- worth, 45, 50, 185 London Bank v. Clancarty, 190 London Chartered Bank of ^Aus- tralia V. White, .86 London Clearing Bankers, Com- mittee of t). Inland Revenue, 361 London Joint Stock Bank v. Sim- mons, 89, 316, 317 Long V. Moore, 216 Loomis V. Ruck, 99 Lord V. HaU, 275 Lord Ward v. Oxford Ry. Co., 149 Loughman v. Barry, 306 LoveU V. Hill, 9 Low V. Copestake, 124 Lowe V. Peskett, 210 Lowenthal, Ex parte, 154, 157, 172 Lubbock V. Tribe, 144 Lumley v. Hudson, 224 V. Musgrave, 224 Lutscher v. Comptoir D'Escompte, 296 Lynch, Ex pa/rte, 63 Lynn v. Bell, 245 Lyon 1). Maxwell, 201 Lysaght v. Bryant, 54, 144, 155, 156 M. Macdonald v. Whitfield, 59, 189, 190, 198, 220 Macintosh v. Haydon, 176 Mackay v. Judkins, 155, 165 Maclae v. Sutherland, 266 M.icleod V. Snee, 12 M'Call V. Taylor, 9 MoCormick v. Trotter, 10 McEntire v. Potter, 202, 208, 324 McGregor v. Rhodes, 187 M'Gubbin v. Stephen, 20 McHenry v. Davies, 61 M'Kenzie v. British Linen Co., 73, 74 McKinnon v. Armstrong, 204 M'Lean v. Clydesdale Banking Company, 2, 81, 82, 89, 245, 249, 283 McManus v. Bark, 59 M'Meekin v. Euston, 78 M'Neilage v. Holloway, 126 M'Pherson v. Wright, 172 Maguire v. Dodd, 57 TABLE OF CASES CITED. XXIU Matony v. Eaat Holyford Mining Company, 64, 279 Maillard v. Argyle, 200, 305 — V. Page, 58, 59, 224 Mainwaring v. Newman, 210 Maitland v. Backhouse, 83 Maltby v. Murrels, 176, 268 Manchester Bank, Ex parte, 301 Manley v. Boycott, 57, 220 Manners, Ex parte, 125 Marc V. B«uy, 353, 358 Mare v. Charles, 41, 283 Mai^ett, Ex parte, Re Soltykoflf, 63 Marion County v. Clark, 92 Marseilles Company, In re, 9, 239 Marston v. AUen, 5, 6, 122 Martiu v. Chauntry, 10 — V. Morgan, 207 Marzetti v. WUliams, 251 Mason v. Bradley, 216 — V. Morgan, 126 — V. Eumsey, 43 Massachusetts Bank v. Oliver, 160 Master v. Miller, 213, 216 Masters v. Baretto, 264, 269 — V. Ibberson, 92 Mather v. Maidstone, 80, 94, 208, 224 Mathiessen v. London and County Bank, 260 Matthew, Ex parte, 307, 308 Matthews v. Bloxsome, 188, 189 — V. WiUiams & Co., 260 Maxoudoff, Ex parte, 205 Maxwell v. Brain, 157, 158 — V. Tnhill, 293 May V. Chapman, 92 — V. Chidley, 246 Mayer v. Jadis, 112 Mead v. Young, 72 Megrath v. Gray, 123, 222 Mellersh v. Kippen, 159 MelUsh V. Kawdon, 134 — V. Simeon, 193 Merchants' Bank v. Birch, 160 — V. Henson, 113 — V. Spicer, 276 — V. State Bank, 245 Meredith, Ex parte, 75, 242 Merriam v. Wolcott, 196 Merritt v. Cole, 278 Metcalfe v. Kichardson, 158, 159 Meyer v. Hihsher, 145, 147 Miers v. Brown, 153, 154 Miller v. Mdler, 130 — V. Race, 263, 313 — V. Thomson, 17 Mills V. Barber, 93, 96, 97 — V. Gibson, 167 Mjlnes V. Dawson, 85, 96 — V. Duncan, 207 Mitchell V. Baring, 173, 227 — V. Smith, 106 Moffatt V. Edwards, 26 Moline, Ex parte, 152 Molloy V. Delves, 49 Monetary Advance Co. ■». Cater, 100 Monmohunee v. Secretary of State, 106 Monson v. Drakeley, 267 Montague v. Perkins, 33, 49, 51, 52, 290 Moore v. Bushell, 180 Morgan v. Davison, 144 — V. Jones, 261, 310 — V. Lariviere, 181 — V. Rowlands, 293, 294 Morley v. Culverwell, 199, 203 Morris v. Bethell, 73, 275 — V. Walker, 121 Morrison v. Buchanan, 135 Mortgage Insurance Corporation V. Inland Revenue, 356 Moule V. Brown, 142, 195, 249 Mowbray, Ex parte. 104 Muir V. Crawford, 218, 219 Muller V. Pondir, 53 Munger v. Shannon, 13 Munroe v. Bordier, 83 Murray v. East India Company, 24, 194, 293 — V. King, 169 — ■ V. Lardner, 272 Murrow V. Stuart, 113 Mutford V. Walcot, 30, 37, 45, 226 Mutton V. Young, 127 Muttyloll Seal v. Dent, 56 N. Napier v. Schneider, 192 Nash V. BrowD, 96 — V. Nash, 126 Natal Investment Co., Re, 320 XXIV TABLE OF CASES CITED. National Bank v. Silke, 24, 82, 255, 259 National Bolivian Navigation Co. V. Wilson, 317 National Park Bank v. Ninth Bank, 184 National Savings Bank v. Tranah, 306 Neale v. Turton, 210, 265 Neck, Ex 'parte, Be Broad, 295, 297 Nevill V. Snelling, 83 Newton, Ex pa/rte, 85, 96, 281, 348 New York Contracting Co. v. Selma Savings Bank, 167 NichoUs V. Diamond, 41 Nicholson v. Gouthit, 149 — V. Eevill, 216, 266 — V. Eicketts, 66 Nightingale v. Withington, 63 Norris v. Aylett, 224 North Staflbrd Loan Co. v. Wy- thies, 166 Norton v. EUam, 268, 269, 290 — V. Seymour, 66 Norwich Bank v. Hyde, 28 NoveUi V. Kossi, 213 Nunn, In re, 87, 97 0. Odell V. Cormack, 42, 71 Ogden V. Benas, 72, 208, 209, 258 O'Keefe v. Dunn, 136, 199 Okell V. Charles, 41 Olcott V. Eathbone, 125 Ord V. Portal, 124 O'Eeilly v. Eichardson, 76 Oridge v. Sherborne, 26, 35 Oriental Bank, Ex parte, 90, 117, 296 — In re, 206 Oriental Fin. Corp. v. Overend, 87, 88, 218, 220, 221 Orr V. Union Bank, 73, 181, 209 Oulds V. Harrison, 98, 116 Outhwaite v. Luntley, 215 Overend, ExpaHe, 341 Overend v. Oriental Fin. Corpora- tion, 58 Owen V. Homan, 218 — V. Von Uster, 41, 43 Palliser v. Gurney, 62 Palmer v. Bramley, 307 — V. Pratt, 11, 31 Papfe V. Westacott, 304 Parker v. Gordon, 135, 144 — V. Lechmere, 126 Parr, Ex parte, 300 — V. Jewell, 117, 205 Parshley v. Heath, 40 Partridge v. Bank of England, 84, 322 Pasmore v. North, 34 Patent Safety Gun Cotton Co. v. Wilson, 74, 258 Patience v. Townley, 148 Patrick v. Harrison, 98 Patterson r. Todd, 30 Paul V. Joel, 157, 158 Pavy's Patent Co., In re, 296 Payne v. Ives, 190 Peacock v. Purssell, 86, 131, 141, 144, 153, 305 — V. Ehodes, 110, 273 Pearl v. Deacon, 222, 303 Pearse v. Pemberthy, 169, 178 Pearson v. Crallan, 155 — V. Garret, 31 Pease v. Hirst, 85, 123 Penkivil v. Connell, 266 Penny v. Innes, 187, 188 Penrose v. Martyr, 41, 341 Pentz V. Stanton, 66 Percival v. Dunn, 13 Perring v. Hone, 216 Perry v. Slade, 310 Peruvian Eailways Co., Be, 63, 64, 341 Petit V. Benson, 47 Peto ■!!. Eeynolds, 18, 262 Petty V. Cooke, 96, 218, 219, 221 Phelps V. Comber, 297 Philips V. AstKng, 149, 169 Phillips V. Franklin, 194 — V. im Thurn, 21, 185, 186, 207, 229 Philpot V. Briant, 142, 146, 183, 221 Phipps V. Tanner, 28 Phipson V. Kellner, 165 Picker v. London and County Bank, 313, 315 Pickin V. Graham, 166 TABLE OF CASES CITED, XXV Pier V. HeinriclischofFer, 148 Pierce v. Gate, 150 — V. Fothergill, 176 Pierson v. Hutchinson, 234 Pike, Ex parte, 104 Pinard v. Klockman, 235 Plato V. Reynolds, 136 Plimley v. Westley, 25, 188, 358 Plitt, Ex parte. Be Brown, 82, 128 Poirier v. Morris, 80, 84, 123 Polak V. Everett, 221 Polglass V. Oliver, 304 PolhiU V. Walter, 42, 76 Pollard V. Bank of England, 200, 246 — V. Herries, 15, 27, 145 — V. Ogden, 204 Poole V. Tumbridge, 184 Pooley V. Brown, 195, 196 — V. Driver, 66, 67 Poppleton, Ex parte, 100 Pott V. Clegg, 247, 251 Potter V. Brown, 242 Potts V. Eeed, 113, 115 Powles V. Hargreaves, 299, 300, 301, 302 Prange, Ex parte, 159 Prehn v. Royal Bank of Liverpool, 182, 183 Prescott V. Flinn, 185, 275 Price V. Mitchell, 268 — V. Neal, 207 — V. Taylor, 31 Prideaux v. Collier, 142 — V. Griddle, 147, 156, 248 Prince v. Brunatte, 61 — V. Oriental Bank, 163, 213, 252 Provincial Bank of Ireland v. Dunne, 219 Pruessing v. Ing, 29, 360 R. Eabey v. Gilbert, 166 Rainbow v. Juggins, 223 EaUi V. Dennistoun, 206, 213, 237, 242 Eamchurn Mullick v. Luchmee- chund Eadakissen, 131, 134, 177, 245, 269 Eamuz v. Crowe, 178 Randall v. Moon, 200 Randall v. Thorn, 268 Eanken v. Alfaro, 180, 299 Raper v. Birkbeck, 213 Raphael v. Bank of England, 84, 90, 94, 314 — V. Burt, 327 Rawlinson v. Stone, 127 Rayner, Ex parte, 66 Read v. Hutchinson, 195 Eedmayne v. Burton, 53, 91 Eeed, Ex parte, 204 — V. Wiggins, 101 Reg. V. Bartlett, 17 — V. Bowerman, 10, 51 — V. Kinnear, 132 — D. Eitson, 34 — V. Watts, 253 Eeid V. Furnival, 86 — V. Eigby, 76 Eenwiok v. Tighe, 155 Eew V. Pettet, 77 Eex V. Elliot, 28 — V. Ellor, 11 — V. Eandall, 20 Eeynolds v. Chettle, 145 — 1). Doyle, 197, 292 — V. Wheeler, 198 Ehodes, Ex parte, 104 — V. Gent, 310 — V. Morse, 233 — V. Smethurst, 294 Eice V. Stearns, 39, 113, 115 Eichards, Be, 53, 54, 56 — V. Erankum, 106 — V. Eichards, 29, 57, 210, 290 Eichardson v. Richardson, 129 Eichdale, Ex parte, 34, 82 Ricketts v. Bennett, 69 Rickford v. Eidge, 153 Ridd V. Moggridge, 267 Ridout V. Bristow, 14 Ritchie v. Clydesdale Bank, 253 River Steamer Company, In re, 289, 293, 294 Roach V. Thompson, 197 Robarts, Exparte, 183, 192, 193,282 — V. Tucker, 72, 73, 111, 185, 202, 203, 206, 252 Roberts, Exparte, 195 — V. Bethell, 33, 45 — V. Fisher, 196 — V. Place, 126 XXVI TABLE OF CASES CITED. Eobertson v. Burdekin, 240 — V. Kensington, 110 Robey v. OUier, 180, 297, 299 Robinson v. Ames, 137 — V. Cook, 304 — V. Hawksford, 247 — V. Reynolds, 95, 97 — V. Yarrow, 184 Robson V. Bennett, 246 — V. Oliver, 152, 170, 195 Roche V. Campbell, 269 Roehner v. Knickerbocker Life Assurance Company, 35 Roffey V. Greenwell, 29, 31 Rogers v. Hunt, 190 — V. Langford, 195 — V. WMteley, 251 Rogerson v. Ladbroke, 249 Rohde V. Proctor, 125 Rolin V. Steward, 182 Rolls V. Pearce, 250 Romford Canal Company, In re, 322 Rordasnz v. Leach, 124 Roscow V. Hardy, 153 Rose V. Sims, 80, 104, 106 Rosher v. Kieran, 155 Rothschild v. Comey, 119 — V. Currie, 148, 176 Ronquette v. Overmann, 27, 148, 183, 184, 186, 244 Rowe V. Tipper, 161, 169, 178 — V. Youn^, 46, 47, 48, 141, 176, 177, 183 Roxburghe v. Cox, 116 Royal Bank of Scotland v. Com- mercial Bank, 301 Royal Bank of Scotland v. Totten- ham, 29, 34, 82, 352 Royce v. Barnes, 123 Ruflf V. Webb, 11, 276 Rumball, Ex pwrte, 302 — V. Metropolitan Bank, 324 RusseU V. Lanstatfe, 283 — V. Phillips, 43, 48 Rutherford, In re, 290 S. Sackett v. Palmer, 31 St. John 1!. Roberts, 30 Salmon v. "Webb, 54, 59 Sanderson v. Collman, 184 Sands v. Clarke, 150, 152, 268 Sard V. Rhodes, 308 Saul V. Jones, 145, 146, 150, 216 Saunderson v. Jackson, 276 — V. Judge, 269 — V. Piper, 28 Savage v. Aldren, 290 Sawyer v. Wisewell, 93 Scaramanga v. Stamp, 283 Scard v. Jackson, 50 Soarpellini v. Atcheson, 126, 293 Schofield, Expa/rte, 86, 348 Scholfield V. Londesborough, 206, 214 Scholey v. Ramsbottom, 91, 206 Schroder's Case, 200 Schroeder v. Central Bank, 179, 298 Schultz V. Astley, 23, 50 Scott V. Lifford, 83, 87, 96 Scudder v. Union Bank, 44, 239 Sebag V. Abitbol, 141 Second Nat. Bank v. Maguire, 167 Seligman v. Huth, 55 Serrel v. Derbyshire Railway Company, 119 Shand v. Du Buisson, 180, 298 Sharp, Ex parte, 251 — V. Bailey, 167 Shaw V. Benson, 100 • — ■ V. Simmons, 100 Shed V. Brett, 291 Sheffield v. London Joint Stock Bank, 316, 325 Shell V. Britt, 145 Sheldon v. Horton, 151, 166 — V. Parker, 129, 130 Shellard, Ex parte, 355 Shelton v. Braithwaite, 157, 164 Shepherds. Harrison, 296 Sherrington v. Jermyn, 215 — V. Yates, 126 Sherry, Be, 223 ShiUito V. Theed, 101 Shute 1). Robins, 133 Shuttleworth v. Stephens, 18 Sibree v. Tripp, 200, 262, 308, 309 Sichel V. Borch, 53 Siffkin V. Walker, 66 Siggers v. Lewis, 152, 186 Sigourney v. Lloyd, 113 Simmonds v. Taylor, 216, 254 Simmons v. London Joint Stock Bank, 313 TABLE OF CASES CITED. XXVll Simon v. Cridland, 82 Simpson v. Henning, 266 — V. Vaughan, 283 Simson v. Ingham, 253 Skilbeck v. Garbett, 155 Sleigh V. Sleigh, 87, 167, 197 Sloman v. Cox, 224 Smart, Ex parte, 297, 302 — V. Notes, 359 Smith V. Bellamy, 17, 150, 167 — V. Braine, 93 — V. Brown, 181 — V. Chester, 184 — V. Clarke, 25 — V. Gordon, 212 — • V. Johnson, 64, 70 — V. Jones, 247 — V. Kendall, 35 — V. King, 62 — V. M'Clure, 3, 26 — V. Marsack, 61, 126, 184 — V. Mercer (1815), 207 — V. Mercer (1867), 170, 308, 309 — V. Mullett, 161 — V. Mundy, 53 — V. N. S. Wales Bank, 136, 137, 152 — V. Nightingale, 28 — V. Sheppard, 202 — t). Smith, 80 — 1). Union Bank, 6, 103, 209, 254, 255, 258 — V. Vertiie, 46, 47, 177, 183 Snee v. Prescott, 113 SnowbaD, Ex parte, 90 Scares v. Glyn, 20, 111 Societd Gdnerale v. Met. Bank, 87, 215, 235, 236 Societd G^nerale de Paris u "Walker, 324 Solarte v. Palmer, 154, 158 SoUy V. Hind, 97 Sottomayor v. De Barros, 61 SouthaU V. Rigg, 80, 224 Soward v. Palmer, 131, 224 Spindler i). Grellett, 268 Stafford u Gates, 156 Stagg V. Elliott, 75 Stamford Banking Co. v. Smith, 293, 294 Standard Manufacturing Co., Re, 322 Stannard, Ex parte, 86 Stanton v. Blossom, 155 Starey v. Barnes, 125 Startup V. Macdonald, 144, 176 Steele v. M'Kinlay, 40, 41, 42, 44, 58, 187, 188, 189, 190, 198 — V. Stuart, 296 Stein V. Yglesias, 117 Stephens, Ex parte, 179, 300 Stewart v. Kennett, 155 Stocken v. Collin, 155 Stockman v. Parr, 159 Stoessiger v. South East. Kailway Company, 51 Stone, Ex parte, 349 — V. Mstcalfe, 46, 283 Stones V. Butt, 124 Storm V. Stirling, 265 Story V. Batten, 230 Stott V. Eairlamb, 58, 80 Straker v. Graham, 134, 152 Stratton v. Matthews, 197 Streeter v. Fort' Bank, 156 Strong V. Foster, 96, 206 Studdy V. Beesty, 164, 165 Sturdy v. Henderson, 38 Sturtevant v. Ford, 96, 117 Suffell V. Bank of England, 215, 216, 217, 263 Summers v. City Bank, 61, 182 Suse V. Pompe, 27, 57, 187, 191, 193, 194, 282 Sutton, Ex parte, 276 — V. Toomer, 216, 217, 358 Swan, Ex parte, 87, 116, 117, 230, 231 — V. North British Australa- sian Company, 49, 102, 273, 324 Sweeney v. Easter, 113, 114 Sweeting v. Halse, 212, 358 Swift y. Tyson, 80 Swinyard v. Bowes, 170 Swire V. Redman, 220 Symons v. May, 242 T. Tatam v. Haslar, 93, 94 Tate V. Hilbert, 130, 250 Tatum V. Catomore, 218 Taylor, Ex parte, 205 — V. Curry, 59 — ■;;. Dobbins, 276 xxvm TABLE OF CASES CITED. Taylor v. Jones, 166 Temple v. PuUen, 49 Terry v. Parker, 150 Thackray v. Blackett, 165, 168, 234 Thicknesse v. Bromilow, 69, 187 Thiedeman v. Qoldsmidt, 86 Thomas v. Fenton, 201 Thompson v. Clubley, 14, 97 — V. Giles, 86, 128, 129 — V. Morgan, 310 Thomson v. Simpson, 298 Thome v. Smith, 266 Thornton v. Maynard, 123, 205 Thorpe v. Ooombe, 291 Tidmarsh v. Grover, 216 Timmins v. Gibbins, 195 Tondeur, Ezpa/rte, 137, 182 Tooke V. Hollingworth, 297 Tootel, Ex parte, 31 Torrance v. Bank of British North America, 219, 224, 296 Towne v. Eioe, 265 Treacher v. Hinton, 178 Treuttele. Barandon, 113, 114 Triggs V. Newnham, 144 Trimby v. Vignier, 240 Trueman v. Loder, 65, 67 Turner «. Leech, 155, 156, 166 — V. Samson, 150, 168 — V. Stones, 170, 195 Turquand, Ex pa/rte, 282 Twibell ■». London Suburban Bank, 183, 250 Twogood, Ex pa/rte, 56, 86 Twy cross v. Dreyfus, 317 U. Union Bank of Canada v. Cole, 179, 181 — V. Middlebrook, 73 — u. WiUis, 146 United States v. Spalding, 214 — D. White, 20 Usher v. Dauncey, 34, 50, 250 Uther V. Rich, 272 V. VagUano v. Bank of England, 21, 22, 72 Vance v. Lowther, 216, 217 Vander Donokt v. Thellusson, 268 Van Wart v. Woolley, 195 Vaughan ■». Halliday, 180, 299, 301, 302 Veal V. Veal, 130 Venables v. Baring Brothers, 317 Vernon v. Hankey, 251 Viale V. Michael, 159, 353 Vincent v. Horlock, 66, 112 W. Waokerbath, Ex parte, 226 Wain V. Bailey, 178, 234 Walker, Be, 222 — V. Barnes, 191 — V. Hamilton, 183 — V. Macdonald, 25, 109, 143, 202 — V. Stetson, 132, 145 Wallace v. Agry, 134 — V. Hardacre, 129 Walmesley v. Child, 233 Walter v. Cubley, 216 — V. James, 201 Walton V. Hastings, 216 — V. Mascall, 152, 169, 176, 183, 268, 269 Ward V. Evans, 195 — V. Morrison, 194 — V. National Bank of New Zealand, 222 Waring, Ex parte, 300 Warren v. Haigh, 117 Warrington v. Early, 26, 216 Warriner v. Rogers, 129 Warwick v. Nairn, 98 — V. Rogers, 200, 213 Watervliet Bank v. White, 109 Watkins v. Figg, 290 — V. Maule, 104 — V. Wake, 311 Watson V. Evans, 21, 1C8 — V. Russell, 55, 83, 89, 95, 98 — V. Tarpley, 140 Watts V. Jefferyes, 127 Way V. Bassett, 291 Webb V. Fairmaner, 37 — V. Heme Bay Commis- sioners, 321 Webber v. Maddocks, 214 TABLE OF CASES CITED. XXIX Wetster, Ex parte, 219 — V. British Empire Co., 194 — V. Kiik, 291 Wedlake v. Hurley, 113, 114 Wegersloffe v. Keene, 47 Wegg-Prosser v. Evans, 307 Wells V. Hopkins, 97 West London Bank v. Kitson, 42, 77 Westropp V. Solomon, 327 Wharton v. Wright, 159 Whatley v. Tricker, 211 Wheeler v. Warner, 290 Whistler v. Forater, 89, 99, 104, 105 Whitaker, Re, 53, 54, 56, 62, 96, 97, 130 — V. Bank of England, 144, 251, 252 White, Ex pa/rte, 215 — V. Bluett, 80 — V. Central National Bank, 185, 208 — V. Heylman, 25, 99 — V. North, 261, 262 Whitehead v. Walker, 117, 120, 140, 172, 186, 289, 291 Wienholt v. Spitta, 99 Wiffen V. Roberts, 36, 142 Wilde V. Keep, 67 WUders v. Stevens, 121 WUkins V. Dawes, 151 — V. Jadis, 144, 146 Wilkinson v. Johnson, 112, 207, 208, 213 — V. Simson, 201, 242 — V. Stoney, 73 — V. Unwin, 121, 188 WUks V. Hornby, 87 Willans v. Ayers, 17, 192, 193 Williams, Deacon & Co. v. Shad- bolt, 113, 114, 115 — V. Bayley, 72 — V. Colonial Bank, 315, 326 — V. Evans, 304 — V. Germaine, 38, 228 — V. James, 123, 204 — V. Smith, 161 — V. Waring, 268 Williamson v. Johnson, 70 Willis V. Barrett, 20, 108 Willis V. Bank of England, 90, 264 — V. Freeman, 129 — ■ V. Green, 160 Wilmot u Williams, 144, 176 Wilson V. Barthrop, 66 — V. Holmes, 113, 114, 115 Windham Bank v. Morton, 147, 148 Wirth V. Austin, 151, 168 Wise V. Charlton, 265 Wiseman v. Easton, 68 Witte V. Williams, 17 Wood V. Connop, 124 — V. De Mattos, 125, 281 Woodbridge v. Spooner, 58 Woodcock V. Houldsworth, 155 Woodland v. Fear, 195, 252 Woodruff V. Moore, 289, 291 Woods V. Dean, 166 — V. Thiedemann, 208 Woodward v. Pell, 116, 178, 200, 204, 205 Wookey v. Pole, 20, 102, 323 Woolsey v. Crawford, 192 Worley v. Harrison, 26 Worthington v. Wigley, 307 Wright V. Hickling, 223 — V. Horton, 322 — V. Inshaw, 215 — V. Maidstone, 234 — • V. Shawcross, 161, 163 Wulflf V. Jay, 222 Wyld, Ex parte, 230, 231 Wynne v. Jackson, 239 ■ — V. Eaikes, 45 Y. Yates, Ex pwHe, 106, 188 — V. Bell, 180 — V. Dalton, 69 — V. Hoppe, 197 — V. Nash, 21 Yglesias v. Eiver Plate Bank, 212, 219 Yorkshire Banking Co. v. Beatson, 67, 68, 69 Young V. Austen, 14, 58 — V. Cole, 327 1- V. Glover, 43, 106, 188 — V. Grote, 206 TABLE OF CASES OVEKEULED, DOUBTED, OB EXPLAINED. Agra and Masterman's Bank, Re (1867), L. E. 2 Ch. 391, dis- tinguished Re Barned's Banking Co., Ex parte Stephens (1868), L. E. 3 Ch. 753, at 756. Allen V. Edmundson (1848), 2 Exch. 719, discussed Studdy v. Beesty (1889), 60 L. T. N. S. at 649, C. A. Allen V. Kemble (1848), 6 Moore, P. C. 314, qualified Eouquette V. Overmann (1875), L. E. 10 Q. B. at 540. Armfield v. Allport (1857), 27 L. J. Ex. 42, distinguished M'Call V. Taylor (1865), 34 L. J. C. P. 365. Arthur v. Clarkson (1865), 35 Beav. 458, disapproved Re Whitaker (1889), 42 Ch. D. 119, at 125, C. A. Austin V. Bunyard (1865), 6 B. & S. 687, discussed Gatty v. Fry (1877), 2 Ex. D. at 267. Bacon v. Searles (1788), 1 H. Bl. 88, explained Jones v. Broad- hurst (1850), 9 C. B. at 185. Banbury v. Lisset (1774), 2 Stra. 1211, overruled Griffin v. Weatherby (1868), L. E. 3 Q. B. at 759. Bank of Bengal v. Fagan (1849), 5 Moore, I. A. 40, distinguished Jonmenjoy v. "Watson (1884), 9 App. Cas. 561, at 568. Bank of Bengal v. Macleod (1849), 7 Moore, P. C. 35, distin- guished Jonmenjoy v. Watson (1884), 9 App. Cas. 561, at 567. Banner, Ex parte, Re Tappenbeck (1876), 2 Ch. D. 278, con- sidered Phelps V. Comber (1884), 26 Ch. 1). 755. Barber v. Mackrell, "W. N. (1892), p. 87, reversed by W. N. (1892), p. 133, C. A. Bartrum v. Caddy (1838), 9 A. & E. 275, distinguished Glasscock V. Balls a889), 24 Q. B. D. 13, C. A. Beck V. Eobley (1774), 1 H. Bl. 89, explained Jones v. Broad- hurst (1850), 9 C. B. at 185. Bickerdike v. Bolbnan (1786), 1 T. E. 405, regretted Carter v. Flower (1847), 16 M. & W. at 748. XXxii TABLE OF CASES OVERRULED, Birmingham Banking Co., Ex parte (1868), L. E. 3 Ch. 651, commented on Re London and Mediterranean Bank (1871), L. E. 6 Ch. at 209. Bloxam, Ex parte (1801), 6 Ves. 449, doubted Re Gomersall (1875), 1 Ch. D. 137, see at 142, overruled Ex parte Newton (1880), 16 Ch. D. at 336, C. A. Boulcott V. Woolcott (1847), 16 M. & W. 584, explained Morns V. "Walker (1850), 15 Q. B. at 599. Boulton V. Welsh (1837), 3 Bing. N. C. 688, overruled Lewis v. Gompertz (1840), 6 M. & W. at 403. Brittt-n v. Webb (1824), 2 B. & C. 483, commented on Morris v. Walker (1850), 15 Q. B. at 599. Brown v. Davies (1789), 3 T. E. 80, overruled Ex parte Swan (1868), L. E. 6 Eq. at 358. Brown v. Philpot (1840), 2 Moo. & E. 285, questioned Smith v. Braine (1851), 16 Q. B. 244. Callaghan v. Aylett (1810), 2 Camp. 549, overruled Fenton v. 'Gomidry (1811), 13 Bast, 459. Cambefort v. Chapman (1887), 19 Q. B. D. 229, overruled Wegg- Prosser v. Evans (1895), 1 Q. B. 108, C. A. Cameron v. Smith (1819), 2 B. & Aid. 305, commented on Laing V. Stone (1828), 2 M. & Ey. at 563. Camidge v. Allenby (1827), 6 B. & C. 373, distinguished Leeds Bank v. Walker (1883), 11 Q. B. D. 84, at 88. Castrique v. Buttigieg (1855), 10 Moore, P. C. 94, explained Abrey v. Crux (1869), L. E. 5 C. P. at 42. Catton V. Simpson (1838), 8 E. & A. 136, overruled Aldous v. Cornwell (1868), L. E. 3 Q. B. at 578. Chaplin v. Levy (1854), 9 Exch. 531, commented on Sharpies v, Eickard (1857), 26 L. J. Ex. 302. Charles v. Marsden (1808), 1 Taunt. 224, commented on Parr v. Jewell (1855), 16 C. B. at 712. Coles V. Bank of England (1839), 10 A. & E. 437, overruled Swan V. North British Australasian Co. (1863), 32 L. J. Ex. 273, at 277, questioned Baxendale v. Bennett (1878), 3 Q. B. D. 525, at 534. Collenridge v. Farquharson (1816), 1 Stark. 259, commented on Quids V. Harrison (1854),, 10 Exch. at 578. Columbies v. Slim (1772), 2 Chitty E. 687, explained Deuters v. Townsend (1864), 33 L. J. Q. B. at 304. Counsell v. London and Westminster Discount Co. (1887), 19 Q. B. D. 512, explained Monetary Advance Co. v. Cater (1888), 20 Q. B. D. 785. DOUBTED, OR EXPLAINED. XXXlll Crofts V. Beale (1851), 20 L. J. 0. P. 186, commented on Carrie V. Misa (1875), L. R. 10 Ex. at 164, distinguished Crears v. Hunter (1887), 19 Q. B. D. .341, at 346, C. A. Crouch V. Credit Foncier (1878), L. R. 8 Q. B. 374, explained and qualified Goodwin v. Robarts (1875), L. R. 10 Ex. at 355, and 1 App. Cas. at 494, discussed London and County Bank V. River Plate Bank (1887), 20 Q. B. D. 232, at 240. Cruchley v. Clarance (1813), 2 M. & 8. 90, observed upon M'Call V. Taylor (1865), 19 C. B. N. S. 302, at 305. Currie v. Misa (1875), L. R. 10 Ex. 153, Ex. Ch., affirmed Misa V. Currie (1876), 1 App. Cas. 554, commented on M'Lean v. Clydesdale Bank (1883), 9 App. Cas. 95, at 110. Davis V. Gyde (1835), 2 Ad. & E. 623, discussed Belshaw v. Bush (1851), 11 C. B'. 191, at 206, and Palmer v. Bradley (1895), 2 Q. B. at 407, C. A. De Berdt v. Atkinson (1794), 2 11. Bi. 336, overruled Maltass v. Siddle (1859), 28 L. J. C. P. 258. De la Chaumette v. Bank of England (1829), 9 B. cfe C. 208, ex- plained CuiTie V. Misa (1875), L. R. 10 Ex. at 164, and M'Lean v. Clydesdale Bank (1883), 9 App. Cas. 95, at 114. Down V. Hailing (1825), 4 B. & C. 330, dissented from Bank of Bengal v. Macleod (1849), 5 Moore I. A. 1, distinguished London and County Bank v. Groome (1881), 8 Q. B. D. 288. Drake v, Mitchell (1803), 3 East, 251, discussed Re Davison (1884), 13 Q. B. D. 50, at 54, distinguished Cambefort v. Chapman (1887), 19 Q. B. D. 229, approved Wegg-Prosser V. Evans (1895), 1 Q. B. 108, C. A. Duncan v. N. and 8. Wales Bank (1879), 11 Ch. D. 88, C. A., reversed Ibid. 6 App. Cas. 1, H. L. Easton v. London Joint Stock Bank (1886), 34 Ch. D. 95, re- versed on appeal Sheffield v. London Joint Stock BanTs: (1888), 13 App. Cas. 333, H. L. England v. Marsden (1866), L. R. 1 C. P. 529, commented on Ex parte Bishop (1880), 15 Ch. D. 400. Evans v. CramKngton (1687), 1 Show, 4, explained Sigourney v. Lloyd (1828), 8 B. & C. at 631. Flight V. Maclean (1846), 16 M. & W. 51, explained Hooper v. Williams (1848), 2 Exch. at 19. Foakes v. Beer (1884), 9 App. Cas. 605, distinguished Bidder v. Bridges (1887), 37 Ch. D. 406. c. c XXXIV TABLE OF CASES OVERRULED, Frith V. Forbes (1863), 4 De G. F. & J. 409 ; 32 L. J. Ch. 10, explained Ex parte Arbufchnot (1876), 3 Cii. D. at 480, 0. A., and semhle overruled Brown v. Kough (1884), 29 Ch. D. 848, C. A. Uatty V. Fry (1877), 2 Ex. Div. 265, followed Hitchcock v. Edwards (1889;, 60 L. T. N. S. 636, and Eoyal Bank of Scotland v. Tottenham (1894), 2 Q. B. 715, G. A. Gibbon v. Scott (1817), 2 Stark. 286, explained Maillard v. Page (1870), L. E. 5 Ex. 312, at 318. Gill V. Cubitt (1824), 3 B. & C. 466, dissented from Bank of Bengal v. Macleod (1849), 5 Moore I. A. 1, held overruled London and County Bank v. Groome (1881), 8 Q. B. D. 288. Glyn V. Baker (1811), 13 East, 509, discussed Goodwin v. Eobarts (1875), L. E. 10 Ex. 337, at 354, Ex. Ch. Goddard v. O'Brien (1882), 9 Q. B. D. 37, distinguished Foakes V. Beer (1884), 9 App, Cas. 605, at 613. Goodall V. Eay (1835), 4 Dowl. 76, explained Whitehead v. Walker (1842), 10 M. & W. at 698. Goodwin v. Eobarts (1875), L. K. 10 Ex. 337, and 1 App. Cas. 476, distinguished London and County Bank v. Eiver Plate Bank (1887), 20 Q. B. D. at 241, criticised Easton v. London Joint Stock Bank (1886), 34 Ch. D. 95, discussed Shefaeld v. London Joint Stock Bank (1888), 13 App. Cas. at 342. Gothenburg Commercial Co., Re (1881), 29 W. E. 358, followed Ex parte Neck (1884), 13 Q. B. D. 740. Goupy V. Harden (1816), 7 Taunt. 159, explained Castrique v. Buttigieg (1855), 10 Moore, P. C. at 115. Graham, Ex parte (1856), 5 De G. M. & G. 356, overruled Orien- tal Corp. V. Overend (1871), L. E. 7 Ch. at 152. Gray v. Mihier (1819), 8 Taunt. 739, explained Peto v. Eeynolds (1854), 9 Exch. at 415. Hall V. Featherstone (1858), 27 L. J. Ex. 308, followed Tatam v. Haslar (1889), 23 Q. B. D. 345, at 348. Hall V. Smith (1823), 1 B. & C. 407, overruled Ex parte Buckley (1845), 14 M. & W. 469. Hansard v. Eobinson (1827), 7 B. & C. 90, not followed Wright V. Lord Maidstone (1855), 1 K. & J. 701. Harvey v. Cane (1876), 34 L. T. N. S. 64, doubted Hogarth v. Latham (1878), 3 Q. B. D. 651, C. A. Heath v. Sansom (1831), questioned Smith v. Braine (1851) 16 Q. B. 244. " DOUBTED, OR EXPLAINED. XXXV Hindhaugh 2;. Blakey (1878), 3 0. P. D. 136, overruled by Steele V. M'Kmlay (1880), 5 App. Cas. at 782, 785, and see sect. 17 (2) of the Act. Ingham v. Primrose (1859), 7 0. B. N. S. 82 ; 28 L. J. C. P. 294 ; dissented from Baxendale v. Bennett (1878), 3 0. B D at 532. ' luman v. Clare (1858), Johns. 769, explained Ex parte Stephens (1868), L. E. 3 Ch. at 755. Jackson v. Hudson (1810), 2 Camp. 447, discussed Steele v. M'Kinlay (1880), 5 App. Cas. 754, at 770. Johnson v. Kennion (1765J, 2 Wils. 262, discussed Cook v. Lister (1863), 32 L. J. C. P. at 127. Jones V. Broadhurst (1850), 9 C. B. 173, qualified Cook v. Lister (1863), 32 L. J. C. P. at 126 ; discussed Thornton v. Maynard (1875), L. E. 10 C. P. at 698, questioned Soloman v. Davis (1883), 1 Cab. & Ell. 83. Jones V. Gordon (1877), 2 App. Cas. 616, dictum at 628 discussed Tatam v. Haslar (1889), 23 Q. B. D. 345, at 349. Jones V. Lane (1839), 3 Y. & C. 281, overruled Deuters v. Townsend (1864), 33 L. J. Q. B. at 304. Keane v. Beard (1860), 8 C. B. N. S. 372, qualified Hopkinson v. Forster (1874), L. E. 19 Eq. 76. Keates v. Whieldon (1828), 8 B. & C. 7, overruled Cheetham v. Butler (1833), 5 B. & Ad. 837. Kirk V. Blurton (1841), 9 M. & W. 284 (where head-note is in- correct), doubted Forbes v. Marshall (1855), 11 Exch. at 180 distinguished Odell v. Cormack (1887), 19 Q. B. D. 223. Lambert, Ex parte (1794), 13 Ves. 179, overruled Ex parte Swan (1868), L. E. 6 Eq. at 358. Lebel v. Tucker (1868), L. E. 3 Q. B. 77, distinguished Alcock v. Smith (1892), 1 Ch. at 269, C. A. Le Fevre v. Lloyd (1814), 5 Taunt. 749, explained Castriquei; Buttigieg (1855), 10 Moore P. 0. at 115. Lewis V. Eeilly (1841), 1 Q. B. 349, discussed "Lindley on Partnership," 3rd ed. p. 423. Lloyd V. Chune (1860), 2 GifF. 441, criticised Re Whitaker (1889), 42 Ch. D. 119, at 125, C. A. London and County Bank v. Eiver Plate Bank (1887), 20 Q. B, D. 232, affirmed (1888), 21 Q. B. D. 535, C. A. c 2 XXXVl TABLE OF CASES OVERRULED, McNair v. Fleming (1812), Mont, on Partnership, 37, doubted Yorkshire Bank v. Beatson (1880), 5 C. P. D. at 114, C. A. M'Neilage v. HoUoway (1818), 1 B. & Aid. 218, quahfied Hart v. Stephens (1845), 6 Q. B. at 943. Macredie, Ex 'parte. Re Charles (1873), L. E. 8 Ch. App. 535, dictum questioned Re London, Bombay, and Mediterranean Bank (1874), L. R. 9 Ch. App. 687, at 689. Marsh v. Newell (1808), 1 Taunt. 109, explained Centers v. Townsend (1864), 33 L. J. Q. B. at 304. Matthews v. Bloxsome (1864), 33 L. J. Q. B. 209, explained Steele v. M'Kinlay (1880), 5 App. Cas. at 773, H. L. Mertens v. Winnington (1794), 1 Esp. 113, doubted Ex parte Wyld (1860), 2 De G. F. & J. at 650 ; 30 L. J. Bank, at 13. Mortgage Insuj'ance Corporation v. Inland Revenue (1887), 20 Q. B. D. 645, affirmed by C. A. (1888), 21 Q. B. D. 352. Musgrave v. Drake (1843), 5 Q. B. 185, dissented from Hogg v. Skeen (1865), 18 C. B. N. S. at 426 ; 34 L. J. C. P. at 164. Napier v. Schneider (1810), 12 East, 420, dissented from Re Gen. South Amer. Co. (1877), 7 Ch. D. at 644. Natal Company, Re (1868), L. R. 3 Ch. App. 355, explained Re Romford Canal Company (1883), 24 Ch. D. 85, at 91. Quids V. Harrison (1854), 10 Exch. 572, explained Re Anglo- Greek Steam Nav. Co. (1869), L. R. 4 Ch. at 177. Owen V. Van Uster (1860), 10 C. B. 318, distinguished Re Bar- nard (1886), 32 Ch. D. 447, at 452, C. A. Parry v. Nicholson (1845), 13 M. & W. 778, doubted Hirschmann V. Budd (1873), L. R. 8 Ex. at 172. Partridge v. Bank of England (1846), 9 Q. B. 396, criticised Goodwin v. Robarts (1875), L. R. 10 Ex. at 354. Paterson v. Hardacre (1811), 4 Taunt. 114, overruled Bailey v. Bidwell (1844), 13 M. & W. 73. Pearl v. Deacon (1857), 24 Beav. 186, explained Duncan v. N. & S. Wales Bank (1880), 6 App. Cas. 1, at 11. Penny v. Innes (1834), 1 C. M. & R. 439, commented on Steele v. M'Kinlay (1880), 5 App. Cas. 754, at 773. Philips V. Astling (1809), 2 Taunt. 206, explained Hitchcock v. Humfrey (1843), 5 M. & Gr. at 564. Pike V. Street (1824), M. & M. 226, explained Foster v. Jollv (1835), 1 C. M. & R. at 708. DOUBTED, OR EXPLAINED. XXXVll Powles V. Hargreavee (1853), 3 De G. M. & G. 453, discussed Eoyal Bank of Scotland v. Commercial Bank (1882), 7 App. Cas. 366. Randall v. Moon (1852), 21 L. J. 0. P. 226, explained Cook v. Lister (1863), 32 L. J. C. P. at 124, 127. Reg. V. Hawkes (1840), 2 Moore, C. C. 295, overruled Peto v. Reynolds (1854), 9 Exch. at 415. Reid V. Furnival (1833), 1 Cr. & M. 538, discussed Cook v. Lister (1863), 32 L. J. 0. P. at 127. Reynolds v. Wheeler (1860), 30 L. J. C. P. 350, approved Mac- donald v. Whitfield (1888), 8 App. Cas. 733, P. C. Richards, Re, Shenstone v. Brock (1887), 36 Ch. D. 541, criti- cised Re Whitalier (3 839), 42 Ch. D. 119, at 125, C. A. Richdale, Ex parte (1882;, 19 Ch. D. 409, approved Royal Bank of Scotland v. Tottenham (1894), 2 Q. B. at 718, 0. A. Ridout V. Bristow (1830), 1 Cr. & J. 231, discussed Nelson v. Serle (1838), 4 M. & W. at 799. Robarts, Ex parte. Re Gillespie (1886), 18 Q. B. D. 286, discussed Re Commercia Bank of South Australia (1887), 36 Ch. D. 522, at 527. Robarts v. Tucker (1851), 16 Q. B. 560, discussed Woods v. Thiedemann (1862), 1 H. & C. at 495 ; Bank of England v. Vagliano (1891), A. C. 107, at 131. Robertson v. Kensington (1811), 4 Taunt. 30, overridden by sect. 33 of the Bills of Exchange Act, 1882. Rothschild v. Corney (1829), 9 B. & C. 388, distinguished London and County Bank v. Groome (1881), 8 Q. B. D. 288. Rothschild v. Currie (1841), 1 Q. B. 43, doubted Allen v. Kemble (1848), 6 Moore, P. C. at 323, explained and qualified Home V. Eouquette (1878), 3 Q. B. D. at 521, 523. Rowe V. Young (1820), 2 Bligh, H. L. 391 ; 2 B. & B. 165, overridden by 1 & 2 Geo. IV. c. 78, and now sect. ] 9 of the BiUs of Exchange Act, 1882. Sainsbury v. Parkinson (1860), 18 L. T. N. S. 198, explained Ancona v. Marks (1862), 7 H. & N. at 686 ; 31 L. J. Ex. at 166. Scholey v. Walsby (1797), Peake, N. P. C. 34, doubted Philhps V. Warren (1845), 14 M. & W. 380. Serrell v. Derbyshire Railway Company (1850), 9 C. B. 811, considered London and County Bank v. Groome (1881), 8 Q. B. D. 288. XXX7111 TABLE OF CASES OVBRRIJLED, Sheffield v. London Joint Stock Bank (1888), 13 App. Cas. 333, distinguished and considered London Joint Stock Bank v. Simmons (1892), A. C. 201. Shellard, Ex parte (1878), L. R. 17 Eq. 109, disapproved Buck V. Eobson (1878), 3 Q. B. D. at 689. Shepherd v. Harrison (1871), L. R. 5 H. L. 116, distinguished Ex parte Banner (1875), 2 Ch. D. 279. Sibree v. Tripp (1846), 15 M. & W. 23, distinguished Foakes v. Beer (1884), 9 App. Cas. 605, at 613. Sleigh V. Sleigh (1850), 5 Exch. 514, discussed Ex parte Bishop (1880), 15 Ch. D. at 410, 417. Smith V. Mercer (1815), 6 Taunt. 76, discussed Wilkinson v. Johnson (1824), 3 B. & C. at 437. Solarte v. Palmer (1834), 1 Bing. N. C. 124, regretted Everard V. Watson (1853), 1 B. & B. at 804, qualified Paul v. Joel (1858), 27 L. J. Ex. at 384 Steele v. M'Kinlay (1880), 5 App. Cas. 754, distinguished Wil- kinson V. TJnwin (1881), 7 Q. B. D. 636, at 638, C. A. ; ' Holmes v. Durkee (1883), 1 C. & E. at 25 ; Macdonald v. Whitfield (1888), 8 App. Cas. 738, P. C. Stoessiger v. South Eastern Railway (1854), 3 E. & B. 549, dis- tinguished R. V. Bowerman (1891), 1 Q. B. 112, at 115. Strange v. Price (1839), 10 A. & E. 125, overruled Paul v. Joel (1858), 27 L. J. Ex. at 388. Strong V. Foster (1855), 17 C. B. 201, dissented from Ewin v. Lancaster (1865), 6 B. & S. at 576. Suffell- «;. Bank of England (1882), 9 Q. B. D. 555, followed Leeds and County Bank v. Walker (1883), 11 Q. B. D. 84. Swinyard v. Bowes (1816), 5 M. & S. 62, distinguished Camidge V. AUenby (1827), 6 B. & C. 873. Tindal v. Brown (1786), 1 T. R. 167, overniled Chapman v. Keane (1835), 3 A. & E. at 197. Tinson v. Francis (1807), 1 Camp. 19, dissented from Ex parte Swan (1868), L. R. 6 Eq. at 358. Trimbey v. Vignier (1835), 1 Bing. N. C. 151, explained and dis- cussed Bradlaugh v. Be Rin (1870), L. R. 5 C. P. 473. Trimingham v. Maud (1868), L. R. 7 Eq. 201, disapproved Ex parte Gomez (1875), L. R. 10 Ch. at 647. Vagliano v. Bank of England (1889), 22 Q. B. D. 103, and in C. A. 23 Q. B. D. 243, reversed by H. L. (1891), A. C. 107. Vanderwall v. Tyrrell (1827), M. & M. 87, explained Geralopulo V. Wieler (1851), 20 L, J. C. P. at 108. DOUBTED, OR EXPLAINED. XXXIX Walker v. Barnes (1813), 5 Taunt. 240, dissented from Siggers v. Lewis (1834), 1 Cr. M. & E. at 370. "Walwyn v. St. Quintin (1797), 1 B. & P. 652, overruled Cory v. Scott (1820), 3 B. & Aid. 622. Waring, Ex parte (1815), 19 Ves. 345, explained Vaughan v. Halliday (1874), L. R. 9 Ch. 561, and Re Yglesias (1875), L. E. 10 Ch. 685, disoassed Royal Bank of Scotland v. Com- mercial Bank (1882), 7 App. Cas. 366, Ex parte Dever (1885), 14 Q. B. 1). 611. Warrington v. Furbor (1807), 8 East, 242, distinguished Camidge V. Allenby (1827), 6 B. & C. 373. Wells V. Giles (1836), 2 Gale, 209, approved Kennedy v. Thomas (1894), 2 Q. B. 759, C. A. Williams v. Bayley (1866), L. R. 1 H. L. 200, explained Flower V. Sadler (1882), 10 Q. B. D. 572, at 574, C. A. Williams v. Colonial Bank (1888), 38 Ch. D. 388, affirmed by H. L., as Colonial Bank v. Cady (1890), 15 App. Cas. 267. Woodridge v. Spooner (1819), 3 B. & Aid. 233, followed Stott v. Fairlamb (1883), 52 L. J. Q. B. 420. Woolsey v. Crawford (1810), 2 Camp. 445, diseented from Re General South American Company (1877), 7 Ch. D. at 644. Yates, Ex parte (1857), 27 L. J. Bk. 9, commented on Lecaan v. Kirkman (1859), 6 Jur. N. S. 17. Teo V. Dawe (1884), 33 W. R. 739, commented on Mortgage Ins. Corporation v. Inland Eevenue (1887), 21 Q. B. D. at 353, C. A. Young V. Grote (1827), 4 Bing. 253, commented on Soci6t6 Gendrale v. MetropoHtan Bank (1873), 27 L. T. 849, dis- cussed Arnold v. Cheque Bank (1876), 1 C. P. D. at 586 ; and Baxendale v. Bennett (1878), 3 Q. B. D. at 533, ques- tioned Scholfield v. Londesborough (1894), 1 Q. B. 536, C. A. LIST OF ABBEEVIATIONS. Chifcty— Chitty on Bills of Exchange. 11th edition. 1878. Daniel — Daniel on Negotiable Instruments. New York. 1876. French Code — French Code de Commerce of 1818. German Exchange Law — German General Exchange Law of 1849. Indian Act — Indian Negotiable Instruments Act, 1881. Nouguier — Nouguier's " Lettres de Change et Effets de Com- merce." Paris. 4:th edition. 1876. Pothier — Pothier, Traite da Contrat de Change. Paris. 1847. Story — Story's Commentary on the Law of Bills of Exchange. 4th edition. 1860. INTEODUCTION TO THIED EDITION. I Soon after the publication of the Second Edition of this pian of the Digest the law relating to bills, notes, and cheques was ^ codified by the Bills of Exchange Act, 1882. For the most part the propositions of the Act were taken word for word from the propositions of the Digest. In the Introduction to the Second Edition it was pointed out that the general propositions of the Digest could only be considered as law, in so far as they were correct and logical inductions from the decided cases which were cited as illustrations. Now the position is reversed. The cases decided before the Act are only law in so far as they can be shown to be correct and logical deductions from the general propositions of the Act. The illustrations, therefore, must always be tested by the language of the Act itself. In the notes to the Act I have carefully pointed out the few provisions which were deliberately intended to alter the law. When a proposition in the Act appears to be of ■wide scope, I have added illustrations taken from decided cases. When a proposition appears to be of narrow scope, I have merely given a reference to the cases which were before me when drafting it. It may be said that the Act should be left to speak for itself. I am well aware that there is no necessary connection between the intention of the draftsman and the intention of the Legislature as deduced by the Courts from the terms of a statute. Still, in the present case, there will be a strong disposition on xliv INTKODUCTION TO THIRD EDITION. the part of the Courts to construe the Act as declaratory ; and it may he useful to the profession to he referred from the abstract propositions of the Act, to the concrete facts which gave rise to them. As Mr. Justice Holmes, in his admirable work on the Common Law, observes (p. 27), " However much we may codify the law into a series of seemingly self-suf&cient propositions, those propositions will be but a phase in a continuous growth. To understand their scope fully, to know how they will be dealt with by judges trained in the past which the law embodies, we must ourselves know something of that past. The history of what the law has been is necessary to the knowledge of what the law is." The Bills of Exchange Act, 1882, was the first enactment codifying any branch of the Common Law which found its way into the Statute Book. It has now been followed by the Partnership Act, 1890, which was originally drafted by Sir Frederick Pollock.* But as a Code is still some- what of a novelty in English law, it may be of interest to refer to the conditions under which the experiment was successfully carried out, and to consider how far it can or ought to be repeated as regards other portions of the law. Of late years several attempts at codification have been made, but from various causes they have mostly proved unsuccessful. The success of the Bills of Exchange Bill depended on the wise lines laid down by Lord Herschell. He insisted that the Bill should be introduced in a form which did nothing more than codify the existing law, and that all amendments should be left to Parliament. A Bill which merely improves the form, without altering the sub- stance, of the law creates no opposition, and gives very * For an account of that Act, see the Introduction to the 5th edition of Pollock on Partnership. INTXODUCTION TO THIRD EDITION. xlv little room for controversy. Of course codification pure and simple is an impossibility. The draftsman comes across doubtful points of law which he must decide one way or the other. Again, voluminous though our case law is, there are occasional gaps which a codifying Bill must bridge over if it aims at anything like completeness. Still in drafting the Bills of Exchange Bill, my aim was to reproduce as exactly as possible the existing law, whether it seemed good, bad, or indifferent in its effects. The idea of codifying the law of negotiable instruments was first suggested to me by Sir Fitz-James Stephen's Digest of the Law of Evidence, and Sir F. Pollock's Digest of the Law of Partnership. Bills, notes, and cheques seemed to form a well isolated subject, and I therefore set to work to prepare a Digest of the law relating to them. I found that the law was contained in some 2,500 cases, and 17 statutory enactments. I read through the whole of the decisions, beginning with the first reported case in 1603. But the cases on the subject were comparatively few and unimportant until the time of Lord Mansfield. The general principles of the law were then settled, and subse- quent decisions, though very numerous, have been for the most part illustrations of, or deductions from, the general propositions then laid down. On some points there was a curious dearth of authority. As regards such points I had recourse to American decisions, and to inquiry as to the usages among bankers and merchants. As the result, a good many propositions in the Digest, even on points of frequent occurrence, had to be stated with a (probably) or a (perhaps). Some two years after the publication of my Digest, I read a paper on the question of codifying the law of negotiable instruments before the Institute of Bankers. Mr. John Hollams, the well-known commercial lawyer, who was present, pointed out the advantages of a Code to the xlvi INTRODUCTION TO THIRD EDITION. mercantile community ; and, mainly I think on his advice, I received instructions from the Institute of Bankers and the Associated Chambers of Commerce to prepare a Bill on the subject. The draft of the Bill was first submitted to a sub-committee of the Council of the Institute of Bankers, who carefully tested such portions of it as dealt with matters of usage uncovered by authority.* The Bill was then introduced by Sir John Lubbock, the President of the Institute. After it had been read a second time in the Commons, it was referred to a strong Select Committee of merchants, bankers, and lawyers, with Sir Farrer Her- schell as chairman, f As the Scotch law of negotiable instruments differed in certain particulars from English law, the Bill was originally drafted to apply to England and Ireland only. The first work of the Select Committee was to take the evidence of Sheriff Dove- Wilson of Aber- deen, a well-known authority on Scotch Commercial Law. He pointed out the particulars in which the Bill, if applied to Scotland, would alter the law there. With three exceptions the points of difference were insignificant. The Committee thereupon resolved to apply the Bill to Scotland, and Sheriff Dove- Wilson undertook the drafting of the necessary amendments. Eventually the Scotch rules were in three cases preserved as to Scotland, while on the other points the Scotch rule was either adopted for England, or the English rule applied to Scotland. A few amendments in the law were made when the Committee was unanimous in their favour, but very wisely no amend- * Mr. Billinghurst, of the London and Westminster Bank, and Mr. Slater, of the London and County Bank, undertook the brunt of the work. t The Committee included Sir Farrer Hersohell, Q.C. j Sir John Lubbock ; Mr. Asher, Q.C. ; Mr. Cohen, Q.C. ; Mr. Keid, Q.C. ; Mr. Whitley, Mr. T. C. Baring, Mr. E. B. Martin, Mr. Orr-Ewing, Mr. Jackson, and Sir Charles Mills. INTRODUCTION TO THIRD EDITION. xlvii ments -were pressed on whicli there was a difference of opinion. Sir Farrer Herschell reported the Bill to the House, and it was read a third time and sent up to the Lords without alteration. In the House of Lords it was again referred to a Select Committee with Lord Bramwell for chairman.* A few amendments were there inserted, mainly at Lord Bramwell's suggestion. These were agreed to by the Commons, and the Bill passed without opposition. The Act has now been in operation for more than eight years, so that some estimate can be formed as to its results. Merchants and bankers say that it is a great convenience to them to have the whole of the general prin- ciples of the law of biUs, notes, and cheques contained in a single Act of 100 sections. As regards particular cases which arise, it is seldom necessary to go beyond the Act itself. It must also be an advantage to foreigners who have English bill transactions to have an authoritative statement of the English law on the subject in an accessible form. If I could do the work over again, I certainly could do it better and should profit by past experience. But as it is, the Act, as yet, has given rise to very little litigation. I am sure that further codifying measures can be got through Parliament, if those in charge of them will not attempt too much, but will be content to follow the lines laid down by Lord Herschell. Let a codifying Bill in the first instance simply reproduce the existing law, however defective. If the defects are patent and glaring it will be easy to get them amended. If an amendment be opposed, it can be dropped without sacrificing the Bill. The form of the law at any rate is improved, and its substance can always be amended by subsequent legislation. If a Bill * The Committee included the Lord Chancellor (Selborne), Lord Bramwell, Lord Fitzgerald, Lord Balfour of Burleigh, and Lord Wolverton. xlviii INTRODUCTION TO THIRD EDITION. when introduced proposes to effect changes in the law, every clause is looked at askance, and it is sure to encounter opposition. Assuming then the possibility of further codification, the question arises whether its extension is expedient. All the Continental nations have codified their laws, and none of them show any signs of repenting it. On the contrary, most of them are now engaged in remodelling and amplifying their existing codes. In India a good deal of codification has been carried out, and public and professional opinion seems almost unanimous in its favour. The Bills of Exchange Act, 1882, has been adopted by New Zealand, Victoria, New South Wales, South Australia, Queensland, / Tasmania, and with slight modifications by Canada. / Foreign laws. On doubtful points frequent reference is made in this Edition to American cases* and Continental Codes and writers. In mercantile matters, when the law is uncertain or authority wanting, there is an increasing tendency to refer to foreign Codes and laws in order to see how other nations have solved the difficulty. This is especially the case as regards negotiable instruments, the most cosmopo- litan of all contracts. Mr. Justice Story, in his judgment in S^cift V. Tyson (16 Peters, 1), gives forcible expression to the principle. He says, " The law respecting negotiable instruments may be truly declared, in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde (2 Burr. 887), to be in a great measure, not the law of a single country only, but of the whole commercial world. Non erit lex alia Eomae, alia Athenis, alia nunc, alia post * In the present Edition no attempt has been made to keep the American cases up to date. They throw little or no light on the construction of a Code ; and they are now so numerous, and conflicting, that for the purpose of showing what American law is reference must be made to American text books, such as Parsons on Bills and Notes or Daniel on Negotiable Instrv/ments. INTRODUCTION TO THIRD EDITION. xlix hac, sed et apud omnes gentes et omni tempore una eademque lex obtinebit." Lord Blackburn, iu a Scotch appeal concerning a cbeque, lays down a similar rule. "There are," he says, "in some cases differences and peculiarities which by the municipal law of each country are grafted on it, but the general rules of the law merchant are the same in all countries. . . . We constantly in the English Courts, upon the question what is the general law, cite Pothier, and we cite Scotch cases, when they happen to be in point ; and so in a Scotch case you would cite English decisions, and cite Pothier or any foreign jurist, provided they bore upon the point."* An American decision, it is needless to say, is not a bind- ing authority in this country, but, if well reasoned, it is always considered with respect by our Courts. f Many of the American judgments are very valuable as expounding and testing the principles of English decisions. An English case there, like an American case here, is only an authority in so far as it appears to be a correct deduction from the general principles of common law and the law merchant which prevail in both countries alike. When the subject-matter of a section of the Act is dealt with by the French " Code de Commerce," or the German " General Exchange Law, 1849," their respective provisions are compared. If they agree, a mere reference to the corresponding sections is given. If they differ, the points of difference are given in a note. A vast number of the bills circulated in England are foreign bills. It seems useful, therefore, to indicate the main points of divergence which may give rise to a conflict of laws. The French Code is of * McLean v. Clydesdale Bank (1883), 9 App. Cas. at p. 105. t See per Cookburn, C.J., in Searamanga v. Stamp (1880), 5 C. P. D. at p. 303, C. A. C. d 1 INTRODUCTION TO THIRD EDITION. j particular interest. Although enacted more 'than eighty- years ago, no substantial alteration has been made in it by subsequent legislation. For many years it was the model of nearly all the Continental Codes. For instance, the Belgian Code de Commerce of 1872 enacted for Belgium the provisions of the French Code regarding bills and notes, with a few slight modifications borrowed from Germany, and the addition of three or four articles which embodied the result of French judicial decisions on the construction of the Code. Of late years, however, there has been a tendency to adopt the somewhat wider provisions of the German Exchange Law. Until 1883 the Italian Commercial Code was closely modelled on the French, but the new Italian Code which came into force in 1883 has departed from the French model as regards bills and notes, and has substan- tially adopted the provisions of the German Exchange Law. Again, the Portuguese Code of 1833 was mainly founded on the French Code. But the Code of 1888 in many respects departs from the French model, and has in the main followed the German Exchange Law, though a few pro- visions seemed to be borrowed from the English Act. I believe the Hungarian Code of 1875, the Scandinavian laws of 1880, the Swiss law of 1881, and the Spanish Code of 1885 have also departed from the French idea and followed the German lead. French law is worthy of attention in another respect. In the absence of English authority, our Courts have, in some instances, consciously taken it as their guide. (See per Parke, B., in Foster- v. Bawher, 6 Exch. 852.) The " Code de Commerce," to a great extent, embodies and enacts the opinions of Pothier, whose authority, says Best, C. J. (in Cox v. Troy, 5 B. & Aid. 481), " is as high as can be had next to the decision of a Court of Justice in this country." On doubtful points not dealt with by the Code, reference is occasionally INTRODUCTION TO THIRD EDITION. li made to Pothier, and also to the exhaustive treatise of M. Nouguier (Des Lettres de Change et des Effets de Commerce, 4th ed. 1875), which gives the latest results of French law. The G-erman General Exchange Law of 1849 (slightly modified, 1869), is important in two respects. First, it is the most elaborate and carefully worked out of the foreign Codes, and it appears to he the model to which the other Continental states (with the exception of France) are now assimilating their laws. Secondly, it is an international and not merely a national Code. All the German states, including Austria, have adopted it, and the terms of its adoption are these : Each state is at liberty to supplement it by additional laws of its own, but such laws are not in any way to contradict or override it. M. Nouguier, in the work above referred to, gives in French the text of the Exchange Law, and also the various supplementary laws passed by the different states. It would probably be very advantageous to the com- mercial world if this principle of an International Code could be further extended. The difficulties of carrying it out do not seem insuperable, though, doubtless they would be great. The provisions of such a Code would have to be settled by agreement, and then each state would enact it for its own territory. In the case of England it would probably be necessary to confine its operation to foreign bills, that is to say, to bills drawn or payable abroad. Our law, as regards foreign bills, does not widely diverge from the law of other commercial countries, and it diverges chiefly by allowing greater latitude than is adopted in practice. Occasional reference is also made to the Indian Code, (Act XXVI., of 1881, as amended by Act II. of 1885,) which in substance reproduces the English law as it stood in 1881. In a work like the present, it is thought Hi INTKODUCTION TO THIKD EDITION. it would be waste of space to carry references to foreign laws or authorities any further, but it may be worth while to mention where they can be found. Borchardt (Vollstandige Sammlung der geltenden Wechsel- und Handels Gesetze aller Lander, 1871), col- lects the statutory enactments of all countries relating to Bills of Exchange. Part I. gives a German translation, Part II. the original text. More than forty countries have codified their law on this subject; in fact, some English colonies and the United States seem to be the only civilized nations which have not done so. Since Borchardt's work was published, however, several Continental states- have re-cast their laws relating to negotiable instruments. A new Commercial Code has been enacted for the Nether- lands, and an official translation of the part relating to negotiable instruments has been published in England. [See Commercial, No. 30, of 1880, C. 2609.] M. Nouguier, in a supplementary chapter to his work on Bills (Des Lettres de Change, 1875), compares the laws of the chief commercial nations with the French Code. The Comite de Legislation fitrangere, under the direction of the French Ministry of Justice, are preparing cheap French translations of the various foreign laws relating to commercial matters. Several volumes have already been published with excellent introductions and notes. Having regard to our own insular isolation, I fear it will be long before any English government department undertakes similar useful work. M. Mass^'s "Droit Commercial et des Gens " is a valuable work on the conflict of laws — especially as regards bills. The latest American book, I believe, is Daniel on Negotiable Instruments, 1876. Story on Bills of Exchange, and Parsons on Notes and BiUs, are also standard American works. Thomson on Bills of Exchange is the standard book on Scotch law, which. INTEODUCTIOX TO THIRD EDITION. Hii it must be remembered, differs materially from the t Englisli. The origin and history of bills of exchange and other oricrin and negotiable instruments are traced by Lord Chief Justice liistory of bills ... . ^iid notes. Cockburn in his judgment in Goodwin v. Roharts* He says : " Bills of exchange are known to be of compara- tively modern origin, having been first brought into use, so far as is at present known, by the Florentines in the twelfth, and by the Yenetians about the thirteenth, century. The use of them gradually found its way into France, and, still later and but slowly, into England. We find it stated in a law tract, by Mr. Macleod, entitled ' Specimen of a Digest of the Law of Bills of Exchange,' that Richard Malynes, a London merchant, who published a work called the Lex Mercatoria, in 1622, and who gives a full account of these bills as used by the merchants of Amsterdam, Hamburg, and other places, expressly states that such bills were not used in England. There is reason to think, however, that this is a mistake. Mr. Macleod shows that promissory notes, payable to bearer, or to a man and his assigns, were known in the time of Edward IV. Indeed, as early as the statute of 3 Rich. II. c. 3, bills of exchange are referred to as a means of conveying money out of the realm, though not as a process in use among English merchants. But the fact that a London merchant writing expressly on the law merchant was unaware of the use of bills of exchange in this country, shows that that use at the time he wrote must have been limited. According to Professor Story, who herein is, no doubt, perfectly right, ' the introduction aud use of bills of exchange in England,' * Goodwin v. Rotarts (1873), L. K. 10 Ex. pp. 346—358. See further an interesting article by Mr. Jenks on " The Early History of Negotiable Instruments," Law Quarterly Review, vol. ix., p. 70. liv INTRODUCTION TO THIRD EDITION. as indeed it was everywhere else, ' seems to have been founded on the mere practice of merchants, and gradually to have acquired the force of a custom.' With the develop- ment of English commerce the use of these most convenient instruments of commercial trafBc would of course increase, yet, according to Mr. Chitty, tbe earliest case on the subject to be found in the English books is that of Martin V. Boil re (Cro. Jac. 6), in tbe first James I. Up to this time, tbe practice of making these bills negotiable by indorsement had been unknown, and the earlier bills are found to be made payable to a man and his assigns, though in some instances to bearer. But about this period, that is to say, at the close of the sixteenth or the commence- ment of the seventeenth century, the practice of making bills payable to order, and transferring them by indorse- ment, took its rise. Hartmann, in a very learned work on Bills of Exchange, recently published in Germany, states that the first known mention of the indorsement of these instruments occurs in the Neapolitan Pragmatica in 1607. Savary, cited by Mens. Nouguier, in his work ' Des Lettres de Change,' had assigned to it a later date, namely, 1620. From its obvious convenience this practice speedily came into general use, and, as part of the general custom of merchants, received the sanction of our Courts. At first, the use of bills of exchange seems to have been confined to foreign bills between English and foreign merchants. It was afterwards extended to domestic bills between traders, and finally to bills of all persons, whether traders or not." The law throughout has been based on the custom of merchants respecting them : the old form of declaration on bill used always to state that it was drawn " secundum usem et consuetudinem mercatorum." In tbe time of Chief Justice Holt, a controversy arose between the Courts and the merchants, as to whether the customary INTEODUCTIOX TO THIRD EDITIOX, Iv incidents of negotiability were to be recognized in tbe case of promissory notes. The dispute was settled by the stat. 3 & 4 Anne, c. 9, wbicli vindicated the custom and confirmed the negotiability of notes. Again, in 1873, the Court of Queen's Bench were of opinion that documents other than bills and notes could not be endowed by custom with the incidents of negotiability. But the efficacy of custom was again upheld by the Exchequer Chamber in 1875, in Goodwin v. Roharts, where it was determined that foreign scrip might be rendered negotiable by custom, so as to pass with a good title, and free from all equities to a bona-fide purchaser. The Court there say (p. 356) : " While we quite agree that the greater or less time during which a custom has existed may be material in determin- ing how far it has generally prevailed, we cannot think that if a usage is once shown to be universal it is the less entitled to prevail because it may not have formed part of the law merchant as previously recognized and adopted by the Courts." The House of Lords approved the decision in 1876. Though the law merchant is now recognized as part of the law of the land, the process by which this principle has been evolved is still in need of elucidation. Lord Blackburn, in an interesting digression in his work on Sale (2nd ed. p. 317), observes : " There is no part of the history of English law more obscure than that connected with the common maxim that the law merchant is part of the law of the land. In the earlier times it was not a part of the common law as it is now, but a concurrent and co-existent law enforced by the power of the realm, but administered in its own Courts in the Staple or else in the Star Chamber." After referring to a case in 13 Edw. IV. 9, he proceeds : " It is obvious that at that time the law merchant was a thing distinct from the common law. Thisaccounts for the very remark- Ivi INTRODUCTION TO THIRD EDITION. able fact that there is no mention whatever of bills of exchange or other mercantile customs, in our early books ; not that they did not exist, but that they were tried in the Staple, and therefore were not mentioned in the books of common law. But as the Courts of the Staple decayed away, and the foreign merchants ceased to live subject to a peculiar law, those parts of the law merchant which differed from the common law either fell into disuse or were adopted into the common law as the custom of merchants. How this great change was brought about does not appear ; but though bills of exchange were in common use among merchants in the thirteenth century, the first mention of one in an English report is in Cro. Jac. ^ in the beginning of the seventeenth century." French and / The results of this formation of the law by custom are English ' . ■in ■ ■ theory of bills instructive. A reference to Marius' treatise on Bills of compare . Exchange, written about 1670, or Beawes' Lex Mercatoria, written about 1720, will show that the law, or perhaps rather the practice, as to bills of exchange, was even then pretty well defined. Comparing the usage of that time with the law as it now standsj it will be seen that it has been modified in some important respects. Comparing English law with French, it will be seen that, for the most part, where they differ, French law is in strict accordance with the rules laid down by Beawes. The fact is, that when Beawes wrote, the law or practice of both nations on this subject was uniform. The French law, however, was embodied in a Code by the "Ordon- nance de 1673," which is amplified but substantially adopted by the Code de Commerce of 1818. Its develop- ment was thus arrested, and it remains in substance what it was 200 years ago. English law has been developed piecemeal by judicial decision founded on custom. The result has been to work out a theory of bills widely different INTRODUCTION TO THIBD EDITION. Ivii from the original. The English theory may he called the Banking or Currency theory, as opposed to the French or Mercantile theory. A bill of exchange in its origin \! was an instrument by which a trade debt, due in one place, was transferred in another. It merely avoided the necessity of transmitting cash from place to place. This theory the French Law steadily keeps in view. In Eng- land bills have developed into a perfectly flexible paper currency. In France a bill represents a trade transaction ; in England it is merely an instrument of credit.* EngHsh law gives full play to the system of accommodation paper ; French law endeavours to stamp it out. A comparison of some of the main points of divergence between English and French law will show how the two theories are worked out. In England it is no longer necessarj' to express on a bill that value has been given, for the law raises a pre- sumption to that effect. In France the nature of the value must be expressed, and a false statement of value avoids the hill in the hands of all parties with notice. In England a bill may now be drawn and payable in the same place (formerly it was otherwise, see the definition of bill in Oomyns' Digest f). In France the place where a bill is drawn must be so far distant from the place where * This passage was written in 1878, when the first edition was published. The theory it advances is independently confirmed by the excellent Introduc- tion to the Portuguese Commercial Code in the French edition, published by the " Comit4 de Legislation Etrang^re." See p. xxix., where it is said, " La lettre de change, qui, k son origine, n'etait destinee qu'a effectuer un paye- ment de place en place, en evitant les dangers de la circulation du numeraire, s'est considerablement modifiee et perf ectionn ee. Aujourd'hui elle remplace le numeraire, et constitue autre commerfants, sinon I'unique moyen du paye- ment, du moins le mode de liberation le plus usuel. Nous sommes loin de I'epoque ou elle n'etait consideree que comme un simple instrument du contrat de change et oil Ton exigeait que le tire en e Demton v. Peters (1870), L. K. 5 Q. B. 475. * Barber v. Richards (1851), 6 Exeh. at p. 65. Preliminary. See sects. 9, 12, and 72 which require this definition. § 2. For stamp purposes a bill is not deemed to be issued till it has reached the hands of a holder for value} " Person " includes a body of persons, whether rson. incorporated or not. " Value " means valuable consideration. Value. For the operative definition, see sect. 27, post, p. 80. " "Written " includes printed, and " writing " Written, includes print. The definitions in this section are verbal ; that is, they define the sense in which the particular terms are used in the Act. The substantial or operative definitions appear in their appropriate places in the Act itself. 1 Dowries v. Riahardson (1822), .5 B. & Aid. 674 ; see note to sect. 64 as to alterations, post, p. 214. 8 Bills of Exchange Act, 1882. §3. PAET II. Bills of Exchange. [By sect. 73, except as provided in Part III., the provisions of the Act applicable to a bill payable on demand apply to a cheque ; and by sect. 89, with the exceptions and subject to the modifications there specified, the provisions of the Act relating to bills apply also to promissory notes.] Form and Interpretation. Bill of 3. (1) A bill of exchange is an unconditional definedf Order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to or to the order of a specified person, or to bearer. (2) An instrument which does not comply with these conditions, or which orders any act to be done in addition to the payment of money, is not a bill of exchange. A bill is sometimes called a draft, and an accepted biU is often referred to as "an acceptance." The person who' gives the order is called the drawer. The person thereby ordered to pay is called the drawee, and if he signifies his assent to the order in due form (sect. 17) he is then called the acceptor. The person to whom the money is payable is called the payee or bearer, as the case may be. See "bearer " defined by sect. 2, ante, p. 4. The foreign codes for the most part provide in terms that a bill may be drawn by one person for the account of another. The person for whose account the bill is drawn is spoken of in England as the " third account." For example, a mer- chant in America may direct his agent in England to draw on a correspondent in Paris for his (the principal's) account. Form and Interpretation. { Comparing this definition with the wider definition of § 3. "bill of exchange "in sect. 32 of the Stamp Act, 1891, post, p. 354, it appears that instruments may require to be stamped as bills which do not possess the mercantile inci- dents of bills as defined by this Act. An instrument, invalid as a biU under the Act, may be valid as an agree- ment if it conform with the requirements of the general law as to agreements.^ Under the Act, no special form of words is essential to Form of the validity of a bill Thus an order, sufficient in other ^"rds or respects, running " Credit 0. or order in cash," instead of *°8™^^- "Pay," is a valid bill.^ German Exchange Law, Art. 4, and Italian Code, Art. 251, require the instrument to state that it is a bill of exchange, and the foreign codes gene- rally do not allow a biU originally to be drawn payable to bearer.* A bin may be drawn in any language.* As to the amount receivable where the sum payable is expressed in a foreign currency, see sects. 9 and 72 (5). Where an instrument is so ambiguously worded that it Ambiguous is doubtful whether it was intended for a bill or for a note, instruments, the holder may treat it at his option as either.^ The Act requires a bill to be signed by the drawer. The Signature of signature may be added at any time (see sects. 18 and 20) ; drawer. but until it is there the instrument is inchoate and without effect. Thus A. draws a bill on B., but does not sign it. B. accepts, and the instrument is transferi'ed for value to C. The instrument is neither a bill nor a note ; * but if the instrument were in the drawer's hands so that he could ' See, e.g., Brice v. Bannister (1878), 3 Q. B. D. 569, C. A. ; Hamilton V. SpotUsiaoode (1849), 4 Exch. 200. 2 mison V. CoUingridge (1850), 9 C. B. 570 ; Cf. Lovdl v. HiU (1838), 6 C. & P. 238 ; Story, § 33. * French Code, Art. 110; German Exchange Law, Art. 4 ; Netherlands Code, Art. 100. ■• See, e,g.. Be Marseilles Co. (1885), 30 Ch. D. 598, where a bill in French was treated as an EngUsb instrument. In India bills drawn in the native language are called "Hundis." See sect. 1 of the Indian Act, saving native usages with respect to them. s Edis V. Bury (1827), 6 B. & 0. 433 ; Fielder v. Marshall (1861), 30 L. J. C. P. 158 ; Indian Act, s. 17 : Cf. Allen v. Mawson (1814), 4 Camp. 115. « M'CaU V. Taylor (1865), 34 L. J. C. P. 365 ; Cf. GoldsmU v. Hampton (1858), 5 C. B. N. S. 94 ; 27 L. J. C. P. 286 ; Ex parU Hayward (1871), L. E. 6 Ch. 546 ; German Exchange Law, Art. 4 ; Netherlands Code, Art. 100. 10 Bills op Exchange Act, 1882. §3. Money and money only. BiUs and notes under 20s. add liis signature at pleasure, it miglit be a security for the payment of money within sect. 75 of the Larceny Act, 1861 (24 & 25 Vict. c. 96).i It has been held in France that where a bill payable to drawer's order was indorsed by him, though he omitted to sign it on the face, this was sufficient : Nouguier, § 199. A bill must be payable in " money " — that is, in legal tender. Therefore, an order requiring payment " in good East India bonds,"^ or "in the notes of the chartered banks of Pennsylvania," is not a bill of exchange.^ In Ex parte Imeson (1815), 2 Rose, 225, an order to pay " in cash or Bank of England notes" was held invalid; but now by 3 & 4 Will. 4, c. 98, s. 5, the notes of that bank are made legal tender in England, except by the bank itself. As to legal tender in general, see the Coinage Act, 1870 (33 Vict. c. 10), ss. 4 — 6 {post, p. 342). Again, an order requiring the drawee to pay a certain sum of money and deliver up a wharf to the payee,* or requiring him to pay a certain sum and take up a note for the drawer, is not a biU.^ So, again, an order to deliver to bearer on demand a certain quantity of iron is not a bill.^ By 48 Geo. 3, c. 88, negotiable bills or notes for less than 20s. were made void in England, and any person who issued or negotiated them was subject to a penalty not ex- ceeding 20i. An exception was made in favour of cheques by 23 & 24 Vict. c. Ill, s. 19. Both these Acts are repealed by Schedule II. to this Act. Consequently there is now no limit to the sum for which an English bill, note, or cheque may be drawn. By 8 & 9 Vict. c. 38, ss. 17 — 20, negotiable bills and notes for less than 20s. are made void in Scotland, and any person who issues or negotiates them is subject to a penalty hot exceeding 20/., but an exception is made in favour of drafts on a banker for the pajrment of money " held to the use of" the drawer. This Act is not repealed. As to promissory notes to bearer on demand, see note to sect. 83, post, p. 261. 1 R. V. Bowerman, (1891) 1 Q. B. 112. 2 BuUer, N. P. p. 268. 3 McCormick v. Trottet (1823), 10 S. & E. 282 ; St Huffy. Webb (1794), 1 Esp. 129 ; Cf. JR. v. Mlor (1784), 1 Leach, C. C. 323. The common form of a French bill runs " il vous plaira payer." 2 Idttle V. Slaekford (1828), 1 M. & M. 171 ; Cf. Hamilton v. iSpottiawoode (1849), 4 Exch. 200, where the document ran "We authorize you to pay." 3 8tory, § 46 ; Cf. Ca/rlos v. Fmcourt (1794), 5 T. E. 482, see at pp. 485, 487. ■• Story, § 65. See effect of " advice " there considered. » Valmer t. Pratt (1824), 2 Bing. 185. As to a note payable "as per agreement," see Jwryv. Ba/rker (1858), E. B. & E. 459. ° Drury v. MacaiUay (1846), 16 M. & W. 146 (prom. note). But see sub-sect. 3. 12 Bills of Exchange Act, 1882. § 3. and a note may not be made conditionally ; but a bill may be accepted conditionally: see sect. 19. Either a bill or note, unconditional in its origin, may be indorsed con- ditionally, sect. 33. Again a bill or note unconditional in form may, as between immediate parties, be delivered conditionally : see sect. 21 (2), post, p. 54. Particular (3) An order to pay out of a particular fund is not unconditional within the meaning of this section ; but an unqualified order to pay, coupled with (a) an indication of a particular fund out of which the drawee is to reimburse himself or a particular account to be debited with the amount, or (6) a statement of the transaction which gives rise to the bill, is unconditional. Illustkations. The following are invalid, namely, orders or promises to pay (say) 100?. :— 1. out of tlie money in yotir hands belonging to the X. Company;' 2. out of the money due from X. as soon as you receive it ; ^ 3. out of the money arising from my reversion when sold ; ' 4. on the sale or produce when sold of the X. Hotel ; * 5. out of the moneys now due, or hereafter to become due, to me Tmder the will of my late father, and before making any pay- ment to me thereout.' The following are valid, namely, orders or promises to pay (say) 1003. :— 6. as my quarterly half -pay due 1st February by advance; ° 7. being a portion of a value as under, deposited in security for the payment hereof ; ' 8. against cotton, per " Swallow " ; " 9. on account of moneys advanced by me for the X. Company ; ' 1 Jernney v. Herle (1723), 2 Ld. Eaym. 1361. 2 Dawkes v. Lord Delorame (1771), 3 Wils. 287 ; 2 W. Bl. 782. 3 Carlos T. Fammwrt (1794), 5 T. R. 482, Bx. Ch. « HSLl V. Halford, (1801), 2 B. & P. 413, Ex. Ch. * Fisher v. CalveH (1879), 27 W. R. 301, M. B. . « Macleod v. Snee (1728), 2 Stra. 762. 7 ffamaouUier v. ffartsinck (1798), 7 T. R. 733. ' Cf. Inman v. Clare (18S8), Johns. 769. 9 Gri;ffin V. Weatherby (1868), L. R. 3 Q. B. 753. Form and Interpketation. 13 10. against credit No. 20, and place it to account, as advised per 8 3 X. andCo.;! 1^ 11. ■which you will please charge to my account, and credit according to a registered letter I have addressed to you.^ An order invalid as a bill may of course be valid as an equitable assignment.^ See the English and A'nerican authorities collected and reviewed in Munger v. Shannon.* The tendency in New York seems to be to give effect to an order rather as an equitable assignment than as a bill ; e.g., the following were held to be payable out of a par- ticular fund : " Pay C. or order 100 dollars, and deduct the same from my share of our partnership profits." "Pay 0. or order 100 dollars, on account of twenty-four bales of cotton shipped by you, as per bill of lading." (4) A bill is not invalid by reason — Date, place, (a) That it is not dated ; (6) That it does not specify the value given, or that any value has been given therefor ; (c) That it does not specify the place where it is drawn or the place where it is payable. Though an undated bill may be valid, it is irregular to Date, issue it undated. As to filling in the date in the case of an undated bill or acceptance, see sects. 12 and 20, post, pp. 32 and 49. The alteration of the date is a material altera- tion : sect. 64 (2). Under most of the continental codes it is essential that a bill should be dated. ^ As to the effect of this conflict of laws, see sect. 72 (1). It is believed that all countries, except those where the Greek Church is the prevailing religion, use the new style, or Gregorian calendar. As to bills payable after date, drawn in a country where the old style prevails, see note to sect. 72 (5), post, p. 244. 1 Cf. Banner v. Johnston (1871), L. R. 5 H. L. 157. 2 ReBoym (1886), S3 Ch. D. 612. 3 Buck V. Bobion (1878), 3"Q. B. D. 686 ; Fiiher v. CalveH (1879), 27 W. R. 301 ; see, too, Olyn v. Hood (1860), 1 De Gr. F. & J. at p. 348, as to this distinction, andjpossim, Percival v. Dunn (1885), 29 Ch. D. 128. ■* Munger v. Shannon (1874), 61 New York R. 251 ; see, too, Oorbett v. Clarh (1878), 30 Amer. R. 763. * French Code, Art. 110 ; Germxn Exchange Law, Art. 4 ; Netherlands Code, Art. 100 ; Italian Code, Art. 251. 14 Bills of Exchange Act, 1882. statement of value. § 3. In England it is usual to insert in the biU either a state- ment of the value, or the words "value received," but this has long been held not to be essential,^ for the law raises a prima facie presumption of consideration. In the case of an accepted bill payable to drawer's order, the words " value received " mean value received by the acceptor ; ^ while in a bill payable to a third party, they mean primd facie value received by the drawer.^ Whether a bill ex- presses that value has been given or not, extrinsic evidence is admissible between immediate parties and those in privity with them to impeach the consideration, and show its absence, failure, or illegality.* The contracts arising on a bill are contracts in writing. Subject, then, to the provisions of sect. 21 (2), parol evidence is not admissible to show that a bill was given in pursuance of an agreement inconsistent with its terms.^ Thus a note is expressed to be given "for commission for business transacted." In an action by payee against maker evidence is admis- sible to show that the payee never earned his commission ; * but parol evidence would not be admissible to vary the time of payment, or otherwise contradict the terms of the instrument as interpreted by the law merchant, see post, p. 57. Under some of the foreign codes it is essential that the nature of the consideration should in general terms be stated in the biU : see Netherlands Code, Art. 100. The German Exchange Law, Art. 4, and Italian Code, Art. 251, do not require the consideration to be stated. By French Code, Art. 110, the nature of the consideration must be stated. A false statement of value constitutes a " supposi- tion de valeur," and avoids the bill in the hands of parties with notice ; Nouguier, §§ 282, 283. As to the effect of this conflict of laws, see sect. 72 (1). Place of It is usual to state in a bill the place where it is drawn. making. By 9 Groo. 4, c. 65, a penalty is imposed on the issue or ' Hatch V. Trayes (1840), 11 A. & E. 702. 2 Highmore t. Primrose (1816), 5 M. & S. 65. 3 Grant t. Da Costa (1815),' 3 M. & S. 351. * AUott T. BendHcks (1840), 1 M. & Gr. 791 ; Of. Thompson v. Cluilev (1836), 1 M. & W. 212 ; Abrey v. Crux (1869), L. R. 6 C. P. 37. 6 Bidout V. Bristow (1830), 1 Cr. & J. 231 ; Foster v. JoUy (1835) 1 C M. & R. 703 ; Young v. Austen (1869), L. R. 4 C. P. 553 : Hitl v. WUsrni (1873), 42 L. J. Ch. 817 ; L. R. 8 Ch. App. 888. " Alhott V. Hendricks (1840), 1 M. & Gr. 791, see at p. 796. Form axd Interpretation. 15. negotiation in England of bills or notes payable to bearer § 3. on demand for less than 5/., which are made or purport to be made in Scotland or Ireland. German Exchange Law, Art. 4, does not require the place of issue to be stated ; but in France the place where a bill is drawn must be stated : French Code, Art. 110 ; Nouguier, §§ 93 — 105. It seems that a bill may state an alternative place of Place ot payment.! Where a bill is made payable elsewhere than payment, at the residence or place of business of the drawee, the bill is said to be " domiciled " where payable. As to present- ment for payment when no place of payment is specified, and the address of the drawee is not given, see sect. 45 (4), post, p. 145. By French Code, Art. 110 ; Italian Code', Art. 251 ; and German Exchange Law, Art. 4, the place of payment must be stated. Under some of the foreign codes it is necessary that a Eule of bill should be payable in a place different to that in which By sect. 3, a bill must be drawn for " a sum certain " in money. When the rate of interest is not expressed, five per cent, is understood. Since the abolition of the IJsury J.aws there is no limit in England as to the rate of interest the parties may agree upon. In many American states and coTitinental countries usury laws are still in force. The indorsement of a rate of exchange without authority is a material alteration which may avoid a bill.^ See a statement of the practice as to the sale of foreign bills, and the mode of fixing the exchange in Suse v. Pompe.^ In the absence of indication given by the bill, when a bill is drawn in one country and payable in another, and the sum payable is expressed in the currency of the former, the amount the holder is to receive must be calculated according to the rate of exchange on the day that the bill is payable.* For fiscal purposes a different rule necessarily prevails (see sect. 6 of the Stamp Act, 1891, post, p. 853), which makes the date of the instrument the critical date > for determining the amount of the stamp. In the old case of Da Costa v. Cole,^ a bill was drawn in England on Portugal, and expressed to be payable in " roes," that is, in Portuguese currency. Between the time of issue and payment the Portuguese currency was depreciated. It was held that the holder was entitled to be paid according to the former value. This decision seems inconsistent with modern rules, and especially ap- pears to conflict with the case of Rouquette v. Overmann,^ where it was held that the time of payment might be deferred by ex post facto legislation. The following instruments woula be invalid as bills or Uncertain notes, as not being for sums certain within the meaning of ^i™' 1 Of. Pollard v. Berries (1803), 3 B. & P. 335, prom. note. 2 Hirschfield v. Smith (1866), L. R. 1 C. P. 340. See sect. 64 as to alterations. ' Suse T. Pompe (1860), 8 C. B. N. S. at p. 542 ; 30 L. J. C. P. 75. ■• See sect. 72 (4), post, p. 243 ; and Hirschfield v. tSmith (1866), L. E. 1 C. P. at p. 353 ; Belgian Code, Art. 33. ' Da Costa t. Cole (1688), Skinner, 272, holder v. drawer. « Rouquette v. Overmann (1875), L. R. 10 Q. B. 525. 28 Bills of Exchange Act, 1882. § 9. sect. 3, namely :— An order to pay C. " 100^. and all other sums which may be due to him ; "^ or an order to pay C. " the proceeds of a shipment of goods value 2,000/., con- signed by me to you ; " ^ or an order to pay 0. " the balance due to me for building the Baptist College Chapel ; " ^ or a promise to pay C. " 100/. and the demands of the Sick Club ; "* or " 100/. and all fines according to rule."^ The Italian Code, Art. 252, prohibits bills or notes being made payable by instalments, and Art. 254 makes stipula- tions for interest inoperative. S'wor^ra'Sd (^) Where the sum payable is expressed in figures. words and also in figures, and there is a discre- pancy between the two, the sum denoted by the words is the amount payable, Illxtsteations. 1. A bill is drawn, " Pay to the order of 0. two hundred pounds." In the margin, is superscribed 2501. This is a biU for 2001. onlj.^ 2. Bill on sufficient stamp for "one hundred pounds," with 101. in the margin. The sum payable is lOOZ.' 3. A biU is drawn, " Pay to the order of 0. one himdred." In the margin is inserted 100?. This is a bill for lOOZ.* 4. BiU iuthe form, " Pay to my order, twenty-five, ten shillings." This is sufficient as a bill for 251. lOs.' German Exchange Law, Art. 5, provides, that if the amount be expressed both times in figures or both times in words, and there is a discrepancy, the smaller sum is the amount payable. If a bill ran simply, " Pay to my order £ ," evidence would be inadmissible to show the sum for which it was intended to be drawn ; ^° but an in- strument in this form would be a primd facie authority to 1 Smith V. Nightingale (1818), 2 Stark. 375. 2 Jones V. Simpson (1823), 2 B. & C. 318. ' Crowfoot V. Gumey (1832), 9 Bing. 372. 4 Bolton T. Dugdale (1833), 4 B. & Ad. 619. ' Ayrey v. Feammdes (1838), 4 M. & W. 168. ' Saunderson v. Piper (1839), 6 BiDg. N. C. 425 ; German Exchange Law, Art. 5. 1 Cf. Gwrrardv. Lewis (1882), 10 Q. B. D. 30, at pp. 34, 35 ; Story, § 42. 8 R. T. Elliot {V77), 1 Leach, C. C. 175. ' Phipps V. Tanner (1833), 5 C. & P. 488. '" Norwich Bank v. Myde (1839), 13 Connecticut, 279 ; Cf. Saunderson v. Piper (1839), 5 Bing. N. C. at p. 431. Form ano Inieepretation. 29 the holder to fill in any sum the stamp would cover. See § 9. sect. 20, post, p. 49. The Italian Code, Art. 291, provides that in case of dis- crepancy the smaller sum is the sum payable, and this is the practice followed by bankers in England in respect of cheques. (3) Where a bill is expressed to be payable Calculation of with interest, unless the instrument otherwise provides, interest runs from the date of the bill, and if the bill is undated, from the issue thereof. iLIiTJSTKATIONS. 1. Bill for 2001., payable six montlis after date with interest. The sum payable at maturity is 205Z.' 2. B. makes a note expressed to be payable with, interest one year after his death. Interest runs from the date of the note.' See " issue " defined by sect. 2, ante, p. 6. Interest proper, payable by the instrument itself, must be distin- guished from interest by way of damages payable on its dishonour.* As to -the latter, see sect. 57, post, p. 190. The interest reserved does not affect the stamp.* 10. (1) A bill is payable on demand — Bill payable (a) Which is expressed to be payable on demand, or at sight, or on presentation ; or (&) In which no time for payment is expressed. Clause (a) reproduces the effect of the repealed 34 & 35 Vict. c. 74. Before that enactment it was doubtful whether or no days of grace attached to bills expressed to be pay- able " at sight " or " on presentation." By virtue of sect. 14, post, p. 35, days of grace do not attach to bills payable on demand. A post-dated cheqiie may be stamped as a bill payable on demand ; ^ and when the time arrives, it is, of course, 1 Doman v. Dibdin (1826), R. & M. 381. 2 Roffey v. Oreenwell (1839), 10 A. & E. 222 ; cf. Richards v. Richards (1831), 2 B. & Ad. 447, before the Married Women's Property Act. ' Cf. Exp. Charman, Re Claggett, W. N. 1887, p. 184, C. A. < Fruesdng y. Inff (1821), 4 B. & Aid. 204. ' Gatty y. Fry (1877), 2 Ex. D. 265 ; Royal Sank of Scotland r. Totten- ham, (1894) 2 Q. B. 715, C. A. 30 JiiLLS OF Exchange Act, 1882. § 10. payable mthout grace ; but for many purposes it is equi- valent to a bill payable after date.' As regards instruments payable on demand, see sect. 36 (3), when overdue ; sect. 45 (2), presentment for pay- ment ; sect. 60, forged indorsement ; sect. 73, cheque ; and sect. 86, as to notes. (2) Where a bill is accepted or indorsed when it is overdue, it shall, as regards the acceptor who so accepts, or any indorser who so indorses it, be deemed a bill payable on demand. Before this enactment the English law on the subject dealt with was very obscure ; but it had been held in the United States that where a bill was indorsed after matu- rity, the indorser was entitled to have it presented for pay- ment, and to receive notice of dishonour in the event of non- payment, within a reasonable time.^ Aliter, if an indorser took up a dishonoured bill, and re-issued it on his original indorsement, for his liability was then already fixed.^ The present clause gives effect to the American rule. As to the rights of the transferee of an overdue biU against parties liable thereon before its maturity, see sect. ^Q, post, p. 116. Under German Exchange Law, Art. 16, the indorser of a protested bill incurs no mercantile engagement. See, too, Italian Code, Art. 260. Bill payable 11. A bill IS payable at a determinable future time. ' time within the meaning of this Act which is expressed to be payable : * (1) At a fixed period after date or sight. See sect. 14 (2), (3), as to fixing the due date of such bills in ordinary cases, and sect. 65 (5) as to the due date when accepted for honour. • See note to sect. 13 (2) ; and Forster v. Mackreth (1867), L. E. 2 Ex. 163. 2 Patterson v. Todd (1852), 18 PennsylTanian E. 433 ; Etserdow v. Dillen- hack (1878), 22 Hun. K. 23 ; Cf. Dehers v. Harriot (1682), 1 Show.- 164 ; Mutford V. Waleot (1698), 1 Ld. Kaym. 574, aa to acceptor. 2 St. John T. Roberts (1865), 31 New York E. 441. * By sect. 3, ante, p. 8, a bill must be payable either on demand or at a fixed OT determinable future time. Form akd Interpretation. 31 (2) On or at a fixed period after the occurrence § 11. of a specified event which is certain to happen, though the time of happening may be uncertain. ' An instrument expressed to be payable on a contingency is not a bill, and the happening of the event does not cure the defect. Illustrations. The following are valid, viz., orders to pay : — 1. Ten days after tlie death of X.^ 2. Two months after H.M. ship Swallow is paid off.^ 3. On the 1st January, when X. comes of age.^ 4. One year after notice.'' 0. One year after my death.' 6. Two months after demand ia writing.^ 7. Five years after the opening of the S. railway.' (?) The following axe invalid, viz., orders to pay : — 8. When I marry X.' 9. When I am in good circumstances.' 10. Thirty days after the arrival of ship Swallow at Calcutta."' 11. Ninety days after sight, or when realized." 12. Ninety days after the dissolution of partnership between 0. and X. and the settling of the hooks.'^ " Certainty," says Ashliurst, J., " is a great object in negotiable instruments, and unless they carry their own validity on the face of them they are not negotiable. On that ground bills which are only payable on a contingency 1 See Colehan v. Cooke (1742), Willes, 393, at p. 399 ; Carlos v. Fancourt (1794), 5 T. E. 482. * Colehan v. Cooke (1742), siwpra. 3 Qoss v. NdiWi (1757), 1 Burr. 226. < Clayton v. QosUrtg (1826), 5 B. & C. 360. 5 Boffey r. GreenweU (1839), 10 A. & E. 222. « Price V. Taylor (1860), 6 H. & N. 540 ; 29 L. J. Ex. 331. ' Cf. Ex pvrU Gibson (1869), L. R. 4 Ch. 662. No objection raised. See eontrd, Blachma/n v. Lehman (1879), 35 Amer. E. 57. 8 Eearson v. Ga/rret (1689), 4 Mod. 242. 9 Ex parte TooteU (1798), 4 Ves. 372. i» Palmer v. Pratt (1824), 2 Bing. 185. » Alexander V. Thomas (1851), 16 Q. B. 333, •2 Saciett v. Palmer (1857), 25 New Tork R. 179. 32 Bills of Exchange Act, 1882. §11. are not negotiable, because it does not appear on the face of them whether or not they will ever be paid." ^ Under the French Code, Art. 129, and Grerman Exchange Law, Art. 4, such forms as are given in Illustrations 1 to 6 would probably be invalid. A bill, however, may be made payable at a particular fair or market {en foire), though the day on which it will be held is not known. Such bills seem to have been anciently known in England billae nundinales." ^ as Omission ot date in bill 12. Where a bill expressed to be payable at paytwe after a fixed period after date is issued undated, or aocept°ance where the acceptance of a bill payable at a fixed after sight. period after sight is undated, any holder may insert therein the true date of issue or acceptance, and the bill shall be payable accordingly. Provided that (l) where the holder in good faith and by mistake inserts a wrong date, and (2) in every case where a wrong date is inserted, if the bill subsequently comes into the hands of a holder in due course the bill shall not be avoided thereby, but shall operate and be payable as if the date so inserted had been the true date. See " issue " and " holder," defined by sect. 2 ; " good faith " by sect. 90, and " holder in due course " by sect. 29. This section was added in committee. Before its enact- ment the English law on the subject dealt with was very obscure. When a bill comes from a foreign country undated the holder frequently cannot know the exact intended date. He knows when the mail left, but does not know on what previous day the bill was issued. The present section throws a,ny possible inconvenience that may arise on the negligent party who omitted to date the bill or acceptance. In Scotland, under the 19 & 20 Vict. ' Cm-lot V. Fancourt (1794), 5 T. R. at p. 486. - Cf. Colehan v. Cooke (1742), Willes, at p. 399. See French Code, Art. 133 ; Gterman Exchange Law, Art. 33 ; Italian Code, Art. 252. Form and Interpretation. 33 c. 60, s. 10, now repealed, oral evidence might be given to 8 12 prove the true date. See sect. 20, post, p. 49, for the — ^ '~ general rule as to material omissions in a bill, and the consequences of supplying them, and sect. 64 as to material alterations. German Exchange Law, Art. 4, requires a bill to be dated; so does the French Code, Art. 110. Pothier writing before the Code, says, "Want of a date, or a mistake therein, cannot be taken advantage of by the drawer of a bill, or by the drawee if he accepts it " Cf Italian Code, Art. 263. French Code, Art. 122, provides that if a bill be payable after sight and the acceptance be not dated, time runs from the date of the bill ; but see Nouguier, § 498. Art. 115 of the Netherlands Code contains a similar provision. 13. (1) Where a bill or an acceptance or any Presumption indorsement on a bill is dated, the date shall, being^t unless the contrary be proved, be deemed to be '^''*''' the true date of the drawing, acceptance, or in- dorsement, as the case may be. This sub-section is declaratory of the common law.^ Inasmuch as the bankruptcy laws are expressly saved by sect. 97 (1), the Act presumably does not affect the rule that when a bill is tendered in bankruptcy proceedings as evidence of the petitioning creditor's debt, the date of the bill must be confirmed by independent evidence.^ The j?nwa/««e presumption arising from the date may be rebutted, e.g. for the purpose of ousting the Statute of Limitations.^ (2) A bill is not invalid by reason only that it Ante-dating, is ante-dated or post-dated, or that it bears date anflundafs. on a Sunday. Illustrations. 1. B. gives a blank acceptance in 1857. The drawer, by inad- vertence, fills it up as a bill dated 1856. The bolder can recover from the acceptor.* ' noheHi V. BeOiea (1852), 12 C. B. at p. 778. 2 Cf. Andersm v. Weston (1840), 6 Bing. N. C. at p. 301. 3 Cf. Montague v. PerUns (1853), 22 L. J. C. P. 187. < Armfidd v. AUpmt (1857), 27 L. J. Ex. 42. a D 34 Bills of Exchange Act, 1882. 8 13. 2. A bill, bearing date 1st May, is endorsed by the payee to D. It appears that the payee died in the previous April. D. may show that the bill was post-dated, and he can then recoyer from the parties liable thereon.' The Acts which for fiscal purposes prohibited the post- dating of cheques or bills payable on demand were repealed by the Stamp Act, 1870.'' To ascertain whether under the stamp law the instrument is admissible in evidence only the terms of the instrument itself need be regarded ; ^ and the fact that a cheque is post-dated does not make it irregular within the meaning of sect. 29 (1) so as to charge the holder with equities of which he had no notice.* For many purposes it is clear that a post-dated cheque is equivalent to a bill payable after date.^ The drawer of a post-dated cheque is under no obligation to stop payment of it for the benefit of a third person, e.g. the payee's trustee in bankruptcy.^ Bankers licensed under 9 Geo. 4, c. 23, are, by sect. 12, liable to a penalty for issuing post-dated bills or notes unstamped ; and under the suspended Act 7 Greo. 4, c. 6, there was a penalty for post-dating bills under 51. To ante-date a deed in order to defraud a third party is a forgery;'' and the same principle would doubtless apply to bills and notes. In Beghie v. Levi, decided in 1830,^ the Court seemed to think that a bill issued on a Sunday would be void in the hands of a holder with notice, but they suggested qualifi- cations. Computation 14, Where a bill is not payable on demand,^ oi time ol i ■ i • /> 11 i • i . payment. the day on wnicn it falls due is determined as follows : — • Paamore v. North (1811), 13 East, 517 ; Usher v. Dawneey (1814), 4 Camp. 97. 2 Gatty v. Fry (1877), 2 Ex. D. 265. See Royal Bcmk of Scotland v. Tottenham, (1894) 2Q. B. 715, 0. A., decided on tte Stamp Act, 1891. 3 Ibid., and Bull v. O'Sullivan (1871), L. K. 6 Q. B. 209, at p. 213. ■• EUchcoch T. Edwards (1889), 60 L. T. N. S. 636 : Royal Bank of Scotland v. Tottenham, (1894) 2 Q. B. 715, C. A. 5 Forster v. Mackrcth (1867), L. R. 2 Ex. 163. « Ex parte Richdale (1882), 19 Ch. D. 409, 0. A. 7 R. V. Ritson (1869), L. E. 1 C. C. K. 200. As to bills which were ante-dated to defraud creditors, see Re GomersaU (1875), 1 Ch. D. 137, 0. A. ; Jones V. Gordon (1877), 2 App. Cas. 625. a Begbie t. Levi (1830), 1 Cr. & J. 180. ' As to when a bill is in legal effect payable on demand, see sect. 10, ante, p. 29. grace. Form and Interpretation. 35 (1) Three days, called days of grace, are, in § 14. every case where the bill itself does not otherwise provide, added to the time of pay- ment as fixed by the bill, and the bill is due and payable on the last day of grace : Pro- vided that — (a) When the last day of grace falls on Days of Sunday, Christmas Day, Good Friday, or a day appointed by royal proclama- tion as a public fast or thanksgiving day, the bill is, except in the case hereinafter provided for, due and payable on the preceding business day ; (6) When the last day of grace is a bank holiday (other than Christmas Day or Good Friday) under the Bank Holidays Act, 1871, and Acts amending or extend- ing it, or when the last day of grace is a Sunday and the second day of grace is a bank holiday, the bill is due and pay- able on the succeeding business day. Illustrations. Subject to the proviso : — 1. A note dated Slst January is payable " -witbout grace" one month after date. It is due on February 28th. A similar note, dated January 1st, would be due on February 1st.' 2. A note for 100?. is made payable by two equal instahnenta, on January 1st and February 1st. The instalments fall due on January 4th and February 4th.'' 3. A bUl dated January 1st is payable thirty days after date. It is due on February 3rd. 4. A non-negotiable note, not payable on demand, is entitled to days of grace.' 1 Cf. Soehner v. Knickerbocker Life Ass. Go. (1875), 63 New York R. 160. ' Oridge v. Sherborne (1843), 11 M. & W. 374. 3 Smith V. KendaU (1794), 6 T. K. 123. D 2 36 Bills of Exchange Act, 1882. § 14. 5. A bill dated 28tli November, a bill dated 29th November, and! a bill dated 30tli November, each being payable three months after date, all fall due on March 3rd, inasmuch as February has but twenty-eight days. 6. A bill is dishonoured by non-payment on the last day of grace. No right of action arises till the next day.' It is believed that all countries, except those where the Greek Church is the prevailing religion, use the New Style, or Gregorian Calendar. A suggestion to abolish days of grace, in accordance with recent legislation in many continental countries, was made in committee but withdrawn.^ The number of days of grace allowed in different countries differ considerably. Originally, as the name implies, days of grace were a matter of favour, but they have long been a matter of right. Thus, presentment for payment on the second day of grace is invalid.* The allowance of days of grace is regulated by the kx loci solutionis, irrespective of the country where the bill is drawn : see sect. 72 (5), post, p. 244. As to the term " business day," see sect. 92. It excludes both statutory and common law holidays. It was suggested in committee that the effect of statutory and common law holidays should be assimilated, and that when a bill fell due on a non-business day it should be payable in all cases on the preceding business day; but this was opposed by the bankers. It was said that when two holidays came together it was convenient that the due date of some bills should be thrown back, and of others thrown forward, in order to obviate too great a press of business on any one day. In Scotland, Christmas Day and Good Friday are bank holidays, but it was agreed to assimilate Scotch law to English law as regards bills falling due on those days. In assimilating the law of the two countries, one case appears to have been lost sight of, namely, when Christmas Day falls on Saturday. In such case it appears from the latter part of clause (b) that bills which fall due on the Sunday in Scotland would be payable on the succeeding business day, while in England they would be payable on the preceding business day. 1 Kermedy v. Thomas, (1894) 2 Q. B. 759, C. A. 2 See French Code, Art. 135 ; German Exchange Law, Art. 33 ; Italian Code, Art. 290. 3 Wiffen T. Roberts (1795), 1 Esp. 262. Form and Interpretation. 37 Foreign bills are sometimes drawn payable at one or § 14. more usances. By " usance " is meant customary time, jj: tbat is to say, tbe time for payment as fixed by custom, ^^^'^''®^- taving regard to the place where the bill is drawn and the place where the bill is payable. Thus, if the usance between London and Amsterdam is one month, a bill drawn in Amsterdam dated 1st January, and payable in London at double usance, falls due on 4th March. ^ "Where the usance is a month, " half usance " means fifteen days. See Pothier, No. 15. The existence of a usage will not be judicially noticed. It must be proved. See a table of usances given by Nouguier, edition of 1875, § 144. (2) Where a bill is payable at a fixed period After date or after date, after sight, or after the happening ^^^ of a specified event, the time of payment is determined by excluding the day from which the time is to begin to run and by including the day of payment.^ (3) Where a bill is payable at a fixed period after sight, the time begins to run from the date of the acceptance if the bill be accepted, and from the date of noting or protest if the bill be noted or protested for non-acceptance, or for non-delivery.^ (4) The term " month " in a bill means calen- Month. dar month.* IliliUSTEATIONS. 1 . The holder of a foreign bill, payable sixty days after sight, makes an agreement that if it be dishonoured by non-acceptance, lie will re-present it for payment at maturity. Acceptance is re- fused. The time of payment must be calculated from the day the 1 Cf. Mutford V. WaZcot (1698), 1 M. Raym. 574. 2 OampieU v. French (1795), 6 T. R. at p. 212 ; Story, § 329 ; of. Ger- man Exchange Law, Art. 32. 3 CwmphM T. French (1795), 6 T. R. 200. ■• Welh V. Fairmaner (1838), 3 M. & W. 473 ; French Code, Art. 132. 38 Bills of Exchange Act, 1882. § 14, bill was protested, and not from the day of presentment to the' drawee for acceptance.' 2. A bill is payable three months after sight. The acceptance bears date January 1st. The bill is due on April 4th. 3. Bill payable after sight is noted for non-acceptance on January 1st. It is accepted suprd, protest on January 5th. The time of payment must be calculated from January 1st, not from January 5th.' As a promissory note cannot be accepted, " after sight " in a note, means after mere exhibition to the maker.' A bill presented for acceptance is usually left for twenty-four hours with the drawee, but the custom is for the acceptance to bear date the day of presentment, and not the day of return to the holder — e.g., a biU presented on a Saturday during business hours, is accepted and returned on the Monday ; the acceptance should bear date of the Saturday. The holder is probably entitled to this as a matter of right. Compare sect. 18 (3) as to the acceptance of a bill which has previously been refused acceptance. Case of need. 15. The drawer of a bill and any indorser may insert therein the name of a person to whom the holder may resort in case of need, that is to say, in case the bill is dishonoured by non-acceptance or non-payment. Such person is called the referee in case of need. It is in the option of the holder to resort to the referee in case of need or not as he may think fit. The referee in case of need is sometimes called the drawee in case of need, or simply the " case of need." A bill must be protested or noted for protest before it can be presented to the case of need, see sects. 65, 67, 68. The concluding words of the section settle the moot point, whether present- ment to the case of need is obligatory or optional in the United Kingdom. In the United States presentment is, 1 Campbell v. French (1795), 6 T. R. 200 ; cf. French Code, Art. 13X ; German Exchange Law, Art. 32. ' See sect. 65 (5), pott, p. 227, which accords with custom, and over-rides the dictum in WUliama v. Germaine (1827), 7 B. & C. at p. 471. 3 Sturdy t. Henderson (1821), 4 B. & Aid. 592 ; of. sect. 89 (3), post, p. 271. Form and Interpretation. 89 perhaps, obligatory,^ and in India it is clearly obligatory .^ § 15. By French law, when a reference in need is given by the drawer, the holder is bound to present to the case of need ; but when the reference is given by an indorser, it seems he has an option : Noiiguier, §§ 249, 250. By German Exchange Law, Art. 52, presentment is in both cases obligatory ; but then it is held that the case of need {besoin or recommania- taire) must reside in the place where the bill is payable : Nouguier, § 244. In England this is not so ; for instance, a bill drawn on Liverpool often names a case of need in London. It may possibly be necessary in some cases to present to the case of need in England, in order to charge a foreign drawer or indorser in his own country, for an English statute is of course only binding in British Courts. However, in most countries the duties of the holder would be held to be regulated by the lex loci solutionis. 16. The drawer of a bill, and any indorser, may Special , , - . J • 1 , • stipulations insert therein an express stipulation — by drawer or (1) Negativing or limiting his own liability to restricting the holder : "*^*^"y- Illtjstbation. The holder of a bill indorses it to D. thus: "Pay D. or order without recourse to me," or "Pay D. or order sans recours,"^ or " Pay D. or order at his own risk," ■* or "Pay D. or order without recourse, unless presented within 30 days." The indorser thereby passes his interest to D., but negatives or limits his liability as an indorser.' Such an indorsement is sometimes called a qualified indorsement. Compare sections 33 and 35 as to conditional and restric- tive indorsements. It has been held in the United States that an indorser " without recourse " is responsible to the same extent that a transferor by delivery is responsible, e.g., where the bill is a forgery.^ As to the ordinary liability of ' Story, § 65 ; but no American case is cited. ^ Indian Act, sect. 115. ' Ooupy V. Ha/rden (1816), 7 Taunt, at p. 163. * Rice V. Stearns (1807), 3 Massachusetts R. 224. 6 Cf. Castrique v. Buttigieg (1855), 10 Moore, P. C. pp. 110—112, 117 ; German Exchange Law, Art. 14 ; Nouguier, §§ 268—270. 6 Uvmont V. Williamson (1867), reported in England, 17 L. T. N. S. 71 ; Earmum t. Richardson (1875), 21 Amer. E. 152. 40 Bills of Exchange Act, 1882, § 16. an indorser, see sect. 55 (2), post, p. 186 ; and as to the lia- ~ bility of a transferor by delivery, see sect. 58, post, p. 194. As to indorsements or guarantees by parties who have never been holders, see sect. 56, post, p. 188. The provisions of this section are limited to the drawer or indorser. An acceptor may accept conditionally, see sect. 19, post, p. 46 ; but he cannot accept so as to make himself secondarily, and not primarily, liable on the bill. Thus, where in Scotland a drawee accepted " as cautioner," it was held that this might be evidence that he was an accommodation acceptor, but that it did not alter his primary obligation to the holder to pay the bill.^ Waiviiig (2) Waiving as regards himself some or all of duties. the holder's duties. iLLUSTBATIOlf. C, the holder of a bill, indorses it to D., adding the words "notice of dishonour waived." No subsequent party is obliged to give notice of dishonour to 0. Such an indorsement is sometimes spoken of as a facul- tative indorsement. It relates only to the indorser's lia- bility, and does not otherwise affect the negotiation of the bill. Such stipulations are resorted to when the payment of the bill is doubtful, and the drawer or indorser wishes to save expense in case of its return. In the United States it has been held that an indorsement in the above form dispenses with the necessity of notice to all subsequent indorsers ; * and in France a similar construction has been put on the phrases, " Retour sam /rats," " Betour sans protit," and " Sans compte de retour." ^ It is doubtful whether the English Act would bear such an interpretation. Definition and 17. (l) The acceptance of a bill is the significa- acoeptance. tion by the drawee of his assent to the order of the drawer. IixrsTEATiosrs. 1. Bill addressed to B. X. writes an acceptance on it. X. is not liable as acceptor.* 1 1 BeU, Com. 424, 7th ed. Of. SteeU t. M'Kmlay (1880), 5 App. Cas. at p. 781 ; and Italian Code, Arts: 266,, 268. 2 Banidl, § 1090 ; ParaUey^. Heath (1879), 31 Amer. K. 246. ' Nougmer, § 259 ; German Exchange Law, Art. 42, seems ambiguous * Davis V. Clarke (1844), 6 Q. B. 16. i Form and Interpretation. 41 2. BUI addressed to B. B. accepts it. X. also writes an accept- 8 17 ance on it. X. is not liable as acceptor.' ° ^'' 3. Bill addressed to B. B. accepts it, and before issue X. backs Acceptance it -with his signature. X. is not liable as acceptor, and parol leaned, evidence is not admissible to show that he guaranteed payment of the bill to the drawer.^ 4. Bill addressed to the "Directors of the B. Company, Limited." The acceptance is signed by two directors and the manager. The manager is not liable as acceptor.' 5. BiU addressed to B. & Co. B., a partner in the firm, accepts it in the firm's name, adding also his own name. This is the acceptance of the firm, and not of B. personally." 6. Bin addressed to B. and X. B. alone accepts. B. is Hable as acceptor.* 7. Bill addi-essed to B. & Co. X., a partner in that firm, accepts it in his own name. He is liable as acceptor.^ 8. BiU addressed to B., who is a partner in the firm of X. & Co. B. accepts in the firm name. B. is personally liable as acceptor.' 9. BiU addressed to WiUiam B. His wife accepts it, signing the acceptance " Mary B." If he authorizes her so to accept, or after- wards promises to pay the bill, he is liable as acceptor.' 8ed qu. now ? 10. A bUl is addressed to the B. Company, Limited. Two of the directors accept it, signing thus : " J. S. and H. T. directors of the B. Co., Limited." This is an acceptance by the company.^ 11. A bill is addressed to "J. B., general agent of the X. Com- pany." He accepts it thus : " Accepted on behalf of the company. — J. B." J. B. is personally liable as acceptor.'" 12. A biU is addressed to the Saltash Steam Packet Co., the proper name of the company being the Saltash Steam Packet Co., Limited. It is accepted by " J. M., Secretary to the Company." This is not the acceptance of the company, but, by virtue of sects. 42 and 47 of the Companies Act, 1862, J. M. is personally liable." 13. Instrument in the form of a bill which is addressed to no 1 JoAsJcson T. Hudson (1810), 2 Camp. 447. Qu. if X. is liable as indorser? See Steele v. M'Kinlay (1880), 5 App. Cas. at p. 770. 2 Steele v. M'£inlay (1880) , 5 App. Cas. 754. 3 Bult V. MorreU (1840), 12 A. & E. 745. * lie Barnard, Edwards v. Barnard (1886). 32 Ch. D. 447, C. A. * Owen V. Yon Uster (1850), 10 C. B. 3i8. See, too, sect. 19 (2) (e), post, p. 48. * Owen V. Von Uster, swpra ; and see sect. 23 (2), post, p. 65. 7 NiehoUs v. Diamond (1853), 9 Exch. 154. ^ Lindus v. Bradwell (1848), 5 C. B. 583. See note next page. 9 OMl V. Charles {1816), 34 L. T. N. S. 822, C. A. i» Berald v. Connak (1876), 34 L. T. N. S. 885 ; Ma/re t. Charles (1856), 5 E. & B. 978. See contra an American case, Laffin r. Sinsheimer (1877), 30 Amer. B. 472. " Penrose v. MaHyr (1858), E. B. & E. 499, decided on 19 & 20 Vict. >;. 47 ; and Atkins v. Wardle (1889), 58 L. J. Q. B. 377. 42 Bills of Exchange Act, 1882. § 17. one. B. ■writes an acceptance on it. B. may be liable as the maker • of a note, but not as an acceptor.' Acceptance i^ A firm of " Cormack Brothers " dissolved partnership, and ttennea. Carter, an agent, was appointed to wind it up. M. Oormack had been a partner in the firm. Carter accepted, for his own purposes, a bni drawn on "Cormack Brothers," signing the acceptance " M. Cormack and E. Carter." Held, that M. Cormack was not liable on this acceptance.^ 15. A bill is addressed to " X. & Co." The proper style of the firm is " B. X. & Co." and it is accepted in that name. This is a valid acceptance.' After the drawee has accepted a bill he is thenceforth termed the "acceptor." By sect. 2, ante, p. 3, unless the context otherwise requires, " acceptance " means an accept- ance completed by delivery or notification. As to such delivery or notification, see sect. 21, post, p. 52. Subject to the provisions of the Act as to acceptance for honour (sects. 65—68, post, p. 226), and to the special case provided for by sect. 42 of the Companies Act, 1862, post, p. 340, it is clear law, both in England and Scotland, that no person other than the drawee can be liable as acceptor of a bill.* Illustrations 6 and 7 show that when a bill is addressed to two or more persons, whether partners or not, any one may accept so as to bind himself. Illustrations 7 and 8 exemplify the rule of English law, that a firm name or signature is merely a compendious form of expressing the names or signatures of all the partners in that firm. Illustrations 9 to 11 appear to show that in construing an acceptance the address to the drawee and the acceptance must be read together ut res magis valeat} Illustration 10 may have depended on the terms of sect. 47 of the Companies Act, 1862, which is expressly saved by sect. 97. An agent who signs a bill for his principal without authority, though not liable on the instrument, may be liable to the holder in an action for falsely representing that he had authority.^ 1 FiMer v. Marshall (1861), 30 L. J. C. P. 158. Odell T. Gormaok (1887), 19 Q. B. D. 223. Lloyd V. Aihly (1831), 2 B. & Ad. 23. Note that head note to Kirk v. Bhirlon (1841), 9 M. & W. 284, is incorrect, the action being against the drawer, not the acceptor. •• Steele v. M'Kinlay (1880), 5 App. Caa. 754, and cases aupra. •■> Cf. Alexwnder v. Sizer (1869), L. R. 4 Ex. at p. 105. « Polhm T. Walter (1832), 3 B. & Ad. 114 ; West London Bank v. Kitaon (1884), 13 Q. B. D. 360, C. A. Form and Interpretation. 43 It is to be noted that Lindas v. Bradwell (Illustration 9) § 17. was decided before the Acts which required an acceptance to be signed by the acceptor ; ^ but the Court seems to rest its decision on the ground that, though a bill must be accepted by the drawee, he may accept in any name he chooses to adopt, and that, in this case, William B. chose to adopt pro hac vice the name of his wife to accept in.^ In Mason v. Rumsey, a bill was addressed to a firm. One of the partners accepted it in his own name, and it was held that the firm was liable on this acceptance.^ But this case was decided before the 19 & 20 Vict. c. 97, s. 6, which required an acceptance to be signed, and is pre- sumably no longer law. It is clear that the partner who signed would be liable.* (2) An acceptance is invalid unless it complies Requisites in with the following conditions, namely ; (a) It must be written on the bill and be signed by the drawee. The mere signature of the drawee without additional words is sufficient. (6) It must not express that the drawee will perform his promise by any other means than the payment of money. Illttsteations. 1. A. draws a bill on B. B. writes thereon the word "Accepted," but does not sign it. This is not an acceptance. 2. A. draws a bill on. B. B. writes a letter to A. promising to pay the bill, and shows the letter to the holder. This is not an acceptance. 3. The drawee of a bill writes an acceptance on the back of it. This is (probably) sufficient.' 4. A bill is drawn on B. for lOOZ. B. accepts it, " payable in bills" or " payable in goods." This is invalid. « 1 See 19 & 20 Vict. c. 97, s. 6, now repealed and reproduced in this section. 2 Lmdw V. BradweU (1848), 5 C. B. at p. 591, per Maule, J. 3 Mason v. Rumsey (1808), 1 Camp. 384. See eomtrd an American case, Cunningham v. Smithson (1841), 12 Leigh. 32. * Oweny. Ton Uster (1850), 10 0. B. 318. 5 Young T. Glover (1857), 3 Jur. N. S. 637, per Ld. Campbell. 6 JtusseU V. PhiUips (1850), 14 Q. B. 891 ; cf. Soehm v. Garcias (1807), 44 Bills of Exchange Act, 1882. § 17. 5. A bill is left witi B. for acceptance. He does not accept it, but retains it for a long time and ultimately destroys it. B. is not liable as acceptor, the bolder' s remedy is by action for the conver- sion of the bill.' As to signature of drawee by hand of Ms agent, see sect. 91, post, pp. 274, 275. As to the acceptance of a bill, in a set, see sect. 71 (4), post, p. 237. The first part of clause («) reproduces the effect of the repealed 19 & 20 Vict. c. 97, «. 6, which provided that the acceptance of a bill, whether inland or foreign, must be written on the bill itself and signed by or on behalf of the acceptor. The second part of the clause reproduces the effect of the repealed 41 & 42 Vict. c. 13, which provided that the mere signature of the drawee on the bill should be deemed a sufiicient acceptance, and which was passed to override the case of Hindhaugh V. Blakey, where such an acceptance was held insufficient.^ By German Exchange Law, Art. 21, an acceptance once written (? given) cannot be cancelled, and Art. 119 of the Netherlands Code is to the same effect ; but in France, as in England, an acceptance may be cancelled by the drawee as long as he retains possession of the bill qua drawee. At common law, a verbal acceptance was valid,^ and the common law still prevails in some of the American States ; e.g., Mas- sachusetts and Illinois.* The usual mode of accepting is for the drawee to write " accepted " across the face of the bill, and then to sign his name underneath ; but the drawee may use any form of words from which the intention to accept •can be gathered. In France the mere signature of the drawee is not sufficient ; Nouguier, § 490 ; but German Ilxchange Law, Art. 21, expressly provides that it shall be sufficient, and it has been held to be sufficient in New York.^ Some of the continental codes (e.g., the Spanish Code) require the precise term " accepted " to be used. 1 Camp. 425, n. ; and see sect, 3 (2), ante, p. 8. When the time of payment •comes, the hoidei may, of course, accept goods or bills in satisfaction of the debt due to him. Of. sect. 19 (2) (6), post. p. 47. ' JevMe T. W i . contract. 06 the drawers, the acceptors, or an mdorser's, is incomplete and revocable, until delivery of the instrument in order to give effect thereto. Provided that where an acceptance is written on a bill, and the drawee gives notice to or accord- ing to the directions of the person entitled to the bill that he has accepted it, the acceptance then becomes complete and irrevocable.^ ' Montague t. PerUns (1853), 22 L. J. 0. P. 187, Statute of LimitatioDs ; Ex parte Eayward (1871), L. R. 6 Oh. 546, petitioning creditor's debt. 2 Cox V. Troy (1822), 6 B. & Aid. 474 ; NouguUr, % 551. The drawee, unlike the drawer or indorser, has no property in the bill, therefore less is required to make him attorn to the holder. By German Exchange Law, Art. 21, an acceptance once written cannot be cancelled. Form and Interpretation. 53 IlitrSTIlATIONS. § 21, 1. B., who owes 0. lOOL, makes a note for the amount payable Delivery, to 0. B. dies, and the note is afterwards found among Ids papers. 0. has no right to this note, and if it be given to him he cannot enforce it.' 2. B. makes a note in favour of his servant, and hands it to his solicitor, telling the solicitor to retain the note tiU his death, and then hand it to the servant, if still in his service. B. dies, arid the solicitor hands the note to the servant. The servant can (perhaps) prove for the amount in the administration of B.'s estate.^ 3. B. makes a note in favour of C, and delivers it to a stake- holder {e.g., trustee under composition deed). 0. thereby acquires no property in the note.' 4. p., the holder of a biU, specially indorses it to D., and trans- mits it by post to X., his own agent. X. informs D. that he has received the bill, but does not give it him or undertake to hold it on his account. 0. (probably) can revoke the transaction and cancel his indorsement to D.* 5. C, the holder of a biU, specially indorses it to D., and in- closes it ia a letter addressed to D. The letter, which is put in the office letter-box, is stolen by a clerk of C.'s, who forges D.'s indorsement and negotiates the bill. The property in the bill re- mains in C* 6. By the regulations of the English Post-office, a letter once posted cannot be reclaimed. If, then, the indorsee of a bill autho- rize the indorser to transmit it to him by post, the property in the bill passes to the indorsee, and the indorsement becomes complete as soon as the letter which contains the biU is posted.' 7. The holder of a note payable to bearer wishes to remit money to D. For safety of transmission he cuts the note in half and posts one half to J). Before he posts the second half he changes his mind, and writes to D. demanding back the half he has sent. He is entitled to do so, for a partial delivery is ineffectual. ' 8. A bin is left with the drawee for acceptance. The drawee writes an acceptance on it. The next day the holder calls for the bill : he is merely informed that it is mislaid, and is requested to call the next day. In the meantime the drawee hears that the drawer has failed. He accordingly cancels his acceptance, and the 1 Cf. Bromage v. LUn/d (1847), 1 Exch. 32. 2 Be Richards (1887), 36 Ch. D. 541 ; criticised Re Whiiaker (1889), 42 CK D. 119, at p. 125, C. A. 3 Cf. latter v. WMte (1872), L. K. 5 H. L. 578. * Brind v. Hampshire (1836), 1 M. & W. 365 ; MuUer v. Pondir (1873), 55 New York E. 325. Query, since the Judicature Acts ? ' Cf. Arriold v. Cheque Bank (1876), 1 C. P. D. at p. 584. 6 Bx parte Cote (1873), L. E. 9 Ch. 27 ; Sichel v. Bnreh (1864), 2 H. & C. 954 ; 33 L. J. Ex. 179. Query, if there be no authority to send by post ? ' Smith T. Mundy (1860), 29 L. J. Q. B. 172 ; cf. Redmayne v. Burtim (1860), 2 L. T. N. S. 324. 54 Bills of Exchange Act, 1882. § 21. By whom. Conditional delivery. next day delivers the dishonoured bill back to the holder. This is no acceptance ; the drawee was entitled to cancel it.' 9. A firm is indebted to D. X., who is a partner in the firm, and also agent for D., writes the firm's indorsement on a bill held by the firm, and puts the bill with some other papers of D.'s, of which he has the custody. This is a valid indorsement by the firm, and the property in the bill passes to D.^ By sect. 2, ante, p. 4, " delivery " means transfer of possession, actual or constructive, from one person to another. "To constitute a contract," says Bovill, C.J., " there must be a delivery over of the instrument by the drawer or indorser for a good consideration, and as soon as these circumstances take place the contract is complete, and it becomes a contract in writing."* "In order to make the property in bills pass," says Mellish, L.J., " it is not sufficient to indorse them. They must be delivered to the indorsee iir to the agent of the indorsee. If the indorser delivers them to his own agent, he can recover them ; if to the agent of the indorsee, he cannot recover them."* A delivery by mistake may be revoked by mutual consent.^ (2) As between immediate parties, and as regards a remote party other than a holder in due course,^ the dehvery — (a) in order to be effectual must be made either by or under the authority of the party drawing, accepting, or indorsing, as the case may be ; ^ (6) may be shown to have been conditional or for a special purpose only, and not for the pur- pose of transferring the property in the bill.* ' Bank of Van Diemen's Land v. Bank of Victoria (1871), L. K. 3 C. P. 526. ' Lysaght v. Bryant (1850), 9 0. B. 46. 3 Abrey v. Crux (1869), L. E. 5 C. P. at p. 42. See, too, Denton v. Peters (1870), L. B. 6 Q. B. 476. ■* Ex parte Cote (1873), L. R. 9 Ch. 27, where the question was the effect of the French post-office regulations. 5 Ibid. ' See holder in due course defined by sect. 29, and delivery by sect. 2. ' Bromage v. Lloyd (1847), 1 Exch. 32 ; of. lie Richards (1887), 36 Ch. D. 541 ; as criticised Re Whitaker (1889), 42 Ch. D. 119, C. A. « Bdl T. Lord Ingestre (1S48), 12 Q. B. at p. 319 ; of. Salmon v. Webb Form and Intekpretation. 55 But if the bill be in the hands of a holder in § 21. due course a valid delivery of the bill by all parties prior to him so as to make them liable to him is conclusively presumed. (3) Where a bill is no longer in the possession Presumption p J. 1 1 • T • 1 1 , as to delivery. oi a party who has signed it as drawer, acceptor, or indorser, a valid and unconditional delivery by him is presumed until the contrary is proved. Illtjsteations. 1. Tie holder of a bill specially indorses it to D., and dies before delivering it, but his executor subsequently hands the bill to D. The indorsement to D. is invalid, for an executor is not the agent of his testator. D. cannot sue on the bill.' 2. X., by means of a false pretence, or a promise or condition •which he does not fulfil, induces A. to draw a cheque in favour of C. X. delivers it to C, who receives it land fide and for value. C. acquires a good title, and can sue the drawer, forX. is ostensibly the drawer's agent.^ 3. A. draws a cheque payable to bearer, intending to pay it to X. It is stoltn from his desk before he issues it, and is subsequently negotiated to C, who takes it for value and without notice. C. (perhaps) acquires a good title and can sue A.' 4. B. makes a note payable to C, who sues him on it. B. can defend himself by showing that the note was dehvered to 0. on condition that it was only to operate if he should procure B. to be restored to a certain office, and that B. was not so restored.* 5. C, the holder of a bUl, indorsed it in blank and hands it to D. on the express condition that he shaU forthwith retire certain other bUls therewith. He does not do so. D. cannot sue C, and if he sue the acceptor, the latter may set up the jits terUi.^ (1852), 3 H. L. Ca. at p. 518 ; Castrique v. Buttigkg (1855), 10 Moore, P. C. at p. 108 ; Druiff^. Parher (1868), L. R. 5 Eq. at p. 137 ; Benton v. Mcvrtim, (1873), 52 New Tork E. at p. 574. ' Bromage t. Uoyd (1847), 1 Exch. 32. See this cane distinguished, Giddmgs v. Giddings (1878), 31 Amer. R. 682. 2 Cf. Watson v. BusseU (1862), 3 B. & S. 34 ; 31 L. J. Q. B. 304 ; affirmed, 5 B. & S. 968, Ex. Ch. ; 11 L. T. N. S. 641. 3 Ingham v. Primrose (1859), 7 C. B. N. S. at p. 85 ; 28 L. J. C. P. 294 ; Kinyon \. Wohl/ord (1872), 10 Amer. R. 165 ; hut see Baxendale t. Bennett (1878), 3 Q. B. D. 531, C. A. •■ J^eriesv. Austin (1725), 1 Stra. 674. 5 BM V. Lord Ingestre (1848), 12 Q. B. 317 ; cf. Sdigman v. ffuth (1877), 37 Ii. T. N. S. 488. 56 Bills of Exchange Act, 1882. § 21. 6. C, the holder of a bill, indorses it speoiaUy to D., in order that he may get it discounted for him. D., in breach of trust. Conditional negotiates the bill to E. If he take the biU bond fide and for value, delivery. lie acquires a good title, and can sue aU the parties thereto. If he do not so take it, he cannot sue C. ; and if he sue the acceptor, the latter may set up that the bill is C.'s ; ' further, 0. can bring an action against E. to recover the bill or the proceeds.^ 7. C, the payee of a bill, indorses it to D. D. sues 0. as in- dorser. 0. may show that he and D. were jointly interested in the bin, and that he indorsed to the latter to collect on joint account.' 8. B. makes a note for 100?. payable to 0. or order. 0. sues B. Evidence is admissible to show that the note was given as col- lateral security for a running account, and what the state of that account is.'' 9. B. makes a note in favour of C, and hands it to X., to deliver it to C, if he shall remain in B.'s service till B.'s death. After B.'s death, X. hands the note to 0. 0. (perhaps) may prove for the amount against B.'s estate.^ See " holder in due course," defined by sect. 29. Where the person to whom a bill is delivered conditionally or for a special purpose misappropriates it, the true owner may sue that person or any one else who takes it from him with notice of the facts for the conversion of the bill,^ or if the bill has been collected , the true owner may waive the tort and sue for the proceeds as money received to his use.'' Escrow. — A deed delivered conditionally is called an " escrow," and by analogy the term is sometimes applied to bills. There is, however, this distinction : a deed cannot be delivered conditionally to the obligee, the delivery must be to a third party.* Where a bill is delivered conditionally or for a special purpose, the relations between the person who so delivers it and the person to whom it is delivered ' Lloyd V. Howard (1850), 15 Q. B. 995 ; and of. Barber v. Richards (1851), 6 Exch. 63. 2 Goggerhy v. Cuthbert (1806), 2 B. & P. N.R. 170 ; cf. Alsager v. Olo8e (1842), 10 M. & W. 576 ; MuityloU Seal v. Dent (1853), 8 Moore, P. C. 319. 3 Denton t. Peters (1870), L. R. 5 Q. B. 475. * Gf. £x parte Twogood (18V2), 19 Yes. 227; Be Boys (1870), L. R. 10 Eq. 467. * Be Richards (1887), 36 Ch. D. 641 ; but see oomments in Re Whitaker (1889), 42 Ch. D. 119, 125, C. A. « Goggerley v. Cuthbert (1806), 2 N. R. 170 ; Alsager v. Close (1842), 10 M. & W. 576. ' Arnold v. Cheqiie Bank (1876), 1 C. P. D. at p. 585. See Muttyloll Seal T. Den* (1853), 8 Moore, P. C. 319. ' Per Lord Denman, in Bell v. Lord Ingestre (1848), 12 Q. B. at p. 319. in writing. Form and Interpretation. 67 are substantially those of principal and agent.^ The person § 21. to whom it is deliTered belongs, perhaps, to the class of '- — agents called bailees ; ^ at least, if the terms " bailor " and " bailee " be used in the extensive sense given to them by- Story in his work on Bailments. By the term " immediate parties " is meant parties who are in direct relation with each other. Thus the drawer and the acceptor, the drawer and the payee, the indorser and the next indorsee are immediate parties.^ But, as the illustrations show, a remote party may, through absence of consideration, notice of fraud, or other circumstances, stand on the same footing as an immediate party. A bill or note must be in writing, and so, too, must the Contracts of supervening contracts thereon, such as acceptance or in- parties to bill dorsement._ It follows that the contracts of the various "wriw"*^ parties, as interpreted by this Act and by the law merchant, are subject to the ordinary rule as to written contracts.* Oral evidence is inadmissible in any way to contradict or vary their effect. But it is admissible (a) to show that what purports to be a complete contract has never come into operative existence ; ^ (b) to impeach the consideration for the contract ; ^ (c) to show that the contract has been discharged by payment, release or otherwise. Thus — 1. The mere signature of the tolder on. the back of a bill (indorsement in blank) is a contract in writing to this effect: 1. I hereby assign this bill to bearer. 2. I hereby undertake that if the bearer duly present this bill, and it is not honoured, 1, on receiving due notice, will indemnify him.' 2. A. draws a biU in favour of C, and issues it to h^m for value. A. thereby incurs the ordinary obligations of a drawer. If the bUL be dishonoured and C. sue A., oral evidence cannot be admitted to show that A.'s liability as drawer was conditional on the perform- ance of certain acts by C, and that 0. had not done them." 3. Bill drawn in ordinary form. Action by payee against ac- ceptor. Evidence is not admissible to show that it was intended to be paid out of a particular fund which is no longer available.' 1 Magmre v. Dodd (1859), 9 Ir. Ch. 452. 2 Cf. Lloyd y. Howard (1850), 15 Q. B. at p. 1000, Erie, J. ; Manky v. Boycot (1853), 2 E. & B. at p. 56, Ld. Campbell. ^ Cf. Indian Act, a. 44. * FosUr V. JoUy (1835), 1 C. M. & R. 703. ' Sect. 21 (2), and cases cited in illustration. « Cf. Abrey v. Crux (1869), L. R. S C. P. at p. 45. ' Cf. Suse V. Pompe (1860), 30 L. J. C. P. 75, at p. 80, and sect. 55. 8 Abrey t. Crux (1869), L. E. 5 C. P. 37 ; cf. sect. 61. ' Vamphelly. Hodgson (\?,1^), Gow, 74 ; cf. Hichardsy. Richards (1831), 2 B. & Ad. at pp. 454, 455. 58 Bills of Exchange Act, 1882. § 21. Contracts of parties to bUl are contracts in writing. 4. Bill drawn conditionally. Byidence is not admissible to show that the condition has been performed, and that therefore the bill is no longer conditional and invalid. A bill must be valid ab initio.^ 5. B. makes a note payable to C. one month after date. 0. sues B. Parol evidence is not admissible to show that it was intended to be payable two months after date.^ 6. BUI drawn and accepted in the ordinary form. Parol evidence is admissible to show that the holder knew that the bill was ac- cepted for the accommodation of the drawer, and that he gave time to the drawer, thereby discharging the acceptor, whom he knew to be a mere surety.' 7. Note payable fourteen days after date. Parol evidence is not admissible to show that the note was not to be enforced if a verdict was obtained in an action between third parties.* 8. Bill payable six months after date. Evidence may be given of a contemporaneous written agreement to renew the bill on request.* 9. Action on a bill for 901. Evidence is not admissible to show that the acceptor and drawer agreed that only 60?. should be paid, and that the payment should be by instalments, even though the indorsee is not a holder for value.^ 10. A promissory note is made payable on demand. Evidence is not admissible to prove an oral agreement that payment should not be enforced tiU after the maker's death.' 11. C. makes an advance to B. of 5001., and B. subsequently gives him a note for that amount. Evidence, it seems, is not admissible to show that the principal was not intended to be repaid, and that the note was only given to secure paymient of interest during C.'s life.' 12. BUI drawn in the ordinary foi-m, payable to drawer's order, and accepted. D. writes his name on the back. Parol evidence is not adnussible to show that he intended thereby to guarantee the payment of the bill to the drawer. The Statute of Frauds requires such a guarantee to be in writing and signed.' 1 Colehcm v. OooJce (1742), Willes, 397 ; cf. sect. 11 (2), ante, p. 31. 2 Cf. Brain V. Harvey (1855), 17 C. B. 257. ' Excin V. Lancaster (1865), 6 B. & S. 671 ; Overend v. Oriental Finan, Corp. (1874^, L. E. 7 H. L. 348 ; Hubbard v. Gumey (1876), 64 Nevf York K. 457. •• Foster v. Jolly (1835), 1 C. M. & E. 703. ' Maillard v. Page (1870), li. K. 5 Ex. 312. "If the agreement is merely collateral, it only affords ground for a cross-action [or counter- claim], but there are many cases in which it has been held that the bill and the writing together form only one contract." Per ChanJiell, B., at p. 319 ; cf. Yovmg v. Austen (1869), L. R. 4 C. P. 553. » Besara v. Cross (1851), 10 C. B. 895. ' Woodbridge v. Spooner (1819), 3 B. & Aid. 233 ; cf. Stott v. Fairlamb (1883), 52 L. J. Q. B. 420. 8 Hilly. Wilson (1873), L. R. 8 Ch. App. 888, at p. 898. 9 Steele v. McKinlay (1880), 5 App. Oas. 754, H. L. Form and Interpretation. 59 13. A note made by a company is indorsed by three directors in K 21 succession. In an action for contribution evidence is admissible to — ? - show that tbey indorsed as co-sureties, and not as sureties in suc- cession.' As between immediate parties, a contemporaneous writ- ing/ or a subsequent written agreement/ may control the effect of a bill, subject to the same conditions that would be requisite in the case of an ordinary contract : but the mere fact that a bill refers to a collateral writing or agree- ment which is conditional in its terms, will not vitiate the bill in the hands of a person who has no notice of its contents.* See English and American cases reviewed : Taylor v. Cuny (1871), 109 Massachusetts, 36. Though the terms of a bill or note may not be con- tradicted by oral evidence, yet effect may be given to a collateral or prior oral agreement by cross-action or counter- claim. " Evidence," says Byles, J., " may be given of an oral agreement which constitutes a condition on which the performance of the written agreement is to depend ; and if evidence may be given of an oral agreement which affects the performance of the written one, surely evidence may be given of a distinct oral agreement upon a matter on which the written contract is silent." ^ 1 Macdonald v. Whitfield (1883), 8 App. Gas. 733 ; cf. Batson v. King (1859), 28 L. J. Ex. at p. 328. 2 Cf. Brown v. LangUy (1842), 4 M. & Gr. 466 ; Salmon t. Wehh (1852), 3 H. L. Ca. 510 ; MaUlard t. Page (1870), L. R. 5 Ex. 312, at p. 319. ^ McManus v. Barh (1870), L. E. 5 Ex. 65. * Jury V. BarJca- (1858), E. B. & E. 459. ' Undley t. Lacey (1864), 34 L. J. C. P. 7, at p. 9. 60 22. Bills of Exchange Act, 1882. Capacity and Authority of Parties. Capacity of 22. (l) Capacity to incur liability as a party to a Dill IS co-extensive with capacity to contract. Provided that nothing in this section shall enable a corporation to make itself liable as drawer, acceptor, or indorser of a bill unless it is competent to it so to do under the law for the time being in force relating to corporations. (2) Where a bill is drawn or indorsed by an infant, minor, or corporation having no capacity or power to incur liability on a bill, the drawing or indorsement entitles the holder to receive pay- ment of the bill, and to enforce it against any other party thereto. Sub-sect. (1) is declaratory. Sub-sect. (2) is probably declaratory, but the law was not very clear. The word " minor " was added in committee as the Scotch equivalent of the English term " infant." Capacity and Capacity must be distinguished from authority. Capa- authority. gf^y means power to contract so as to bind oneself. Autho- rity means power to contract on behalf of another so as to bind him. Capacity to contract is the creation of law. Authority is derived from the act of the parties themselves. Want of capacity is incurable. Want of authority may be cured by ratification. Capacity or no capacity is a question of law. Authority or no authority is usually a question of fact. Again, capacity to incur liability must be distinguished from capacity to transfer. An executed contract is often valid where an executory contract cannot be enforced. An indorsement usually consists of two dis- tinct contracts, one executed, the other executory. It transfers the property in the bill, and it also involves a contingent assumption of liabiliiy on the part of the indorser. Capacity and Authority. 61 When laws conflict, capacity is perhaps determined § 82. according to the lex domicilii of the contracting party.i p (,■ ^ , _ The continental codes for the most part draw a distinc- la^. ° ° tion between traders and non-traders, but English law now draws no such distinction as regards capacity to contract by bill or note. The incapacity of one or more of the parties to a bill in Incapacity of no way diminishes the liability of the other parties thereto.^ °'^^ v^itj. Thus the acceptor cannot set up the incapacity of the drawer (sect. 54 (2)), and the drawer cannot set up the incapacity of the acceptor or payee, and the indorser cannot set up the incapacity of the drawer or a previous indorser. (Sect. 55.) A clergyman, though liable to penalties for trading, has Clergyman, full capacity to contract by bill.* As to convicted felons, see 33 & 34 Vict. c. 23, sects. 8, Felon. 14 and 15. At common law a married woman incurred no liability Married by drawing, indorsing, or accepting a bill,* unless she was woman. a sole trader in the City of London, or unless her husband was cimliter moriuus, or an alien resident abroad. Subject, also, to the like exceptions, her indorsement did not transfer the property in a bill,^ unless she indorsed it with her husband's consent." In equity, however, if a married woman having available separate estate drew, indorsed, or accepted a bill, she was liable to the extent of such estate ; ^ and if the bill was part of her separate estate, her indorse- ment transferred it. Under the Married Women's Property Act, 1882,^ if a married woman, married either before or after the Act, draws, indorses or accepts a bill, she can be sued thereon ' Cf. SoUomayor v. De Barros (1877), 3 P. D. 1, at p. 5— C. A., but perhaps hx loci contractus. See WestlaJce's Internationai Law, 3rd ed. p. 44. " Cf. Qrey v. Cooper (1782), 3 Dougl. 65 ; French Code, Art. 144 ; German Exchange Law, Art. 3. 3 Cf. 1 & 2 Vict. c. 106, ss. 29, 31 ; Lewis v. Bright (1855), 24 L. J. Q. B. 191. * Cannam, y. Pa/rmer (1849), 3 Exoh. 698, note signed by married woman as widow. 6 Cf. Smiths. Marsack (1848), 18 L. J. C. P. 65. « Prince v. Brunatte (1835), 1 Bing. N. C. 435. ' McHenry v. Davies (1870), L. R. 10 Eq. 88. As to form of order to charge such estate, see Davies v. Jenkms (1877), 6 Ch. D. at p. 730. As to Married Women's Property Act, 1870, see Summers v. City Bank, h. E. 9 C. P. 580. 8 45 & 46 Vict. u. 75, commencing January 1, 1883. 62 Bills of Exchange Act, 1882. § 23. Divorced Lunatic or drunken man. Minor or infant. as if she were a single -woman. But before judgment can be obtained, it must be shown that she had separate estate when she made the contract; and the judgment, when obtained, does not bind her personally, but only such separate estate as she may have free from restraint on anticipation.! By the Married Women's Property Act, 1893, it is no longer necessary to show that she had pro- perty at the time the contract was made, in the case of con- tracts entered into after the commencement of that Act.^ If a bill be made payable to a married woman, her indorse- ment now clearly transfers the property therein. A woman who is divorced, or a woman who is judicially separated from her husband, is on the same footing as a single woman. See 20 & 21 Vict. c. 85, ss. 21 — 26. The contracts of a lunatic or drunken man, known to be such, are voidable and not void.* It is clear, therefore, that neither lunacy nor drunkenness can be set up against a holder in due course.* Complete drunkenness is a defence against an immediate party with notice.' An infant incurs no liability by drawing, indorsing, or accepting a bill.® Thus : — 1. B., an infant, within three mouths of attaining his majority, accepts a bill payable six months after date. He ratifies the transaction on attaining his majority, and the bill is negotiated. B. is not liable on his acceptance.'' 2. B., after attaining his majority, accepts a bill to pay a debt contracted before his majority. The bill is indorsed to a holder in due course. The holder can sue B.^ 3. B., after attaining his majority, accepts a bill to com- promise a joint liability on a bill which he accepted during his minority. He is not liable to a holder with notice.' If the consideration for a bill given by an infant be 1 Cf. Palliser v. Gurney (1887), 19 Q. B. D. 519. As to ante-nuptial contracts and the husband's liability, see JBecJev. Pevrce (1889), 23 Q. B. D. 316, C. A. As to the liability of a widow in respect of a note made during marriage, see Beckett t. Tasher (1887), 19 Q. B. D. 7. - 5 Dec. 1893. ' PoUock on Contracts, ed. i, p. 91. As to proving against a lunatic's estate on a voluntary note, see Be Whitaker (1889), 42 Ch. D. 119, C. A. * Imperial Loan Co. v. Stone, (1892) 1 Q. B. 599, C. A. ' Gore V. Gibson (1845), 13 M. & W. 623. 6 Cf. Infants Belief Act, 1874 (37 & 38 Vict. o. 62). ' JEx parte Kibble (1875), L. R. 10 Ch. 373. 8 Belfast Banking Co. v. Doherty (1879), 4 Ir. L. E. Q. B. D. 124. 9 Smith V. Kimg, (1892) 2 Q. B. 543. Capacity and Authority. 63 necessaries supplied to him, he may be liable on the con- § 22. sideration, though not on the bill.i The age at which infancy ceases differs much in different countries : e.g., in India it is 18 ; in England, 21 ; in Germany, 23. In most continental countries a distinction is drawn between infant traders and non-traders; the former having full capacity. It was formerly held that if an infant traded and accepted hills he was estopped from setting up his infancy,^ but this ruling is no longer law.* By this section, when a bill is payable to the order of an infant, his indorsement transfers the property therein.^ As an infant may be an agent, his indorsement in that character gives rise to no difficulty. In America it is not uncommon to get a bill made payable to the order of an infant clerk. His indorsement then operates as an indorsement saws recours, though without discrediting the bill. A corporation incurs no liability by drawing, indorsing, or Liabaity of accepting a bill, unless expresslv or impliedly empowered by company or its act of incorporation so to do> Thus :— corporatioD. 1. A joint stock company is incorporated for the purpose of forming a societi anonyme abroad for the construction of railways. The directors are empowered by the memo- randum and articles of association to do whatever they may from time to time think incidental or conducive to the main object of the company. These terms cover the issue of bills, and such a company is liable on its acceptance.^ 2. A railway company, incorporated under an ordinary Railway Act, accepts bills which are negotiated. The com- pany is not liable on its acceptances.^ In the case of a trading corporation the fact of incorpora- tion for the purposes of trade would give capacity. In the case of non-trading corporations, the power must be expressly given, or there must be terms in the charter wide enough to include it. The Companies Act, 1862, s. 47, does not confer capacity on all companies under that Act. It merely 1 Ex. parte Margrett, Re Soltykoff, (1891) 1 Q. B. 413, C. A. 2 Ex parte Lynch, (1876), L. K. 2 Ch. D. 227. ' Exparte Jones (1881), 18 Ch. D. 109, C, A. ; Pollock on Contracts, 4th ed. pp. 52, 75. < Cf. Lebel v. Tucher (1867), 8 B. & S. at p. 833 ; Nightingale v. Withington (1818), 15 Mass. 272 ; Grey v. Cooper (1782), 3 Dougl. 65. * He Peruvian Railways Company (1867), L. R, 2 Ch. 617. 6 Bateman v. Mid Wales Railway Company (1866), L. K. 1 0. P. 499. 64 Bills of Exchange Act, 1883. § 23. Power of corporation to b:ansfer. Banker and banking company. prescribes the mode in which such companies as have the requisite capacity are to exercise it.^ A mining company, a cemetery company, a salvage company, a gas company, an alkali works company, and a waterworks company, have been held non-trading companies.^ See post, p. 69, as to non- trading partnerships. There is this distinction : A non- trading partnership can adopt a bill, but the biU of a com- pany lacking capacity is, as regards the company, incurably bad ; for a contract ultra vires of a corporation cannot be ratified. Query, if the rule as to drawing bills or making notes applies to cheques ? Is a non-trading corporation liable on the instrument to the bearer of a dishonoured cheque which it has drawn, or is it only liable on the consideration to its immediate obligee? In America, the capacity of a corporation to bind itself by bill or note is co-extensive with its capacity to contract.^ The capacity of a company ceases when a resolution to wind it up has been passed, although the resolution may not have been notified in the Gazetted By this section, when a bill is payable to the order of a corporation, the indorsement of the corporation passes the property therein, though from want of capacity the corpora- tion may not be liable as indorser.^ So, too, bankers may be justified in paying cheques out of the funds of a company where clearly, by the form of the cheques, the company would not be liable as drawers if they had not been paid.® Statutory Disabilities of Bankers. It is unlawful for a banker or banking company, other than the Bank of England — (a) To issue in England or Wales any bill of exchange or promissory note which is expressed to be, or in legal effect is, payable to bearer on demand.''' (6) To draw, accept, make, or issue in England or "Wales any bill of exchange or promissory note which is 1 Cf. Jle Perumwn Railwaya Company (1867), L. R. 2 Ch. 617. 2 Bateman v. Mid Wales Railway (1866), L. E. 1 C. P. 499, at p. 605. 3 Parsons, pp. 164, 165. * Bolognesi's Case (1870), L. R. 5 Ch. 567. 5 Smith T. Johnson (1858), 3 H. & W. 222 ; 27 L. J. Ex. 363. ^ Mahony t. East ffolyford Mining Company (1875), L. R. 7 H. L. 869 and 884. ' 7 & 8 Vict. c. 32, §§ 10 & 28 (Bank Charter Act, 1844), as explained by 17 &18 Viot. c. 83, §§ 11 & 12, set oat post, pp. 335 and 337. Capacity and Authority. 65 expressed to be, or in legal effect is, payable to § S3. bearer on demand, or to borrow, owe, or take up any sum or sums of money on such bill or note.i Ecccepfion.— Banker or banking company lawfully issuing such bills or notes on May 6, 1844, but subject to certain conditions.^ Previous statutes define the bankers who in 1844 were lawfully issuing such bills or notes. The result seems to be that in London and within a circle of three miles round, the Bank of England has a monopoly ; that beyond three and within 65 miles, the monopoly is shared with banks of less than ten persons established before 1844; that beyond the 65-mile limit, the monopoly is shared with all banks established before 1844 who have not since lost their privi- leges.^ The statutes now in force affecting bills by conferring exclusive banking privileges on the Bank England are : 39 & 40 Geo. 3, c. 28, § 1.5; 7 Geo. 4,c. 46 ; 9 Geo. 4, c. 23; 3 & 4 Will. 4, c. 83, § 2 ; 3 & 4 Will. 4, c. 98 ; 7 & 8 Vict, c, 32 ; 8 & 9 Vict. c. 76, § 5 ; 17 & 18 Vict. c. 83, §§ 11 and 12 ; 25 & 26 Vict. c. 89, Sched. III. Their provisions are inconsistent, but the later Acts do not expressly repeal the earlier ones, so the whole must be construed together. See sect. 97 (3), post, p. 283, saving the privileges of the Bank of England. 23. No person is liable as drawer, indorser, or signature acceptor of a bill who has not signed it as such ; * liability. Provided that (1) Where a person signs a bill in a trade or assumed name, he is liable thereon as if he had signed it in his own name.^ (2) The signature of the name of a firm is ' 7 & 8 Vict. e. 32, §§ 11 and 28, as explained by 17 & 18 Vict. c. 83, § 11. See post, pp. 335 and 337. 2 Id. 3 Idndley, 3rd ed. p. 191, n., and pp. 1615—1617. * Of. Fenn y. Harrison (1790), 3 T. E. at p. 761 ; Bechham v. Brake (1841), 9 M. & W. at p. 92 ; Jte Adamonia Co. (1874), 43 L. J. Ch. at p. 734, per James, L.J. See note, post, p. 67. '" Cf. Lindus v. Bradivell (1 848), 5 C. B. at p. 591 ; Trueman v. Loder (1840), 11 A. & E. at p. 594. By sect. 2, person includes a body of persons, whether incorporated or not. 66 Bills of Exchakgjb Act, 1882. § 23. Signature essential to liability. equivalent to the signature by the person so signing of the names of all persons liable as partners in that firm.^ Ilitjsteations. 1. A., who is agent for X., draws a bill in Ms own name. The payee knows that A. is only an agent. A. alone is liable as drawer of this bill. X. is not.' 2. B. and X. are jointly indebted to C. B. alone makes a note in favour of 0. for the amount of the debt. B. alone is liable on the note.' 3. A. draws a bill, signing it " J. A., agent." A. alone is liable as drawer. His principal is not.'' 4. D. is the holder of a bill indorsed in blank by 0. D. converts C.'s indorsement in blank into a special indorsement to E., and transfers the bill to the latter. D. is not liable as indorser.* 5. X., a partner in a firm who trade as " John Brown," makes a note for 1001. in respect of a partnership transaction, signing it as "Brown & Co." He has no authority trom his partners to vary the firm style. The firm is not liable on this note, though X. indi- vidually is bound by it.^ 6. A. is a partner in the firm of " B. & Co." A., in respect of a partnership transaction, draws a bill in his individual name on " B. & Co." It is refused acceptance. A. alone is liable as drawer ; his co-partners are not.' 7. John Smith carries on business under the name of " John Brown," or "Brown & Co." or " The London Iron Company." > Limdley on Partnership, 3rd ed. pp. 355 — 367 ; Pooley r. Driver (1876), 5 Ch. D. 458 ; Gurney v. Evans (1858), 27 L. J. Ex. 166. ■^ Cf. Leadbitter v. Farrow (1816), 5 M. & S. at p. 350 ; Ex parte Rayner (1868), 17 W. R. 64. ConTersely a clerk ■who draws a bill in the name of a firm whose affairs he is winding up, two of the partners being dead, is not liable on the bill : Wilson v. Barthrop (1837), 2 M. & W. 863. 8 SigUn V. Walker (1809), 2 Camp. 308. ■• Pentz V. Stanton (1833), 10 Wend. 271, New York. * Vincent v. Horlock (lo08), 1 Camp. 442. 6 FaUK T. Richmond (1840), 11 A. & E. 339 ; Kvrh v. Blurton (1841 ), 9 M. & W. 284 ; Lindley, 5th ed. p. 185. If X.'s partners had authorized the change of style, the altered style would have been pro hac vice the firm style, and binding on them. The firm, too, is bound if the variation in style be immaterial and unintentional : Forbes v. MarshaU (1855), 11 Exch. 166. As to an accidental misspelling, see Leonard v. Wilson (1834), 2 Cr. & M. 689 ; Kirkr. Blurton (1841), 9 M. & W. at p. 289. And if there be not a distinct firm style, it seems a partner may for firm purposes sign tlie individual names of his co-partners : Norton v. Seymour (1847), 16 L. J. C. P. 100. " Nicholson V. Ricketts (1860), 29 L. J. Q. B. at p. 65 ; Re Adansoma Co. (1874), 43 L. J. Ch. 732, firm composed of four firms. Capacity and Authority. 67 John Smith is liable on a bill dra-wn, indorsed, or accepted by him 8 23 in any of these names.' 8. A principal trades and carries on a business in the name of esfential to one of his agents (a clerk). He i^ liable on a bill accepted by the liability clerk in his o-wri name in respect of that business, although the clerk in accepting it acted contrary to his private instructions.' So, too, a firm may trade under its own name in one place, and imder the name of one of the partners in another place. His name then becomes the firm name.^ 9. J. B. carries on business in his own name, but having a dor- mant partner. If he accepts a bill on his private account, the dormant partner is not liable, but it lies on the dormant partner to show that the biU was not a firm bill.'' By sect. 2, " person " includes a body of persons whether incorporated or not. An exception to the rule laid down in this section is created by sect. 42 of the Companies Act, 1862, joosz;, p. 340, which is saved by sect. 97 (3). Any officer of the company who varies the style of the company is personally liable under that section. By sect. 91, post, p. 274, the signature may be written by the hand of an agent, but it must be the principal's signature, not the agent's. The seal of a corporation may be equivalent to a signature, sect. 91 (2), post, p. 278. Bills and notes form an exception to the ordinary rule that when a contract is made by an agent in his own name, evidence is admissible to charge the undisclosed principal, though not to discharge the agent. A person who has not signed, though not liable on the instrument, may of course be liable on the consideration : e.g. X. would be so liable in Illustration 2. The distinction is this : In the one case the liability is transferable ; in the other it is not ; also the onus proiandi is shifted. The signature of a firm is deemed to be the signature Partners, of all persons who are partners in the firm, whether working, dormant, or secret,^ or who, by holding them- ' Cf. Wilde V. Keep (1834), 6 C. & P. 235; Forman v. Jacob (1815), 1 Stark. 47 ; Lindus v. Bradwell (1848), 5 C. B. at p. 591 ; and Trueman v. Loder (1840), 11 A. & E. at p. 594. 2 Edmunds v. Bushell (1865), L. R. 1 Q. B. 97 ; cf. Oonro v. Port Henry Iron Co. (1851), 12 Barb. 27, New York. 3 Cf. Alliance Bank v. KewrsLey (1871), L. R. 6 C. P. at p. 438, Willes, J. ■• Yorkshire Banking Co. v. Beatson (1880), 5 C. P. D. 109, C. A., discussing the previous cases. * Pooley V. Driver (1876), 5 Ch. D. 458 ; Partnership Act, 1890, s. 4 j Pollock on Pwrtnership, 5th ed. p. 20. F 2 68 Bills of Exchange Act, 1882. § 23. selves out as partners, are liable as such to third parties.^ Thus:— X. is a working partner in the firm of " B. & Co." He retires from the firm, but gives no notice of his retirement. He is liable on a bill accepted by the firm subsequent to his retirement.^ "Where the name of a firm, and the name of one of the partners in it is the same, and that partner draws, indorses, or accepts a bill in the common name, the signature is primd facie deemed to be the signature of the firm : but the presumption may be rebutted by showing that the bill was not given for partnership purposes or under the autho- rity of the firm.^ It was formerly thought that where two distinct firms, having one or more partners in common, carried on business under the same name, each firm was liable on the accept- ances of the other to a holder for value without notice.* But since the case of Yorkshire Banking Co. v. Beatson,^ it seems clear that this hard rule is no longer law. The case of a non-trading firm illustrates the distinction between capacity and authority. The partners in a non- trading firm have full capacity to bind themselves by indorsing or accepting bills ; but though the capacity is present, there is no presumption that the partner who signs the firm name, or the names of his co-partners, has any authority to bind his co-partners by so doing. The partner who signs is, of course, bound, and so are his co-partners if they have authorized his act, or if they subsequently ratify it, but not otherwise. The law on this point may, perhaps, be summed up as follows : — Trading firm. A partner in a trading firm has ^nma/acie authority to bind the firm by drawing, indorsing, or accepting bills in the firm name for partnership purposes ; and if the bill get into the hands of a holder in due course, the presumption of authority becomes absolute, and it is immaterial whether it were given for partnership purposes or not.^ Thus : — > Ourney v. Evans (1858), 27 L. J. Ex. 166 ; Partnership Act, 1890, a. 14 ; Polloch, p. 50 ; Zindley, bth. ed. p. 181. 2 PoUock, p. 52 ; Lindley, 5tli ed. p. 213. 3 Yorkshire Banking Co. v. Beatson (1880), 5 0. P. D. 109, C. A. ; and lAndley, 5th ed. p. 182. "i See Idndley, 3rd ed. p. 387. * Bank of Australasia v. Breillat (1847), 6 Moore, P. C. 152, at p. 194 ; Wiseman y. Easton (1863), 8 L. T. N. S. 637. Capacity and Authority. 69 1. X., a partner in a trading firm, makes a note in the § 23. firm's name, payable to C, and gives it to him in payment of a private debt. It lies on 0. to show that X. had authority from his co-partners so to do.^ 2. A. draws two bills on a firm in respect of one and the same debt. By mistake both bills are accepted. The bills are negotiated to holders in due course. The firm is liable on both bills.^ 3. A partner accepts in the firm name a bill drawn on the firm in respect of a debt partly due from the firm and partly due from himself alone. Fraud is negatived, but the holder knows the facts. The pro tanto liability of the firm on the instrument is doubtful.' In case 3, the safe plan is to sue on the consideration. This rule and the next are merely deductions from the general rule that a partner has implied authority to do any act necessarily incidental to the proper conduct of the partnership business, and that there the presumption of authority ends. There is a quasi exception to the general rule where the name of the firm is the same as the name of one of the partners in it. In that case an acceptance in the common name, written by the partner whose name it is, may be shown to be his individual acceptance and not binding on the firm.* A partner in a non-trading partnership has primd facie Non-trading no authority to render his co-partners liable by signing bills ^t^- in the partnership name. The holder must show authority, actual or ostensible." Partnerships, such as professional partnerships {e.g., solicitors),^ mining partnerships,'' agricultural partnerships,^ and commission agencies,^ have been held non-trading : but banking is a trading ijartnership.^" In America, physicians, tavern-keepers, tunnel-workers, 1 Cf. Leviesnn v. Lane (1862), 32 L. J. 0. P. 10. 2 Davison v. Eohertson (1815), 3 Dow, 218, H. L. 3 EUston Y. Deacon {ISG6), L. E. 2 C. P. at p. 21. 4 Yorkshire Banking Co. v. Beatson (1880), 5 C. P. D. 109, C. A. 5 Lindley, 5th ed. p. 130 ; Dickinson v. Val.py (1829), 10 B. & C. at p. 137 ; Thicknesse t. Bromilow (1832), 2 Cr. & J. 425. 6 Garland v. Jacomb (1873), L. R. 8 Ex. at p. 219. 7 Ricketts T. Bennett (1847), 4 0. B. at p. 699. 8 Kimbro v. BuUit (1859), 20 Howard, 256. 9 Yates T. Dalton (1858), 28 L. J. Ex. 69. '» Bank of Australasia v. Breillat (1817), 6 Moore, P. C. 152, at p. 194. 70 Bills of Exchange Act, 1882. Power of partner to transfer. § 23. and farmers, have been held non-traders.^ In Harris y. Amery,^ y^iWes, J., points out that the term "trade" is not co-extensive with the term " business." It does not seem to be decided how far the rule applies to cheques, as well as to bills and notes. The question cannot often arise, because opening an account in the firm name is evidence of actual authority. Note that authority to draw cheques is not evidence of authority to draw bills, and a post-dated cheque is a bill.^ Where a bill is payable to the order of a firm, a partner who cannot by his indorsement render his co-partnersliable, may transfer the property therein by negotiating it in the firm name.* Thus : — 1. Bill specially indorsed to a non-trading partnership. One of the partners, without communicating with his co- partners, indorses it away for a firm debt. The property in the bill passes to the indorsee.^ 2. Bill specially indorsed to a firm under a wrong style {e.g., to " Smith, Brown, & Co.," whereas the proper style is " Brown & Co."). One of the partners indorses it away, using, without the assent of the rest, the wrong style. The firm is not liable on the indorsement, but the property in the bill passes to the indorsee.^ When a bill payable to the order of a firm is indorsed by a partner in the firm name, in fraud of his co-partners, the property therein does not pass to an indorsee with notice, but there seem to be technical difiiculties in the way of an action brought by the firm.'' In such case the proper course, perhaps, is to give notice. to the acceptor not to pay. He could defend an action against a holder with notice. Ex-partners. When a bill is payable to the order of a firm and the partnership is subsequently dissolved, the indorsement of an ex-partner in the late firm name transfers the property therein and authorizes the payment thereof.^ ' Parsons on Partnership, 2nd ed. p. 99, n. 2 Harris v. Amery (1865), L. R. 1 C. P. at p. 154. 3 Forster v. Machretk (1867), L. R. 2 Ex. 163. * Lindley, 6tli ed. p. 131 ; of. PoUock, 5th ed. p. 31. 5 Cf. Smith T. Johnson (1858), 3 H. & N. 222 ; 27 L. J. Ex. 363. ' miliamson v. Johnson (182o), 1 B. &0. 146 ; Kirk v. Bhirton (1841), 9 M. & W. at p. 287. ' BeUbut V. Nevill (1 870), L. E. 5 C. P. 478, Ex. Ch. ^ King v. Smith (1829), 4 C. & P. 108 ; lewis v. JieiUy (1841), 1 Q. B. Q,f n Capacity and Authority. 71 Lems V. Eeilly^ may be open to question, in so far as it § S3. lays down that an ex-partuer, by indorsing a bill in the late hrm name, renders his ioruier partners liable as in- dorsers to a holder with notice of the dissolution.^ The question now turns on the true construction to be put on sect. 38 of the Partnership Act, 1890. See that section, especially with reference to the acts of bankrupt partners, discussed in Pollock on Partnenhip, 5th ed., p. 94. 24. Subject to the provisions of this Act,^ Forged or where a signature on a bill is forged or placed Sgnatur"^^ thereon without the authority of the person whose signature it purports to be, the forged or un- authorized signature is wholly inoperative, and no right to retain the bill or to give a discharge therefor or to enforce payment thereof against any party thereto can be acquired through or under that signature, unless the party against whom it is sought to retain or enforce payment of the bill is precluded from setting up the forgery or want of authority. Provided that nothing in this section shall affect the ratification of an unauthorized signature not amounting to a forgery. Illusteations. 1. A bill is payable to the order of John Smith. Another person of the same name gets hold of it, and indorses it to D. , wJio takes it as a holder in due course. D. acquires no title to the bill, he 1 King v. SmUh (1829), 4 C. & P. 108 ; Lewis v. Reilly (1841), 1 Q. B. 349. 2 Cf. Idndley, 5th ed. p. 216 ; KUgour r. Finlyson (1789), 1 H. Bl. 155 ; Aid V. Sutton (1800), 3 Esp. 108 ; Anderson v. Weston (1840), 6 Bing. N. C. 296. See passim Odell v. Gormacic (1887), 19 Q. B. D. 223, as to dissolatiou. ^ For the provisions referred to, see sect. 54 (2) ; sect. 55 (2), as to estoppels ; and sects. 60, 80, and 82, protection to bankers paying demand drafts, or collecting crossed cheijues. See sect. 7 (3), as to fictitious payees ; and sect. 25, as to procuration signatures. 73 Bills op Exchange Act, 1882. § 24. cannot enforce payment against any party thereto,' and slioiild any party pay Mm, the payment is invalid." 2. A note payable to order is stolen from the payee. The thief forges the payee's indorsement, and collects the note from the maker's banker, -who returns the note to the maker. The payee can recover the amount of the note from the maker in an action for conversion of the note.^ 3. A bill is payable to O.'s order. His indorsement is forged. D., a subsequent holder, presents the bill for acceptance. The drawee accepts it payable at his bankers. The bankers pay D. They cannot debit the acceptor with this payment.* 4. A bill purporting to be drawn by A. to the order of 0. & Co., and to be indorsed by them, is accepted by the drawee payable at his bankers, and at maturity is paid by them. A. is a customer of the acceptor's, who often drew bills payable to 0. & Co. It turns out afterwards that the drawer's and payee's names and signatures were forged by a clerk of the acceptor's, who stole the proceeds of the bUls. The bank can debit the acceptor's account with this pay- ment, for the bill never having been payable to the real C. & Co., the payees were fictitious persons and the bill was payable to bearer under sect. 7 (3).^ 5. A bill is payable to the order of a firm. X., one of the part- ners, fraudulently indorses it in the firm nam.e to D. in payment of a private debt. The acceptor pays D. X. becomes banln-upt. X.'s co-partners and trustee can recover from D. the money he received on the bill.^ 6. C. specially indorses a bill to D. It is stolen before delivery to D., and D.'s indorsement in blank is forged on it. It comes into X.'s hands, and he gets his bankers to present it for payment. They receive payment, and credit X. with the amount. X. subse- quently draws out the whole sum. C. can recover the amount of the bill from the bankers.' 7. Note for lOOZ. X. forges B.'s signature to it as maker. Before the note matures the holder finds out that B.'s signature is a forgery, and threatens to prosecute X. In order to prevent this, B. gives the holder a memorandum, which says, " I hold myself responsible for the note for 1001. bearing my signature." The ratification is invalid. B. is not liable on the note." ' Mead v. yomi-g (1790), 4 T. R. -28. 2 Graves v. American Bank (1858), 17 New York R. 206 ; cf. Ogden v. BeruM (1874), L. R. 9 C. P. 513. 3 Johnson v. Windle (1836), 3 Bing. N. C. 225. « Sobarts v. Tucker (1851), 16 Q. B. 560, Ex. Ch. 5 Bank of England v. Vagliano (1391), A. C. 107, H. L. ; reversing Vagliano v. Bank of England (1839), 23 Q. B. D. 243, C. A. See this case discussed, ante, p. 23. « EeUbut V. NeviU (1870), L. R. 5 C. P. 478, Ex. Ch. ^ Arnold v. Cheque Bank (1876), 1 C. P. D. 578 ; cf. Charles v. Black- weUa&ll), 2 0. P. D. at p. 157. 8 Brook V. Hook (1871), L. R. 6 Ex. 89 ; Ex parte Edvards (1841), 2 Mod. D. & D. 241 ; and cf. Williams v. Bayley (1866), L. R. i H. L. 200, at p. 221. Capacity and Authority. 73 8. A. draws a bill payable to C.'s order. As between A. and 0. S 24 the consideration is fraudulent. X. forges C.'s indorsement, and ? '- negotiates tbe bill to D., who takes it in good faitb. D. finds out that 0. 'a indorsement has been forged, and after the bill is due he obtains a genuine indorsement from 0., giving him half the value of the bill. D. cannot sue A.^ 9. B.'s acceptance to a bill is forged. A holder who takes it hondflde is afterwards informed that the signature is not B.'s, and accordingly writes to inquire. B. writes back to say the signature is his. B. is liable on this acceptance.^ 10. X., a partner in a trading firm, fraudulently accepts a bill in the firm name for a private debt of his own. It is negotiated to a holder for value without notice. The firm is estopped from setting up X.'s fraud.3 11. The acceptor of a bill forges A.'s name thereon as drawer, then discounts it with a bank. The bill is dishonoured, and notice sent to A. The acceptor gets the bill renewed for a smaller sum, paying the difference in cash to the bank, and on the renewal again forges A.'s name as drawer. The renewed bUl is dishonoured, and notice sent to A. A. does not repudiate the transaction for fourteen days. He is not estopped from setting up that his signature was forged.* 12. X. forges B.'s acceptance. B. pays the holder. Afterwards X. again forges B.'s acceptance, which, unknown to B., gets into the hands of the same holder. B. may set up that his signature was forged.* 13. X. forges B.'s acceptance, and, in consideration of B.'s pay- ing it, gives him a bill of sale. A seizure under this bill of sale cannot be set aside by X.'s trustee in bankruptcy.* 14. A letter of credit on a bank is granted in favour of C, whose clerk gets possession of it, forges U.'s name to a draft, and obtains the money. The bank is not discharged by this payment.' By sect. 60, post, p. 208, a banker who pays a demand draft held under a forged indorsement is protected. Illustration 7 shows that a forgery cannot be ratified, and Ratification, the language of the Act seems to countenance this view. In the United States it has been laid down that a forgery may be ratified,^ but perhaps the cases might be explained 1 Esdaile v. La Nauze (1835), 1 Y. & C. 394. ° Brook f. Book (1871), L. K. 6 Ex. at p. 100 ; Wilkinson v. Stoney (1839), IJ. & S. 509 ; Sobarts t. Tucker (1851), 16 Q. E. at p. 577. 3 Hogg V. Skten (1865), 18 C. B. N. S. at p. 432 ; 34 L. J. C. P. at p. 155, Willes, J. ■• M'Kenzie v. British Linen Co. (1881), 6 App. Caa. 82, H. L. 5 Morris v. Be^eU (1869), L. E. 5 C. P. 47. 8 Ex parte CaZdecott, Be MapLeleck (1876), 4 Ch. D. 150, C. A. ^ Orr V. Union Bank (1854), 1 Macq. H. L. 513. ^ Union Bank v. Middlebrook (1865), 33 Connect. 95 ; Howardv. Duncan (1870), 3 Lans. New York, 174. 74 Bills of Exchange Act, 1882. § S4. Estoppels. Injunction, &c. Fraudulent alteration. Foreign laws. on the ground of estoppel. In a Scotch appeal before the Act, Lord Blackburn says that a forgery may be rati- fied,i but the English cases were not cited, and the decision turned on the ground that the facts had not created an estoppel. The word "precluded" was inserted in committee in lieu of the word " estopped," an English technical term, unknown to Scotch law. Though a forgery cannot be ratified, yet a person whose signature has been forged may by his conduct be estopped from denying its genuineness to an innocent bolder (Illustration 9) ; and, again, a party to a bill may be estopped by Lis conduct,^ or in certain cases by the fact of becoming a jarty,^ from setting up that the signatures of other parties thereto are lorged or unauthorized. "Where an estoppel by negligence is relied on, it must be sho\^n that the negligence was the direct and proximate cause of the forgery being taken as genuine.* There was formerly ground for contending that when a married woman's indorsement was forged by her husband, the property in the biU passed to a holder in due course ; ^ but since the Married Women's Property Act and this Act, it is conceived that this contention could no longer be maintained. Where a bill is held under a forged signature, the court will restrain its negotiation by injunction, or order it to be given up and cancelled.* A bill held under a forged signature must be distin- guithcd from a bill with genuine signatures which has been fraudulently altered, though such alteration may amount to the crime of forgery : see sect. 64, pod, p. 213. According to modern French law, it seems that payment without notice of a bill held under a forged indorsement, or payment made to an individual who personates the payee. 1 M'Kenzie t. British Linen Co. (1881), 6 App. Cas. at p. 99, H. L. 2 Arnold v. Cheque Bank (1876), 1 U. P. I). 578; Patent Safety Gun Cotton Co. v. Wilson (1880), 42 L. J. C. P. 713, C. A. ^ As to drawer, see sect. 55 (1) ; maker of note, sect. 88 (2) ; indorser, sect. 55 (2) ; acceptor, sect. 54 ; acceptor for honour, sect. 66, note ; fictitious pajee, sect. 7 (3) ; fictitious drawee, sect. 5 (2). ^ Arnold v. Cheque Bamk (1876), 1 C. P. D. 578; cf. Bank of England t. Varjliano (1891), A. C, 107. • Dawson v. Prince (1858), 27 L. J. Ch. 169, L.JJ. " Esdaile v. la Nauze (1835), 1 Y. & C. 394 ; Seton on Decrees, 4th ed. pp. 281—283. signatures. Capacity and Auihority. 75 is valid: Nouguiet; §§ 333—341. Pothier (No. 168) was § 34. of a different opinion. By Art. 36 of the Grerman Excliange Law, and Art. 287 of the Italian Code, the payer of a bill is not bound to verify the genuineness of the indorsements. In other respects the effect of a forgery is the same as in England. 25. A signature by procuration operates as Procuration notice that the agent has but a hmited authority to sign, and the principal is only bound by such signature if the agent in so signing was acting within the actual limits of his authority. Illtjstbations. 1. B., wh.0 carries on business for himself, and is also in part- nership with S. , goes abroad; he gives S. an authority to accept bills in his name in respect of his private business. S. accepts a bill in B.'s name in respect to the partnership business, signing "J. B. p.p. H. S." The bill is negotiated. B. is not liable on this acceptance.' 2. By a resolution of the directors, the chairman of a company is authorized to accept bills drawn by A. against the deposit of securities. He accepts a bill drawn by A., signing per proc. the company, without requiring the deposit of security. The bill is negotiated to a hiriA fide holder. The company is liable.- 3. A cheque payable to order is indorsed "per proc." without the authority of the payee. If the bankers pay it, the payment is protected by statute, and is valid.^ 4. The manager in South America of an English limited com- pany, in order to obtain a guarantee for the company's business, gives a note signed "for myself and in lepresentation of the com- pany." This not being necessary, or in the ordinary course of the company's business, the company is not Hable.'' 5. Detinue for a Government of India note payable to order. The note was payable to the plaintiff's order, and was indorsed in the form " D., by his attorney, X.," in pledge for a private debt of the agent's, though this was not known to the indorsee. The right of the indorsee to retain the note depends on the proper construc- 1 Attwood V. Munnings (1827), 7 B. & C. 278; Stagg y. Elliott (1862), 12 C. B. N. S. 373 ; 31 L. J. 0. P. 260. 2 Re Land Credit Co. (1869), L. E. 4 Ch. 460 ; and of. Ejc parte Meredith (1863), 32 L. J. Ch. 300. 3 Chm-les V. BlaekweU (1877), 2 C. P. D. at pp. 159, 160, C. A., decided on 16 & 17 Vict. c. 59, s. 19. See, now, sect. 60, post, p. 2U8. * Me Cunningham & Co., Limited (1887), 36 Ch. D, 532. 76 Bills of Exchange Act, 1882. Procuration § 25. tion of the power of attorney held by X., and in construing it, it -will be held that a power to seU does not include a power to pledge.' 6. An agent draws a cheque "per proc." in excess of his authority. The drawer is not liable on this cheque to a person who has cashed it in good faith, but he must account for any money which has come into his possession.^ There is perhaps a disposition to narrow the rule in the case of corporations.^ In an Irish case* a distinction is drawn between an acceptance signed " J. B., per proc. T. S.," and one signed " For J. B., T. S." The distinction does not seem founded on any clear principle. The case can be supported on other grounds. In Attwood V. Munnings" (Illustration 1), Bayley, J., says : " This was an action on an acceptance importing to be by procuration, and therefore any person taking the bill would know that he had not the security of the acceptor's signature, but of the party professing to act for him in pursuance of an authority from him. A person taking such a bill ought to exercise due caution, and it would be only reasonable prudence to require the production of that authority." liability of A person who, without authority, signs the name of agent signing another person to a bill, either simply or by a procuration authority. signature, is not (except in the special case provided for by sect. 42 of the Companies Act, 1862, post, p. 340) liable on the instrument ; ^ but if the alleged principal be a fictitious or non-existing person, the signer is liable.''^ Thus :— 1. A bill drawn on B. is held by C. X., without authority accepts it for B., signing " B. per proc. X." X is not liable as acceptor, tliough he may be liable to C. or a subsequent holder in an action for a false representation.* ' Jonmenjoy t. Watson (1884), 9 App. Cas. 661, P. C, distinguishing Bank of Bengal v. Macleod (1852), 7 Moore, P. 0. 35 ; of. Bryant v. Banque du Peuple, (1893) A. C. 170, P. C. If the agent is acting -within his authority, the fact that he has abused it does not affect a holder without notice. 2 Seid T. Mighy, (1894) 2 Q. B. 40. 3 Be Land Credit Co. (1869), L. R. 4 Ch. 460, at p. 468. ^ O'Reilly v. Richardson (1865), 17 Ir. Com. L. B. 74; but cf. Balfour v. Ernest (1859), 28 L. J. C. P. at p. 176. ' Attwood V. Munnings, 7 B. & C. 278, at p. 283. 8 PolhiUv. Walter (1832), 3 B. & Ad. 114. ' Cf. Kelner t. Baxter (1866), L. R. 2 C. P. 174 ; and see sect. 23 (1). * PolhUl V. Walter (1832), 3 B. & Ad. 114 ; but is he not also liable as Capacity and Authority. 77 2. Two directors of a limited company, which has no § 25. power to accept bills, accept a bill "per proc." the com- pany. They may be personally liable in an action for false representations.^ In an action for false representation, under such circum- stances, it lies on the holder to prove damage.^ The modern tendency is to restrict liability ex delicto to cases of intentional fraud. By German Exchange Law, Art. 95, a person who, without authority, signs a bill as agent for another is personally liable thereon. To sign the name of another person to a bill " per proc." without authority and with intent to defraud was not a forgery at common law, but it is now made so by statute.^ 26. (1) Where a person signs a bill as drawer, Persons sign- indorser, or acceptor, and adds words to his sig- or^in^repre- nature, indicating that he signs for or on behalf capacity! of a principal, or in a representative character, he is not personally liable thereon ; but the mere addition to his signature of words describing him as an agent, or as filling a representative character, does not exempt him from personal liability. (2) In determining whether a signature on a bill is that of the principal or that of the agent by whose hand it is written, the construction most favourable to the validity of the instrument shall be adopted. Illtjsteations. 1. Money is lent to a parish. The churchwardens give a note for the amoimt, signing it "J. B. and H. S., churchwardens." They are personally liable on the note as makers.* 2. B. by will directs his executor to carry on his business. The executor does so, and, in the course of the business, accepts bills, impliedly warranting his authority? See CoUen r. WrigM (1857), 27 L. J. Q. B. 215, Ex. Ch. 1 West London Commercial Banh v. Kitson (1884), 13 Q. B. D. 360, C. A. See at p. 362. 2 Eastwood T. Bain (1858), 3 H. & N. 735 ; 28 L. J. Ex. 74. 3 24 & 25 Vict. c. 98, § 24. < Sew T. Pettet (1834), 1 A. & E. 196. 78 Bills of Exchange Act, 1882. § 26. signing them "J. S., executor of B." He is personally liable on these acceptances.' 3. D., the holder of a bill payable to his order dies. X., his executor, indorses the bill away, signing the indorsement, " J. X., executor of D." X. is personally liable on this indorsement, unless he add some such words as " without recourse against me personally." - QiuKre, since the Act ? 4. Money is lent to the X. Company. A note for the amount is given in the form, " We promise to pay, et cet.," signed. " f s' ( Directors of the X. Company, Limited. "J. T., Manager. The persons who sign are personally liable as makers.' 5. Money is lent to the X. Railway Company. A note for the amount is given in the form, " I promise to pay, et cet." (signed) " for the X. Eailway Co. J. B., Secretary." J. B. is not per- sonally liable.* 6. Note in the form, "We, the directors of the X. Company, Limited, et cet." (signed by the directors), "J. B., J. 8." In the corner of the note is the seal of the company, and the signature of an attesting witness. J. B. and J. S. are personally Uable.* 7. Bin specially indorsed to " C, agent." He indorses it away, signing " 0., agent." C. is personally Hable as indorser.^ 8. A note running "We, the undersigned, in the name and on behalf of the Eeformed Presbyterian Church, Stranraer, promise to pay," is signed by three persons. They are personally liable on this note.' This section was re -drafted in committee, and perhaps somewhat modifies the rigour of the common law rule. At any rate the older cases must be examined carefully with the words of the section. The principle is this, the terms agent, manager, &c., attached to a signature are regarded as mere designatio personce. The rule is applied with peculiar strictness to bills, because of the non-liability of the principal ; " Is it not a universal rule," says Lord EUenborough, " that a man who puts his name to a bill of exchange thereby makes himself personally liable, unless he states upon the face of the bill that he subscribes it for another or by procuration of another, which are words of 1 Liverpool Bank t. Walker (1859), 4 De G. & J. 24. 2 Cf. ChMs-v. Monins (1821), 2 Brod. & B. 460. s Courtauld v. Sanders (1867), 16 L. T. N. S. 562. * Alexander v. Sizer (1869), L. R. 4 Ex. 102 : but see Gray v. Baper (1866), L. E. 1 C. P. 694. ' Dutton V. Marsh (1871), L. R. 6 Q. B. 361. Ba/rtlett v. Mauley (1876), 120 Mass. 92. ' M'Meekin v. Euston (1889), 11 Sesa. Cas. 363. Capacity and Authority. 79 exclusion ? Unless he says plainly, ' I am the mere scribe,' § 26. he is liable." i Of. sect 23, ante, p. 65. It is often difficult to determine whether a given signature is the signature of the principal by the hand of an agent, or the signature of the agent naming a principal. The maxim uf res magis valeat governs the construction. As to liability of agent signing his principal's name without authority, see note to last section. By sect. 31 (5), post, p. 105, a representative who is compelled to indorse may indorse in such terms as to negative personal liability. The case of an executor or administrator often gives rise to difficulty. Where an executor merely winds up a transaction commenced by the testator, it is right that he should be able to protect himself from personal liability, but where he carries on the business and engages in fresh transactions, it is clear that the fact that he is an executor will not enable him to carry it on as a limited liability concern. ' Leadbitter v. Farrow (1816), 5 M. & S. at p. 349. 80 Bills of Exchange Act, 1882. §87. The Consideration for a Bill. Valuer 27. (1) Valuable consideration^ for a bill may- be constituted by, — (a) Any consideration sufficient to support a simple contract ; Illustrations. 1. A cross acceptance,^ the forbearance of the debt of a third person,' the compromise of a disputed liability,'' a promise to give up a bill thought to be invalid." a debt barred by the Statute of Limitations," or the obligation on the part of a thief to restore stolen property,' constitute value. 2. A mere moral obligation,^ a debt represented to be due though not really due,' the giving up a void note,^" or a voluntary gift of money," do not constitute value. (6) An antecedent debt ^^ or liability. Such a ' By sect. 2, ante, p. 7, "value" means valuable consideration, i.e., as defined by this section. 2 Ease V. Sims (1830), 1 B. & Ad. at p. 526 ; cf. Burdon v. Benton (1847), 9 Q. B. 843 ; Hornblower v. Proud (1819), 2 B. & Aid. 327. As to proof on cross-acceptances, see Ex parte Cama (1874), L. R. 9 Ch. 687. 3 Balfour t. Sea Asswr. Co. (1857), 3 C. B. N. S. 300 ; 27 L. J. C. P. 17 ; Creaks v. Htmter (1887), 19 Q. B. D. 341, C. A. (forbearance in fact, without binding agreement to forbear). 4 Cook T. Wright (1861), 30 L. J. Q. B. 321. 5 Smith T. Smith (1863), 13 C. B. N. S. 418 ; 32 L. J. C. P. 149. 6 Latouche v. Latouche (1865), 3 H. & C. at p. 576 ; 34 L. J. Ex. 85. " London and County Bank v. River Plate Bank (1888), 21 Q. B. D. 535, 0. A. 8 Eastwood V. Kenyon (1840), 11 A. & E. 438 ; cf. Flighty. Reed (1863), 32 L. J. Ex. 265 ; cf. White v. Bluett (1853), 23 L. J. Ex. 36, as to attempting to discharge a note for a loan by a promise which was nmdwm. pactum. 9 Southall T. Rigg (1851), 11 C. B. 481. And in Stott v. Fairlamh (1883), 52 L. J. Q. B. 420, Denman, J. , seems to have held an agreement to pay a debt within three years is no consideration for giving a note payable on demand. See, too. Bell v. Oa/rdiner (1842), 4 M. & (Jr. 11, note given in satisfaction of bUl not known to have been altered. As to renewal of note made without consideration, which stands on the same footing as the original, see Edwa/rds v. Chancellor (1888), 52 J, P. 454. '" Coward v. Hughes (1855), 1 K. & J. 443 ; but cf. Mather v. Maidstone (1856), 18 C. B. 273 ; 25 L. J. C. P. 310, where an estoppel intervened. " BUI V. WUson (1873), L. R. 8 Ch. at p. 894. 12 Pmrier ». Mm-ris (1853), 2 E. & B. 89 ; Swift v. Tyson (1842), 15 Consideration. gl debt or liability is deemed valuable considera- § 37. tion whether the bill is payable on demand or at a future time.^ IliLUSTKATION. A oustomer, being indebted to Ms bankers, gets a cheque on another bank from a friend, for the purpose of reducing his over- draft. The cheque is paid in and credited to his account. The bankers hold that cheque for value, and can recover from the drawer if he stops it.'' The words "or liability" were added in committee. They perhaps extend the previous law. Valuable consideration has been defined as " some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, sufiered, or undertaken by the other."' As to consideration to support a simple contract, see further, notes to Lampleigh v. Braithwaite, 1 Smith's L. C, 9th ed., p. 153. This section it seems does not aS'ect the principle of Scotch law " that valuable consideration is not necessary to support an obligation. But want of value (non-onerosity) may be pleaded in evidence when a bill is challenged on other grounds, as for illegality, fraud, or failure of the consideration." * Until 1875 it was uncertain how far an antecedent debt constituted a sufficient consideration for an instrument pay- able on demand. In the case of a bill or note payable in futuro it was said that the suspension of the creditor's remedies during the currency of the instrument constituted value; but that when the instrument was payable on demand there was no such giving time ; in Currie v. Misa,^ Pet. 1 Sup. Ct. U. S., Story, J. ; cf. Butcher v.' Stead (1875), L. R. 7 H. L. 839. 1 Cim-ie V. MUa (1875), L. R. 10 Ex. 153, Ex. Ch. ; approved but affirmed on another ground, 1 App. Cas. 654. 2 M'Lean v. Clydesdale Banking Go. (1883), 9 App. Cas. 95. ' Cwrrie v. Misa (1875), L. R. 10 Ex. at p. 162, per Lush, J. ; and cf. Carm V. Oarholic Co. (1893), 1 Q. B. at pp. 271, 272, per Bowen, L.J. * Bdl'i Princ., 9th ed. § 333 b. * Cwrrie v. Misa (1875), L. R. 10 Ex. 153, Ex. Oh. ; approved M'Lean v. Clydesdale Banking Co., supra. C. G 82 Bills of Exchange Act, 1882. § 27. the Court pointed out that there is no valid distinction between a bill payable in futuro and a bill payable on demand. In each case the instrument operates as con- ditional payment of the past debt, that is to say, it is pay- ment of the debt unless and until the bill is dishonoured. Except where there is a lien by implication of law, in order that a past debt may constitute value the bill or note must, of course, be given in respect of the debt.^ In Ex parte RicMale,^ the payee of a post-dated cheque paid it in to his bankers who credited it to his account. The payee failed, and it was held that his trustee could not recover the amount from the drawer, on the broad ground that as soon as his account was credited with the amount of the cheque the bankers became holders for value, whether his account was over-drawn or not. It may he doubtful how far this principle could be supported in its generality, or pressed beyond similar facts.^ Adequacy of value. — The Courts do not inquire into the adequacy of a bona fide consideration.* This was always the law as regards considerations other than money, but when the consideration was money, the usury laws formerly created a dif&culty. This has now been removed.^ But inadequacy of consideration may be evidence of bad faith or fraud.* Again, inadequacy of consideration must be distinguished from partial ab- sence of consideration, partial failure of consideration, part payment on account,'' or a mere advance made on a bUl which is pledged or deposited as security. ' Of. De la Chawmette v. Bamk of England (1829), 9 B. & C. 208, as ex- plained in Cwrie t. Misa, L. K. 10 Ex. at p. 164, and M'Lean v. Clydesdale Bank, 9 App. Uas. at p. 114. 2 Expa/rte RichdaU (1882), 19 Oh. D. 409, C. A. ; approved Royal Sank of Scotland v. Tottenham (1894), 2 Q. B. at p. 718, C. A. ; and cf. National Bank v. SUke (1891), 1 Q. B. at p. 439. 3 Cf. National Bank v. SUke ^891), 1 Q. B. at p. 439, per Bowen, L. J. Where bankers collect bills or cheques for customers, it seems to be a question of fact in each case whether they hold the proceeds qua bankers, i.e., debtors, or as trustees for their customer. Cf. Re Oom/mercial Bank of Saath Australia, W. N. (1887), p. ii; Ex parte Plitt, Re Brown (1889), 6 Morrell, 81. * Jones V. Gordon (1877), 2 App. Cas. 616, H. L. ; Eoa-I v. Peck (1876), 64 New York R. 596. ' Jones v. Gordon, supra, per Ld. Blackburn, at p. 632. « Id. ; Cf. AUen v. Davis (1850), 20 L. J. Oh. 44 ; Simon v. Cridland (1862), 5 h. T. N. S. 524. ^ Dresser v. Missouri Co. (1876), 3 Otto, 92 Sup. Ct. U. S. value. CoNSinERATION. 83 Unconscionable ^argrams. — Although the adequacy of § 27. the value given will not be inquired into where parties '' — contract on an equality, the Court in the exercise of its equitable _ powers will grant relief, as between im- mediate parties, either with or without terms, when an unfair advantage has been taken of a person's posi- tion, though there may be nothing amounting to posi- tive fraud; e.g., in case of a catching bargain with an expectant heir or reversioner,^ or where a woman has been induced to give an accommodation acceptance with- out independent advice.^ (2) Where value has at any time been given Holder for for a bill, the holder is deemed to be a holder for value as regards the acceptor and all parties to the bill who became parties prior to such time.^ Illustbations. 1. B. owes C. 50Z. In order to pay C, A. at B.'s request diaws a bill on B. for oOl. in favour of 0. 0. is a liolder for value and can sue A., though. A. has received no value.'' 2. A. draws a bill on B. payable to his own order. B. to accom- modate A. accepts it. Subsequently A. gives value to B. A. is a holder for value.' 3. B. makes a note in favour of 0. C. is the treasurer of a loan society, and tbe consideration for the note- is money advanced by the society to B. 0. is a holder for value.* 4. 0. the holder of a bill indorses it in blank to D., receiving no value. D. for value transfers it by delivery to E. E. is a holder for value.' 5. A. at the request of X. draws a bill payable to 0. for X.'s account with 0. X. remits the bill to 0. 0. is a holder for value. It is immaterial that there is no consideration between A. and X., or that the consideration fails.* ' Aylesford v. Morris (1873), L. R. 8 Oh. 484 ; NeviU t. SrwUing (1880), 15 Ch. D. 679. ^ Maitland v. Backhouse (1847), 16 Sim. 58 ; Kempson t. Ashbee (1874), L. E. 10 Ch. 15. Query, since the Married Women's Property Act? » Hunter V. Wilson (1849), 4 Exch. 489. •1 Scott V. Ufford (1808), 1 Camp. 246. 5 Burdon v. Benton (1847), 9 Q. B. 843. 6 Lomas v. Bradshaw (1850), 19 L. J. C. P. 273. 7 Barber t. Richards (1851), 6 Exch. 63. 8 Munroe v. Bm-dier (1849), 8 C. B. 862 ; Watson v. BusselZ (1862), 3 B. & S. 34 ; 31 L. J. Q. B. 304 ; (1864), 5 B. & S. 968, Ex. Ch. ; 34 L. J. Q. B. 93. G 2 84 Bills of Exchange Act, 1882. § 27. 6. S., in the West Indies, is indebted to 0. in Paris. In order to pay him, S. remits money to X., his correspondent in London, who thereupon obtains a bUl for the amount, drawn by A. upon Paris, payable to O.'s order. X. remits the bill to C, but fails before he pays A. for it. S. subsequently pays 0. 0. is a holder for value, and can sue A.^ In Illust. 6, C. would be trustee for S. : see " holder " defined by sect. 2, and "holder in due course" by sect. 29. As to the holder's rights as such, see sect. 38. In the Scotch cases a holder for value is termed an "onerous holder." Sale of Bill. — In legal language, a bill is said to be sold when it is transferred by delivery without indorsement. Not so in mercantile language. Suppose Smith in London wishes to pay 1000 rupees to Brown in India. Smith goes to Jones, who has a correspondent in Calcutta, and gets him to draw a bill on Calcutta for Rs. 1000. Usually the bill is drawn payable to Brown, but sometimes it is drawn payable to Smith, who then indorses it to Brown. The amount paid by Smith to Jones for this bill depends on the rate of exchange between London and Calcutta on the day of the transaction. In some trades the custom is for Smith to pay Jones when he gets the bill ; in other trades it is the custom not to pay till the next mail day. Such a transaction is called a sale of the bill by Jones to Smith. Smith, the buyer, who sends the bill out to India is called the remitter. As to fixing the rate of exchange at which a bill is to be sold, see note to sect. 9, ante, p. 27. See the conditions which regulate the rate of exchange between two countries, and the mode in which those conditions are taken advantage of, fully discussed in Gos'chen's Foreign Ex- changes. See, too, the judgment of "Wood, V.-C, explaining the practice of paying for bills partly by cash, partly by bankers' " marginal notes " or " marginal receipts." ^ A holder for value may or may not be a holder in due course.' The holder of a bill who receives it from a holder ior value, but does not himself give value for it, has all 1 Povrier v. Morris (1853), 2 B. & B. 89. 2 Jeffryes v. Agra Bank (1866), L. K. 2 Eq. 676 ; cf. Ex parte Kemp (1874), L. B. 9 Oh. 383. » Ewphael v. Bank of England (1855), 17 C. B. at p. 174 ; cf. sect. 29, post,-p. 88 ; and Partridge t. Bank of England (1846), 9 Q. B. at p. 426, Ex. Ch. Consideration. 85 the rights of a holder for value against all parties to § 27. the bill except the person from whom he received it. Thus — C, the payee of a bill, holds it for value. He indorses it to D. without value, e.g., by way of gift or for collection. D. is, as regards the drawer and acceptor, a holder for value. " A bill of exchange," says Parke, B., " is a chattel, and the gift is complete by delivery, coupled with the inten- tijn to give." ^ (3) Where the holder of a bill has a lien on it, HoWer arising either from contract or by implication of '^^"^ law, he is deemed to be a holder for value to the extent of the sum for which he has a lien. Illustrations. ].. D. holds a bill indoreed in blank as agent for 0. : D. wrong- fully pledges it witb E. E. is a holder for value to the extent of the sum he advanced, and if he took the bill without notice of the fraud, he can retain the bill as against C, the true owner.^ 2. C, the holder of a bill for 100?., deposits it with D. as security for a running account. At the time the bill matures the balance is in O.'s favour, but subsequently the balance turns against him to the extent of 50/. D. is a holder for value as to 50?.' 3. C, the holder of a bill for lOOL, indorses it toD. as a pledge for oQl. D. is a holder for value as to 50?., and this is the sum he can recover if he sues 0.* 4. C. keeps with his bankers a loan account and a general account. C. indorses to the bank, as collateral security for his loan account, a bill for 1,000?., and draws against it to the extent of 500?. 0. becomes bankrupt, and his general account is overdrawn more than 500?. The bank are holders of the bill for full value.* 5. The drawer of a bill for 100?., which has been accepted for his accommodation, indorses it to C. as a security for 50?. If the acceptor becomes bankrupt, 0. can tender a proof for 100?., but can only receive dividends to the extent of 50?.^ 6. A bill indorsed by a customer to his banker and entered 1 Milnes v. Dawson (1850), 5 Exch. 948, at p. 950 : of. Denton v. Peters (1870), L. R. 5 Q. B. at p. 477. 2 Collins v. Martin (1797), 1 B. & P. 648. 3 Atwood V. Crowdie (1816), 1 Stark. 483 ; cf. Pease v. Birst ri829), 10 B. & C. 122 ; Gray v. Seckham (1872), L. R. 7 Ch. at p. 683. " Attenlorough V. Olarke (1858), 27 L. J. Ex. 138. 6 Me European Bavk (1872), L. R. 8 Ch. 41. « Ex parte Newton {1880), 16 Oh. D. 330, C. A. 86 Bills of Exchange Act, 1882. § 27. " short," remains the property of the customer, though the banker may have a lien on it.' The " discount " of a bill must be distinguished from the pledge or deposit of a bill as security.^ A " dis- counter " is a holder for full value.* The position of a pledgee is this : If he sue a third party he sues as trustee for the pledgor, as regards the difference between the amount he has advanced and the amount of the bill.* If the pledgor could have sued on the bill, the pledgee can recover the whole. If the title of the pledgor is defective, the pledgee can recover the amount of his advance, pro- vided he took the bill without notice. Like any other bailee, the pledgee of a bill must use due diligence with reference to it, having regard to the peculiar nature of the thing bailed, e.g., he must not part with it : he must if he can collect it at maturity ; if he cannot, he must give the proper notices of dishonour.* Banker's Lien. — A banker's lien on negotiable securities is " an implied pledge." * A banker has, in the absence of agreement to the contrary, a lien on all bills received from a customer in the ordinary course of banking business in respect of any balance that may be due from such customer.'' If the banker knows that the bills do not belong to his customer, no lien can attach.^ A broker who deals in bills may have a lien similar to a banker's.® The terms on which securities are deposited may, of 1 Thompson v. GUes (1824), 2 B. & C. 422 ; distinguished Ex parte Stannard (1893), 10 Morrell, 193, 212 (Cheques). 2 Ex parte Twogood (1812), 19 Ves. 229 ; He Gomersall (1875), 1 Ch. D. at p. 142 ; Ex parte Sckofidd (1879), 12 Ch. D. 337, C. A., bills indorsed "pending discount." ■'' Ibid. ; of. Thiedman v. Ooldamidt (1859), 1 De G. F. & J. at p. 11. * Reid T. Furnival (1833), 1 Or. & M. 538. * Peacock y. PurmU (1863), 32 L. J. C. P. 266. « Brandao \. Barnett (1846), 3 C. B. at p. 531, H. L. A "lien"' generally is a mere right to hold a thing till a debt is paid, and is therefore distinct from a pledge, because the pledgee has a special property in the thing pledged ; but in the case of a negotiable security the person Tifho has the lien is the holder of the instrument with the corresponding rights and duties, and he therefore has more tlian the ordinary lien on an ordinary chattel. ' Ibid. ; London Chartered Bank of Australia v. White (1879), 4 App. Cas. 413, P. C. ; Johnson t. Robarts (1875), L. R. 10 Ch. 505, where cus- tomer was a country bank ; Currie v. Miaa (1876), 1 App. Gas. at p. 569, H. L. 8 Ex parte Kingston (1871), L. R. 6 Ch. 632. ' Jones V. Peppercorn (1858), John. 430 ; 28 L. J. Ch. 158. Consideration. 87 course, be such as to create a particular lien to tlie exolu- § 27. sion of the general lien.^ Prima facie, where a bill is negotiated from one person to another, it is deemed to have been wholly transferred to him, and not to have been pledged or deposited as collateral security.^ 28. (1) An accommodation party to a bill is Accommoda- a person who has signed a bill as drawer, acceptor, party. or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Illttsteations. 1. Bill accepted for the accommodation of the drawer. This is an accommodation bill, and the acceptor is an accommodation acceptor.^ 2. Bill drawn, indorsed, and accepted for the accommodation of X., who is not a party thereto. The drawer and acceptor receive a commission for so doing. This is an accommodation bill.'* 3. Bill drawn against a running account, and accepted. This, it seems, is not an acconamodation bill, though the account may have been against the drawer when the bill was drawn, or accepted or payable.* 4. Bill drawn payable to the order of C, and accepted. It appears that the acceptor was indebted to C, but that the drawer signed to accommodate the acceptor. This is not an accommoda- tion bUl, though the drawer is an accommodation drawer.' 5. Bill payable to drawer's order is accepted for value. C, whose name is well known, indorses the bill to give it currency. This is not an accommodation bill, but 0. is an accommodation indorser.' A bill which is signed by one or more accommodation parties is frequently spoken of as an accommodation biU, 1 Be Bowes (1886), 33 Ch. D. 686. = nUls T. Parker (1866), 14 L. T. N. S. 107 ; Re Boys (1870), L. R. 10 Eq. 467 ; cf. Attenborough v. Clarke (1858), 27 L. J. Ex. 138. 3 CoUott T. Haigli (1812), 3 Camp. 281. ■* Oriental Financial Corporation v. Overend (1871), L. E. 7 Ct. 142. 5 Ex parte Swan (1868), L. R. 6 Eq. at p. 356 ; Cf. fFilks v. Hornby (1862), 10 W. R. 742. 6 Scott V. Ufford (1808), 1 Camp. 246 ; Cf. Sleigh v. Sleigh (1850), 5 Exch. 514. 7 Cf. Re Nunn (1817), Buck, 113. This practice is not uncommon in the case of foreign bills, a small commission being usually charged. See e.g., SocUti Qinirak v. Metropolitan Bank (1873), 27 L. T. N. S. 849. Bills of Exchange Act, 1882. §28. Liability of accommoda- tion party. Holder in due course. but this is incorrect. An accommodation bill is a bill whereof the acceptor (i.e., the principal debtor according to the terms of the instrument) is in substance a mere surety for some other person who may or may not be a party thereto.^ The distinction is material when questions arise as to what is a discharge of the bill. An accommo- dation bill is discharged when it is discharged by the person who is in substance, though not in form, the prin- cipal debtor (see e.g., sect. 59 (3)), or if time be given to such person.* As a general rule the drawer or indorser for whose accommodation a bill is accepted, cannot avail himself of want of due presentment for payment (sect. 46 (2) ), or notice of dishonour (sect. 60 (2) ), or protest (sect. 51 (9) ), because it is his own duty to provide the funds to meet the bill at maturity. As to negotiation of overdue accommodation biU, see note to sect. 36 (2), jsost, p. 116. (2) An accommodation party is liable on the bill to a holder for value ; and it is immaterial whether, when such holder took the bill, he knew such party to be an accommodation party or not. Conversely, an accommodation party, known to be such, may avail himself of any defence, arising out of the bill transaction, which the person accommodated could have set up : ' see " holder for value " defined by sect. 27 (2) and (3). 29. (1) A holder in due course is a holder who has taken a bill, complete and regular on the face of it, under the following conditions ; namely : (a) That he became the holder of it before it was overdue, and without notice that it had ' Cf. Oriental Financial Corporation v. Overend (1871), L. K. 7 Ch. at pp. 146, 151, and Ibid., L. R. 7 H. L. at p. 358 ; Ex parte European Bwnk (1871), L. R. 7 Ch. 99. * See last note. And see post, p. 220, Principal and Surety. » Bechervaise v, Lewis (1872), L. E. 7 C. P. 372, at p. 377. Consideration. 89 been previously dishonoured, if such was the § 29. fact : (6) That he took the bill in good faith and for value, and that at the time the bill was negotiated to him he had no notice of any defect in the title of the person who nego- tiated it. Illustrations. 1. C, the holder of a bill payable to his order, transfers it to D. Holder in due for value, but without indorsing it. C. has obtained this biU by course, fraud, but D. has no notice of this. D. is not a holder in due course.' 2. C, who resides abroad, transmits a bill for collection to his agent in England. 0. has obtained this bill by fraud, but his agent does not know it. At the time the agent receives the biU, 0. is indebted to him on the balance of account. The agent is not a holder in due course, and cannot recover on the bill. Aliter, if the bill had been transmitted to the agent in payment of his debt.^ 3. C. indorses a biU. to D. for value. D. suspects that 0. stole the bUl. As a fact he obtained it by false pretences. D. is not a holder in due course.^ 4. The manager of a bank steals negotiable securities from the bank, and pledges them with 0. He afterwards obtains them back from C. by a fraud, and replaces them in the bank. The bank know nothing of the transactions.' The bank is a holder in due course of these securities, and entitled to retain them against C.'' 5. X., by false pretences, induces A. to draw a cheque in favour of C, who takes it in good faith and for value. 0. is a holder in due course.* By sect. 2, "holder" means the payee or indorsee of a bill or note who is in possession of it, or the bearer thereof; and "bearer" means the person in possession of a bill or note which is payable to bearer : see " value " defined by sect. 27 (1) ; and " holder for value " by sect. 27 (2) (3). As to the rights of the " holder '|^ and 1 WhistUr V. Porster (1863), 14 0. B. N. S. at p. 258 ; 32 L. J. C. P. at p. 163. D. is not the " holder " as defined by sect. 2. 2 De la Ohavmetie y. Bank of England (1829), 9 B. & C. 208, as explained by Curi-ie v. Misa (1876), L. R. 10 Ex. at p. 164 ; and M'Lean v. Clydes- dale Bank (1883), 9 App. Cas. at p. 114. 3 Cf. Jones V. Gordon (1877), 2 App. Cas. at p. 628. " London and County Bank v. River Plate Bank (1888), 21 Q. B. D. 535, A. • cf. London Joint Stock Bank v. Simmons, (1892) A. 0. 201. 5 Watson V. Bussdl (1862), 3 B. & S. 34 ; 31 L. J. Q. B. 304. 90 Bills of Exchange Act, 1882. § 29. Ifotioe. Bill must be complete and regular. "holder in due course" respectively, see sect. 38, pod, p. 121. As to " negotiation," see sect. 31, post, p. 102 ; and as to overdue or dishonoured bills, see sect. 36, post, p. 115. As to defects in title, see sub-sect. (2), post, p. 92, and pp. 97—101. The Act has substituted the term " holder in due course " for the cumbrous equivalent " bond fide holder for value without notice," and its synonyms " bond, fide holder," "innocent indorsee," &c. The Indian Act (sect. 9) has adopted the same term. The French equivalent "tiers porteur de bonne foi," i.e., third party holder in good faith, is expressive. " Notice " means actual, though not formal notice, that is to say, either knowledge of the facts, or a suspicion of something wrong, combined with a wilful disregard of the means of knowledge.^ As to " good faith " and the tests thereof, see sect. 90, post, p. 272, and notes thereto, where the subject is fully discussed. Principal and agent. — As regards the parties affected with notice, the ordinary rules of law apply to bills and notes. Notice to the principal is notice to the agent ; and notice to the agent is notice to the principal,^ subject to the proviso (1) that when the agent is himself a party to a fraud he is not to be taken to have disclosed it to his principal ; ^ and (2) where a bill is negotiated to an agent, and notice is given to the principal, or vice versd, there must be a reasonable time for communication.* The rights of a holder in due course can only be acquired by a person who takes a bill before it is overdue, and which is " complete and regular on the face of it." If the biU itself conveys a warning, caveat emptor. The holder, however honest, can acquire no better title than the person from whom he took it had. Thus, if the holder takes a blank acceptance, or a bill wanting in any mate- rial particular, he takes it at his peril ; ^ so also if the 1 Bwphad V. Bomh of England (1885), 17 0. B. at p. 174, per WUles, J. ; cf. Ex parte Snowball (1872), L. R. 7 Ch. at p. 549. " A person may be proved to have had notice o£ an act of bankruptcy either by proof that he had received formal notice, or by proof that he knew facts which were sufficient to inform him that an act of bankruptcy had been committed." 2 Cf. CoUinson v. Lister (1855), 7 De G. M. & G. at p. 637, branch bank. ^ Ex parte Oriental Bank (1870), L. R. 5 Ch. 358. ' Cf. Willis V. Bank of England (1835), 4 A. & E. at p. 39. ' Awde V. Dixon (1851), 6 Bxch. 869, and cases cited in note to sect. 20, ante, pp. 50 — 52. Consideration. 91 holder takes a bill which has been torn and the pieces § 29. pasted together, if the tears appear to show an intention to cancel it.^ In the United States the rule is the same. A recent American judgment puts the point clearly. Some negoti- able county bonds, which had been indorsed in blank by the payee, were stolen. The thief erased the payee's in- dorsement, personated the payee himself, and sold the bonds to a person who purchased them in perfect good faith. It was held that the purchaser acquired no title, and that the erasure, at any rate, ought to have put him on his guard. In the judgment it is said: ^ " He did not rely upon anything that appeared upon the bonds. He relied on the representations of the thief, and was deceived by them. Against such deception the laws applicable to negotiable paper were not intended to guard. It is their purpose to facilitate the circulation of paper, fair and regular upon its face, and to protect the bond fide pur- chasers of such paper Suppose a thief should erase the name of the maker of a note, and then forge the same signature, could he give a bona fide purchaser for value title to the paper ? I am clearly of opinion he could not. The paper is not fair upon its face. There is a forgery, and although the purchaser may be ignorant of it, the law mer- chant does not protect him against such ignorance. He must know at his peril that the signatures are genuine. We are asked, suppose the name of the payee, indorsed upon negotiable paper, fades out so as to be invisible, does it affect the negotiable character of the paper? Most cer- tainly it does. The title and rights of the owner remain the same as before, but a thief could give no title to such a paper to any one because he cannot be the apparent owner thereof, and there is nothing on the face of the paper to induce the belief that he is the owner." The fact that a cheque is post-dated does not make it irregular within the meaning of this section.^ > Xnghxm v. Primrose (1859), 7 C. B. N. S. 82 ; 28 L. J. C. P. 294 ; cf. Scholey v. Eamshottom (1810), 2 Camp. 485 ; Redmayne t. Burton (1860), 2 L. T. N. S. 324. 2 Colson V. Amot (1874), 57 New Tork E. 263, at p. 260 ; cf. Angle v. N. W. Ins. Co. (1875), 2 Otto' at p. 342, Sup. Ct. F. 8. 3 Hitchcock v. Edwards (1889), 60 L. T. N. S. 636 ; and see cmte, p. 33. 92 Bills of Exchange Aot, 1882. § 29. Defects of title. (2) In particular the title of a person who negotiates a bill is defective within the meaning of this Act when he obtained the bill, or the acceptance thereof, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud. This list of defects in title may not be exhaustive. A person whose title is defective must be distinguished from a person who has no title at all, and who can give none ; as, for instance, a person making title to a bill through a forged indorsement: see sect. 24, ante, p. 71, and see "holder" defined in sect. 2, ante, p. 5. The words " force and fear," were inserted in committee as the equivalent of the English technical term duress, which is unknown to Scotch law. See Bell's Principles, 9th ed., § 12. Holder claim- (3) _^ holder (whether for value or not) who holder in due derives his title to a bill through a' holder in due course, and who is not himself a party to any fraud or illegality affecting it, has all the rights of that holder in due course as regards the acceptor and all parties to the bill prior to that holder.* Illustrations. 1. A partner in a firm fraudulently indorses a firm bill to D. in payment of a private debt. F. is cognizant of the fraud, but is not a party to it. D. indorses the bill to E., who takes it for value and without notice. E. indorses it to P. F. acquires E.'s rights. U he gave value to E., he can sue all the parties to the bill; if he did not give value, he can sue all parties except E.' 2. C, by fraud, induces B. to make a note in his favour. 0. in- 1 May V. Chapman (1847), 16 M. & W. 355, at p. 361 ; Masters t. Ihberson (1849), 8 C. B. 100 ; Marion County v. Clark (1876), 4 Otto, 278, Sup. Ct. U. S. 2 May T. Chapman (1847), 16 M. & W. 355. Consideration. 93 dorses the note to D., who takes it for value and without notice. S 29 Subsequently D. indorses the note for value back to 0. 0. cannot — ^ ' — 011 Q Tt 1 sue B.i 30. (1) Every party whose signature appears Presumption on a bill is prim^ facie deemed to have become a gL'd feX'^ party thereto for value.'^ (2) Every holder of a bill is prim^ facie deemed to be a holder in due course ; ' but if in an acticm on a bill it is admitted or proved * that the accept- ance, issue, or subsequent negotiation of the bill is affected with fraud, duress, or force and fear, or illegality, the burden of proof is shifted, unless and until the holder proves that, subsequent to the alleged fraud or illegality, value has in good faith been given for the bill.^ Illxtsthations. 1. A. draws a bill on B. and indorses it to 0. C. sues B. It is shown that B. accepted it for A.'s accommodation. 0. is not called on to prove that he gave value ; he can recover without so doing.' 2. B. makes a note payable to 0. 0. indorses it to D., who sues B. If it appears that B. made the note for an illegal consideration, D. must prove that he gave value in good faith.' 3. The holder of a bill indorses it to D. to get it discounted. D. fraudulently negotiates it to E., who negotiates it to F. i\ sues the acceptor. Evidence is given of D.'s fraud. F. must prove that he is an honest holder for value.' 4. B. makes a note payable to C, the consideration for which is a wager, i.e., a consideration void by statute, but not prohibited ' Of. Sawyer v. WiseweU (1864), 91 Massachusetts R. at p. 42. 2 Of. Mateh V. Trayes (1840), 11 A. & E. 702 ; Foster v. Dawber (1851), 6 Exch. at p. 853. ' King v. Milsom (1809), 2 Camp. 6. * Evidence to go to a jury was the old test : IJall v. Featherstone (1858), 3 H. & N. at p. 286 ; 27 L. J. Ex. at p. 311 ; and the Act has not altered this : Tatam v. Haslar (1889), 23 Q. B. D. 345, at pp. 348, 349. ' See Jones v. Gordon (1877), 2 App. Cas. at pp. 627, 628, per Lord Blackburn. 6 MUls V. Barber (1836), 1 M. & W. 425. 7 BaUey v. Bidwell (1844), 13 M. & W. 73. ' Of. Smith V. Braine (1851), 16 Q. B. 244 ; Berry v. Alderman (1853), 14 C. B. 95 ; Tatam r. Uaelar (1889), 23 Q. B. D. S35. 94 Bills of Exchange Act, 1882. § 30. under a penalty. 0. indorses it to D., who sues the maker. Evi- ■ dence is given of these facts. D. is not called on to prove that he gave value.' 5. Action against the maker of a note payable to bearer. It is shown to have been stolen from the true owner. It lies on the holder to prove that he gave value in good faith.'' 6. An acceptance is given in renewal of a bill which turns out to be a forgery. The genuine bill is negotiated, and the holder sues the acceptor. Evidence is given of these facts. It lies on the holder to prove that he is an honest holder for value.' 7. A partner accepts a bill in the firm's name for a private debt and in fraud of his co-partners. The biU is negotiated. The holder sues the firm as acceptors. As soon as it appears that the biU was given for a private debt, the holder is called upon to prove that he is an honest holder for value.* " At the time of the passing of the Act of 1882," says Charles, J., " it was uncertain how much the plaintiff had to prove in cases of this kind where evidence of fraud had been given. Lord Blackburn, in Jones v. Gordon, says, ' The language of the quotation from Baron Parke would seem to show that the onus as to both is shifted, but I do not think that has ever been decided, nor do I think it is necessary to decide it in the present case.' The learned judge who tried this case took the view that the onus was shifted only to the extent of making the plaintiff prove that value was in fact given, not that it was also given bona fide. Upon this construction of the Act, I respectfully differ from him. The plaintiff was bound to satisfy the jury that he gave value, and that he gave it in good faith. The Act has settled the law in accordance with the opinion expressed by Parke, B." ^ The section does not affect the practice of the Chancery. Division, according to which security must be given when it is sought to restrain the negotiation of a biU alleged to have been obtained by fraud.^ " Force and fear " is the Scotch equivalent of the EngHsh ' Fitch V. Jones (1855), 5 E. & B. 238 ; Belfast Bamkmg Co. v. SoJierty (1879), 4 Ir. L. E. Q. B. D. 124. 2 Raphael v. Bank of England (1855), 17 C. B. 161. ' Mather v. Maidstone (1856), 18 C. B. 273 ; 25 L. J. C. P. 310. < Hogg V. Skeen (1865), 18 C. B. N. S. 426 ; 34 L. J. C. P. 163. * Tatam v. Hasla/r (1889), 23 Q. B. D. 345, at p. 349 ; cf. Jones v. Oordon (1877), 2 App. Cas. at p. 628 ; and Bailey v. Bidmell (1844), 13 M. & W. 73, at p. 76, per Parke, B. 6 Hawkins t. Wa/rd, W. N. 1890, p. 203. Consideration. 95 term " duress," but its signification, perhaps, is somewhat § 30. wider : see Bell's Principles, 9th ed., § 12. In America, it has been held that if the holder has in good faith given partial value, he may recover pro tanto?- Probably the same would be held in England. Rules as to Impeachment of Value. The law as to absence of consideration, or its failure, total or partial, fraud, or illegality of consideration may, perhaps, be expressed in the following rules — Rule 1. Any defence available against an immediate Immediate party is available against a remote party who is in privity ^'^>i J^^'o*^ with such immediate party. ^^^ ^^' Explanation 1. — " Immediate parties " are parties in direct relation with each other. All other parties are remote. Prima facie, the drawer and acceptor, the drawer and the payee, the indorser and his indorsee, are in direct relation. For example : 1. A. draws a bill on B. payable to C, and delivers it to tlie latter. B. accepts the bill while in O.'s hands. B. and 0. are remote parties.^ 2. B. makes a note payable to 0. PrimA facie B. and C. az'e immediate parties ; but if it appear that B. made the note at the request of X. imder the belief that he had done something which he had not done, and that X. on his own account delivered the note to C, who gave value and took it without notice, then B. and 0. are remote parties.^ Aliter, if X. had been O.'s agent. '' Explanation 2. — Privity is created in all cases by want of consideration, and in some cases by notice ; it may also be created by agreement. 1. The holder of a bill who has not himself given value, is, as regards third parties, deemed to be the agent of the party from whom he received it, whatever their private relations may be.^ 2. Notice creates privity when it is notice of defective title in the party from whom the bill is taken, i.e., notice that he had no right to hold the bill or 1 EoUomb V. Wyckoff{W10), 10 Amer. R. 219 ; Dresser t. Missouri Co. (1876), 3 Otto, 92, Sup. Ct. U. S. 2 Rolinson v. Reynolds (1841), 2 Q. B. 196, Ex. Ch. 3 Cf. WaUam. Russell (1862), 3 B. & S. 34 ; 31 L. J. Q. B. 304. * AsOey v. Johnson (I860), 5 H. & N. 137 ; 29 L. J. Ex. 161. 5 Cf. Pitch T. Jmies (1855), 5 E. & B. at p. 246 ; and cases quoted ante, p. 94 ; also Lee v. Hayes (1866), 17 Ir. C. L. R. at p. 408. value. 96 Bills of Exchange Act, 1882. § 30. no right to part witli it. Title to a bill must be dis- tinguished from the right to enforce payment of it against particular parties — e.g., the donee of a bill has a good title, though he could not enforce payment against the donor. Whenever a bill is held adversely to the true owner, and there is privity between the true owner and the holder, a third party, if sued, may set up the jus tertii?- 3. Again, when a person expressly or impliedly agrees to hold a bill as agent or trustee for another person, he holds it subject to all defences against the person for whom he holds, irre- spective of the state of accounts between them.^ Absence of Rule 2. Mere absence of consideration, total or partial, is matter of defence against an immediate party or a remote party, who is not a holder for value, but it is not a defence against a remote party who is a holder for value.* An accommodation party is liable to a holder for value, who takes a bill knowing him to be such.* For example : — 1. B., by way of gift, makes a note in favour of 0. 0. cannot recover from B.' 2. C, tlie holder of a bill for value, indorses it to D. by way of gift. The property in the bill passes to D., but he cannot recover from C 3. Bill for 1001. accepted for the accommodation of the drawer. The drawer discounts it with C, who knows that it is an accom- modation bill. C. can sue the drawer or acceptor for 100^;' but if C, instead of discounting it, merely advanced 501. on it, he can only recover 501.^ 4. B. owes A. 501. A. draws a bill onB. for 1001. B. to accom- modate A., and at his request, accepts it. If A. sue B. he can recover only 50?.' 5. 0. is D.'s agent abroad. 0. purchases a bill for D. The bill ' See Rule 5, and notes to sect. 21. 2 J)e la Chaumette v. Bank of England {1&29), 9 B. & C. 208, as explained Cmrie v. Misa (1875), L. E. 10 Ex. at p. 164, Ex. Ch. 3 Cf. Formam. v. Wright (1851), 11 C. B. at p. 492. ^ Scott V. Lifford (1808), 1 Camp. 246 ; cf. Sl/rong v. Foster (1856), 17 C. B. at p. i2t ; Petty v. Cooke (1871), L. E. 6 Q.B. 790 ; and sect. 28 (2). * Eoaiday v. Atkinson (1826), 5 B. & C. 501 ; cf. Se Whitaker (1889), 42 Ch. D. ] l9, C. A., as to Toluntary note given liy lunatic. 6 JEaston v. Pratchett (18a5), 1 C. M. & E. at p. 808 ; cf. MUnes v. Dawson (1850), 5 Exch. 948. 7 Cf. Mills v. Ba/rler (1836), 1 M. & W. 425 ; Stwtevant v. Ford (1842), 4 M. & Gr. 101. 8 Nashr. Brown (1817), cited Ohitty, llth ed. p. 60 ; Jones v. Hibhert (1817), 2 Stark. 304 ; Ex parte Newton (1880), 16 Ch. D. 330, C. A., proof. 9 Da^neU v. Williams (1817), 2 Stark. 166. Consideration. 97 is made payable to C.'s order, and he indorses it to D. This is S 30 done merely for the purpose of safe transmission, and not to - - ' — guarantee the biU. II the bUl is dishonoured, 0. is not Kable to D. as mdorser.' 6. A. and 0. supply goods to B. A. draws a bill on B. for the pnce, and indorses it to 0. to collect on joint account. If the biU IS dishonoured, A. is not liable to 0.^ 7. B. accepts a biU drawn by A. to accommodate him. A. in- dorses it to 0. •without receiving value. 0. indorses to D. without receiving value. D. cannot recover from B., but it lies on B. to show that neither D. nor any intervening holder was a holder for value.' Although the donee of a bill cannot sue the donor on the instrument, the making of the note may perhaps constitute a valid declaration of trust in favour of the donee.* Hule 3. Total failure of consideration is a defence Total failure against an immediate party, but it is not a defence against °^ ^''^"®- a remote party, who is a holder in due course.^ For example : — 1. B. makes a note payable to U. The only consideration is that C. is to act as B.'s executor. 0. dies first. His personal repre- sentatives cannot enforce payment against B.^ 2. B. authorizes A. to dra^ on him against bills of lading. A. draws a bill on B., and indorses it to 0. with the bill of lading attached. 0. gives value to A. B. accepts the bill on receiving from 0. the bill of lading. The bill of lading turns out to be a forgery, but C. did not know it when he obtained the acceptances. C. can sue B.' 3. A. draws a bill at three months on B. in favour of C, to be paid for in seven days. B., who is A.'s agent, accepts on his account. 0. does not pay A. He cannot sue B.^ 4. A. draws a biU on B. payable to his own order. B. accepts. The consideration between A. and B. fails. A. subsequently in- ' Oastrique v. Buttegieg (1855), 10 Moore P. C. 110 ; cf. Ee Nwnn (1817), Buck, 113. 2 Denton v. Peters (1870), L. K. 5 Q. B. 475. ' Milh V. Bwrler (1836), 1 M. & W. 425 : cf. Thompson v. OluUey (1836), 1 M. & W. 212. ■• Arthur v. Clarlcson (1865), 35 Bear. 458 ; but see the criticisms on this class of cases in Re Whitaker (1889), 42 Ch. D. 119, C. A. ' Robinsmi v. Reynolds (1841), 2 Q. B. at p. 211, Ex. Ch. As to what amounts to total failure. Wells v. Hopkins (1839), 5 M. & W. 7 ; Hooper v. Trefry (1847), 1 Exoh. 17. « Solh) T. Hvnde (1834), 2 Or. & M. 516. 1 Robinson v. Reynolds (1841), 2 Q. B. 196, Ex. Ch. ; of. Leather y. Simpson (1871), L. B. 11 Bq. 398. 8 Astlet/ V. Johnson (I860), 5 H. & N. 137 ; 29 L. J. Ex. 161. C. H 98 Bills of Exchange Act, 1882, § 30. dorses the bill for value to C, who knows that the consideration between A. and B. has failed. 0. cannot sue B.' Failure of consideration, it seems, is a defence against a remote holder for value with notice. The reason probably is that it is in the nature of a fraud to negotiate a bill when the holder knows that the consideration on which he re- ceived it has failed.^ But might there not be cases in which it would not be a fraud to do so ? Again, qu. as to the effect of failure of consideration after the maturity of the bm, i.e., after a cause of action has accrued ? ^ When the consideration for a bill fails, the Court will usually restrain its negotiation by injunction.* Partial failure Rule 4. Partial failure of consideration is a defence pro of value. tanto against an immediate party when the failure is an ascertained and liquidated amount, but not otherwise.^ It is not a defence against a remote party who is a holder for value.^ For example : — 1. B. accepts a bill for lOOZ. drawn by A. This is the agreed price of goods to be supplied by A. to B. When the goods arrive they are found to be inferior to sample, and worth only 80Z. B. retains the goods. If A. sue B. on the bill, this is not a defence pro tanto.'' But B. could now counterclaim. 2. B. accepts a biU for lOOZ. This is the agreed price of two bales of cotton to be supplied by A. to B. A. only delivers one bale. A. indorses the bill to 0., his agent, to collect. C. can only recover 502.' 3. B. accepts a biU drawn by A. for lOOZ. This is the agreed price of two bales of cotton to be supplied by A. to B. When the cotton arrives, one bale is found to be inferior to sample, and is returned as useless. A. indorses the bill to 0. without value. If 0. sues B. he can only recover 50Z., the price of the one bale which is kept.' In some cases of partial failure of consideration, the ' Lloyd V. Dams (1824), 3 L. J. E. B. 38 ; cf. Fawdough v. Pavia (1854), 9 Excb. 690 (same principle assnmed). 2 Cf. Ovlds r. Hcmrism, (1854), 10 Exch. at p. 579. 3 Cf. Watson v. Russell (1864), 5 B. & S. at p. 968 ; 34 L. J. Q. B. 93. * Cf. Pabrick t. Ha/rrism, (1792), 3 Bro. 0. C. 476 ; Bambridge f. Hemingway (1865), 12 L. T. N. S. 74. ' JDay V. Nix (1824), 9 Moore, 159 ; Warwick v. Nairn (1855), 10 Exch. 762. « Archer v. Bamford (1822), 3 Stark. 175. 7 Olenmie v. Imri (1839), 3 Y. & C. 436. 8 Cf. Agra Bank v. Leigkton (1866), L. fi. 2 Ex. at pp. 64, 65. 9 Ibid. Consideration. 99 Court would perhaps restrain the holder from negotiating 8 30. the bill after notice.^ Rule 5. Fraud is an offence against an immediate party Fraud or and against a remote party who is not a holder in due duress, course.^ Explanation 1.— A bill is affected with fraud when the issue or any subsequent negotiation of it is obtained by fraud,3 or coercion,* or when it is negotiated in breach of faith/ or in fraud of third parties.^ Explanation 2. — The holder of a bill subsequent to a fraud, who is not a holder in due course, cannot enforce payment against any party thereto, neither can he retain the bni against the true owner.'' When the consideration for a bill is clearly fraudulent, and it is in the hands of a party with notice, the Court will order it to be given up at once. When only a prima facie case of fraud is made out, the Court will restrain the nego- tiation of the bill for a specified time, in order that the question may be tried.^ Where a party sued on a bill sets up the Jus tertii, e.g., if the acceptor when sued by an indorsee sets up that the indorsee obtained the bill by fraud from his immediate indorser, it seems the nature of the fraud must also be looked at. If the indorser never intended by his indorse- ment to pass the property in the bill to the indorsee, the Jusl tertii alone is a good defence ; ' but if the indorser in- tended to pass the property in the bill to the indorsee, though he was induced to do so by fraud, it seems the acceptor must go on to show that the indorser has dis- 1 Cf. JoAihson y. Shanlcs (1866), 12 Jur. N. S. 917. 2 Whistler v. Fmter (1863), 14 C. B. N. S. at p. 258 ; 32 L. J. C. P. at p. 163. 3 WienhoU v. Spitta (1813), 3 Camp. 376 ; Dawes t. Harness (1875), L. R. 10 C. P. 166. ■• As to duress, Zhmcan T. Scait (1807), 1 Camp. 100 (on«s probandi) ; Kearns v. DwreH (1848), 6 C. B. 596 ; White y. Eeylman (1859), 34 Pennsyl. R. 143 ; Loomis v. Ruck (1874), 56 New York R. 462. 5 Lloyd T. Howwrd (1850), 15 Q. B. 995 ; Barler t. Richards (1851), 6 Exch. 63 ; ef. sect. 21 (2), ante, p. 54. 8 Jones y. Gordon (1877), 2 App. Cas. 616, H. L. ? Ibid. ; Lloyd v. Howard, supra; Alsager v. Close (1842), 10 M. & W. 576. * Joyce on Injunctions, p. 369 ; and see Jones y. Lane (1829), 3 T. & C. at p. 293. ' Lloyd V. Howard (1850), 15 Q. B. 995 ; Barber v. Richards (1851), 6 Exch. 63. H 2 100 Bills of Exchange Act, 1882. § 30. affirmed the transaction,! for fraud renders a contract void- able, not void. Illegal con- Ruk 6. Illegality of consideration, total or partial, is a sideration. defence against an immediate party, but not against a holder in due course.** The consideration for a bill is illegal when it is wholly or in part immoral, contrary to public policy, or forbidden by statute.' For example : 1. Bill accepted for value. The drawer indorses to 0. for an illegal consideration, e.g., to stifle a prosecution for felony. C. can, it seems, sue the acceptor,* but not the drawer. 2. X. embezzles the money of a building society. His wife and brother give promissory notes to the society for the amount, on the implied condition that he shall not be prosecuted. The notes are given on an illegal consideration, and cannot be enforced.* 3. Note made for value. The payee indorses it for an illegal consideration to D. D. can, it seems, sue the maker, but not the indorser.^ 4. Note made payable to an officer of an unregistered loan society, formed after the Companies Act, 1862, the consideration being a loan by the society. The officer iudorses the note to his successor. The society consists of more than twenty members, and is therefore illegal. The indorsee cannot sue the maker.' 5. Note given by defendant to plaintiff in payment of a compo- sition of 5s. in the £,. It appears that the plaintiff was induced to assent to the composition by the defendant, unknown to the other creditors, indorsing to him the acceptance of a third person. This fraudulent preference is a good defence to an action on the note.' 6. A promissory note given to secure the same sum as a bill of sale, and at the same time, may be valid, though the bill of sale may be void, for not referring to the note as a ground of defeasance.' 7. Note given by defendant to C. in respect of gambling trans- actions on the Stock Exchange. 0. indorses the note for value to the plaintiff, who has notice of the facts. The original consideration * Dawes v. Harness (1875), L. R. 10 0. P. 166. So held in America, Frcmtz v. Roberts (1850), 69 Massachus. R. 19 ; Carrier v. Sea/rs (1862), 86 Massachus. 336. 2 Bay V. Ayling (1851), 16 Q. B. at p. 431. » Cf. Fitch v. Jones (1855), 5 E. & B. 238. * Flower v. Sadler (1882), 10 Q B. D. 572, C. A. ' Jones v. MerionetTishire Building Society, (1892) 1 Ch. 173, C. A. * Armstrong T. Gibsoti {IS72), 11 Amer. R. 599. 1 Shaw y. Benson (1883), 11 Q. B. D. 563, 0. A. As to a company or society formed before 1862, see SJiaw v. Sivimums (1883), 12 Q. B. D. 117 ; and as to effect of illegal society subsequently registering, see Ex parte Poppleton (1886), 14 Q. B. D. 379. 8 Howden t. Haigh (1840), 10 A. & B. 1033. ' Monetary Advance Co. y. Cater (1888), 20 Q. B. D. 786. Consideration. 101 being merely void under 8 & 9 Vict. o. 109, s. 18, audjnot illegal, S 30 tte plaintiff can recover on the note.' ^ Although the party sued may in many instances set up the JUS tertii, the cases cited served to show that he cannot set up the injuria tertii as a defence. A proceeding pro- hibited by statute must be distinguished from a proceeding which is merely unauthorized.^ When old cases are referred to it is important to notice whether the consideration was simply void, or illegal and void, or whether it was a consideration which by statute expressly made the hiU void. Again, an illegal con- sideration must be distinguished from a merely void con- sideration.^ Hule 7. When a bill is given for a consideration which Bills void by by statute expressly makes it void, it is, as against the ^***'^*6- party who gave it, void in the hands of all parties whether immediate or remote.* For example : A. draws a bill on B. payable to bis own order. B. accepts it for a consideration which, by statute avoids it. A. indorses it to C, who takes it for value and without notice. C. can sue A.,' but be cannot sue B.^ , Most, if not all, the statutes which expressly avoided bills are now repealed, e.g., the laws relating to usury and stock-jobbing. By 5 & 6 Will. 4, c. 41, § 1, bills and notes given for wagers or gaming are not to be void, but are to be deemed to be given for an illegal consideration ; and see 8 & 9 Vict. c. 109. In many American States usury laws still prevail. " LUley V. RanHn (1887), 56 L. J. Q. B. 248. 2 Be Coltman (1881), 19 Ch. D. 64, G. A. 3 FUch V. Jones (1855), 5 K ic B. 238 ; and JBelfast Banking Co. y. Doherty (1879), i Ir. L. R. Q. B. D. 124. * Edwards v. Dick (1821), 4 B. & Aid. 212 ; ShiUito v. Theed (1831), 7 Bing. 405. s Edwwrdi y. Dick (1821), 4 B. & Aid. 212. « Ibid. ; Reed v. Wiggins (1862), 13 C. B. N. S. 220 ; 32 L. J. 0. P. 131. 102 Bills of Exchange Act, 1882. § 31. Negotiation of Bills. Negotiation 31. (l) A bill is negotiated when it is 'ta'ans- ferred from one person to another in such a manner as to constitute the transferee the holder of the bill. See " holder " defined by sect. 2, ante, p. 5. See the negotiation of a bill or note distinguished from the sale of goods by Holroyd, J./ the transfer of shares in a company by Byles, J.,^ and the transfer of an assignable Scotch bond by Blackburn, J. -^ and see note to sub-sect. (3). BiU to bearer. (2) A bill payable to bearer is negotiated by delivery. See "bearer" and "delivery" defined by sect. 2. As to delivery for a special purpose, see sect. 21, ante, p. 54. By sect. 8 (3), ante, p. 24, a bill is payable to bearer which is expressed to be so payable, or on which the only or last indorsement is an indorsement in blank. Bill to order. (3) A bill payable to order is negotiated by the indorsement of the holder completed by delivery. As to indorsement, see sect. 2 and sect. 32. By sect. 8 (4), ante, p. 25, a bill is payable to order which is expressed to be so payable, or which is expressed to be payable to a particular person, and does not contain worcb prohibiting transfer, or indicating an intention that it should not be transferable. As to restrictive indorsements, see sect. 35, post, p. 112. An individual who personates the holder, or 1 WooTcey v. Pole (1820), 4 B. & Aid. at p. 10, comparing them with money. 2 Swan T. N. B. AustraZatian Co. (1863), 2 H. & C. at pp. 184, 185 ; 32 L. J. Ex. 273. ' Crouch V. Credit Foneier (1873), L. R. 8 Q. B. at p. 381. Tkansfer. 103 who makes title through a forged indorsement, is not the § 31. holder.^ The nature of negotiation is thus described by Lord (then Mr. Justice) Blackburn : — " In the notes to Miller V. Race,^ where all the authorities are collected, the very learned author says : ' It may therefore be laid down as a safe rule that where an instrument is by the custom of trade transferable, like cash, by delivery, and is also capable of being sued upon by the person holding it pro tempore, then it is entitled to the name of a negotiable instrument, and the property in it passes to a bond, fide transferee for value, though the transfer may not have taken place in market overt. But that if either of the above requisites be wanting, i.e., if it be either not accustomably transfer- able, or, though it be accustomably transferable, yet if its nature be such as to render it incapable of being put in suit by the party holding it pro tempore, it is not a negotiable instrument, nor will delivery of it pass the property of it to a vendee, however bona fide, if the transferor himself have not a good title to it, and the transfer be made out of market overt.' Bills of exchange and promissory notes, whether payable to order or to bearer, are by the law merchant negotiable in both senses of the word. The person who by a genuine indorsement, or, where it is pay- able to bearer, by a delivery, becomes holder, may sue in his own name on the contract, and if he is a bond, fide holder for value, he has a good title, notwithstanding any defect of title in the party (whether indorser or deliverer) from whom he took it." ^ In Scotland "indorsement carries the bill only, but leaves untransmitted the diligence which may have been raised on it, and has no effect in transferring dividends due on the bill out of a sequestrated estate, or any guarantee or other collateral obligation or security." Bell's Principles, 9th ed. § 331. (4) Where the holder of a bill payable to his ^ranf J^of^ order transfers it for value without indorsing it, without indorsement. 1 Sect. 24 ; cf. Smith v. Unim Ba/rik (1875), L. E. 10 Q. B. at pp. 295, 296 ; and see note, ante, p. 91. 2 1 Smith, L. C. 9th ed. p. 491. „ „ „„, » Crmcli y. Cridit Fancier (1873), L. K. 8 Q. B. 374, at p. 38]. 104 Bills of Exchange Act, 1882. § 31. the transfer gives the transferee such title as the transferor had in the bill/ and the transferee in addition acquires the right to have the indorse- ment of the transferor.*^ Illtjsteations. 1. The holder of a bill payable to order transfers it to D. for value without indorsing it. D. oannot sue the acceptor in his own name, or negotiate the bill by indorsing it to E.' 2. The drawer of an accepted biU, payable to drawer's order, discounts it with C, but by mistake omits to indorse it. C. in- dorses the bill in blank in the drawer's name. He cannot recover from the acceptor, for he had no right to indorse.'' 3. C, the holder of a bill payable to order, transfers it for value to D. without indorsing it. If 0. becomes bankrupt, the Court will compel his trustee in bankruptcy to indorse the biU.' If 0. dies, the Court will compel his executor or administrator to indorse.^ 4. The drawer of an accepted bill payable to drawer's order, transfers it for value to 0. without indorsing it. C. returns the bin. to the drawer for his indorsement. The drawer destroys it. 0. has no claim against the acceptor.' It is to be noted that when indorsement is subsequently obtained, the transfer takes effect as a negotiation from the time when the indorsement is given.^ The scope of the rule is thus explained by Willes, J., who says : " The general rule of law is undoubted that no one can transfer a better title than he himself possesses. Nemo dat quod non hdbet. To 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 1 WhistUr T. Forster (1863), 14 C. B. N. S. at p. 258 ; 32 L. J. C. P. at p. 163, per Willes, J. ; Exparte Pike (1879), 40 L. T. N. S. 529. 2 Harrop v. Fisher (1861 ), 10 C. B. N. S. at p. 203 ; 30 L. J. C. P. at p. 286, per Byles, J. As to an express promise to indorse which was held not to create a mutual credit, see Rose t. Sims (1830), 1 B. & Ad. 521. 3 Harrop v. Fisher (1861), 10 C. B. N. S. at p. 203, Byles, J. ; and Curdife V. Whitehead (1837), 3 Eing. N. C. at p. 830. " Harrop v. Fisher (1861), 10 C. B. N. S. 196 ; 30 L. J. C. P. 283. * Ex parte Mowbray vl820), 1 Jac. & W. 428. Indorsement should negative personal liability. Indorsement by bankrupt is, it seems, equally good. Expa/rte Rhodes (1837), 3 Mont. & Ayr. 217. « Cf. Watkins v. Movie (1820), 2 Jac. & W. 243. 7 Edge v. Bumford (1862), 31 L. J. Ch. 805. 8 Whistler v. Forster, supra ; see, too, Zaticaster Bank v. Taylor (1869), 1 Amer. R. 71 ; Clark v. Whitaker (1871), 9 Amer. B. 286. Transfer. 105 to tlie same rule as money, and if such an instrument be § 31. transferred in good faith for value before it is over-due, it becomes available in the hands of the holder, notwithstand- ing 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 ; and it is therefore clear that in order to acquire the benefit of this rule the holder 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 title than his assignor."^ (5) Where any person is under obligation to indorsement \ ' . . . . 1 liy representa- indorse a bill in a representative capacity, he tive. may indorse the bill in such terms as to negative personal liability. See sect. 16 (1), ante, p. 39, as to indorsements limiting or negativing liability, and sect. 26, ante, p. 77. 32. An indorsement in order to operate as a Eequisitesof negotiation must comply with the following con- dorsement. ditions, namely : — (1) It must be written on the bill itself and be signed by the indorser. The simple signa- ture of the indorser on the bill, without additional words, is sufficient. An indorsement written on an allonge, or on a Allonge or " copy " of a bill issued or negotiated in a country where "copies" are recognized, is deemed to be written on the bill itself. ■ WUMer v. Ponter (1863), 14 C. B. N. S. at pp. 257, 258 ; 32 L. J. 0. P., p. 163. 106 Bills of Exchange Act, 1882. ° "*"• Illustrations. 1. C, the holder of a bill, signs it and writes thereon, " I hereby assign this draft and all benefit of the money secured thereby to D." This is an indorsement by 0.' 2. C, the holder of a note, signs it and writes thereon, " I be- queath — Pay the within to D., or his order, at my death," and gives it to D. This is not an indorsement, but an attempted testa- mentary gift, invalid under the WUls Act.^ 3. An express promise in writing to indorse a bill is not an indorsement.' 4. The assignment of a note by a separate writing is not an in- dorsement.'' By sect. 2 "indorsement" means an indorsement com- pleted by delivery. As to delivery, see sect. 21, anie, p. 52. As to negotiation, see sect. 31. As to signature by agent, see sect. 91, post, p. 274. As to indorsement of biU drawn in a set, see sect. 71, post, p. 235. It has recently been held that where a bill broker who has discounted bills re-discounts them with his bankers, and instead of indorsing each biU gives a general guarantee, he can prove against the acceptor for the amount he has to pay under his guarantee and interest, if the bills are dis- honoured.' An indorsement on the face of a bill is valid.* Under the repealed Act, 17 Geo. 3, c. 30, the indorse- ment of a bill or note under 61. required an attesting witness. French Code, Art. 137, requires an indorsement to be dated, to state the consideration, and the name of the indorsee, and to be to order. By Art. 138, if any of these- requisites be wanting, it can only avail as a "procuration." When there is no room on a biU for further indorsements, a slip of paper, called an "allonge," may be attached thereto. It becomes part of the bill, and indorsements may be written thereon.^ ' Richards -7. Franhwm fl840), 9 C. & P. at p. 225. 2 MitcheU v. Smith (1864), 33 L. J. Ch. 596. 3 Of. Harrop v. Fisher (1861), 10 C. B. N. S. at p. 204 ; 30 L. J. C. P. 286, and Ease v. Sims (1830), 1 B. & Ad. 521. * lie Barrington (1804), 2 Scho. & Lef. 112 ; cf. Eic parte Ba/rrison (1789), 2 Brown C. C. 614. ' Ex parte Bishop (1880), 15 Ch. D. 400, 0. A. 6 Young v. Glover (1857), 3 Jur. N. S. Q. B. 637 ; Expa/rte Yates (1858), 2 De G. & J. 191 ; 27 L. J, Bank. 9. ' Cf. Monmohunee t. Secretary of State (1874), 13 Bengal L. R. 859 ; German Exchange Law, Art. 11. Transfer. 107 Some of the foreign codes contain minute provisions to § 32. prevent frauds, e.g., that the first indorsement on the allonge must begin on the bill and end on the allonge ; otherwise an allonge might be taken from one bill and struck on to another : Cf. Nouguier, § 668. As to " copies," see Nouguier, §§ 208—211, and German Exchange Law, Arts. 70—72. A "copy" of a bill must be distinguished from the parts of a set : see sect. 71, post, p. 235. (2) It must be an indorsement of the entire Partial in- bill. A partial indorsement, that is to say, °^^^^ an indorsement which purports to transfer to the indorsee a part only of the amount pay- able, or which purports to transfer the bill to two or more indorsees severally, does not operate as a negotiation of the bill. IlLUSTBATIONS. 1. C, tie holder of a bill for lOOZ., indorses it, " Pay 50Z. to D. or order, and 601. to E. or order." This is invalid. Neither D. nor E. can sue or furtter indorse.' 2. C, the holder of a bill for 100^., indorses it, " Pay D. or order 30Z." This is invalid, unless 0. also acknowledge the receipt of 70Z.2 A partial indorsement, purporting to split the right of action on a bill, is invalid as a negotiation, but may operate as an authority to receive payment of the amount thereby specified.^ (3) Where a bill is payable to the order of two Several or more payees or indorsees who are not LXraees! partners all must indorse, unless the one in- dorsing has authority to indorse for the others. ' Cf. Hdlhut V. Nevill (1869), L. R. 4 C. P. at p. 3S8 ; Oonova v. EoatI (1868), 26 Iowa, 169. See Nouguier, § 665. 2 Hawkins v. Oardy (1699), 1 I/d. Kaym. 360. 1^8 Bills of Exchange Act, 1882. § 32. IlirSTKATIONS. 1. Bill payable " to the order of 0. and D." D. alone indorses it to E. This is insufficient. B. cannot sue the acceptor.' 2. Bill payable "to the order of 0. and D." C, with D.'s authority, indorses it "for self and D." This is sufficient. 3. Bill payable to " 0. and D., or the order of either of them." C. alone indorses it. This is sufficient.^ Qu. in Illustrations 2 and 3, as to the liability of D. as indorser ? "Where a dividend warrant is payable to the order of two or more persons the custom is to pay on tlie indorsement of any one of them ; and by sect. 97 (3) (d), post, p. 284, the usages with respect to dividend warrants are expressly saved. Misdescrip- (4) Where, in a bill payable to order, the payee tion of payee ^'. . j../ _ ' i. u ^ or indorsee. Or indorsee is wrongly designated, or his name is mis-spelt, he may indorse the bill as therein described, adding, if he think fit, his proper signature. iLLrSTBATION. A bill is indorsed to J. Smythe. The man's real name is T. Smith. He can validly negotiate the bill by indorsing it as J. Smythe.' The usual and proper course is for the holder to sign first the name as described or spelt in the bill, and then to put underneath his proper signature. If a person trades under an assumed name, can he validly negotiate a bill payable to him under his trade name by indorsing it in ms individual name or vice iwrsd ? — e.g., John Smith trades as " Brown & Co." A bill is drawn payable to the order of " Brown & Co." He indorses it as John Smith. Is the presentment for payment of this bill by the indorsee a due presentment ? In Massachusetts it 1 CcM-vick T. Vickery (1781), 2 Dougl. 652 ; cf. Meilbut v. Nevill (1869), ,. R. 4 C. P. at pp. 366, 368, per Willes, J. 2 Watson V. Evam (1863), 32 L. J. Ex. 137. 3 .Supra, and cf. Wiliis v. Barrett (1816), 2 Stark. 29 : cf. sect. 7 (1), do T. 1Q L ante, p. 19 Tkansfee. 109 seems it is.i The ^pomtwas vaisei in TValkery.Macdonald,^ §32 but the decision proceeded on tlie ground that there was a prior indorsement in blank, and therefore the bill was pay- able to bearer. Such an indorsement is clearly irregular if not invalid. ' A question sometimes arises as to how a bill payable (say) to " Mrs. John Jones " should be indorsed. The proper form appears to be " Ellen Jones, wife of John Jones." The form sometimes adopted, m., "Mrs. John Jones," is clearly irregular, though its invalidity has never been decided : see note to sect. 91, post, p. 275. When the title to a bill payable to order is transmitted by act of law, and the person to whom the title is trans- mitted obtains possession of the bill, he has the rights of the holder. See transmission by marriage {post, p. 125), death (post, p. 126), execution (post, p. 127), bankruptcy (post, p. 127). _ See also dissolution of partnership (ante, p. 70). In America an exception to the general rule is admitted in the case of corporations. Thus a bill payable to the order of the cashier or other officer of a bank is deemed to be payable to the bank ; therefore, any person who can indorse for the bank can negotiate such a bill — e.g., C. is the cashier of the "X. Bank," and D. is the president. A bill bought by the bank is indorsed " pay to the order of C. cashier." The " X. Bank " can sue on the biU in the corporate name, and D. the j)resident can validly indorse it away without a previous indorsement by C The expediency of this excep- tion is very doubtful. (5) Where there are two or more indorsements Order of , .,, 1 • 1 J • ^ 1 , T indorsements. on a bill each indorsement is deemed to have been made in the order in which it appears on the bill, until the contrary is proved. (6) An indorsement may be made in blank or Kinds of • T -r, 1 J • J 1 • indorsement. special, it may also contain terms making it restrictive. 33. Where a bill purports to be indorsed con- Conditional = indorsement. 1 Bryant v. Eastman (1851), 61 Mass. R. 111. 3 Walker y. Maedonald (1848), 2 Exoh. 527. ' WaUrvliet Banky. White, 1 Denio, 609 ; FmtNat. Banky. Hall {1871), U New York R. 395. 110 Bills of Exchange Act, 1882. § 33. ditionally the condition may be disregarded by the payer, and payment to the indorsee is valid whether the condition has been fulfilled or not. IlXUSTEATION. An indorsemeiit running, Pay to the order of 0. " on the arrival of the ship Swallow at Calcutta," or " on his marriage with D.," would be conditional. See sect. 11 (2). Compare sect. 35 {post, p. 112), as to restrictive indorse- ments. This section alters the law. It was formerly held that if a bill was indorsed conditionally, the acceptor paid it at his peril if the condition was not fulfilled.^ This was hard on him. If he dishonoured the biU he might be liable in damages, and yet it might be impossible for him to find out if the condition had been fulfilled. Under this section, as between indorser and indorsee, the condition would presumably be operative. If the indorsee received payment without the condition being fulfilled, he could not sue the indorser, and he would moreover hold the proceeds in trust for the indorser. The continental codes do not recognise conditional indorsements ; and Pothier (No. 38) says expressly, that an indorsement must conform to the conditions of an original draft. Sect. 52 of the Indian Negotiable Instruments Act appears to preserve the common law rule. Indorsement 34. (i) j^n indorsement in blank specifies no in blank. . , , ■*■ indorsee, and a bill so indorsed becomes payable to bearer. iLLtrSTBATION. Bill payable to the order of John Smith. He signs on the back, " John Smith." This act is interpreted by the law merchant as an indorsement in blank by John Smith, and operates as if he had written — 1. I hereby assign this bill to bearer. 2. I hereby under- take that if this bill be dishonoured, I, on receiving due notice thereof, will indemnify the bearer. By sect. 31 (2), ante, p. 102, a bill payable to bearer is negotiated by delivery.^ See German Exchange Law, Art. 12, to same effect. ' Sohertson t. Kensington (1811), 4 Taunt. 30. 2 See Peacock Y. Shades (1781), 2 Dougl. at p. 636,, per Lord Mansfield; Transfee. Ill Under French Code, Arts. 137, 138, an indorsement in § 34. blank merely operates as a " procuration," and not as a ~ negotiation of the bill. The indorsee is considered as the agent or " mandataire," of the indorser, and their relations are regulated accordingly. If, however, the indorsee has given value, he may convert the blank into a special indorsement.^ (2) A special indorsement specifies the person Special in- to whom, or to whose order, the bill is to be °^^^^^^ " payable. iLLtrSTRATIONS. 1. "Pay D. or order." 2. "Pay to D. & Co.," wHoh in legal efiect is " pay D. & Co. or order." See sect. 8 (4). 3. " Pay to tte order of tte D. Company," which, in legal effect is " Pay the D. Company or order." ° A bill specially indorsed is payable to the indorsee therein designated, and can only be negotiated by his indorsement.* Under sect. 8 (3), ante, p. 24, a special indorsement following an indorsement in blank controls the effect of the indorsement in blank. (3) The provisions of this Act relating to a Provisions as payee apply with the necessary modifications to appi^to an indorsee under a special indorsement. mdoraee. See sects. 7 and 8, ante, pp. 19 — 25, as to payee. (4) When a bill has been indorsed in blank, Conversion of any holder may convert the blank mdorsement special in- . .,., ,1 .,. 1 ,1 dorsement. mto a special mdorsement by writing above the indorser's signature a direction to pay the bill to or to the order of himself or some other person. and see indorsement in blank distinguished from special indorsement, per Wilde C J., ffarmer v. Steele (1849), 4 Exch. at p. 15; per Parke, B., Sobarts v. Tucker (1851), 16 Q. B. at p. 579 ; and per Erie, C.J., Law v. Pcu-neU (1859), 7 C. B. N. S. at p. 285 ; 29 L. J. C. P. at P. 19. 1 Nouguier, §§ 747—760 ; and see Bradlaugh v. De Mm (1870), L. K. 5 O T* 4-7^ ^Tc Gh. 'a Soare's v. Glyn (1845), 8 Q. B. 24, Ex. Cli. See sect. 8 (5). 3 See sect. 31 (3), and Sm-rop v. Fisher (1861), 30 L. J. C. P. 283. 112 Bills of Exchange Act, 1882. §34. striking out indorsements. Bestrictive indorsement. lUiTJSTEATION. The holder of a bill, indorsed by 0. in blank, writes over O.'s signature tbe words, "Pay to tlie order of D." The bolder who does this is not liable as an indorser, but the transaction operates as a special indorsement from 0. to D.' Striking out Indorsements. The holder may at any time (e.g., at the trial after the plaintiff has finished his case)^ strike out any indorsement which is not necessary to his title. The indorser, whose indorsement is intentionally struck out, and all indorsers subsequent to him, are dis- charged from their liabilities ; aliter if the indorsement be struck out by mistake.^ Qu. if the present system of open pleading affects the necessity for striding out indorsements where the action is against the acceptor ? The holder may, in some cases, make title through a person whose indorse- ment is struck out.* Indorsements for collection may be struck out by the owner of the bill,^ and if the indorser of a bill takes it up or pays it when dishonoured, he may strike out his own and all subsequent indorsements, whether blank or special.* 35. (1) An indorsement is restrictive which prohibits the further negotiation of the bill, or which expresses that it is a mere authority to deal with the bill as thereby directed and not a transfer of the ownership thereof, as, for example, if a bill be indorsed " Pay D. only," or " Pay D. for the account of X.," or " Pay D. or order for collection." ' Vincent v. Horlock (1 808), 1 Camp. 442 : of. EvnchfieU t. Smith (1866), L. K. 1 C. P. 340 ; German Exchange Law, Art. 12 ; and Nouguier, §§ 747, 748. 2 Mayer T. Jadia (1833), 1 M. & Kob. 247 ; Byles, 154. 3 WaUnson v. Johnson (1824), 3 B. & C. 428. * Pai/rdoughY. Pavia (1854), 9 Exoh. at p. 695 ; but of. Partlett v. Benson (1845), 14M. &W. 733. 5 Dugan v. United States (1818), 3 Wheat. 173 ; Bcmk of Utica v. Smith (1820), 18 Johns. 229, New York. 6 CaUow V. Lawrence (1814), 3 M. & S. 95 ; German Exchange Law, Art. 55. See also sect. 59 (2), j>ost, p. 203. Transfer. 113 Illttstrations. b 35 The following are restrictive : — 1. "Pay D. or order for the use of X." • 2. "Pray pay the money to my use." ^ 3. "Pay the contents to my servant for my use."' 4. " The -within must be credited to D., value in account." * 5. " Pay the contents to my use," or " Pay the contents to the use of X.," or " Carry this bUl to the credit of X." « 6. " Pay D. or order for our use, value received in account." « 7. "Pay D. or order for the account of X." ' 8. " Pay D. or order for my use." ' 9. "Pay to the order of D. & Co., under provision for mv note in favour of X." » ^ 10. " Pay D. & Co. or order for collection." i" A statement in an indorsement that the value for it has been furnished by some person other than the indorsee does not make it restrictive ; " e.g., Bill indorsed "Pay D.,or order value in account with X." This is not restrictive. It is in effect a simple indorsement to D. or order.^^ The mere omission to add words of negotiability to a special indorsement does not make it restrictive : see sect. 8 (1) and (4), ante, pp. 24, 25. _ Under German Exchange Law, Art. 15, if C. indorse a bill "Pay D. only," the result is this ; D. can still indorse the bill away, but C. is not liable on his indorsement. It is in effect an indorsement " without recourse," and not a restrictive indorsement. (2) A restrictive indorsement gives the indorsee Restrictive ,-,.-, . . indorsement. the right to receive payment of the bill and to 1 Hvam V. CrwmUngton (1687), 1 Show. 4 ; 2 Show, 509 ; Ex. Ch. 2 Snee v. Prescott (1743), 1 Atk. at p. 249. 3 Mie V. i:ast India Oo. (1761), 2 Burr, at p. 1227, Wilmot, J. * Ancherr. Bank of England {179,1), 2 Dougl. 637. * Of. Rice V. Stea/rns (1807), 3 Mass. R. at p. 226. « Wihon V. ffolmes (1809), 5 Mass. R. 543. ' Treuttel v. Barandon (1817), 8 Taunt. 100 ; Blaine v. Bourne {1875), 23 Amer. K. 431. 8 Sigourney v. i%d! (1828), 8 B. & C. 622 ; affirmed, 5 Bing. 525, Ex. Ch. 9 Wedlake v. HurUy (1830), Lloyd & Welsby, 330 ; 1 C. & J. 83. '" Sweeney v. Easter (1863), 1 Wallace, 166, Sup. Ct. U. S. ; MereJtants' Bank T. Benson (1884), 53 Amer. R. 5 ; Williams, Deacon <£.■ Oo. v. Shadholt (1885), 1 C. & E. 529 ; of. German Exchange Law, Art. 17. " Potti V. Beed (1806), 6 Esp. 57 ; Murrcm v. Stuart (1853), 8 Moore, P. 0. 267. '2 Buckley v. Jackson (1868), L. R. 3 Ex. 135. 114 Bills of Exchange Act, 1882. § ^^' sue any party thereto that his indorser could have sued/ but gives him no power to transfer his rights as indorsee unless it expressly authorize him to do so.'^ Illustrations. 1. Bill indorsed " Pay D. for my aooount." D. cannot by in- dorsing it to E. authorize E. to collect it. AUter if tlie indorse- ment ran, " Pay D. or order for my account." ^ 2. Bill indorsed "PayD. or order for collection per account of 0. Bank." If the 0. Bank receives payment before maturity, D. cannot recover from the acceptor, although he has credited the 0. Bank ■with the amount of the bill.^ It has never been attempted to make the payer respon- sible for the due application of the proceeds by the indorsee, and it is clear that he is not responsible. (3) Where a restrictive indorsement authorizes further transfer, all subsequent indorsees take the bill with the same rights and subject to the same liabilities as the first indorsee under the restrictive indorsement.^ Illustrations. 1. 0. indorses a biU " Pay D. or order for my use." D. indorses , it to, and discounts it with, E. on his own account. E. collects it at maturity. 0. can recover the amount of the bill from E.* 2. 0. indorses a bill " Pay D. or order for the use of X." D. collects the bill at maturity. If he misappropriate the money, X. cannot sue him.' The action must be brought by 0.' 3. 0. indorses a bill " Pay Dtmr order for account of X." D. is X.'s agent. D. indorses the bill to E., who collects it. X. can sue E. for the amount So received.' ' Evrnier. CrainZington {168T), 2 Show. 509, Ex. Ch. ; Wilson v. Holmes (1809), 5 Massachus. E. 643 ; cf. German Exchange Law, Art. 17. 2 Uoyd T. Sigourney (1829), 5 Bing. at p. 532, Ex. Ch. ; cf. Pothier, No. 89 ; German Exchange Law, Art. 17. ^ Lloyd T. Sigourney (1829), 5 Bing. at p. 532. * Williams, Deacon & Co. v. Skadbolt (1885), 1 0. & E. 529, per Cave, J. '. Treuttel t. Barandon (1817), 8 Taunt. 100 ; Lloyd v. Sigourney (1829), 5 Bing. at p. 531 ; Sweeney v. Easter (1863), 1 Wallace, E. 166, Sup. Ct. U. S. ; German Exchange Law, Art. 17. 6 LUyd V. Sigowrney (1829), 5 Bing. 525, Ex. Oh. J' Wedlake v. Hurley (1830), Lloyd & Welsby, 330 ; 1 C. & J. 83. « Ibid, at pp. 332, 88, per Vaughan, B. 9 Treuttel v. Barandon (1817), 8 Taunt. 100. If D. had not been^X.'s agent, C. must have brought the action. Transfer. 115 4. A. draws a bill on B., and indorses it to 0. 0. indorses it, 8 35. "Pay D. or order for my use." The bill is dishonoured, and D. — ' sues A. the drawer. If A. have any defence against C, he may set it up against D.' Where a bill is indorsed restrictively the relations be- tween indorser and indorsee are substantially those of principal and agent.^ If, for instance, the acceptor pay the indorser, it seems that the indorsee cannot sue him, though the indorsee really gave value for the bill.* The indorsee is frequently referred to in the cases as a trustee, but he is only a trustee in the sense that an agent or bailee is a trustee.* German Exchange Law, Art. 17, deals with agency or restrictive indorsements and accords substantially with this section ; so, too, does sect. 50 of the Indian Act. In France the mere omission of the state- ment of the value received makes the indorsement operate as a procuration or agency indorsement.^ Pothier (Nos. 23 and 88 — 90) has worked out the results with great clearness. 36. d) Where a bill is nearotiable in its origin How long . 1 ,• 11 i-1 -1 1 1 bill continuea it continues to be negotiable until it has been negotiable. (a) restrictively indorsed or {b) discharged by- payment or otherwise. " A bill of exchange," says Lord Ellenborough, in language a little too wide, "is negoDiable ad infinitum until it has beea paid by, or discharged on behalf of, the acceptor." ^ See sects. 59 — 64 as to discharges, and sect. 35 (2) as to restrictive indorsements. The character and incidents of negotiability depend on the time of negotiation. As to negotiation, see sect. 31. As to transfer of an in- complete bill, see sect. 20, ante, p. 49. 1 Wilson V. Holmes (1809), 5 Mass. K. 543. 2 Cf. Potts v. Reed (1806), 6 Esp. at p. 59 ; Rice v. Stearns (1807), 3 Massachusetts R. at p. 532. „.„,„„„ 3 Williams v. Sliadbolt (1885), 1 C. & B. 529, Cave, J. •• Cf. Cook T. Lister (1863), 13 C. B. N. S. at p. 597 ; 32 L. J. C. P. 121 • see the position of an agent or bailee compared with a trustee, strictly so called, by Jesael, M. R., in Re Halm's Estate (1879), 13 Ch. D. at pp. 708— 711, C. A. 5 Of. French Code, Art. 138 ; Nougmer, §§ 744 et seq. « CaUow r. Lawrence (1814), 3 M. & S. at p. 97 ; cf. Leamt v. Putnam (1850), 3 New York R. at p. 497. I 2 116 Bills of Exchange Act, 1882. §36. After action brought. The fact that an action has been brought on a dis- honoured bill does not determine its negotiability ; but if a bill be transferred, after action brought, to embarrass the defendant, his remedy is by application to the Court.^ If judgment were obtained, the bill would be extinguished by merger as between the defendant and the plaintiff or any subsequent party. Negotiation (2) Where an overdue bill is nesrotiated, it can 01 overdue , ^ ' _ _ ° biu. only be negotiated subject to any defect of title affecting it at its maturity, and thenceforward no person who takes it can acquire or give a better title than that which the person from whom he took it had. Illustkations. 1. Note payable to O.'s order made for an illegal consideration. 0. indorses it, when overdue, to D. D. cannot recover from the maker.2 2. Bill obtained from the drawer for a special purpose. C, in fraud of that purpose, indorses the bill when overdue to D. D. cannot recover from the acceptor.^ 3. Bill payable to drawer's order is accepted subject to a certain condition then agreed on between drawer and drawee. The drawer indorses the bill when overdue to C. C. takes the bill subject to the agreed condition, though he had no notice of it.* 4. Bill accepted for an illegal consideration. The drawer indorses it before maturity to C, who takes it for value and without notice. C. indorses the bill when overdue to D. D. can sue aU parties, for 0. had a good title.' 5. The holder of a bill is indebted to the acceptor, e.g. for rent. If, then, he sues the acceptor the arrears of rent can be set off; but if he indorses the bill when overdue to D. for value, the acceptor has no right of set-ofE against D.^ 6. Action by third indorsee of a bill against the first indorser. Although the plaintiff took the bUl when overdue, the defendant 1 Deuters v. Townsend (1864), 33 L. J. Q. B. 301 ; cf. Woodward v. Pell (1868), L. R. i Q. B. 55. 2 Amory v. Meryweather (1824), 2 B. & C. 573. 3 Zloyd T. Howard (1850), 15 Q. B. 995. * Holmes v. Kidd (1868), 28 L. J. Ex. 112, Ex. Oh. ' Chalmers v. Lanion (1808), 1 Camp. 383 ; Fairdough v. Pavia (1854), 9 Exch. 690 ; cf. sect. 29 (3), ante, p. 92. 6 Oulds T. Harrison (1854), 10 Exch. 572 ; Ex parte Swan (1868), L. K, 6 Eq. 344. The indorsement of a bill, in this respect, difi'ers from the ordinary assignment of a chose in action. Soicburghey. C'oa; (1880), 15 Ch. D. , 520, C. A. Transfer. 1]7 cannot set-off a debt due to him from an intermediate holder and 8 36 indorser." ^ ' 7. The indorsee of a note sues the maker. The maker may show that the note had been satisfied as between himself and the payee, and that the payee indorsed the note to the plaintiff when it was overdue, and after satisfaction to the payee.- 8. The manager of the "X. Bank" abstracts moneys belonging to the bank, and purchases therewith an overdue biU of exchange, which he negotiates toD. The " X. bank," and not D., is entitled to the bill, and can prove against the acceptor's estate if he become bankrupt.' 9. A bin payable three months after date is accepted to accom- modate the drawer. After the bill is overdue the drawer indorses to C. for value. C. can recover from the acceptor.^ 10. A bill of exchange, indorsed in blank, is handed in Norway to S., who is agent for C. and D., and who was jointly interested in the biU. The bill is seized in Norway for a debt of D.'s, and, after it is overdue, is sold to F. The proceedings are regular according to Norwegian law. P. has a good title to the biU as against 0.' As to the term " defect of title," see sect. 29 (2), ante, p. 92. It was substituted for the equivalent expression "equity attaching to the bill," as that term was unknown in Scotch law. " If," says Buller, J., "a note indorsed be not due at the time, it carries no suspicion whatever on the face of it. and the party receives it on its own intrinsic credit. . . . But where a note is due the party receiving it takes it on the credit of the person who gives it to him." ® Aiter long controversy it nciw seems settled that mere absence of consideration is not an equity which attaches to a bill,^ but that if there be an agreement express or impHed not to negotiate an accommodation bill after maturity, the agreement constitutes an equity atttching to it.^ In New ' Whitehead v. Walker (1842), 10 M. & W. 696. 2 Brown V. Davles (1789), 3 T. R. 80. •5 Bx pa/i-te Oriental Bank (1870), L. R. 5 Ch. .358 ; cf. Zee v. Zagury (1817), 8 Taunt. 114 ; and, by analogy. iJe Qomermll (1875), 1 Ch. D. 137. As to the limits of the principle that the rights of a person not a party to the biU may constitute an equity attaching to it, see Warren t. Eaigh (1875), 65 Xew York R. 171. * Stein V. Y,,lesiaii (1834), 1 C. M. & R. 565. 5 Alcock V. Smith, (1892) 1 Ch. 238, C. A. 6 Brcmn t. Davies (1789), 3 T. R. 80, at p. 82. 7 Sturtetant t. Ford (1842), 4 M. & Gr. 101 ; Ex parte Swan (1868), L. R. 6 Eq. 344. 8 Parr t. Jewell (1855), 16 C. B. 684, Ex. Ch. ; Carruthers v. West (1847), 11 Q. B. 143, is not to the contrary. See ratio decidendi, per Wightman, J. 9 118 Bills of Exchange Act, 1882. § 36. York it has been held that if an accommodation bill bo negotiated when overdue the holder cannot recover, for the bill is in terms a credit for a limited time, and to negotiate it after that time is a breach of faith.^ Payment and other discharges are sometimes spoken of as equities attaching to a bill, but this seems incorrect — they are rather grounds of nullity. That which purports to be a bill is no longer such ; it is mere waste paper. Part payment, however, may be regarded as an equity which attaches to a bill.^ The position of a holder who takes a bill when overdue, is this: he is a holder with notice. He may or may not be a holder for value, and his rights will be regulated accordingly. He is a holder with notice for this reason : he takes a bill which, on the face of it, ought to have got home and to have been paid. He is therefore bound to make two enquiries : 1. Has what ought to have been done really been done, i.e., has the bill in fact been discharged ? 2. If not, why not " Is there any equity attaching thereto ? i.e., was the title of the person who held it at maturity defective ? If his title to the instrument was complete, it is immaterial that for some collateral reason, e.g., a set-off, he could not have enforced the bill against some one or more of the parties liable thereon. In France, it seems, no distinction is drawn between overdue and current bills ; Nouguier, §§ 67^ — 680. By German Exchange" Law, Art'. 16, the indorsee of an overdue and protested bill acquires only the rights of his indorser. When deemed ^ bill payable otherwise than on demand is overdue over ue. ^^^^^ ^^^ expiration of the last day of grace.* As to in- struments on demand, see sub-sect. ( 3), and as to dis- honoured bills, see sub-sect. (5). By German Exchange Law, Art. 16, a bill is not deemed to be overdue till the time for protesting it has elapsed. Bills negotiated abroad. — The provisions of this section perhaps do not apply to a bill which is negotiated in a foreign country, where no distinction is recognised between overdue and current bills.* • Chester^. Dorr (1869), 41 New York E. 279. 2 Graves v. Key (1832), 3 B. & Ad. at p. 319. ' Cf. LefUey v. Mills (1791), 4 T. K. 170. * Alcoch V. Smith, (1892) 1 Ch. 238, affirmed on the ground that the evidence disclosed no defect of title. Transfer. 119 (3) A bill payable on demand is deemed to be § 36. overdue within the meaning and for the purposes Biu on de- of this section, when it appears on the face of oZiuI^"'' it to have been in circulation for an unreason- able length of time. What is an unreasonable length of time for this purpose is a question of fact. See sect. 10, defining what bills are payable on demand. There appears to be no English or American case as to a bUl, but the enactment is probably declaratory. Com- pare sect. 40 (3), post, p. 133, as to the test of reasonable time. By sect. 86 (3), post, p. 267, notes payable on demand, which are regarded as continuing securities, are exempted from this sub-section.^ By virtue of sect. 73, post, p. 245, this enactment applies to cheques. Therefore a person who takes a stale cheque, takes it at his peril. In a case in 1881, where the pre- vious decisions are reviewed, a cheque negotiated 8 days after date, was held not to be on the footing of an over- due bill,'' but a cheque taken 2 months after date has been held to be stale.^ (4) Except where an indorsement bears date Presumption after the maturity of the bill, every negotiation is negotiation. primd facie deemed to have been effected before the bill was overdue. This is declaratory ; * but apart from the general rule there is no presumption as to the exact time of negotia- tion,^ and it seems that circumstances of strong suspicion, short of direct evidence, may rebut the primd facie pre- > Brooks V. mtcheU (1841), 9 M. & W. 15. 2 Londm and County Bank v. Oroome (1881), 8 Q. B. D. 288 ; cf. Roth- icUld T. Corney (1829), 9 B. & C. 388, six days. ' Serrel v. Derbyahi/re Railway Co. (1850), 9 C. B. 811 ; of. Ex parte Hughes (1880), 43 L. T. N. S. 577, as to dishonoured cheques ; and Himmdrrum t. JSotaling (1870), 6 Amer. B. 600. * Lewis T. Parker (1836), 4 A. & E. 838 ; cf. sect. 30 (2), ante, p. 93. ' Anderson v. Weston (1840), 6 Bing. N. C. 296. 120 Bills of Exchange Act, 1882. 36. Bill known to be dis- honoured. sumption, and make it a question for the jury whetlier the bill was negotiated before or after maturity .^ (5) Where a bill which is not overdue has been dishonoured, any person who takes it with notice of the dishonour takes it subject to any defect of title attaching thereto at the time of dishonour, but nothing in this sub-section shall aifect the rights of a holder in due course. Negotiation of bill to party already liable thereon. Illustratiois'. A bill is dislioiioTired bynon-acoeptance, and afterwards indorsed to the plaintiff, who knows that it has been so dishonoured. The plaintiff, who is the third indorsee, takes the bill subject to any agreement between the first and second indorsers as to the dis- charge of the former.^ This sub-section settles a disputed point, by putting a bill known to be dishonoured on the same footing as an overdue bill.^ See sect. 29, defining "holder in due course ; " and sect. 43, as to dishonour b)"^ non-acceptance. In America the decisions are conflicting. As to nego- tiating a bill after action brought^ see note to sub-sect. (1). 37. Where a bill is negotiated back to the drawer, or to a prior indorser,* or to the ac- ceptor,* such party may, subject to the provisions of this Act,^ re-issue and further negotiate the bill, but he is not entitled to enforce payment of the bill against any intervening party to whom he was previously liable. 1 Bounsall v. Harrison (1836), 1 M. & W. 611. = CVossZeyv. jETam (1811), 13 East, 498; cf. Whitehead v. Walker il8i2), 10 M. & W. 696, where the bill was dishonoured by non-aeceptanoe, thongb it is spoken of as overdue. ' Affirms Orossley r. Ham (1811), 13 East, 498 ; and quoad hoe overrides Goodman v. Harvey (1836), 6 Nev. & Man. 372. < Cf. sect. 69 (2), post, p. 203. * See note to sect. 59 (1), post, p. 200, and sect. 61, post, p. 211. ^ See sects. 59 — 64, as to discharges ; and especially sect. 59 (2) as to taking up bills, and sect. 61, as to coincidesce of right and liability. Tkansfer. 121 Illustrations. § 37. 1. Bill payable three months after date is indorsed by the holder to the acceptor. At any time before matm-ity the acceptor mav re-issue the bill and indorse it away.i 2. The (^awer of a biU payable to drawer's order indorses it to O., who indorses it to D., who indorses it back to the drawer. The drawer either before or after its maturity, may re-issue the bill and indorse it to E.'' 3. The drawer of a bill payable to drawer's order indorses it for value to C, who indorses it to D., who indorses it back to the drawer. The drawer cannot recover from 0. or D., for they in turn could recover from him as drawer.' 4. The payee of a bill indorses it " without recourse " to D., who indorses it to B., who indorses it back to the payee. The payee, in his character of third indorsee, can sue D. and E., for they have no claim against him as a prior indorser.'' 5. The drawer of a bill indorses it to C, who has previously undertaken to be responsible for the price of goods supplied to the acceptor. C. indorses the biU back to the drawer. The drawer, in his character of indorsee, can sue C, for C. has no remedy over against him.' By sect. 36 (1), a bill is negotiable until it is restrictively indorsed or discharged. As to discharges, see sects. 59 — 64, post, pp. 199 — 225, and note that an accommodation bill is discharged when paid at maturity by the person accommodated, and that any bill is discharged when the acceptor is, or becomes the holder of it at or after maturity. The rule in the present section is a rule against circuity of action.^ 38. The rights and powers of the holder of a Eights of the , ., ° ^ holder. bill are as follows : ( 1 ) He may sue on the bill in his own name : ^ (2) Where he is a holder in due course, he holds the bill free from any defect of title of ' Attenborough v. Mackenzie (1856), 25 L. J. Ex. 244. 2 Of. ffubbardv. /acAsom (1827), 4Bing. 390; Jonesy. Sroadhurst (IS50), 9 C. B. 173. This is subject to sect. 59 (2), (3). 3 Cf. Bishop V. Haywwrd (1791), 4 T. R. 470 ; Wilders v. Stevens (1846), 15 M. & W. at p. 212. * Cf. Morris v. Walker (1850), 15 Q. B. at p. 594. There is here no circuity of action. 5 Wilkinson V. Unwin (1881), 7 Q. B. D. 636, 0. A. • Eolmes v. Durkee (1883), 1 C. & E. 23. ? Cf. Cr(mch v. Cridit Fancier (1873), L. R. 8 Q. B. at pp. 380—382. 122 Bills of Exchange Act, 1882. § ^Q- prior parties, as well as from mere personal Rights of the defences available to prior parties amonff holder. ;!; -^ . ^ themselves, and may enforce payment agamst all parties liable on the bill : ' (3) Where his title is defective (a) if he nego- tiates the bill to a holder in due course, that holder obtains a good and complete title to the bill, and (b) if he obtains payment of the bill the person who pays him in due course gets a valid discharge for the bill.^ This section deals with the rights acquired by negotia- tion, that is, by transfer according to the form required by the law merchant : see sect. 31, anfp, p. 102. See " holder " defined hy sect. 2, ante, p. 5 ; " holder for value " defined by sect. 27 (2), (3), ante, pp. 83 — 85 ; and " holder in due course " defined by sect. 29, ante, p. 88. As to "defects of title," see sect. 29 (2), ante, p. 92, and as to " payment in due course," see sect. 69, post, p. 199. It is to be noted that the Larceny Act, 1861_ (24 & 25 Yict. c. 96), s. 100, which provides for the reves'ting of stolen property in the true owner when the thief is convicted, does not apply to negotiable instruments. A defective title must be dis- tinguished from entire absence of title. A person who claims under a forgery has no title, and can give none. He is not the " holder " oi the instrument. The power to negotiate a bill must be distinguished from the right to negotiate it. The right to negotiate is an incident of ownership ; the power to negotiate is an in- cident of apparent ownership. Again, the right to sue must be distinguished from the right to recover, which depends on the further question whether the holder is a holder for value, and in some cases whether he is a holder for value without notice. The law as to the holders' rights of action and proof may peril aps be stated in the following rules : — 1 Cf. Crouch v. Cr4(iH Mncier (1873), L. E. 8 Q. B. at pp. 380—382 ; and see note to sect. 31 (3), ante, p. 102. 2 Ma/rston v. AUe7t (1841), 8 M. & W. at p. 504, per Alderson, B., stating the principle. Transfer. 123 Bights of Action and Proof. Rule 1. The holder of a bill is entitled to maintain an action thereon in his own name against all or any of the parties liable thereon,' unless it is shown that he holds the bill adversely to the true owner.^ It is immaterial that the holder never had any interest in the bill,^ or that he has parted with his interest therein.* When the holder of a bill sues as agent for another person, or when he sues wholly or in part for the benefit of another person, any defence or set-off available against that person is available j9ro tanto against the holder." § 38. Holder's right of action. Suing as agent or trustee. Illustrations. 1. 0., the holder of a bill, indorses it to D. for collection. D. can sue on it, but any defence available against C. is available against D.^ 2. D. is the holder of a dishonoured bill for 100?. indorsed by 0. C. pays D. 601. D. sues the acceptor. As to 601. D. sues as trustee for C, and only as to 40Z. on bis own account. As regards 601. any set-off which the acceptor may have against C. is equally available against D.' Where a person holds a bill as agent or trustee for another, he cannot use it as a set-off against a claim made against him individually.^ Bule 2. Subject to the rules as to transmission by act of Action on law, when a bill is payable to a particular person or persons, spgj.^u'y * or to his or their order, an action thereon must be brought in the name of such person or persons.' 1 See K. S. C. Ord. XVI. rule 5 ; and a.? to inferior courts, 18 & 19 Vict. c. 67, B. 6. 2 Jones r.Broadhurst {1850), 9 G. B. 173 ; Agra Bank r. Leighton (1866), L. R. 2 Ex. at pp. 63—65. See holder defined by sect. 2. 3 Law V. Parnell (1859), 7 0. B. N. S. 282 ; 29 L. J. C. P. 17. * Williami v. James (1860), 15 Q. B. 498 : Foirier v. Morris (18.j3), 2 E. & B. 89. Of. Megrath v. Gray (1874), L. E. 9 C. P. 216. 5 Lee V. Zagury (1817), 8 Taunt. 114 ; Royce v. Barnes (1846), 52 Mas- sachus. 276 ; Agra Bank v. LeigMon (1866), L. R. 2 Ex. 56 ; Be Anglo- Greek Navigation Co. (1869), L. E. 4 Ch. 174 ; Fothier, No. 41 ; cf. Beehervaise v. Leviis (1872), L. R. 7 C. P. 372. « L>e la Cha/umettev. Bank of England (l&W), 9 B. & C. 208, as e-tplained by Currie v. Misa (1875), L. E. 10 Ex. at p. 164, Ex. Cli. 7 Thornton v. Maynard (1875), L. R. 10 C. P. 695. 8 London 4' Bombay Bank v. Narraway (1872), h. R. 15 Eq. 93. ' Attwood V. Eattenhv/ry (1822), 6 Moore, at p. 583 ; Pease v. Hirst (1829), 10 B. & C. 122. 124 Bills of Exchange Act, 1882. §38. Action on bill payable to beaier. Illusteations. 1. A bill is apeoially indorsed to the firm of " D. & Co." An action on it must be brougM in tbe name of tbe firm. The manag- ing partner cannot sue on it in his own name. 2. A bill is specially indorsed to D., a partner in the firm of X. & Co., in pa3rment of a debt due to the firm. An action on it must he brought in D.'s name, and not in the name of the firm.' In the case given in Illust. 1, the managing partner might indorse the bill in the firm's name to himself and then sue. Rule 3. Subject to Rule 1, when a rule is payable to bearer an action thereon may be brought in the name of any person who has either the actual or the constructive possession thereof ; and constructive possession, jointly with others, is sufficient to entitle the possessor to sue alone. iLLrSTRATIONS. 1. C, the holder of a bill, indorses it in blank to D. to collect it for him. Either 0. or D. may sue the acceptor.' 2. A bUl accepted by B. is indorsed in blank by 0. D., E. and F. bring an action on the bill against B. They can recover, although there is no evidence to show that they are partners, or what l£e nature of their joint interest is.' 3. A bill is indorsed in blank to a firm. Any one of the partners may bring an action on it in his own name.* 4. A bill indorsed in blank is banded to the manager of a com- pany in payment of a debt due to the company. The manager may sue on it in his own name.' 5. A bill indorsed in blank is given to D.'s attorney, who com- mences an action on it against the acceptor in D.'s name. D. knows nothing of the matter, but after the action bas proceeded ^ome way he is told of it, and then gives his consent. D. can maintain the action.^ 6. D., the holder of a bill indorsed in blank, does not wish to sue on it in his own name. He accordingly asks B. to sue on it. E. consents. E. gets a copy of the bill, and it is agreed that he shall 1 Bawden v. Howell (1841), 3 M. & Gr. 638. 2 Clwrk v. Figot (1699), 12 Mod. 193 ; of. Stones v. Butt (1834), 2 Cr. & M. 416. 3 Ord V. Portal (1812), 3 Camp. 239 ; of. Eordasnz v. Zeach (1816), 1 Stark. 446 ; Low v. Copestake (1828), 3 C. & P. 300. ■• Zindley, 3rd ed. p. 485 ; Attwood v. Rattenbwry (1822), 6 Moore, 679 ; Wood V. Cormop (1843), 5 Q. B. 292, as to joint holders ; Conover y. Marl (1868), 26 Iowa E. 168, as to holders in common. s Lcm V. Pamell (1859), 7 C. B. N. S. 282. « Aneona v. Mwrhs (1862), 31 L. J. Ex. 163. Transfer, 125 have the original -when wanted. E. commences an action against S 38. the acceptor, and after action brought he gets the bill. E. cannot maintain this action, for at the time he began it he had neither the actual nor the constnictiye possession of the bill.' 7. A note payable to bearer is handed to the soKoitor of a loan society in payment of a debt due to the society. D., a member of the society, instructs the solicitor to commence an action on it in his (D.'s) name against the maker. D. can maintain this action.^ Rule 4. Wlien a party to a bill becomes bankrupt, the Holder's holder, who could have maiutained an action against such "ght of party if he had remained solvent, can prove against his estate in bankruptcy.^ Any defence, set-off, or counter-claim available in an action is available against a proof.* In one respect the right of proof is more extensive than the right of action. An action can only be brought to recover a debt which is due, but under Bankruptcy Act, 1883, § 37, a future or contingent debt may be proved ; therefore, if the acceptor of a bill not yet due becomes bankrupt, the holder may prove, and so might the drawer or an indorser * — so, too, the holder of an accepted bill may prove if the drawer or an indorser becomes bankrupt.^ But as regards amount, the right to prove is narrower than the right to sue. The amount for which a holder can prove is limited by rules peculiar to bankruptcy, such as the rules relating to double proof • and creditors holding security.^ These it is beyond the scope of the present work to discuss. Transmission hy Act of Law. The Act deals only with transfer by negotiation, that is, transfer according to the law merchant. It leaves un- 1 Emmett v. Tottmham (1853), 8 Exch. 884 ; cf. Olcott v. Eatlihone (1830), 5 Wend. 490, New York. 2 JenUnsv. Tongue (1860), 29 L. J. Ex. 147. t i, = nv * ' Cf. 46 & 47 Vict. e. 52, § 37 ; cf. Re Oha/rUs (1873), L. R. 8 Ch. at ^'< See e q Rohde v. Proctor (1825), 4 B. & C. 517, want of notice of dis- honour ; Ex parte Mamurs (1811), 1 Rose, 68, want of a stamp ; cf. Jones V. Gordon (1877), 2 App. Cas. 627, H. L. 5 Cf. Wood y. De Mattos (1865), L. E. 1 Ex. 91, Ex. Ch. « Cf. Starev v. Ba/rries (1806), 7 East, 435. „ . , , , 7 See e.g. Re Douglas (1872), L. R. 7 Ch. 490, foreign bankruptcy ; approved Ban^o de Portugal v. WaddeU (1880), 5 App. Cas. at p. 165. « See ey ReSowe (1871), L. R. 6 Ch. 838, conditional acceptance 126 Bills of Exchange Act, 1882. § 38. touched the rules of general law which regulate the trans- mission of bills by act of law, and their transfer as choses in action or chattels according to the general law ; see sect. 97 {2), post, p. 281. The law on these points may, perhaps, be summed up in the following rules : — Marriage. Rule 1. Since the Married Women's Property Act, 1882, a bill payable to a woman, either before or after marriage, no longer vests in her husband. Before that Act, except in the case of a bill forming part of the wife's separate estate,^ if a bill was held by an unmarried woman who subsequently married, or if a bill was made payable to a married woman, the title thereto vested in the husband, provided he reduced it into posses- sion.^ If the husband died without having reduced the bill into possession, the title thereto reverted to the wife if she was alive, and passed to her personal representatives if she died before her husband.^ During the marriage, the husband was for all purposes deemed to be the holder of a bill payable to the order of his wife, whether it was made payable to her before or after the marriage. "When a bill was made payable to the order of a married woman, the husband might sue on it in his own name alone, or if he liked he might join his wife.* When a bill was payable to the order of a single woman, who subse- quently married, both husband and wife ought to have joined in an action on it ; but it was once held that the husband might sue alone. ^ 1 Green v. Carlia (1877), 4 Ch. D. 882. 2 Cf. FUet V. Ferrine (1868), L. E. 3 Q. B. at p. 541 ; affirmed (1869), L. R. 4 Q. B. 500. As to what was or was not a reduction of a bill into possession, of. Bash v. Nash (1817), 2 Mad. 133 ; Sherrington v. Yates (1844), 12 M. & W. 865, esp. at p. 865, Ex. Ch. ; HaH v. Stephens (1845), 6 Q. B. 937 ; ScarpeUini v. Atcheson (1845), 7 Q. B. at pp. 875, 876 ; Zatourette v. Willmms (1847), 1 Barb. 9, New Tork : Fo/rker v. Lechmere (1879), 12 Ch. D. 256. > HaH V. Stephens (1845), 6 Q. B. 937 ; Williams on Executors, 7th ed. pp. 848—852 ; cf. M'Neilage v. Eolloway (1818), 1 B. & Aid. 218 ; Connor V. Martin (1721), cited 3 Wils. at p. 5: RoheHs v. Place (1846), 18 New Hamp. B. 183 ; Mason v. Morgan (1834), 4 N. & M. 46 ; cf. Smith v. Marsaolc (1848), 6 C. B, 486, at p. 503. 4 Fleet V. Perrins (1868), L. E. 3 Q. B. at p. 541. s M'Neilage v. HoUoway (1818), 1 B. & Aid. 218 ; but cf. Sherrington v, Yates (1844), 12 M. & W. at p. 865, Ex. Ch. Transfer. 127 Rule 2. On the death of the holder of a bill the title § 38. thereto passes to his personal representatives (executors or administrators, as the case may be). 1 Thus: — °®**''' 1. 0., the holder of a bill payable to order, dies. His adminis- trator can enforce payment of it or indorse it away, using his own name.^ 2. 0., the holder of a bill payable to order, dies, having specifi- cally bequeathed it to X. X. cannot sue on it or indorse it away, unless he first obtain an indorsement of the bill to him by O.'s executor.^ An executor or administrator who indorses a bill may, in express terms, exclude personal liability : see sect. 31 (5), ante, p. 105; and as he is not the agent of the deceased he cannot by his delivery complete an indorsement written by the latter. He must indorse it de novo : see ante, p. 55. When there are two or more executors, the indorsement of one is probably sufficient to transfer the property in the bill. Bute 3. A bill may be seized in execution by the sheriff Execution under a writ oi fieri facias.^ Payment to the sheriff of a bill so seized is valid, and, if the judgment creditor give security, an action may be brought on the bill in the name of the sheriff.^ The language of the Act, post, p. 334, is obscure and un- grammatical. Can the sheriff hand over to the creditor or sell a bill payable to bearer ? ^ The Act gives him no power to indorse a bill payable to order. Further, he is respon- sible to the judgment debtor for any surplus over the amount of the debt and costs. It would seem, then, that he must keep all bills and endeavour to collect them him- self. As to execution against bills and notes under the County Courts Act, 1888, see 51 & 52 Yict. c. 43, §§ 147, 148, set out post, p. 350. Rule 4. If the holder of a bill, who is the beneficial Bankruptcy, owner of it, become bankrupt, or if a bill be made payable 1 Williams on Executors, 7th ert. p. 786. 2 RwwUnson v. Stone (1746), 3 Wils. 1, Ex. Ch. He should specify the capacity in which he indorses to make the title clear. 3 Bishop V. Curtis (1852), 21 L. J. Q. B. 391. ■• 1 & 2 Vict. c. 110, § 12. As to a cheque drawn by the Accountant- General of the Court of Chancery but not issued, cf. Watts v. Jefferyes (1851), 3 Mac. & G. 422 ; Courtoij v. Vincent (1852), 21 L. J. Ch. 291. 5 1 & 2 Vict. c. 110, B. 12, set out ^osi, p. 334. 6 Of. Mutton T. Young (1847), 4 C. B. at p. 373. 128 Bills of Exchange Act, 1882. § 38. to a bankrupt for his own account, the title thereto vests in his trustee in bankruptcy ; ^ but subject to the next rule (reputed ownership), if the holder of a bill is not the bene- ficial owner of it, the title thereto does not pass to his trustee in bankruptcy. ** Thus : — 1. 0. indorses a bill to D., his agent, for some special purpose. D. becomes bankrupt. The title to the bill does not vest in D.'s trustee.' 2. D., by fraud, induces 0. to indorse a bill to him. D. becomes bankrupt. The title to the biU does not pass to D.'s trustee.* The title of the trustee relates back to the commence- ment of the bankruptcy. It is sometimes a difficult question to determine the exact time when a bankruptcy commences, but this is a question beyond the scope of a treatise on bills. When the holder has merely a lien on a bill his trustee stands exactly in his shoes, having the same rights and duties in regard to it.' Where a bill is indorsed to an un- discharged bankrupt, it seems he may sue on it in his own name, unless his trustee interferes and objects.^ Exception 1. — The bankrupt holder of a bill who nego- tiates it before the date of the receiving order can give a good title to a person who takes it in good faith for value, and without notice that such holder has committed an available act of bankruptcy.'' Exception 2. — Payment of a bill to a bankrupt holder is valid if made before the date of the receiving order in good faith, and without notice that he has committed an avail- able act of bankruptcy.^ Exception 3. — An accommodation bill given for the 1 Cf. Bankruptcy Act, 1883, § 44 ; cf. Green v. Steer {liH), 1 Q. B. 707, 2 Bankruptcy Act, 1883, § 44 ; cf. Hom-ison v. Walker (1792), Peake, 111. 3 Ex parte Armitstead (1828), 2 G. & J. 371 ; cf. Belcher t. CampieU (1845), 8 Q. B. at p. 11. See eg. Thompson t. GUes (1824), 2 B. & 0. 422, bill entered "short" by banker ; Bx parte Plitt, Re Brown (1889), 6 Morrell, 81, cheque specially intrusted for collection. * Harrison y. Walker (1792), Peake, 111. ' Cf. Ex parte Buchanan (1812), 1 Kose, 280. ^ Heriert v. Sayer (1844), 5 Q. B. 965 ; approved, Jameson v. Brick ami Stone Co. (1878), i Q. B. D. 208, C. A. ; cf. Cohen v. MitcheU (1890), 25 Q. B. D. 262, at p. 269. ' Bankruptcy Act, 1883, § 49. As to what constitutes such notice, see Ex parte GUbey (1878), 8 Ch. D. 248, C. A. 8 Bankruptcy Act, 1883, § 49. 129 §38. Transfer. accommodation of the bankrupt (probably) does not pass to the trustee in bankruptcy. Thus : — A. draws a bill on B. payable to his own order. B. accepts it to accommodate A. A. is adjudicated bankrupt. He subsequently indorses tbe bill to C, who gives value. The indorsement is valid. C. can sue B.^ The terms of the present Act are very wide, see § 44 ; but the cases quoted probably still hold good. Rule 5. If the holder of a bill, who is not the beneficial Reputed owner of it, become bankrupt, the title thereto may pass to °^^iei'*ip- his trustee in bankruptcy, as being in his reputed owner- ship, provided — {a) that the bill constitutes " a debt due or growing due to him in the course of his trade or business ; " {b) that he held it at the commencement of the bankruptcy with the consent and permission of the true owner.® The provisions of the present Act, quoted above, are new, and no case on a bill has as yet arisen under them. It seems clear that a current bill would constitute a " debt growing due " within the meaning of the Act.* Transfer hy Assignment. Rule 6. A bill may be transferred by assignment or sale. Assignment subject to the same conditions that would be requisite in °'' ^^^''■ the case of an ordinary chose in action. Thus : — C. is the holder of a note payable to his order. He may transfer his title to D. by a separate writing assigning the note to D. ; "i or by a voluntary deed constituting a declaration of trust ui favour of D.,* or by a written contract of sale.^ A bill is a chattel : therefore it may be sold as a chattel. A bill is a chose in action ; therefore it may be assigned as a chose in action. It is clear that a subsequent title under 1 WaUace v. Hardacre (1807), 1 Camp. 45 ; WiUis t. Freeman (1810), 12 East, 666. " Bankruptcy Act, 1883, § 44 (2), III. ; cf. Ex parte Kemp (1874), L. K. 9 Ch. App. at p. 389. 3 Ex pa/rte Kemp (1874), L. R. 9 Ch. at p. 388, Hellish, L. J. ; as to the previous law, cf. EomUower v. Proud (1819), 2 B. & Aid. 327 ; Thompson V. Giles (1824), 2 B. & C. 422. 1 Be Ba/rrington (1804), 2 Scho. & Lef. 112. * Richardson v. Bichardson (1867), L. R. 3 Eq. 686, as explained in Warriner v. Sogers (1873), L. R. 16 Eq. 340. " Sheldon v. Parher (1874), 3 Hun. New York R. 498. C. K causd. 130 Bills of Exchange Act, 1882. § 38. tte law merchant would override a prior title under a sale or assignment according to the general law, e.g., C, the holder of a bill payable to bearer, assigns by deed certain property, including the bill, to D. C. no longer has any property in the bill, but he holds it, and if he transfer it by delivery to E., who takes it for value and without notice, E.'s title overrides D.'s.^ Query, if a non-negoti- able note can be assigned, there being an intention manifest on the instrument that it shall not be transferable.^ Domtiomortis jj^fe 7. If the holder of a bill make delivery of it by way of gift in contemplation of death and die, this is a valid donatio mortis causa. Thus : — 1. C, the holder of a note payable to bearer, hands it to D. in contemplation of death. 0. dies. The property in the note passes toD.' 2. C, the holder of a bill payable to his order, gives it to D. in contemplation of death, and dies. The title to the bUl passes toD." 3. B. makes a note payable to C, and hands it to him as a gift in contemplation of death. B. dies. 0. (perhaps) is not entitled to receive the amount out of B.'s estate.* 4. 0., the holder of a banker's deposit note, with a form of cheque on the back, gives it to D. in contemplation of death, and dies. D. is entitled to the money.^ It is clear that the gift of a bill or note does not create a debt as against the donor ; but is this the principle of a donatio mortis causa, ? The law as to the gift of bills and notes made by the donor requires reconsideration.'' The recent cases have arisen on cheques where the peculiar relations of banker and customer complicate the matter : see post, p. 250. Query, in Illustration 2, must D. sue on the bill in the name of C.'s executor, or can he compel C.'s executor to indorse the bill to him as he could if he had given value ? 1 Of. Sheldon v. Parker (1874), 3 Hun. B. 498 ; Aulton v. Atkins (1856), 18 C. B. 249 ; and sect. 31 (4), ante, p. 103. 2 Cf. Brice V. Bannister (1878), 3 Q. B. D. at pp. 580, 581, per Brett, L. J. 3 MiUer v. Miller (1735), 3 P. Wms. 356. * Veal V. Veal (1859), 27 Beav. 303 ; Austin v. Mead (1880), 15 Ch. D. 651 ; element v. Cheeseman (1884), 27 Ch. D. 631. 5 Tate V. HUhert. (1793), 4 Bro. C. C. 286 ; HoUiday v. Atkinson (1826», 5 B. & C. at p. 503 ; cf. Re Whitaker (1889), 42 Ch. \). 119, at p. 124. 6 Se DiUon (1890), 44 Ch. D. 76— C. A. 7 Cf. Williams on Execute's, 7th ed. 778—780. 131 § 39. General duties of the Holder. [When a party to a bill is discharged from his liability thereon by reason of the holder's omission to perform his duties as to presentment for acceptance or payment, pro- test, or notice of dishonour, such party is also discharged from liability on the debt or other consideration for which the bni was given.i The holder's omission, without lawful excuse, to perform his duties with reference to a bUl, is commonly called "laches." As the Crown can do no wrong, so also it cannot be guilty of laches. The duties in question are not absolute duties ; but, throughout the Act, the holder is required to use reasonable diligence in order to fulfil them.] 39. (1) Where a bill is payable after siffht,^ whenpre- l . f , • -1 sentmentfor presentment tor acceptance is necessary m order acceptance is to fix the maturity of the instrument. necessary. (2) Where a bill expressly stipulates that it shall be presented, for acceptance, or where a bill is drawn payable elsewhere than at the residence or place of business of the drawee it must be presented for acceptance before it can be presented for payment. (3) In no other case is presentment for accept- ance necessary in order to render liable any party to the bill. Sub-section (2) settles a doubtful point. Sub-section (3) is declaratory.^ ' See, e.g., Soviard v. Palmer (1818), 8 Taunt. 277 ; Peacock v. Pii/nseU (1863), 32 L. J. C. P. 266, presentment for payment ; Bridges v. Berry, (1810), 3 Taunt. 130, and Peacoeh v. Purssell, supra, as to notice of dis- honour ; cf. also, Crowe v. Clay (1854), 9 Exoh. 604, lost bill. '^ See sect. 40, as to bills payable after sight. 3 Cf. Eamchwn MuUich v. lAichmeechwnd Radakhsen {IShi), 9 Moore, P. C. at pp. 65, 66 ; German Exchange Law, Arts. 19 and 24. K 2 132 EiLLs OF Exchange Act, 1882. § 39. In New York it has been held that where a bill payable after date was drawn on B. payable at the X. Bank, it was sufficient to present the bill for payment at the X. Bank without making any demand on B.^ This would not be the case in France ; Nouguier, § 1068. By German Exchange Law, Art. 24, when a bill is drawn payable at the house of a third person, the drawer may insert a stipulation requiring presentment for acceptance. In France it seems the drawer or indorser of any bill may insert such a stipulation : Nouguier, §§ 464 — 469. See also Netherlands Code, Arts. 117 and 176. Where presentment is optional, the object of presenting is (1), to obtain the acceptance of the drawee, and thereby secure his liability as a party to the bill ; (2), to obtain an immediate right of recourse against antecedent parties in case the bill is dishonoured by non-acceptance. An agent is bound to use due diligence in presenting for acceptance, even when presentment is optional for the purposes of the Act, and he is liable to his principal for damage resulting from his negligence.^ A bill in the form " Pay without acceptance " is valid.^ Subject to sect. 40 (2) the question of due presentment is only material when acceptance cannot be obtained. If acceptance is obtained the informality of the presentment is immaterial. There is very little English authority on the subject, and it is to be noted that rules as to present- ment for payment do not apply in their entirety to present- ment for acceptance, see post, p. 137. Domiciled (4) Where the holder of a bill, drawn payable fonsrard late, elsewhero than at the place of business or resi- dence of the drawee, has not time, with the exercise of reasonable diligence, to present the bill for acceptance before presenting it for pay- ment on the day that it falls due, the delay caused by presenting the bill for acceptance before pre- ' Waller v. Stetson (1 869), 2 Amer. R. 405. 2 Pothier, No. 128 ; Nouguier, § 462 ; AUen\. Suydam (1828), 20 Wend. 321, New York, as to date bills ; see Bank of Van Diemen's Land v. Victoria Bank (1871), L. E. 3 P. C. at p. 542, after sight bill. 3 R. V. Kimnew (1838), 2 M. & R. 117 ; Nouguier, § 470. Presentment for Acceptance. 133 senting it for payment is excused, and does not § 39. discharge the drawer and indorsers. This sub-section, which is rendered necessary by sub- section (2), was added in committee. It settles a moot point, and perhaps alters the law. Suppose a bill, payable one month after date, is drawn in New York on a Liver- pool iirm, but payable at a London Bank. It only reaches the English holder, or his agent, on the day that it matures. He must, nevertheless, present it for acceptance to the drawees in Liverpool. The Act provides that he shall not be prejudiced by so doing. Before the Act the usual practice was to protest the bill in London without any pre- sentment to the drawees — an obviously inconvenient mode of proceeding, for the holder's object is to get the bill paid, and not to run up expenses against the drawer and indorsers. 40. (1) Subject to the provisions of this Act,^ Time for when a bill payable after sight is negotiated, the bm payT^ie holder must either present it for acceptance or ^ ^^^ ^^^^^' negotiate it within a reasonable time. (2) If he do not do so, the drawer and all indorsers prior to that holder are discharged. (3) In determining what is a reasonable time within the meaning of this section, regard shall be had to the nature of the bill, the usage of trade with respect to similar bills, and the facts of the particular case. Illusthations. 1. A. in Windsor draws a bill on B. in London, payable one montli after sigbt. The bolder keeps it for four days before pre- senting it for acceptance. It is tben disbonoured. Tbis may not be an unreasonable delay.'' 2. A. in London draws a bill on B. in Eio, payable sixty days after sight. Tbe payee holds it back for four months, during which ' For the provisions referred to, see sect. 41 (2), post, p. 137, which deal with tbe excuses for non-presentment. 2 Fry V. Bia (1817), 7 Taunt. 397 ; cf. Shute v. liobins (1828), 2 C. &P. 80. 1'34 Bills of Exchange Act, 1882. § 40. time Eio bills are at a discount. He then negotiates it. This may not be an unreasonable delay.' 3. A. in Newfoundland draws a bill {in a set) on B. in London, payable ninety days after sight. The payee holds it back for two months, and then forwards it for presentment. No reason for holding back is shown. This may be an unreasonable delay." 4. A. in Calcutta draws a bUl on B. in Hong Kong, payable sixty days after sight. The holder retains it for five months, during which time China bills are at a discount. He then negotiates it. This may be an unreasonable delay.^ 5. A. draws a bill on B., payable to C. three months after sight. C. holds it back for an unreasonable time. He then ;presents it, and it is accepted. Before it is due the acceptor fails. A. is (probably) discharged.^ Reasonable time is a mixed question of law and fact, and in determining it regard must be had to the interests of the holder as well as t® the interests of the drawers and indorsers.^ Qu. What, if any, is the liability of a person who retains a bill an unreasonable time and then negotiates it without indorsement? Again, does not negotiation within a reasonable time, toties quoties, excuse presentment or is there any limit ? Bv German Exchange Law, Art. 19, when a bill payable after sight does not fix a time for presentment, it must be presented within two years of its date. By French Code, Art. 160, as amended by the law of May 3, 1862, bills payable after sight are divided into classes according to the places where they are drawn and payable, and definite limits of time for presentment are fixed, varying from three months to one year — e.g., biU drawn in Paris on London must be presented for acceptance within three months. The effect of this conflict of laws has not been considered. prMentment ^^- {^) -^ ^^ i^ cluly presented for acceptance Iner°a?d" "«^hich is presented in accordance with the foUow- excuses for ins[ rules : non-present- ' ment. (a) Ihe presentment must be made by or on " Mellish T. Rawdon (1832), 9 Bing. 416. 2 Straher v. Graham (1839), 4 M. & W. 721. ^ Ramehwn MuUich v. Luehmeedmnd Madakissen (1854), 9 Moore, P. C. 46 ; of. Oodfray^. CoulmamilSSS), 13 Moore, P. 0. 11. * Straher v. Graham (1839), 4 M. & W. 721. * Mamchum MuUich Y. Luchmeechiind Radakissen (1854), 9 Moore, P. 0. 46 ; Wallace v. Agry (1827), 4 Mason, 336, Sup. Ct. U. S., per Story, J. Presentment for Acceptance. 135 behalf of the holder to the drawee or to some § 41. person authorized to accept or refuse accept- ance on his behalf at a reasonable hour on a business day and before the bill is overdue : See "holder" defined by sect. 2, ante, p. 5. He is not By whom, necessarily the lawful holder.^ In an unreported case, in December, 1876, the Court of Appeal dissolved an injunc- tion restraining the drawee from accepting a bill where the holder had obtained it by fraud. The holder need not present personally. Bills are constantly forwarded, unin- dorsed, to an agent for him to procure acceptance. The agent is bound to exercise due diligence in presenting.^ By German Exchange Law, Art. 18, mere possession authorizes the possessor to present for acceptance. "Ce n'est pas uniquement le porteur qui a qualite pour requerir I'accepta- tion : cette faculte appartient encore a celui qui en est seulement d^tenteur : " Nouguier, §462. The presentment, if not made to the drawee, must be To whom. made to some one authorized to receive bills for acceptance.^ Thus, presentment to a servant who opened the door would not be sufficient ; and if a bill is domiciled for payment at a bank, presentment at the bank would not suffice.* Putting a bill in the bill box, or giving a bill to a clerk in the office in the usual way, is, of course, a presentment to the drawee. As to post-office, see clause ( Chitty on Bills, 11th ed. p. 196 ; Netherlands Code, Art. 176. -' Cf. Parker v. Gordon (1806), 7 East, 335 ; Elford v. Teed (1813), 1 M. & S. 28, and note to sect. 45 {i), post, p. 143. 136 Bills of Exchange Act, 1882. §41. Before maturity. Two or more drawees. Drawee dead. Drawee bankrupt. A bill should clearly be presented for acceptance before maturity.^ It may be accepted when overdue, see sect. 18 ; but except in the case provided for by sect. 39 (4), i.e., domiciled bill, arriving late, such acceptance does not pre- serve or revive the liability of the drawer and indorsers. In the case of a bill which is due or payable on demand, presentment for acceptance is merged in presentment for payment. When a bill is presented for payment, the drawee, instead of paying it, often accepts it payable at his bankers. This is, in effect, a kind of payment by cheque,^ which the holder perhaps might refuse to take. In New York it has been held that if a bill payable after date be presented on the day it is due and dishonoured, it is immaterial whether it is treated as dishonoured by non- acceptance or non-payment.^ Considering the difference in the rules which govern the two kinds of presentment, this might have important consequences. (&) Where a bill is addressed to two or more drawees, who are not partners, presentment must be made to them all, unless one has authority to accept for all, then presentment may be made to him only : This sub-section may give rise to a difficulty if one of the drawees refuses to accept, for by sect. 19 (2) (e) an acceptance which is not the acceptance of all the drawees is a qualified acceptance. As to the consequences of a qualified acceptance, see sect. 44, post, p. 140. (c) Where the drawee is dead presentment may be made to his personal representative : * [d) Where the drawee is bankrupt, presentment may be made to him or to his trustee : * ' CKeefe t. Dunn (1815), 6 Taunt, at p. 307 ; Nouguiei; § 456. 2 Cf. Bishop V. cutty (1742), 2 Stra. 1195. 3 Plato V. Reynolds (1863), 27 New York R. 586. " Before this enactment the law on this point was very doubtful. V. New South Wales Bank (1872), 8 Moore, P. C. N. S. at pp. 461, 4B2. Now the holder has an option : see sub-sect. (2) (a) post. ' See "bankrupt" defined by sect. 2, ante, p. 4. Sub-sect. (2) (a) makes the holder's option clear. Presentment for Acceptance. 137 (e) Where authorized by agreement or usage, § 41. a presentment through the post office is suffi- Post ofiice. cient. This enactment gives effect to the recognised practice among English merchants. The practice is not recognised by the continental codes. (2) Presentment in accordance with these rules Excuses for is excused, and a bill may be treated as dis- SfoT*" honoured by non-acceptance — acceptance. (a) Where the drawee is dead or bankrupt, or is a fictitious person or a person not having capacity to contract by bill ■} (b) Where, after the exercise of reasonable diligence, such presentment cannot be effected : '^ (c) Where, although the presentment has been irregular, acceptance has been refused on some other ground.^ (3) The fact that the holder has reason to believe that the bill, on presentment, will be dis- honoured does not excuse presentment. This is declaratory.* It, of course, only applies to cases where presentment is obligatory. Comparing presentment for acceptance with presentment for payinent, it is clear that the two cases are governed by somewhat different considerations. Speaking generally, presentment for acceptance should be personal, while pre- ' See "bankrupt" defined by sect. 2, ante, p. 4; and as to persons not having capacity to contract by bill, see sect. 22, ante, p. 60. ^ This is probably declaratory. Of. Smith, v. A'eio South Wales Bank (1872), 8 Moore, P. C. N. S. at pp. 461—463 ; also sect. 46 (2), and sect. 50 (2). ' This is, perhaps, new law, and is important, having regard to the next sub-section. * Ex parte Tondeur (1867), L. E. 5 Eq. at p. 165 ; Rohinion v. Ames (1822), 20 John, at p. 149, New York ; of. sect. 46 (2), and sect. 50 (2). 138 Bills of Exchange Act, 1882. § 41. sentment for payment should be local. A bill should be presented for payment where the money is. Any one can then hand over the money. A bill should be presented for acceptance to the drawee himself, for he has to write the acceptance ; but the place where it is presented to him is comparatively immaterial, for all he has to do is to take the bill. Again (except in the case of demand drafts), the day for payment is a fixed day ; but the drawee can- not tell on what day it may suit the holder to present a bill for acceptance. These considerations are material as bearing on the question whether the holder has used reasonable diligence to effect presentment. Non-aocept- 42. When a bill is duly presented for aceept- customary ance, and is not accepted within the customary consideration, time, the person presenting it must treat it as dishonoured by non-acceptance. If he do not, the holder shall lose his right of recourse against the drawer and indorsers. This section was much discussed in committee, and was eventually reduced to its present vague form, as the bankers and merchants took different views as to the exact rights of the parties. The probable effect of it as regards trade bills, is this : If a bill, left for acceptance; within business hours one day, is not accepted before the close of business hours on the next day, it must be noted for non-acceptance, or otherwise treated as dishonoured. As to protest for non-delivery, see sect. 51 (8), post, p. 175. The law is usually stated as follows : — The person who presents a bill of exchange for acceptance must deliver it up to the drawee if required so to do. The drawee is entitled to retain it for twenty- four hours, but after the expiration of this time he must re-deliver it accepted or unaccepted.^ In reckoning the twenty-four hours non- business days must be excluded.^ In a case in 1818, Bayley, J. says, " When a bill is, in ' Bank of Van Diemen's Land v. Victoria Bank (1871), L. E. 3 P. C. at pp. 542, 543 ; Story, § 237 ; Prench Code, 125 ; Nouguier, § 537. 2 Ibid, see at pp. 546, 547, as to the effect of a short day — e.j'., Saturday ; and see sect. 92. Presentment for Acceptance. 139 the usual course of business, left for acceptance, it is the § 42. duty of the party who leaves it to call again for it, and to inquire whether it has been accepted or not. It is not the duty of the other person to send it to him, unless there is a usual course of dealing between the individuals concerned so to do." He then proceeds to decide what the act now makes clear, viz., that the destruction of the bill by the drawee does not amount to an acceptance.^ The holder's remedy is an action for damages. 43. (1) A bill is dishonoured by non-accept- Dishonour by ance non-accept- ance and its (a) when it is duly presented for acceptance, consequences, and such an acceptance as is prescribed by this Act is refused or cannot be obtained ; or (b) when presentment for acceptance is excused and the bill is not accepted. (2) Subject to the provisions of this Act when a bill is dishonoured by non-acceptance, an imme- diate right of recourse against the drawer and indorsers accrues to the holder, and no present- ment for payment is necessary. As to the presentment for acceptance, see sect. 41 ; as to the requisites of a valid acceptance, see sects. 17 and 19. By sect. 44 (1), the holder has an option to take or refuse a qualified acceptance. See also last section. As to excuses for not presenting for acceptance, see sect. 41 (2). For the provisions referred to in sub-sect. (2), see sect. 65, post, p. 226, as to acceptance for honour. According to English law the bolder is under no obligation to resort to the case of need, if such there be; but if he does so, and obtains an acceptance for honour, his right of recourse against the drawer and indorsers is suspended. The effect of this suspension on the Statute of Limitations has not been considered. The immediate right of recourse arising on non-accept- 1 Jeune v. Ward (1818), 1 B. & Aid. 653, at p. 659. 140 Bills of Exchange Act, 1882. § 43. ance is an exceptional right ; ^ and seems peculiar to English and American law.^ Under the continental codes the holder can only protest the bill for non-acceptance, and demand security from the drawer and indorsers.^ The effect of this conflict of laws does not appear to have been judicially considered. A bill which has been dishonoured by non-acceptance may subsequently be accepted (see sect. 18 (2), (3), ante, p. 45), but it seems clear that in such case it is in the holder's option to allow the bill to be accepted or not. On non-acceptance the holder has an immediate " right of recourse," that is, " resort," to the drawer and indorsers ; but no right of " action " arises until he has performed the conditions precedent by giving notice of dishonour, and protesting, when necessary. As a general rule, the holder's cause of action is not complete until notice of dis- honour has been received by the party sought to be charged.* Duties as to 44. (l) The holder of a bill may refuse to acceptances, take a qualified acceptance, and if he does not obtain an unqualified acceptance may treat the bill as dishonoured by non-acceptance. As to what acceptances are qualified, see sect. 19, ante, p. 46. According to the continental codes, it seems that the holder cannot refuse a partial acceptance.^ He can only protest as to the balance. (2) Where a qualified acceptance is taken, and the drawer or an indorser has not expressly or impliedly authorized the holder to take a quali- fied acceptance, or does not subsequently assent thereto, such drawer or indorser is discharged from his liability on the bill. 1 Cf. Dunn v. O'^ec/e (1816), 5 M. & S. at p. 289. 2 Whitehead v. Walker (1842), 9 M. & \V. at p. 516 ; Waison v. Tarpley (1855), 20 How. at p. 519, iSup. Ct. IJ. S. ^ Frencli Code, Arts. 119, 120 ; German Exchange Law, Arts. 25 — 28. * Caitrique v. Bernabo (1844), 6 Q. B. 498. ■■■ French Cede, Art. 124 ; Uerman Jixchaiige Law, Art. 22. Duties As to Qualified Acceptance. 141 The provisions of this sub-section do not apply § 44. to a partial acceptance, whereof due notice ^ has been given. Where a foreign bill has been accepted as to part, it must be protested as to the balance. (3) When the drawer or indorser of a bill receives notice of a qualified acceptance, and does not within a reasonable time express his dissent to the holder he shall be deemed to have assented thereto. In some trades, sucli as the East Indian, the practice of accepting against delivery of bills of lading is so common, that an authority to take such an acceptance might perhaps be implied. Sometimes, too, the terms of a documentary bill are such as impliedly to authorize it. Where the holder elects to take a qualified acceptance he should give notice of the qualification to prior parties, not notice of dishonour.^ Sub-sect. (3) settles a doubtful point in favour of the holder.^ 45. Subject to the provisions of this Act a bill Presentment must be duly presented for payment. If it be not so presented the drawer and indorsers shall be discharged. For the provisions referred to, see sect. 46, which deals with excuses for non-presentment and delay, and sect. 39 (4), ante, p. 132, which deals with the special case of an unaccepted domiciled bill coming forward late. A drawer or indorser who is discharged from his liability on the bill is also discharged from his liability on the con- sideration therefor.* The rules applicable to the drawer or indorser of a bill 1 Cf. Sehag v. AUibol (1816), 4 M. & S. at p. 466. 2 Cf. Bentinck v. JDornen (1805), 6 East, 199. 3 See subject diioussed in Rowe v. Ymng (1820), 2 Bligh, 891, H. L. 1 Feacock r. Pwssell (1863), 32 L. J. 0. P. 266. 142 Bills of Exchange Act, 1882. § ^5. apply equally to the indorser of a note^ or cheque, but they do not apply to the maker of a note, who is sometimes called the drawer : and they are modified as to time as regards the drawer of a cheque (sect. 74). According to French Code, Art. 161, a bill must be presented for payment on the day it falls due, but it seems no penalty follows the omission to present, provided the bill be duly protested on the following day : Nougukr, § 1076. Practically, then, protest is substituted for presentment for payment. Again, a distinction is drawn between the drawer and the indorsers. Omission duly to protest discharges the indorsers, but the drawer is not discharged, unless he shows affirmatively that the drawee or acceptor had funds to meet the biU.2 Euies. _^ \j,{][ ig (July presented for payment which is presented in accordance with the following rules : — At what (1) "Where the bill is not payable on demand, presentment must be made on the day it falls due.^ (2) Where the bill is payable on demand, then, subject to the provisions of this Act, present- ment must be made within a reasonable time after its issue in order to render the drawer liable, and within a reasonable time after its indorsement, in order to render the indorser liable.* In determining what is a reasonable time, regard shall be had to the nature of the bill, ' Cf. am V. Mather (1832), 2 Cr. & J. at pp. 262, 263, Ex. Ch. - French Code, Arts. 117 and 170 ; Nouguier, §§ 1147—1165. ' As to calculating the due date, see sect. 14, ante, p. 34. The pro- vision is declaratory. Philpot v. Briant (1828), 4 Bing. at p. 720 ; French Code, Art. 161 ; see e.g., Wiffen v. Roberts (1795), 1 Esp. 262, second day c£ grace ; Prideamx v. Collier (1817), 2 Stark. 58, day after maturity. * Cf. Moule V. Brown (1838), 4 Bing. N. C. 266, as to a cheque cashed for the bearer. Preseistment for Payment. 143 the usage of trade with regard to similar § 45. bills, and the facts of the particular case. At what time. As to when a bill is in legal effect payable on demand, see sect. 10, ante, p. 29. This provision is modified by sect. 74, post, p. 247, as regards the drawer of a cheque. Compare sect. 40, as to presentment for acceptance of bill payable after sight. Under the continental codes bills payable at sight must be presented for payment within the like fixed limits of time that bills payable after sight must be presented for acceptance.^ (3) Presentment must be made by the holder Presentment J.1 • J X • for payment. or by some person authorized to receive pay- ment on his behalf at a reasonable hour on a business day, at the proper place as herein- after defined, either to the person designated by the bill as payer, or to some person authorized to pay or refuse payment on his behalf if with the exercise of reasonable dili- gence such person can there be found. The acceptor's obligation is to pay the holder, that is, the By whom. person who can give a good discharge for the bill.^ As to presentment through ^he post-office, see sub-sect. (8). The person who presents a bill for payment must exhibit the bill and be ready and willing to deliver it up on receiving payment.^ If the bUl be lost a copy should be presented and an indemnity tendered ; but qu. as to the sufficiency of this ? A protest it seems can be made on a copy: sect. 51 (8). The provision that the loss of a bill shall not be set up in an action if an indemnity be given hardly seems to meet the present case. As to the parts of a set, see sect. 71. As to non-business days, see sect. 92, post, p. 279. The Day and hour. 1 French Code, Art. 160 ; German Exchange Law, Art. 31. ^ See sect. 59, and of. WaUcer v. MacdoruiM (1848), 2 Exch. at p. 532 ; Cole V. Jessop (1854), 10 New York K. at p. 100. 3 Sect. 62 (4) ; cf. Cfriffin v. Weatherby (1868), L. R. 3 Q. B. at pp. 760, 761. 144 Bills of Exchange Act, 1882. § 45. reasonableness of the hour must depend on whether the bill is payable at a place of business or at a private house. The payor is not bound to st^y at his place of business after a reasonable hour. If a bill be payable at a bank it must be presented within banking hours ; ^ if at a trader's place of business, then within ordinary business hours ; ^ if at a private house, probably a presentment up to bed-time would be sufficient.^ In America presentments at 8 a.m. and 11 p.m. have been held unreasonable : Daniel, p. 448. Before the Act, it was held that if a bill was presented at an unreasonable hour, but payment was refused on some other ground, the presentment was good.* Possibly the same rule might still be applied : see note, post, p. 147. To whom. Speaking generally, it is the duty of the payor to have the money ready on the appointed day at the appointed place, and if the holder after the exercise of reasonable diligence cannot find any such person there, he has done all that is required of him : ^ see sub-sect. (5), post, p. 145. Duties of Agent. — A collecting agent, is, of course, liable to his principal if he does not use due diligence in pre- senting a biU for payment and take the proper proceedings on dishonour.* The same rule applies to a pledgee or person holding a bill as collateral security .'' An agent is, as a rule, responsible for the default of a sub- agent whom he employs ; but in some of the American States an exception is admitted when the sub-agent is a notary, on the ground that he is a public officer." 1 Elford T. Teed (1813), 1 M. & S. 28 ; Parker v. Gordon (1806), 7 East, 385 ; of. WUtaker v. Bamh of England (1835), 1 C. M. & K. 750. ^ Cf. Allen T. Bdmundson (1848), 2 Exch. at p. 723 ; Morgan v. Davison (1815), 1 Stark. 114, time 6.30 p.m. ; Barclays. Bailey (1810), 2 Camp. 527, time 8 p.m. Have not business honrS changed since then ? 2 Triggs v. Newnham (1825), 10 Moore, 249, time, 8 p.m. ; WUHns v. Jadis (1831), 2 B. & Ad. 188. * Henry v. Lee (1820), 2 Ohitty, 124 ; Garnett v. Woodcock (1817), 6 M. & S. 44. '" De Bergareche v. PiUin (1826), 3 Bing. 476; Wilmotv. Williams (1844), 7 M. & Gr. 1017 ; cf. Butterworth v. Ze Jiispencer (1814), 3 M. & S. 150 ; StwHvp T. Maedonald(l&iZ), 6 M. & (Jr. at p. 624. « Cf. Lubbock T. Tribe (1838), 3 M. & W. at p. 612 ; LysagU v. Bryant (1850), 19 L. J. C. P. at p. 160, Maule, J. ; and see Deverill v. Burnell (1873), L. R. 8 C. P. 475, measure of damage. ' PeacocTc v. Pm-sseU (1863), 32 L. J. 0. P. 266. 8 Daniel, § 343 ; Parsons, p. 480. Pkesentment for Patment. 145 (4) A bill is presented at the proper place : — § 45. (a) Where a place of payment is specified in ■*:* ^^** the bill and the bill is there presented. The place of payment may be specified either by the drawer,! or by the acceptor."^ If a bill is made payable at a bank in a town where there is a clearing-house, present- ment through the clearing-house is deemed to be a pre- sentment at the bank.* If alternative places of payment are specified, presentment at either of such places is sufficient.* (b) Where no place of payment is specified, but the address of the drawee or acceptor is given in the bill, and the bill is there presented.^ (c) Where no place of payment is specified, and no address given, and the bill is pre- sented at the drawee's or acceptor's place of business, if known, and if not, at his ordinary residence if known.^ (d) In any other case, if presented to the drawee or acceptor wherever he can be found, or if presented at his last known place of business or residence.'' (5) Where a bill is presented at the proper place, and after the exercise of reasonable 1 Oibb 1. Mather (1832), 2 Cr. & J. 254 ; Walker v. Stetson (1869), 2 Amer. R. 405 ; German Exchange Law, Art. 42. 2 Saul V. J Sands t. Clarice (1849), 19 L. J. C. P. 84 ; Pierce v. Gate (1863), 66 Massachus. B. 190. 2 Of. Pothier, Nos. 144—147 ; Re East of England Banking Co. (1868), L. B,. 4 Ch. at p. 18. ^ See, e.g., Foster v. Julien (1861), 24 New York £. 28. * Smith V. BeOamy (1817), 2 Stark. 223. 5 Terry y. Parker (1837), 6 A. & E. 502. 6 Sa/ul V. Jones (1858), 28 L. J. Q. B. 37 ; cf. Turner v. Samson (1876), 2 Q. B. D. 23, C. A. Presentment for Payment. 151 2. A cheque is dra-wn on the Union Bank, the drawer not having § 46. sufficient funds there to meet it, and having no reason to expect — '- — that it will be honoured. Presentment is not necessary to charge the drawer.' Compare sect. 50 (2) (c) and (d), post, pp. 167, 168, and notes thereto ; also Pothier, No. 157. (e) By waiver of presentment, express or "Waiver, implied. This is declaratory.^ Compare sect. 50 (2) (b), post, p. 165, as to notice of dishonour. The waiver may be either before or after the time for presentment. As to express stipulation in the bill waiving presentment, see sect. 16 (2), ante, p. 40. Waiver of notice of dishonour does not of itself include a waiver of presentment for pay- ment.^ German Exchange Law, Art. 42, provides that when the drawer or indorser inserts the term "Protest waived," presentment for payment is not waived thereby, but it lies on such drawer or indorser to prove that the bill has not been duly presented. See further sect. 61 (6) (y),post, p. 174, as to protest of bill previously dishonoured by non-acceptance. 47. (1) A bill is dishonoured by non-pay- Dishonour by ment (a) when it is duly presented for payment """'P^^"^" • and payment is refused or cannot be obtained, or (6) when presentment is excused and the bill is overdue and unpaid. (2) Subject to the provisions of this Act, when a bill is dishonoured by non-payment, an imme- diate right of recourse against the drawer and indorsers accrues to the holder. 1 WiHh V. Austin (1875), L. B. 10 C. P. 689 ; cf. Re Bethell, W. N. 1887, p. 17. 2 Bopleyy. Vufresne {1812), 15 East, 275; cf. Ex parte Bignold (1836), 1 Deac. at p. 737 ; Shddon v. Barton (1870), 43 New York E. 93. 3 Sill V. Heap (1823), D. & K. N. P. C. 57. So held also in Louisiana, Wil/cins V. Dawes (1862), 20 La. An. 538 ; aliter, in New York, Goddington V. Davis (1848), 1 New York K. 187. 152 Bills of Exchange Act, 1882. § 47. Presentment to charge stranger. Notice of dis- honour and effect of non- notice. This is declaratory.^ For the provisions referred to, see sects. 65 — 68, post, pp. 226 — 232, as to acceptance and payment for honour. As a general rule the holder's right of action against a drawer or indorser dates from the time when notice of dishonour is or ought to be received and not from the time when it is sent f and in any case there is no right of action till the day after dishonour. The right of recourse must be distinguished from the right of action.* Presentment for payment to charge Stranger to Bill. Presentment for payment is not generally a condition precedent to the liability of a person who has given a guarantee for the payment of a bill by the acceptor.* The reason is that presentment is not necessary to charge the acceptor or maker (sect. 52 (1)). If the drawer were the party guaranteed, or, perhaps, if the acceptance were qualified, presentment would be necessary. A person who is not a party to a bill, but who is liable on the consideration for which it is given, is discharged by the holder's omission to present it for payment.^. The same diligence is not requisite in this case as is necessary to charge a party, to the instrument. It is sufBcient that the holder does what is reasonable to obtain payment.® 48. Subject to the provisions of this Act,^ when a bill has been dishonoured by non-acceptance or by non-payment,^ notice of dishonour must be 1 Ex parte MoUne (1812), 1 Rose, 303 ; Siggers v. Lewis (1834), 1 C. M. & K. 370. ' Castrique v. Bernabo (1844), 6 Q. B. 498 ; see note on Statute of Liml- tations, post, p. 289. 3 Kennedy v. Thmias, (1894) 2 Q. B. 759, C. A. * Walton V. Mascall (1844), 13 M. & W. 452 ; Nouguier, % 1192 ; cf. Hitchcock r. Ewmfrey (1843), 5 M. & Gr. 559 ; Bktch v. Ottoman Bank (1862), 15 Moore P. C. 472, 484 ; OaHer t. White (1883), 25 Oh. D. 666, C. A. ' Anderton v. Beck (1812), 16 East, 248 ; HqpUns v. Wa/re (1869), L, R. 4 Ex. 268 ;'Cf. Straker t. Graham (]839), 4 M. & W. 721, presentment for acceptance. « Sands v. Clarke (1849), 8 0. B. at p. 761, Maule, J. ; Smith v. N. S. Wales Bank (1872), 8 Moore, P. C. N. S. at pp. 461—463, Melllsh, L.J. See e.g., Rohson v. Oliver (1847), 10 Q. B. 704, at p. 717. ' For proTisions referred to, see sect. 50, excuses for non-notice and delay. * Cf. sects. 43 and 47, defining dishonour by non-acceptance and non- payment. Notice of Dishonour. 153 given to the drawer and each indorser, and any § 48. drawer or indorser to whom such notice is not given is discharged ; ^ Provided that — (1) Where a bill is dishonoured by non-accept- ance, and notice of dishonour is not given, the rights of a holder in due course ^ subsequent to the omission, shall not be prejudiced by the omission.' (2) Where a bill is dishonoured by non-accept- ance and due notice of dishonour is given, it shall not be necessary to give notice of a subsequent dishonour by non-payment unless the bill shall in the meantime have been accepted. Illustration. A bill bearing indorsement is dishonoured, and the holder gives notice of dishonour to the indorser but not to the drawer. 11 the indorser in turn sends a notice of dishonour to the drawer, the holder can sue both indorser and drawer. If this be not done the holder can sue the indorser, but the indorser cannot sue the drawer.* When tlie drawer or indorser of a bill is discharged from his liability thereon by the omission to give him due notice of dishonour, he is also discharged from any liability on the consideration therefor.^ Under French Code, Arts. 168 — 170, the omission to give due notice of protest discharges the indorsers, but the drawer is not discharged unless he can show that the drawee had sufficient effects in his hands when he dis- honoured the bill. Under German Exchange Law, Art. 45, the omission to give due notice of protest deprives the holder of his right to interest and damages, but he can still 1 Berridge v. Fitzgerald (1869), L. R. 4 Q. B. at p. 642. ^ See sect. 29, defining holder in due course. 3 Roscow V. Hardy (1810), 12 East, 434 ; Dunn v. O'Keeffe (1816), 6 M. & S. 282. ■• Cf. Rickford v. Ridge (1810), 2 Camp, at p. 538 ; Miers v. Brown (1843), 11 M. & W. 372 ; sect. 49 (3), (4), post. * Bridges v. Berry (1810), 3 Taunt. 130 ; Peacock v. PursseU (1863), 14 C. B. N. S. 728. 154 EiLLS OF Exchange Act, 1882. § 48. Eules as to notice of dishonour. By whom to he given. By whom notice of dishonour to be given. recover the amount of the bill, unless his omission has caused actual damage. "Notice of dishonour" means notification of dishonour, i.e., formal notice.^ The fact that the drawer or indorser of a bill knows that it has been dishonoured does not dis- pense with the necessity for giving him notice of dis- honour.^ Pothier (No. 147), speaking of protests, lays down a similar rule : " la raison est que les formalit^s etablies par les lois pour donner a quelqu'un la connaissance de quelque fait, ne se suppleent point, et ne s'accomplissent pas par equipoUence." As regards notes and inland bills, notice of dishonour is the English substitute for protest* As regards foreign bills notice of dishonour is supplemen- tary to protest.* Under French Code, Arts. 165, 166 (modified by law of May 3, 1862, cf. Nouguier, §§ 1086— 1099), and German Exchange Law, Arts. 45—47, notice of protest must be given within certain definite limits of time. See j>os^, p. 172. 49. Notice of dishonour in order to be valid and effectual must be given in accordance with the following rules ^ : — (1) The notice must be given by or on behalf of the holder, or by or on behalf of an indorser who, at the time of giving it, is himself liable on the bill.^ (2) Notice of dishonour may be given by an agent, either in his own name or in the name of any party entitled to give notice whether that party be his principal or not.^ 1 Burgh v. Legge (1839), 5 M. & W. at p. 422, Alderson, B. ; Carter v. Flower (1847), 16 M. & W. at p. 749, Parke, B. 2 Miers v. Brown (1843), 11 M. & W. 372 ; East v. Smith (1847), 16 L. J. Q. B. 292 ; of. Gaunt v. Thompson (1849), 18 L. J. C. P. 125. 3 Solarte v. Palmer (1833), 7 Bing. at p. 533. * Exp. Lowemthal (1874), L. R. 9 Ch. 591. The notice is not bad because it does not state that the bill has been protested. * The fifteen rules which follow are declaratory, except that rules 5 and 6 somewhat modify the stringency of the common law. 6 see Chaprmm v. Keane (1836), 3 A. & E. 193 ; Story, § 304 ; cf. Ifarri- son V. Euscoe (1846), 15 M. & W. at pp. 234, 236. ' Cf. Harrison v. Rusme (1846), 15 M. & W. at p. 235. Notice of Dishonouk. 155 Illusteations. § 49. 1. A bill indorsed by 0. and held by D. is dishonoured. X., who was at one time employed by the drawer to get the bill dis- counted, but is not in any way acting on D.'s behalf, informs 0. that the biU has been dishonoured. This is not sufficient ; C. is discharged.' 2. 0. is the first indorser of a dishonoured bill held by D. D. gives notice to 0. one day late. C, on the same day, gives notice to the drawer ; thus, as it were, making up for the lost day. This notice is inefiectual ; for C, having been discharged by the holder's delay, is a mere stranger.'' 3. A bill indorsed by C. is held by D. D.'s attorney gives notice of dishonour to the drawer, but by mistake gives it ia O.'s name instead of D.'s. The notice is sufficient, provided 0. is liable to D., and has a right of recourse against the drawer.^ 4. C, the indorser of a bill, holds it as agent for the indorsee. 0. presents it for payment, and it is dishonoured. Notice of dis- honour given by 0. in his own name is sufficient.'' A party entitled to give notice may constitute the drawee or acceptor his agent tor the purpose of giving notice of dishonour.^ Notice of dishonour may be given by the party entitled to give it either personally, or by messenger or other agent,^ or through the post-office.'' By sub-sect. {15), j)ost, p. 163, when notice of dishonour is sent by post the sender is not prejudiced by the delay or default of the post-office, but is deemed to have given due notice of dishonour.^ It lies on the sender to prove that the letter containing the notice was duly addressed and posted.^ The sufficiency of the direction on the letter is a question of reasonable diligence. ' Stewart v. liennett (1809), 2 Camp. 177 ; cf. Bast v. Smith (1847), 16 L. J. Q. B. 292. ^ Turner v. Leech (1821), 4 B. & Aid. 451. 3 Harrison v. Ruscoe (1846), 15 M. & W. 231. * Lysaght v. Bryant (1850), 19 L. J. C. P. 160. * Kosher v. Kieran (1814), 4 Camp. 87, as modified by Harriscm y. Ruscoe (1846), 15 M. & W. at p. 235 ; cf. Bailey v. Bodenham (1864), 33 L. J. 0. P. at p. 255, Erie, J. ; see Stanton v. Blossom (1817), 14 Massa- chus. R. 116, -where drawee had no authority, and notice was held bad. ^ Cf. Pearson v. Crallan (1805), 2 Smith, 404, as to messenger's ex- penses. ? Stoclien V. CoUvn (1841), 7 M. & W. 615. * Woodcock V. Huuldsworth (1846), 16 M. & W. 124, delay ; Mackay v. Judkins (1858), 1 F. & F. 208, loss, Byles, J. ; Eenwick v. Tir/he (1860), 8 W. R. 391, loss. 3 Hawkes v. Salter (1828), i Bing. 715 ; cf. SkUbeck v. Garbett (1845), 7 Q. B. 846. 156 Bills of Exchange Act, 1882. § 49. If the drawer or indorser has a place of business the notice should te addressed to him there ; if he has not, then it should be addressed to him at his residence, and the party giving notice is bound to use reasonable diligence to dis- cover such place of business or residence.^ When, however, tlie bill contains an address it seems that such address is in any case sufficient to charge the party giving that address.^ German Exchange Law, Art. 47, provides that when an indorser does not state his address notice may be sent to the indorser who precedes him. When a bill is presented for payment through the post-office (see sect. 45 (8) ), the drawee or acceptor is deemed to be the agent of the holder for the purpose of giving notice of dishonour.^ If the holder does not promptly get an answer from the drawee, it would be prudent for him at once to give notice of dis- honour himself. For whose (3) Where the notice is given by or on behalf enures. of the holder, it enures for the benefit of all subsequent holders and all prior indorsers who have a right of recourse against the party to whom it is given.* (4) Where notice is given by or on behalf of an indorser entitled to give notice as herein- before provided,^ it enures for the benefit of the holder and all indorsers subsequent to the party to whom notice is given. ^ In a New York case it was held that a notice duly sent by the holder did not enure for the benefit of a prior indorser when it did not reach the party to whom it was 1 Berridge v. Fitzgerald (1869), L. E. 4 Q. B. 639. 2 Burmeater v. Barron (1852), 17 Q. B. 828 ; cf. Ex parte Baker (1877), i Ch. D. at p. 799, 0. A. ' Cf. Bailey v. Bodenham (1864), 33 L. J. C. P. at p. 255 ; Prideaux v. Griddle, L. R. 4 Q. B. at p. 461 ; Heywood v. Pickering (1874), L. R. 9 Q. B. 428. * See Stafford v. Gates (1820), 18 Johns. 327, New York. 6 See sab-sect. (1), and Turner v. Leech. (1821), 4 B. & Aid. 451. ' Chapman v. KeoMe (1835), 3 A. & E. 193 ; Lyiagkt v. Bryamt (1850), 19 L. J. C. P. 160 ; Streeter r. FoH Bank (1866), 34 New York B. 413. Notice of Dishonour. 157 sent, but the circumstances of the case were somewhat § 49. special.! The Act does not countenance this view. (5) The notice may be given in writing or by in what personal communication, and may be given brgiven." in any terms ^ which sufficiently identify the bill,=' and intimate that the bill has been dis- honoured by non-acceptance or non-payment.* IliLTrSTRATIONS. 1. "I mve notice ttat a bill, &c. (description), indorsed by you lies at 1, X. Street, disbonoured." Sufficient.* 2. Tbe holder's clerk wrote to an indorser that " B.'s acceptance due that day was unpaid, and requested his immediate attention to it." Sufficient." 3. " Your draft which became due yesterday is unpaid. Unless the same is paid immediately I shall take proceedings. Noting 5s." Sufficient.' 4. The following notice left at tbe drawer's counting-house by the holder's clerk: " B.'s acceptance to A., 501., due January 1, is unpaid. Payment to D. is requested before 4 p.m." Sufficient.^ 5. " D. Bank. I beg to intimate that B.'s acceptance to you due 1st January is still unpaid, and I have to request your imme- diate attention to the same." No signature. Sufficient.' 6. Notice to drawer of bill accepted by B. "Toius and B.'s note of hand is now due, and your attention to the same wUl oblige." Sufficient." This sub-section originally ended with the words, " and that the party to whom notice is given is held liable." 1 Beale v. Parish (1859), 20 New York R. 407. 2 Oaunt V. Thompson (1849), 18 L. J. 0. P. at p. 127 ; see also sub- sect. (7), sost, and note thereto. 3 Shelton v. Braithwaite (1841), 7 M. & W. 436; Qates\. Beecher{l87&), 60 New York R. at p. 527. * Everard v. Watson (1853), 1 E. & B. at p. 804, per Ld. Campbell. The notice need not expressly state that the bill has been presented and dishonoured {Paul v. Joel (1859), 28 L. J. Ex. 143), nor that it has been pro- tested, if protest be necessary (Ex parte Lowenthal (1874), L. R. 9 Ch. 591). 5 King y. BickUy (1842), 2 Q. B. 419). ' Bailey v. Porter (1845), 14 M. & W. 44, notice lost, and secondary evidence given of contents. 7 Armstrong v. ChrisHami (1848), 5 C. B. 687 ; Everard v. Watson (1853), 1 E. & B. 801. 8 Paul r. /oe;;(1858), 27 L. J. Ex. 380, affirmed (1859), 28 L. J. Ex. 143. 9 Maxwell v. Brain (1864), 10 h. T. N. S. 301. 10 Bain r. Gregory (1866), 14 L, T. N. S. 601. 158 Bills of Exchange Act, 1882. § 49. These words were struck out in committee. Notices of dis- "" ' honour are now construed very liberally. In 1834 the House of Lords, in Solarte v. Palmer,'^ decided that the notice must inform the holder, either in terms or by necessary implication, that the bill had been presented and dishonoured. This inconvenient decision was frequently regretted,^ and was eventually got rid of by considering it merely as a finding on the particular facts.^ Since 1841 * it does not appear that any written notice of dishonour has been held bad on the ground of insufficiency in form. For suggested forms of notice of dishonour, see Appendix, post, p. 330. (6) The return of a dishonoured bill to the drawer or an indorser is, in point of form, deemed a sufficient notice of dishonour. This sub-section approves a common practice of collecting bankers which was previously of doubtful validity. Form. (7) A written notice need not be signed,* and an insufficient written notice may be sup- plemented and validated by verbal com- munication.® A misdescription of the bill shall not vitiate the notice unless the party to whom the notice is given is in fact misled thereby. Illustkations. 1. A person sent by the holder goes to the house of the drawer, who is not a trader, and not finding the drawer, informs his wife that he has brought back the bill dishonoured. The wife says she ■will tell her husband. This may be sufficient.' 1 Solwrte V. Palmer (1834), 1 Bing. N. C. 194. 2 See e.g., Evtrwrd v. Watson (1853), 1 E. & B. at p. 804. 3 Paid V. Jod (1868), 27 L. J. Ex. at p. 384. ■" See Fwne v. Sharwood (1841), 2 Q. B. 388, where the notice would now probably be sufficient. ' MaxweU v. Brain (1864), 10 L. T. N. S. 301 ; but it must come from the right person, see sub-sects. (1) and (2). 6 UoulcUtchv. Camty (1838), 4 Bing. N. C. 411, at p. 419. The sufficiency or insufficiency in such case is a question of fact : Ibid., and see Metcalfe v. Richardson (1852), 11 C. B. 1011, as to verbal notice. 'I Housego v. Cowne (1837), 2 M. & W. 348. Notice of Dishonour. 159 2. The holder's clerk goes to the di-awer and tells him that his 8 49 bill has been presented, and that the acceptor cannot pay it. The — ^ '—^ drawer replies that he mil see the holder about it. This may be sufficient.' 3. A notary's clerk takes the bUl, with the notary's ticket attached, to the drawer's office, and shows it to a clerk there. The clerk looks at it, says the drawer is out and has left no orders. The notary then leaves the usual notice that the bill is due at his office. This may be sufficient.'' 4. A notice to the drawer which describes the biU as payable at the " S. Bank," when in fact it was payable at the " T. Bank," ^ or which describes a bill of exchange as a note,'' or which transposes the names of drawer and acceptor,* or which describes the acceptor by a wrong name,^ m.ay be sufficient. (8) Where notice of dishonour is required to To whom , . . ?■ . notice of dis- be given to any person, it may be given honour must either to the party himself, or to his agent in that behalf. be given. Illustrations. 1. 0. is the indorser of a bill which is dishonoured. Verbal notice given to his solicitor is not sufficient.' 2. X., who has authority to indorse for C, indorses a bill in O.'s name. Notice of dishonour given to X. is (perhaps) sufficient.^ 3. The drawer of a bUl is a non-trader. Verbal notice of dis- honour given to his wife at his house, in his absence, may be sufficient.' 4. The indorser of a bill is a merchant. Notice of dishonour, verbal or written, given to or left with a clerk at his counting- house is sufficient.'" 5. C. indorses a bUl " In need at Messrs. X. & Co." Notice of dishonour given to X. & Co. is not sufficient to charge 0." 1 Metcalfe V. Richardson (1852), 11 C. B. 1011. 2 Viale T. Michael (1874), 30 L. T. N. S. 453. For further illustrations, see East v. Smith (1847), 16 L. J. Q. B. 292 ; Chard y. Fox (1849), 14 Q. B. 200 ; Jennings v. Soia-ts (1855), 24 L. J. Q. B. 102. 3 Bromage v. Vwughan (1846), 16 L. J. Q. B. 10. * Stockman v. Parr (1843), 11 M. & W. 809; Bain v. Gregory (1866), 14 L. T. N. S. 601. 5 MeUersh v. Rvppen (1852), 7 Exch. 578. « Harpham v. OhOd (1859), 1 F. & F. 652. ^ Cross T. Smith (1813), 1 M. & S. at p. 554. 8 Cf. PiHh T. Thrush. (1828), 8 B. & C. at p. 391. 9 Housego v. Coione (1837),' 2 M. & W. 348 ; of. Wharton v. Wright (1844), 1 C. & K. 585. '» Allen V. Edrmmdson (1848), 2 Exoh. at p. 724; Viale v. Michael (1874) 30L. T. N. S. 453. " Ex parte Prange (1865), L. K. 1 Eq. at p. 5- 160 Bills of Exchange Act, 1882. § 49. It is the duty of the drawer or indorser of a bill, if he he absent from his place of business or residence, to see that there is some person there to receive notice on his behalf.i (9) Where the drawer or indorser is dead, and the party giving notice knows it, the notice must be given to a personal representative if such there be, and with the exercise of reasonable diligence he can be found. This is probably declaratory, though there was no English decision in point.^ It has been held in New York that notice sent to an indorser in ignorance of his death was suiEcient.' The Act appears to affirm this view. (10) Where the drawer or indorser is bankrupt, notice may be given either to the party him- self or to the trustee. See " bankrupt " defined by sect. 2, ante, p. 4. All that had been decided before the Act was that notice given to the bankrupt in ignorance that a trustee had been appointed was sufficient. (11) Where there are two or more drawers or indorsers who are not partners, notice must be given to each of them, unless one of them has authority to receive such notice for the others. So held in America.* There was no English decision in point. Within what (12) The notice may be given as soon as the time notice of 1 Cf. Allen V. Edmundson (1848), 2 Eioh'. at p. 723. 2 So held in America, Massachusetts Bank v. Oliver (1852), 64 Mass. E. 557. 3 Merchants Bank v. Birch (1817), 17 Johns. R. 24. * WUliSY. Green (1843), 5 HiU, 232, New York. Notice ov Dishonour. 161 bill is dishonoured,* and must be given within § 49. a reasonal?le time thereafter.^ dishonour In the absence of special circumstances notice ^vL. ^ is not deemed to have been given within a reasonable time, unless — (a) where the person giving and the person to receive notice reside in the same place, the notice is given or sent off in time to reach the latter on the day after the dis- honour of the bill.^ (6) where the person giving and the person to receive notice reside in different places, the notice is sent off on the day after the dishonour of the bill, if there be a post at a convenient hour on that day,* and if there be no such post on that day then by the next post thereafter.^ Reasonable time will, as keretofore, be a mixed question of law and fact.^ By sect. 92, post, p. 279, when the time allowed for doing any act is less than three days, non- business days are excluded.'' As an instance of special circumstances, see a case as to a Jewish sacred festival.® A person who gives notice to a remote party must give notice within the same Kmits of time that would sufB.ce in the case of an immediate party.' If the holder does not ' Burbridge v. Manners (1812), 3 Camp. 193 ; Hine v. Allely (1833), 4 B. & Ad. 624. 2 Hirsckfidd t. Smith (1866), L. R. 1 C. P. at p. 351. 3 Smith v. Mullett (1809), 2 Gamp. 208 ; HUton v. Pairclough (1811), 2 Camp. 632, < WUliamsY. Smith (1819), 2 B. & Aid. at p. 500. 5 Sawkes v. Salter (1828), 4 Bing. 715 ; Carter v. BurUy (1838), 9 New Hamp. R. 558, at p. 670. « Hirschfield t. Smith (1866), u. R. 1 0. P. at p. 351 ; cf. Oladwdl v. Twmer (1870), L. R. 5 Ex. at p. 61. ^ Cf. Wright v. Shaweross (1819), cited 2 B. & Aid. at p. 501, as to notice received on a Sunday ; and Bank Holidays Act, 1871, § 2. 8 Undo V. Unsworth (1811), 2 Camp. 601. s Bowe V. Tipper (1853), 22 L. J. C. P. 135 ; cf. Nouguier, § 1096. C. M 162 Bills of Exchange Act, 1882. § 49. give notice to a remote party in due time, he cannot rely on his own notice ; but if he has given due notice to his immediate indorser, his rights may yet be saved by notice given by such indorser. Under French Code, Art. 165, the holder of a dis- honoured bill must give notice of protest and commence proceedings within fifteen days of the date of protest, if the drawer or indorser sought to be charged live within five myriametres. Extra time is given for extra distance. Thus, under Art. 166, as modified by the law of May 3, 1862, when a bill is payable in England the holder has one month for giving notice of protest and commencing proceedings against a French drawer or indorser. The notice of protest and the summons (assignation en justice) are usually comprised in one document : Nouguier, §§ 1088, 1089. Under German Exchange Law, Art. 45, the holder must send off written notice of protest within two days after protest. (13) Wliere a bill when dishonoured is in the hands of an agent, he may either himself give notice to the parties liable on the bill or he may give notice to his principal. If he give notice to his principal, he must do so within the same time as if he were the holder, and the principal upon receipt of such notice has himself the same time for giving notice as if the agent had been an independent holder. Illustbations. 1. A bill payable in London is indorsed in blank by the bolder, and deposited -with a country banker for collection. The country banker's London agent presents it for payment and gives Iii'tti due notice of its disbonour. The country banker on the day after the receipt of such notice gives notice to his customer, who in turn gives similar notice to his indorser. This indorser has received due notice." 1 Bray v. Hadwen (1816), 5 M. & S. 68 ; Cf. Mrth v. Thrush (1828), 8 B. & C. 387. Notice of Dishonour. 163 2. 0. indorses a bill to the Liverpool branoi. of the D. Bank. 49. The Liverpool branch sends it to the Manchester branch, and the — Manchester branch indorses it to the head office in London, who present it for payment. The head office sends notice of dishonour to the Manchester branch, the Manchester branch sends notice to the Liverpool branch, who gives notice to 0. Each branch as re- gards time is to be considered a distinct party.^ 3. X. pays a bill supra protest for the honour of C, an indorser, who resides at Bruges, and the same day posts the bill to 0. 0. by return of post sends the bill back to X., who at once gives notice of dishonour to the drawer. Although six days have elapsed since the dishonour, the notice is in time, and X. can sue the drawer.^ (14) Where a party to a bill receives due Remote notice of dishonour, he has after the receipt of such notice the same period of time for giving notice to antecedent parties that the holder has after the dishonour.^ (15) Where a notice of dishonour is duly Miscarriage of addressed and posted, the sender is deemed to have given due notice of dishonour, notwith- standing any miscarriage by the post office. See note to sub-sect. (2), ante, p. 155. 50. (1) Delay in giving notice of dishonour Excuses for is excused where the delay is caused by cir- giving notice , 1 ij, ± 1 r ±^ J. of dishonour. cumstances beyond the control oi the party giving notice, and not imputable to his default, misconduct, or negligence. When the cause of delay ceases to operate the notice must be given with reasonable diligence.* Compare sect. 46 (1) as to delay in presentment for 1 Olode v. Bayley (1843), 12 M. & W. 51, approved Prince v. Oriental Bcmk (1878), 3 App. Cas. at p. 332, P. C. 2 Goodall^. PolUU (1845), 14 L. J. C. P. 146. 3 See Wright v. Shawcross (1819), cited 2 B. & Aid. at p. 501, notice received on Sunday ; and see ante, p. 162. ■> See Firth v. Thrush (1828), 8 B. & C. 387 ; OladweU r. Turner (1870), L. R. 5 Ex, at p. 61. M 2 164 Bills of Exchange Act, 1882. § 50. payment, and sect. 51 (9) as to delay in protest. Tf an indorser gives a wrong address, delay caused by his so doing would be excused ; ^ and if tbe holder does not know an indorser's address, delay occupied in making inquiries would be excused: ^ so, too, by sect. 49 (15), delay caused by the default of the post-office is excused. This sub- section, which is declaratory,' is an obvious deduction from the general rule that notice of dishojiour must be given within a reasonable time. The old system of pleading recognized the distinction between excuses for delay and excuses for non-notice.* When the delay is caused by the negligence of the party to whom notice is sent, it is con- ceived that, though that party is liable, he cannot give an effectual notice to antecedent parties.^ As to notice to indorser of an overdue bill, see note to sect. 10 (2), ante, p. 30. When notice (2) Notlce of dishonour is dispensed with — of dishonour dispensed Comparing this sub-section with the corresponding pro- ^ ■ visions of sect. 46 (2), it will be seen that notice of dis- honour is dispensed with in several cases when presentment for payment is not. (a) When, after the exercise of reasonable dihgence, notice as required by this Act cannot be given to or does not reach the drawer or indorser sought to be charged : Illitstbations. 1. The holder of a dishonoured bill goes to the drawer's place of husinefes during business hours to give him notice of dishonour. He finds the place shut, and no one there of whom to make in- quiries. This may excuse notice.^ 2. The holder of a bill duly addresses and posts a notice of dis- ' Hewitt V. Thompson (1836), 1 M. & Rob. 541 : Berridge v. Fitzgerald (1869), L. K. 4 Q. B. 639. ' Baldwin v. Richardson (1823), 1 B. & C. 245. 3 Studdy V. Beesty (1889), 60 L. T. N. S. 647 ; W. N. (1889), p. 14, C. A. * Allen T. Edmundson (1848), 2 Exch. at p. 723. » Cf. Shelton v. Braithwaite (1841), 8 M. & W. at pp. 254, 255. ^ Allen V. Edmundson (1848), 2 Exch. at p. 723 ; discussed Studdy v. Beesty (1889), 60 L. T. N. S. at p. 649, 0. A. Notice of Dishonour. 165 honour. It is lost in the post. The drawer or indorser to -whom it § 50. was sent is not discharged.' — 3. The holder of a dishonoiored bill does not know the indorser's "When notice address. He makes some inquiry, but does not take the steps he °\ dishonour reasonably might have done.^ The indorser is discharged.' dispensed 4. A biU is accidentally destroyed before maturity. The holder gives notice of the fact to the drawer. At maturity the holder cannot obtain payment. He must give notice of dishonour to the drawer.'' 5. Action by indorsee against drawer. The drawer cannot be found at the address given, but subsequently is found at another address. This excuses delay in giving notice, but not the omission to give notice of dishonour.* The fact that the drawer or indorser sought to he charged has reason to believe that the bill will, on presentment, be dishonoured, does not dispense with the necessity for giving him notice of dishonour.^ Thus, if the. drawer or indorser of a bill knows that the acceptor is dead'' or bankrupt,^ notice must still be given ; so, too, if the drawer or indorser be dead or bankrupt : sect. 49 (9), (10), ante, p. 160. Eeasonable diligence is a question of fact.^ (h) By waiver express or implied. Notice of dishonour may be waived before the time of giving notice has arrived, or after the omission to give due notice : Illxtsteations. 1. The drawer of a bill teUs the holder before it is due that he has no fixed residence, and that he will call in a few days to see if the acceptor has paid the bUl. This waives notice.^" 2. The drawer of a biU informs the holder that it wUl not be paid on presentment. This (probably) waives notice." 1 Maokay v. Judkins (1858), 1 F. & F. 208, £yles, J. ; Cf. sect. 49 (15), ante, p. 163. 2 Allen V. Edmundson (1848), 2 Exch. at p. 723 ; discussed Studdy v. See>ty (1889), 60 L. T. N. S. at p. 649, G. A. 3 Beveridgex. Hwrgis (1812), 3 Camp. 262. 4 Thackrayv.Blackett {1811), ZGamTf. 164. 5 Studdy V. Beesty (1889), 60 L. T. N. S. 647, C. A. 6 Garew v. Duckworth (1869), L. E. 4 Ex. at p. 319. 7 Vaunt V. Thompsm (1849), 18 L. J. C. P. 125 ; French Code, Art. 163 ; Pothier, No. 147. 8 Bsdaile v. Sowerhy (1809), 11 East, 114 ; cf. French Code, Art. 163. 9 Bateman v. Joseph (1810), 2 Camp, at p. 462; cf. Berridget. Fitzgerald (1869), L. R. 4 Q. B. at p. 642. '" Phipson V. Kellner (1815), 4 Camp. 285 ; cf. Bwrgh v. Legge (1839), 5 M. & W. 418. " Brett T. Levett (1811), 13 Bast, at p. 214, 166 Bills of Exchange Act, 1882. § 50. 3. The indorser of a bill receives no notice of dislionoiir. Six weeks after the dishonour he meets the holder and promises to pay When notice the bill. This is a waiver of notice.' of dishonour 4 rpj^^ ^^^j. ^f ^ ^,iu indorses it to C, who indorses it to D. Qispensea q^ ^j^^ ^^ ^^ dishonour, but before the fact of dishonour could be known, the drawer, knowing the acceptor to be insolvent, says to C, "I suppose I shaU have to take up the biU. If you wiU call with it in a few days I will pay you." D. gives no notice of dis- honour either to 0. or the drawer. D. cannot avail himself of the promise to C, and sue the drawer.^ 5. The drawer of a bill indorses it to C, who indorses it to D. Some time after the dishonour, the drawer, who has received no notice, is informed by 0. that D. the holder is going to sue him. The drawer says he will pay if D. will give him time. This is evidence of waiver of notice.' Waiver of notice of dishonour in favour of the holder enures for the benefit of parties prior to such holder as well as subsequent holders.* Waiver of notice of dishonour by an indorser does not affect parties prior to such indorser.^ An acknowledgment of liability must be made with full knowledge of the facts in order to operate as a waiver of notice of dishonour.* Thus, a bill is refused payment at maturity. The in- dorser promises the holder to pay it, not knowing that it had been previously dishonoured by non-acceptance. This is no waiver. Again, a waiver of notice of dishonour may not include a waiver of presentment for payment.'' Many of the cases fail to distinguish between admissions of liability, which are evidence of due notice having been received, and admissions of liability when due notice has not been given, and which therefore are evidence of waiver. The distinction is important.^ In America it has been held 1 Cordery v. Colmlle (1863), 32 L. J. C. P. 210. 2 PicUn v. Graham (1833), 1 Cr. & M. 725. 3 Woodsy. Dean (1862), 32 L. J. Q. B. 1. See further, Lecaan v. KirJc- man (1859), 6 Jur. N. S. 17 ; North Stafford Loan Co. y. Wythies (1861), 2 F. & P. 563 ; Kilhii v. Rochussen (1865), 18 C. B. N. S. 357 ; Shddon v. Eiyrton (1870), 43 New York R. 93. * Sabey v. GUbert (1861), 30 L. J. Ex. 170. 5 Twmer t. Leech (1821), 4 B. & Aid. 451. 6 GoodallY. SoUey (1787), 1 T. E. 712 ; cf. Pickin\. Graham (1833), 1 Cr. & M. at p. 729. ^ Keith V. Burke (1885), 1 C. & E. 561. ' As to what is evidence of due notice, see Taylor v. Jones (1809), 2 Camp. 105 ; Micks v. Beaufort (1838), 4 Bing. N. 0. 229 ; Brownell v. Bonney (1841', 1 Q. B. 39;, Curlewis v. Corfield (1841), 1 Q. B. 814; drawer. XOTICE OF DlSHONOUK. 167 that a verbal waiver of notice may be revoked before the § 50. time for giving notice has expired.^ ^ '. — As to the insertion of an express stipulation in a bill of dishonotir waiving notice, see sect. 16 (2), ante, p. 40. dispensed with. (c) As regards the drawer in the following Asregardi cases, namely — (1) where drawer and drawee are the same person,^ (2) where the drawee is a fictitious person, or a person not having capacity to contract,^ (3) where the drawer is the person to whom the bill is presented for payment,* (4) where the drawee or acceptor is as between himself and the drawer under no obligation to accept or pay the bill,^ (5) where the drawer has countermanded payment : Tt.TiTTSTBATIONS. 1. Bill is made payable at tlie drawer's house. It is accepted and dishonoured. Prima facie this is a bill accepted for the accom- modation of the drawer, and he is not entitled to notice.* 2. A bill is signed by the drawer in order to accommodate the acceptor. The drawer is entitled to notice.' Campbell Y. Wehster (ISiS), 15 L. J. C. P. 4 : Mills y. Gibson {lSi7], 16 L. J. C. P. -.'49 ; Jackson v. CoUins (1848), 17 L. J. Q. B. 142 ; Bartholo- mew V. BUI (1862), 5 L. T. N. S. 756. As to what is not, Bm-radaile v. Lowe (1811), 4 Taunt. 93 ; Braithwaite v. Goleman (1835), 4 N. & M. 654 ; Bell V. Frankis (1842), 4 M. & G. 446 ; Holmes v. Staines (1850), 3 C. & K. 19. 1 Second Nat. Bank v. Mnguire (1877), 31 Amer. R. 539. ^ See " person " defined by sect. 2, ante, p. 7, and see sect. 5 (2), ante, p. 17. Qu. as to case of two firms having a common partner, see New TorJc Contracting Co. v. Helma Savings Bank (1874), 23 Amer. K. 652, 3 See Leach v. Mewitt (1813), 4 Taunt. 731 ; .^mith v. Bellamy (1817), 2 Stark. 223, and sect. 5 (2), ante, p> 17. * See "person' defined by sect. 2, ante, p. 7, and see sect. 5(2), ante, p. 17. Qii. as to the case of two firms having a partner in common, see New York Contracting Co. v. Selma Savings Bank (1874), 23 Amer. R. 552. See further Caunt v. Thompson (1849), IS L. J. C. P. 125. ° See Bickerdike \. Bollman (1786). 2 Smith, L. C. 7th ed. p. 50, and notes ; Dickens v. Beal (1836), 10 Peters, 672 ; Sup. Ct. N. S. s Sharp v. Bailey (1829), 9 B. & C. 44 ; cf. Carter v. Flower (1847), 16 M. & W. 743. 7 Sleigh V. Sleigh (1850), 5 Exch. 514. 168 Bills of Exchange Act, 1882. § 50. When notice of dishonour dispensed with. 3. A. having the balance of lOi!. at his bankers, and having no authority to overdraw, draws a cheque for 501. A. is not entitled to notice.' 4. AlWll is drawn and accepted to accommodate X. who is not a party to it, but who is to provide for it. The drawer is entitled to notice of dishonour.'' 5. A., having a small balance in B.'s hands, draws on him for a larger sum. B. accepts, but does not pay. A. is perhaps entitled to notice.' 6. A bill is drawn, accepted and indorsed by three persons in order to raise money for their joint benefit. The drawer and in- dorser are entitled to notice.'' Prima facie the acceptor is, as between himself and the drawer, the person bound to pay it; but evidence is admissi- ble to show that he is in reality a mere surety for the drawer, or some other party. ^ As the clause originally stood, it ran, " where the drawee or acceptor is, as between himself and the drawer, under no obligation to accept or pay the bill, and the drawer has no reason to expect that it will be honoured on presentment." These latter words were struck out in committee. There- fore the cases in which, before the Act, notice was held necessary, must be reconsidered with reference to this amendment. As regards indorser. {d) As regards the indorser in the following cases, namely — (1) where the drawee is a fictitious person or a person not having capacity to contract, and the indorser was aware of the fact at the time he indorsed the bill, (2) where the indorser is the person to whom the bill is presented for payment, (3) where the bill was accepted or made for his accommodation. ' Carew T. Duckworth (1869), L. E. 4 Ex. 313 ; of. Wirth v. Austin (1875), L. R. 10 C. P. 689. 2 Lajitte v. Slatier (1830), 6 Bing. 623 ; of. Turner v. Samson (1876), 2 Q. B. D. 23, C. A. 3 Tkackray v. Blackett (1811), 3 Camp. 164. Q«. since the Act ? * Foster v. Parker (1876), 2 C. P. D. 18. 5 Cook v. Lister (1863), 32 L. J. C. P. at p. 127. Notice of Dishonour. 169 Illtjsteation. § 50. The indorser of a bill becomes the executor of the acceptor. It CTT '. is presented to him and he dishonours it. He is not entitled to W^?" notice notice.i of dishonour dispensed See "person" defined by sect. 2, ante, p. 7, and note ^'*^' the distinctions between this clause and the last. As the clause originally stood, it ran, "where the bill was accepted or made for his accommodation, and he has no reason to expect that it loill he honoured on presentment." The latter words were struck out in committee. When a bill is dishonoured which is void for want of being duly stamped, notice of dishonour need not be given, for the holder's only remedy is in an action on the con- sideration, and not on the instrument itself.^ Notice to charge Acceptor, Maker, or Stranger. By sect. 52 (3) post, p. 177, the acceptor of a bill of Notice to exchange, or maker of a note, is not in any case entitled to '''<='=<^P*°^ '^"' i- j> T 1 5 necessary. notice 01 dishonour.-^ •' A person who has given a guarantee for the payment of Guarantor. a bill by the acceptor is not entitled to notice of dishonour. Thus :— 1 . The indorser of a bill gives a bond to secure its pay- ment. Want of notice of dishonour is no defence to an action on the bond.* 2. X. gives a guarantee for the price of goods to be supplied to the acceptor of a bill. X. is not entitled to notice of dishonour.^ 3. X. gives a guarantee for the price of goods to be sup- plied to the drawer of a bill. X. is entitled to notice of dishonour.^ 4. X. guarantees the payment of a note "if it be not duly honoured and paid " by the maker. X. is not entitled to notice of dishonourJ 5. A debtor gave his creditor a bill accepted by himself, 1 Caura V. Thompson (1849), 18 L. .T. C. P. 125. 3 Cundy t. Marriott (1831), 1 B. & Ad. 696. 3 Cf. Sowe r. Tipper (1853), 22 L. J. C. P. at p. 137 ; Pearse y. Pern- birthy (1812), 3 Camp. 261, maker of promissory note. 4 Murray T. JUtu/ (1821), 5 B. & Aid. 165. 5 Holbrow V. Wilkins (1822), 1 B. & 0. 10. 6 Pkilips V. Astling (1809), 2 Taunt. 206 ; cf. Hitcheoch v. Humfmy (1843), 5 M. & Gr. at p. 564. ^ Walton V. Mascall (1844), 13 M. & W. 72 ; see ibid, at p. 452. 170 Bills of Exchange Act, 1882. § 50. Person liable on considera- tion. Noting inland bill. but with the drawer's name in blank. X. as surety deposited certain stock certificates with the creditor as collateral security. The acceptor died insolvent, without the creditor having inserted any drawer's name. The bill was never presented for payment, and no notice was given to X. Held that X. was not discharged.^ In America the cases conflict. The balance of autho- rity inclines to the view that notice of dishonour need not be given to a guarantor.^ It is prudent to give a guarantor some notice. A person who is not a party to a bill, but who is liable on the consideration for which it is given, is (probably) entitled to notice of dishonour. Thus : — 1. X. buys goods from D. to be paid for " by approved banker's bill." C, who is X.'s broker, obtains a banker's bill payable to his own order and indorses it to D. If the bill be dishonoured, X. (probably) is not liable for the price of the goods, unless he receives notice of dishonour.* 2. C, the holder of a note payable to bearer on demand, transfers it to D., without indorsing it, to pay for goods supplied by D. If the note be dishonoured, C. is not liable for the price of the goods, unless he received notice of dis- honour.* It seems from the last-cited cases* that the same strict and technical notice of dishonour is not requisite to charge a person liable on the consideration as is requisite to charge a party liable on the bill. This is fair, for in the one case the liability is transferable, in the other it is not, and therefore all defences between the parties can be inquired into. A distinction might be drawn between persons liable on the consideration who have, and who have not, been holders of the bill.^ 51. (1) Where an inland bill has been dis- honoured it may, if the holder think fit, be noted ' GaHer v. WUte. (1883), 25 Oh. D. 666, C. A. 2 See e.g., Brown v. Gwrtis (1849), 2 New York B. 225 : contriL, Foots v. ^rotro (1841), 2 MeClean, 369. ^ Smith V. Mercer (1867), L. E. 3 Ex. 51 ; contrd, Swmyard v. Bowes (1816), 5 M. & S. 62, not cited. * Camidge v. AUenby (1827), 6 B. & 0. 373 ; Turner v. Stones (1843), 1 D. & L. 122 ; Sohson v. Oliver (1847), 10 Q. B. 704, cases on country bank notes : cf. sect. 58, post, p. 194. * Cf. Camidge v. AUenby (1827), 6 B. & C. at p. 381. Notice of Dishonour. 171 for non-acceptance or non-payment, as the case § 51. may be ; but it shall not be necessary to note or protest any such bill in order to preserve the recourse against the drawer or indorser. By " noting " is meant the minute made by a notary public on a dishonoured bill at the time of its dishonour. The formal notarial certificate, or protest, attesting the dishonour of the bill is based upon the noting. The "noting" consists of the notary's initials, the date, the noting charges, and a mark referring to the notary's register written on the bill itself. The notarial registers bear certain letters upon them, and a corresponding letter is put upon the bill as a mark. A ticket or label is also attached to the bill on which is written the answer given to the notary's clerk who makes the notarial presentment, e.g., "no orders," "no advice," or "no effects." Before sending out the bill the notary makes a full copy of it in his register, and then subsequently adds the answer given, if any.^ By sect. 73 this provision applies to cheques, and by sect. 89 to promissory notes. By sect. 67 the expenses of noting can be recovered as liquidated damages. This Act attaches no legal consequence to noting an inland bill, except by makirg it a necessary preliminary to acceptance or payment for honour : see sects. 65 and 67. For business purposes noting is usually taken as showing due presentment. For purposes of summary diligence in Scotland an inland bill must be protested as heretofore : sect. 98, post, p. 284. (2) Where a foreign bill, appearing on the Protest of face of it to be such, has been dishonoured by non-acceptance it must be duly protested for non- acceptance, and where such a bill, which has not been previously dishonoured by non-accept- ance, is dishonoured by non-payment it must be duly protested for non-payment. If it be not so ' Brooks' Notary, 4th ed. p. 80 ; and evidence before Select Committee on Bank Holidays Bill, 1868, see at pp. 51—53. foreign bill. 172 Bills of Exchange Act, 1882. § 51. protested the drawer and indorsers are discharged.^ Where a bill does not appear on the face of it to be a foreign bill, protest thereof in case of dis- honour is unnecessary. See "foreign bill," defined by sect. 4. By sect. 89 (4), post, p. 271, protest of a foreign note is uunecessary. As to protest for purposes of summary diligence in Scotland, see note to sect. 98, post, p. 284. By sect. 52 (3), protest is not necessary in order to charge the acceptor of a bill. The notice of dishonour is not bad because it omits to state that the bill has been protested.^ As to notice of protest under the foreign codes, see ante, p. 162. For non- (3) A bill which has been protested for non- payment after , , . ,iip non-accept- acceptance may be subsequently protested tor ance. non-payment. Protest in such case might he necessary for the purpose of charging a foreign drawer or indorser in his own country. An English Act can only lay down the law for the United Kingdom, though by the comity of nations the duties of the holder would generally be regarded as regulated by the law of the place where they are to be performed. As has before been pointed out (ante, p. 140), under some of the Continental codes no right of action arises on non-acceptance ; the holder can demand security from antecedent parties, but he is bound to re-present the biU at maturity. Time of (4) Subject to the provisions of this Act, when a bill is noted or protested, it must be noted on the day of its dishonour.^ When a bill has been duly noted, the protest may be subsequently extended as of the date of the noting. For the provisions referred to, see sub-sect. (6) (a), and » Gale v. Walsh (1793), 5 T. K. 239 ; cf. Whitehead v. Walker (1842) 9 M. & W. 506. 2 Ex parte Louenthal (1874), L. E. 9 Ch. 591, and see ante, p. 154. ' See M'Pherson v. Wright (1885), 12 Sesa. Cas. 942, Sootoli protest for diligence. Protest. 173 sub-sect. (9). The provisions of tMs sub-section as to the § 51. extension of the protest are supplemented by sect. 93. post, p. 279. Before the Act it was not clear that a bill could not be lawfully noted for protest on the day after its dis- honour ; but the business members of the Select Committee were unanimous in thinking that noting on the day of dis- honour should be made obligatory. By French Code, Art. 162, a bill is to be protested for non-payment on the day after it is due. By German Exchange Law, Art. 41, a dishonoured bill may be protested for non-payment on the day it is due, and it must not be protested later than the second day after. See the laws of different nations on the point collected : Nouguier, § 1270. ib) Where the acceptor of a bill becomes bank- Protest for . better rupt or insolvent or suspends payment before it security. matures, the holder may cause the bill to be pro- tested for better security against the drawer and indorsers. See Brooks' Notary, 4th ed., pp. 88, 219. Under some of the Continental codes, when the acceptor fails during the currency of a bill, security can be demanded from the drawer and indorsers.^ English law provides no such remedy, and the only effect of such a protest in England is that the biU may be accepted for honour. In France, if the acceptor fails, the bill may at once be treated as dishonoured and protested for non-payment.^ (6) A bill must be protested at the place where Place of it is dishonoured.^ Provided that — [a) When a bill is presented through the post office, and returned by post dishonoured, it may be protested at the place to which it is 1 See,c.j., German Exchange Law, Art. 29 ; Netherlands Code, Arts. 177, 17 . 2 French Code, Art. 163 ; Nouguier, § 1277. 3 Of. Mitchell v. Barmg (1829), 10 B. & C. 4 ; French Code, Art. 173 and see sect. 94, post, p. 280, as to protest in places where there is n notary available. 174 Bills of Exchange Act, 1882. § 61. returned and on the day of its return if re- ceived during business hours, and if not received during business hours, then not later than the next business day : This sub-section was inserted in committee to protect a common practice of the Liverpool notaries with regard to bills drawn on cotton-spinners in Lancashire. (b) When a bill drawn payable at the place of business or residence of some person other than the drawee, has been dishonoured by non-acceptance, it must be protested for non- payment at the place where it is expressed to be payable, and no further presentment for payment to, or demand on, the drawee is necessary. This sub-section reproduces the effect of the repealed, 2 & 3 Will. 4, c. 98. Suppose a bill is drawn on B. in Liverpool, " payable at the X. Bank in London." It is dishonoured by non-acceptance. It is to be protested for non-payment in London without any further demand on B. Ordinarily the protest recites the demand on the acceptor or other payer. Kequisites in (7) A protest must Contain a copy of the bill, protest. and must be signed by the notary making it, and must specify — (a) The person at whose request the bill is protested : (b) The place and date of protest, the cause or reason for protesting the bill, the demand made, and the answer given, if any, or the fact that the drawee or acceptor could not be found. Protest. 175 A protest ordinarily contains : — (1) An exact copy of the § 51. bill. (2) A statement of the parties for whom and against whom the bill is protested. (3) The date of protesting and the place where protest is made. (4) A statement that acceptance or payment was demanded by the notary ; the terms of the answer, if any ; or a statement that no answer was given, or that the drawee or acceptor could not be found. (6) A reservation of rights against the parties liable. (6) The subscription and seal of the notary making the protest.'" The protest must be stamped (see p. 361). A protest may be in duplicate or triplicate.^ W^ords requiring a protest to be under seal were struck out in committee. The protest must ordinarily be made by a notary public or other person authorized to act as such,^ but by sect. 94, post, p. 280, when the services of a notary cannot be obtained at the place where the bill is dishonoured, protest may be made by any respectable inhabitant in the presence of two witnesses. By 3 & 4 Will. 4, c. 70, sohcitors in the country may be authorized by the Master of Faculties to practise as notaries. As to notaries in Ireland, see 9 Geo. 4, c. 24. In England the notarial presentment of the bill to the drawee or acceptor is almost always made by the notary's clerk.* In America the validity of a protest founded on such a presentment has been doubted : see Parsons on Bills, p. 641. (8) Where a bill is lost or destroyed, or is Protest of lost wrongly detained from the person entitled to hold non-delivery. it, protest may be made on a copy or written particulars thereof.^ (9) Protest is dispensed with by any circum- Excuses for . ITT -n /• PT Hon protest . stance which would dispense with notice oi dis- or delay. • See Brooks' Notary, 4tli ed. p. 82 ; and for forms, see pp. 214 — 219 ; cf. French Code, Art. 173 ; German Exchange Law, Art. 88. 2 Brooks' Notary, 4th ed. p. 82 : Geralopulo t. Wieler (1851), 20 L. J. C. P. 105. s Cf. German Exchange Law, Art. 87 ; French Code, Art. 173. ■• Brooks' Notary, 4th ed. pp. 78 and 138 ; and Thomson, p. 310, as to Scotland. 6 Pothier, No. 145 ; Brooks' Notary, 4th ed. pp. 137 and 217. See further as to lost bills, sects. 69 and 70, post, p. 233. The particulars can usually be obtained from the bill book. 176 Bills of Exchange Act, 1882. § 61. honour. Delay in noting or protesting is excused when the delay is caused by circumstances beyond the control of the holder, and not imputable to his default, misconduct, or negligence.' When the cause of delay ceases to operate the bill must be noted or protested with reasonable diligence. See sect. 50 as to excuses for non-notice and delay. Compare sect. 46 as to excuses for non-presentment and delay. See also sect. 16 (2), ante, p. 40, as to indorsements waiving protest. Qu., if tliis sub-section incorporates sect. 48 (1), ante, p. 153, which excuses non-notice in the case of a biU dishonoured by non-acceptance which subsequently comes into the hands of a holder in due course. Duties of 52. (1) When a bill is accepted generally^ pre- regards scntmcnt for payment is not necessary in order drawee or , -t n j i • i i q acceptor. to render the acceptor liable."* The reason is that at common law the debtor is bound to seek out his creditor to pay him.* The practical import- ance of the rule is, that the acceptor cannot avail himself of any informality in the presentment. The holder would not be likely to bring an action without first applying for payment. If he did so, the Court presumably would make him pay the costs, and deprive him of interest." Serjeant Manning, in a note to a case he reports,* suggests that if the holder were out of England during the whole of the 1 Legge v. Thorpe (1810), 12 East, 171 ; see, e.g., Campbell v. Webster (1846), 15 L. J. 0. P. 4, waiver ; Rothschild v. Currie (1841), 1 Q. B. at p. 47, delay. ^ See sect. 19, ante, p. 46, distinguishing general and qualified accept- ances. ' Rowe V. Young (1820), 2 Bligh, H. L. at pp. 467, 468, per Bayley, J. ; cf. Maltby v. Mv/rrells (1860), 5 H. & N. at p. 823. See also the old form of declaration against an acceptor or maker in Sullen and Leake's Prece- dents. * Cranley v. Hillary (1813), 2 M. & S. 120 ; Walton v. MascaU (1844), 13 M. & W. at p. 458, promissory note. ^ Cf. Macintosh t. Eaydon (1826), %. & M. at p. 363, as to costs ; Pierce T. FothergiU (1835), 2 Bing. N. C. 167, as to interest. « WUmot V. WUliams (1844), 7 M. & Gr. at p. 1018 ; cf. Startup v. Macdonald (1843), 6 M. & (rr. at p. 624. Duties ot Holdek to Payer. 177 day oa which the bill matured, it might be necessary to § 52. prove a demand before the acceptor could be sued. ~ By sect. 89 this enactment applies mutatis mutandis to the maker of a note. (2) When by the terms of a quahfied accept- Presentment, ance presentment for payment is required, the acceptor, in the absence of an express stipulation to that effect, is not discharged by the omission to present the bill for payment on the day that it matures."* The acceptor may, by the terms of a qualified acceptance, make presentment for payment a condition precedent to his liability.^ Thus, if a bill be accepted "Payable at the Union Bank only," the holder must present it for payment at that bank before he can sue the acceptor.^ When a bill is accepted payable at a particular place and there only, the acceptor's position is for many purposes analogous to that of the drawer of a cheque.* If, then, he could show that he was damnified by the holder's omission to present on the proper day, he would probably be discharged.^ By sect. 87 (1) when a note is in the body of it made payable at a particular place, presentment is required to charge the maker ; and by sect. 89 (2), the provisions of this sub-section would apply to that case. (3) In order to render the acceptor of a bill No notice T 1 1 • . • II- 1 •"' protest liable it is not necessary to protest it, or that required, notice of dishonour should be given to him. Thus, if B. in Liverpool accepts a bill payable at a bank in London, and it is presented there and dishonoured, no ' Smith V. Vertue (1860), 30 L. J. C. P. at p. 59, conditional acceptance ; see per Keating, J., at p. 60, as to acceptance to pay at a particular place, and see ante, p. 47. Sect. 19, cmU, p. 46 : and Rome v. Ymmg (1820), 2 Bligh, H. L. 391. 3 Halstead v. Skelton (1843), 5 Q. B. at pp. 93, 94, Ex. Ch. * Bishop V. Chiity (1742), 2 Stra. 1195 ; Ramchurn Mullick v. Luchmee- chund Radakiiien (1854), 9 Moore, P. C. at p. 70, per Parke, B. * Cf. AUxcmder v. Burchfield (1842), 7 M. & Gr. 1061, case of a cheque where bank failed. C. N 178 Bills of Exchange Act, 1882. § 62. notice of dishonour need be given to B.' The same rule applies to the maker of a note.^ Production (4) Where the holder of a bill presents it for payment, he shall exhibit the bill to the person from whom he demands payment, and when a bill is paid the holder shall forthwith dehver it up to the party paying it. See " holder " defined by sect. 2, ante, p. 5 ; and as to payment, see further sect. 59 (1), post, p. 199. " The person who demands payment of a bill," says Piatt, B., "must produce the bill, and offer to deliver it up on payment. "» "The acceptor paying the bill," says Lord Tenterden, "has a right to the possession of the instrument for his own security, and as his voucher and discharge joro tanto in his account with the drawer."* At common law an exception to this rule was recognised in the case of a non-negotiable note.^ As to the case of a lost bill or note, see note to sect. 70, post, p. 233. Giving up the bill is a concurrent condition, and not a condition precedent to payment. German Exchange Law, Arts. 38, 39, provides that the holder must take part-payment if it be ofPered. In that case he may retain the bill, but must indorse upon it the amount he has received. As to production for proof or dividend in bank- ruptcy, see post, p. 349. 1 TreacTier v. Sinton (1821), 4 B. & Aid. 413 ; of. Mom v. Tipper {1853), 22 L. J. 0. P. at p. 137. 2 Sect. 89 (2), and Pearse v. PembeHhy (1812), 3 Camp. 261. » Bamuz v. Crowe (1847), 1 Exoh. 167, at p. 174. * Hansard v. Sobimson (1827), 7 B. & C. 90, at p. 94 ; Crowe t. Clay (1854), 9 Exoh. 604, Ex. Oh. ; German Exchange Law, Art. 39 ; of. Jones T. Broadhurst (1850), 9 C. B. at p. 182 ; and Duncan, Fox & Co. v. N. and S. Wales Bank (1880), 6 App. Oas. at p. 18, H. L., as to payment by drawer or indorser ; and Cornea v. Taylor (1854), 10 Exoh. 441 ; Woodward v. Pell (1868), L. K. 4 Q. B. 55, lien for costs. 5 Wain T. Bailey (1839), 10 A. & E. 616 : Cha/rnley v. Cfrundy (1854), 14 C. B. at p. 614. 179 § 53. Liahilities of Parties. 53. (1) A bill, of itself, does not operate as an Funds in assignment of funds in the hands of the drawee drawee. available for the payment thereof, and the drawee of a bill who does not accept as required by this Act is not hable on the instrument. This sub- section shall not extend to Scotland. (2) In Scotland, where the drawee of a bill has in his hands funds available for the payment thereof, the bill operates as an assignment of the sum for which it is drawn in favour of the holder, from the time when the bill is presented to the drawee.' Illusteations. 1. A., having lOOZ. at his bankers, draws a cheque on them for that sum in favour of 0. The cheque is dishonoured. 0. has no remedy against the bankers.' 2. B. gives A. an open letter of credit authorizing him to draw to the extent of 10,000Z., and concluding "parties negotiating bills under it are requested to indorse particulars on the back hereof." A. accordingly draws a biU for oOOZ. in favour of C, who duly indorses the particulars on the credit. B. becomes insolvent, and dishonours the biU on presentment. C. can prove for 5001. against B.'s estate.' 3. A. draws a biU on B. in favour of C, and remits funds to meet it. B. does not accept the biU, but he teUs C. that he has received the funds and promises to pay the bill. B. does not pay the biU. No action on the bill can be maintained against B., but C. can sue B. for money received to his use.'' ' Thompson ore Bills, 2nd ed., p. 104 ; Thorhurri's BiUs of Exchange Act, p. 126 ; BeU's Principles, 9th ed. §§ 315 and 339. 2 Schroeder v. Central Bank (1876), 34 L. T. N. S. 735. 3 He Agra Bank (1867), L R. 2 Ch. 391 ; cf. Ex parte Stephens (1868), L. K. 3 Ch. at p. 756 ; Union Bamk of Canada v. Cole (1877), 47 L. J. 0. P. 100, C. A. ; and Citizens Bank v. New Orleans Bank (1873), L. B. 6 H. L 352. < Griffin v. Weatherhy (1868), L. R. 3 Q. B. 753. N 2 180 Bills of Exchange Act, 1882. §63. Not an assignment of funds in England. Letter of credit. According to English Law, the drawee of a bill, as such, incurs no liability to the holder, and there is no privity of contract between them ; ^ but privity may be created by agreement external to the bill, and the relations of the farties are then regulated by the terms of the agreement.^ n one instance too, a quasi-privity has been created by sect. 74 (3), post, p. 249, which provides that when the holder of a cheque omits to present it within a reasonable time, whereby the drawer has been damnified (i.e., by the bank failing), the drawer is pro tanto discharged, and the holder is substituted as a creditor of the bank. In England, again, when a bill is accepted payable at a banker's, there is no privity between the drawer or holder and the acceptor's banker.^ In Scotland the rule is otherwise ; thus, where A. having 100/. at his bankers drew a cheque for 150/., it was held that the cheque on presentation operated as an intimated assignation of the 100/. to his credit ; * so, too, where a bill is accepted payable at a banker's, it operates on present- ment as an mtimated assignation.^ In France, as in Scotland, when the drawee has funds, drawing a blU operates as an assignment of them in favour of the holder, and creates a privity between holder and drawee.^ Letters of Credit. — A letter of credit, says Story, is " a letter of request whereby one person (usually a merchant or banker) requests some other person to advance moneys or give credit to a third person named therein for a certain amoxmt, and promises that he will repay such sum to the person advancing the same or accept bills drawn upon himself for the like amount. It is called a general (or open) letter of credit when it is addressed to all merchants or other persons in general ; and it is called a special letter of credit when it is addressed to a particular person by 1 HopHmon v. Forster (1874), L. R. 19 Eq. 74, cheque ; Shand t. Bu Buisson (1874), L. B. 18 Eq. 283, bill of exchange ; Ca/rr v. Nat. Bank (1871), 107 Massachus. R. 45 ; Netherlands Code, Art. 110 ; cf. Vavghan V. Balliday (1874), L. R. 9 Ch. 561. 5 Eobey v. Oilier (1872), L. R. 7 Ch. 695 ; Ranhen v. Alfaro (1877), 5 Ch. D. 786. s Um T. Riyydi (1869), L. R. 8 Eq. 290 ; Yates v. BeU (1820), 3 B. & Aid. 643 ; Mome v. BusMl (1857), 27 L. J. Ex. 3. ■• British lAnen Co. \. Camithers (1883), 10 Sess. Cas. 923. ' British Linen Co. t. Rainey (1885), 12 Sess. Cas. 825. 6 Bramard-Demangeat, 7th ed. p. 235 ; Namguier, §§ 392—431. Liabilities of Parties. 181 name, requesting him to make sucli advance to a third § 53. person "^ ■ — — See the nature of a letter of credit commented on by Lord Cairns in a case where it was held that a writing opening a credit for a particular sum does not of itself constitute an equitable assignment or specific appropriation of that sum so as to create a trust. It is an undertaking that the person giving it will act as paymaster to the person to whom it is given, up to a certain amount, on his per- ■ forming the conditions set forth in it. It is usually operated on by bills of exchange, but it may be operated on by cheques or simple demand of pajonent.^ As to open letters of credit, see Illustration 2 ; and see an open letter of credit distinguished from an ordinary or special credit by Brett, L.J.S By sect. 32 of the Stamp Act, 1891, post, p. 354, a credit to be used in the United Kingdom requires a stamp. A letter of credit is not a negotiable instrument, and the production of it does not authorize payment of drafts under it to the person presenting it if, as a fact, those drafts are forged.* So, too, where a letter of credit in favour of C, was stolen, and the thief having indorsed C.'s name on it, represented that he was authorised by C. to receive the amount, it was held that payment to him did not discharge the paying bank.* Drawee and Drawer. — Subject to the rule that a customer Relations of is entitled to draw cheques on his banker {post, p. 251), a drawer and creditor, as such, is not entitled to draw on his debtor in respect of his debt ; and the drawee of an unaccepted bill of exchange is under no obligation to accept or pay it unless he has for valuable consideration expressly or impKedly agreed to do so.® ^ Story, §§ 459 et leq. See the American cases on credits analysed in British Lvmn Co. v. Caledonian Ins. Co. (1861), 4 Macq. H. L. 107, at p. 112, n. 2 Morgan v. Lariviere (1875), L. K. 7 H. L. at p. 432. And see note to Sritinh Linen Co. 7. Caledonian Ins. Co. (1861), 4 Macq. H. L. at p. 109. 3 [Tnion Bank of Canada v. CoU (1877), 47 L. J. C. P. at p. 109. * Orr 7. Union Bank (1854), 4 Macq. H. L. 513, see at p. 523. * British Linen Co. v. Caledonian Ins. Co. (1861), 4 Macq. H. L. 107. 6 Chiity, p. 200 ; cf. Goodwin v. RobaHs (18751, L. E. 10 Ex. at p. 351, Ex. Oh. : see e.g., Smith v. Brown (1815), 6 Taunt, at p. 344 ; Laimg v. Ba/rday (1823), 1 B. & C. 398 ; Huntley v. Sanderson (1833), 1 Cr. & M. 467 (agent authorised to draw on principal ; contract of indemnity) ; Gumming v. Shand (1860), 29 L. J. Ex. at p. 132 (implied agreement to 182 Bills of Exchange Act, 1882. § 63. In some Continental countries the duty to accept or pay " bills arises from the mere relationship of debtor and creditor in a mercantile transaction ; ^ whereas here there must be an agreement founded on consideration. Apart from some- thing special in the contract, it seems that the authority or obligation to accept is not revoked by the death of the drawer,^ while it is by notice of his bankruptcy ; for this renders funds in the hands of the drawee no longer ayail- able for the payment of the bill, and incapacitates the drawer from fulfilling his part of the contract.* The bank- ruptcy of the drawee is not per se a breach of contract with the drawer.* In France the engagement between drawer and drawee is held to be a contract of " mandat," and their relations are regulated accordingly.^ Advice. Letter of Advice. — It is usual, but not necessary, for the drawer to advise the drawee of drafts drawn on him by letter of advice.® If, says Story, § 68, a bill is drawn " as per advice," then the drawee is not bound to accept or pay without such advice, and if he does it is at his own peril. "When the drawee breaks his contract with the drawer by dishonouring his draft, the consequences reasonably resulting from the breach of contract constitute the measure of damage.'' Thus : — 1. A customer having a balance of 200/. at his banker's draws a cheque for 100/., or accepts a bill for 100/. payable at his banker's. If this cheque or bill is dishonoured he may recover substantial damages for the injury to his credit, without proving any actual loss.^ let customer overdraw) ; English Credit Co. v. Arduin (1871), L. R, 5 H. L. 64 (construction of credit). ' Pothier, No. 92 ; Nouguier, % 442 ; Belgian Code de Commerce, Art. 8. 2 Ghitty, p. 202 ; Story, § 250 ; Cutts v. Perkins (1815), 12 Massaclius. R. 206 ; cf. Billing t. Bemux (1841), 3 M. & Gr. at p. 674 ; Att.-Oen. v. Pratt (1874), L. R. 9 Ex. 140. 5 Pothier, No. 96 ; of. Citizens Bank v. New Orleans Bank (1873), L. R. 6 H. L. 352. * Ex parte Tondeur (1867), L. R. 5 Kq. 160 ; cf. Ex parte Agra Bank (1870), L. R. 9 Eq. at p. 733. * Pothier, Nos. 91 — 100 ; Bravard-Demangeaf, 7t]i ed. p. 219: Code Civil, Arts. 1984—2010. « Arnold v. Cheque Bank (1876), 1 C. P. D. at p. 586 ; Nouguier, §§ 281 —284 ; Pothier, No. 36. ? Prehn v. Jioyal Bank of Liverpool (1870), L. R. 5 Ex. 92 ; cf. Ilsley v. Jones (1858), 78 Massachus. R. 260 (accommodation bill). 8 JioUn T. Steward (1854), 23 L. J. C. P. 148 ; cf. Cummivg v. Shamd (1860), 59 L. J. Ex. 129 : Summers v. OUy Bank (1874), L. R. 9 C. P. 580; Boyd V. Pitt (1863), 14 Ir. Ci L. R. 43. Liabilities ok Parties. 183 2. A., in a foreign country, draws on B., in England, § 53. under a letter of credit. B. dishonours his draft. A. may recover the re-exchange and notarial expenses which he has had to pay to the holder,^ and also the cost of telegrams, &c., consequent on the dishonour.** Although possibly an acceptor, as such, may not be liable for re-exchange, it is clear that the drawee by accepting cannot alter or escape from his special contract with the drawer ; and this might perhaps be alleged as the ground of his liability for re-exchange, &c., when sued by the drawer,^ but the probability is, that the cases in which it was held that an acceptor was not liable for re-exohange are simply overruled.* As to paying a draft contrary to instructions, see Twibell v. London Suburban Bank} 54. The acceptor of a bill, by accepting it — LiabUity of (1) Engages that he will pay it according to ^°°^^ the tenor of his acceptance f See sect. 19, ante, p. 46, as to general and qualified acceptances, and sect. 52, ante, p. 176, as to presentment to charge acceptor. As to variation of the acceptor's liability by ex post facto legislation, e.g., a French " loi moratoire," see Bouquette v. Overman.'' As to measure of damages, see sect. 57, post, p. 190. The drawee of a bill, by accepting it, becomes the party primarily liable thereon to the holder.^ See the primary, and, in general, absolute, liability of an acceptor distinguished from the secondary and conditional liability of a drawer or indorser by Bayley, J.® As to the relations inter se of joint acceptors who are not partners, see per Wilde, C.J.^° ' Walker v. Samilton (1860), 1 De G. F. & J. 602 ; Re General South American Co. (1877), 7 Qh. D. 637. 2 Prehn v. Royal Bamk of Uverpool (1870), L. R. 5 Ex. 92* 3 Of. sect. 57 (2), post, p. 192. ■> Cf. Ex-piwte Robarts (1886), 18 Q. B. D. 286, C. A. ^ Twibell y. London Suburban Bank, W. N. 1869, p. 127. 6 Smith V. Vertue (1860), 30 L. J. C. F. 66, at p. 60 ; of. Walton v; Mascall (1844), 13 M. & W. at p. 458 ; French Code, Art. 121 ; German Exchange Law, Art. 23. 7 Mouquette v. Overmann (1875), L. R. 10 Q. B. 525. 8 Philpot V. Briamt (1828), 4 Bing. at p. 720. » Rowe v. Young (1820), 2 Bligh, H. L. at p. 467 ; Jones v. Broadhurst (1850), 9 C. B. at p. 181 ; per Cresswell, J. i» farmer v. Steele (1849), 4 Exch. at p. 13. 184 Bills of Exchange Act, 1882. §54. Estoppels binding acceptor. In the case of a bill accepted for value the acceptor is frequently described as the principal debtor, and the drav?er and indorsers as his sureties ; ^ but, as Lord Blackburn has pointed out, this is not an accurate expression. The drawer or indorser "is not exactly a surety for the acceptor, or co-surety with those who are sureties for the acceptor, yet he stands in a position sufficiently analogous to that of a surety " to entitle him to the equities of a surety when the bill has been dishonoured, though not before.^ A plea, by the acceptor, of tender after maturity is bad.^ (2) Is precluded from denying to a holder in due course : (a) The existence of the drawer, the genuineness of his signature, and his capacity and authority to draw the bill;* (b) In the case of a bill payable to drawer's order, the then capacity of the drawer to indorse,^ but not the genuineness^ or validity' of his endorsement ; (c) In the case of a bill payable to the order of a third person, the existence of the payee and his then capacity to in- ' See e.g., Cook v. Lister (1863). 32 L. J. C. P. at p. 127, per Willes, J. ; Rouquette v. Overnumn (1875), L. K. 10 Q. B. at p. 536, per Cockburn, O.J. 2 Dmican, Fox & Co. t. N. :/ ^ 5 Chambers v. Miller (1862), 32 L. J. C. P. 30. 5 Wwrwicic V. Sogers (1843), 5 M. & Gr. 340. ? Pollard T. Bank of England (1871), L. R. 6 Q. B. 623. » Sandall v. Moon (1852), 21 L. J. C. P. 226, as explained by Cook v. Lister (1863), 32 L. J. C. P. at p. 127 ; London and Siib. Bank v. Walkin- shaw (1871), 25 L. T. N. S. 704. Discharges. 201 Presumption of Payment. — It seems that there is a pre- § 59. sumption of payment in the case of a bill or note which is 20 years old, quite apart from the Statute of Limitations.^ Part payment of a hill in due course operates as a dis- I''"'* P^y- charge pro tanto? As to part payment by the drawer or ^^"^ ' an indorser, see post, p. 205. Under German Exchange Law, Art. 38, the holder cannot refuse part payment ; but this is clearly not English law. Payment in order to operate as a discharge of the bill ^y '^^°'^ must be made by or on behalf of the drawee * or acceptor.* fnug't'be For example : — made. 1. A bill is accepted by three joint acceptors (not partaers). One of tbem pays it at maturity. The bill is discharged and cannot be again negotiated. It is immaterial that the acceptor who paid accepted the biU for the accommodation of the other two.* 2. A bill accepted payable at a bank and indorsed in blank by C. is sent to D. to coUeot. D. improperly discounts it. To regain possession, D. goes to the acceptor's bankers, pays in the amount of the bill, and asks to have the bill given up to him, when the holder has been paid. This is done. The bill is not discharged. C. can sue the acceptor.^ 3. C. is the holder of a dishonoured bill indorsed in blank. D. pays the amount and costs to C. in order to get the bill and sue on it. C. parts with the biU under the impression that D. has paid it on beh^ of the acceptor. The bill is not discharged. D. can sue the drawer.' 4. A joint and several note is paid at maturity by one of the makers. The note is discharged.' 5. The payee of a note payable on demand takes also a mortgage to secure the debt. He then transfers the mortgage, getting the amount of the note. Afterwards he indorses the note to a holder in due course. The note is not paid.' By sect. 89, provisions as to the acceptor of a bill apply, 1 Cf. Brovmv. Rutherford (1880), 14 Ch. D. 687, C. A. 2 Graves v. Key (1832), 3 B. & Ad. 313 ; cf. Cook v. Lister (1863), 32 L. J. C. P. at p. 125, Willes, J. ; French Code, Art. 126 ; Grerman Exchange Law, Arts. 38, 39. 3 Wilkinson v. Simson (1838), 2 Moore, P. C. at p. 287, Parke, B. * OaUow V. Lawrence (1814), 3 M. & S. at p. 97, Ld. EUenborough ; Jones V. Broadhurst (1850), 9 C. B. at p. 181, Cresswell, J. 5 Marmer v. Steele (1849), 4 Exch. at pp. 13, 14, Ex. Oh. ; cf. Bwrtrum t. Caddu (1S38), 9 A. & K. 275 (note on demand paid by accommodation maker). 6 DeaconY. Stodhart (1841), 2 M. & (Jr. 317 ; Thomas v. Fentm (1847), 5 D. & L. 28, see at p. 38 ; cf. Walter v. Jwrnes (1871), L. R. 6 Ex. 124 ; and sub-sect. (2). f Lyon V. Mamell (1868), 18 L. T. N. S. 28 ; and sub-sect. (2). 8 BeaAimont v. areathead (1846), 2 C. B. 494. 9 Glasscock v. Balls (1889), 24 Q. B. D. 13, C. A. 202 §59. To whom payment must te made. Holder's identity. Bills of Exchange Act, 1882. mutatis mutandis, to the maker of a note. This discharge of the instrument in Illustrations 1 and 4 would not pre- judice any right to contribution or indemnity against the co-acpeptors or co-makers, for such right is independent of the instrument. Illustrations 2 and 3 exempHty the rule of English law, that payment of a debt by a stranger does not discharge it. In countries where the civil law prevails payment by a stranger operates as a discharge, according to the maxim, Debitorem ignarum seu etiam invitum, sokendo liberare possumus. Subject to sect. 60 (banker paying cheque held under forged indorsement), payment, in order to operate as a discharge, must be made to the holder, or some person authorized to receive payment on his behalf.^ See " holder" defined by sect. 2, ante, p. 5, and " good faith " defined by sect. 90, post, p. 272. For example — 1. A bill is indorsed payable to John Smith or order. Another person of the same name gets the bill and presents it. The acceptor pays him. The bill is not discharged. The acceptor is stUl liable to the real John Smith.^ 2. A bill indorsed ia blank is stolen. The thief presents it to the acceptor at maturity, and obtains payment. If the acceptor pays him in good faith the bill is discharged, for the thief is the holder.^ 3. The indorsee of a bill has obtained it by fraud. He presents it at maturity to the acceptor, who pays hirn in good faith. The bill is discharged.^ As to lost bills, see sect. 70, post, p. 233 ; and as to bills in sets, see sect. 71 (5) and (6), post, p. 237. Where a bill is held wrongfully the acceptor may set up the Jus tertii {ante, pp. 99 — 101). If he only suspects that the bill is held wrongfully he must act at his peril. French Code, Art. 145, and Netherlands Code, Art. ,164, provide that payment at maturity, made "without opposition," discharges the payer. Holder's «&w<«Yy.— Under some continental codes, when a bill is payable specially, and the holder is unknown to ' Cf. sect. 45 (3), presentment for payment ; Leftley v. Mills (1791), 4 T. R. at p. 175 ; Walker v. Macdonald (1848), 2 Exch. at p. 532 ; SohaHs V. Flicker (1851), 16 Q. B. at p. 569, Ex. Cb. ; Pothier, Ncs. 164—167 ; Nauguier, § 889. 2 See sect. 24, and Graves t. American Bo»ii(1858), 17 New York E. 205; cf. McEntire v. Putter (1889), 22 Q. B. D. at p. 441. 3 Smith V. Sheppard (1776), cited Chitty on Bills, lOth ed., p. 180, n. * Cf. Robarts v. Tucker (1851), 16 Q. B. at p. 576. Discharges. 203 § 59. the payer, he is hound to give some proof of identity ; Nougukr, § 896. In England, it is conceived that posses- ' ~" sion is prima facie evidence of identity, ^ and that if the payer doubts the identity of the person presenting, or the genuineness of the instrument, he must pay or refuse pay- ment at his own risk. There is a dictum by Maule, J., that in such case the payer would be allowed a reasonable time to make inquiry •} but having regard to the duties of the holder this seems very questionable. The usual prac- tice is to offer to pay under an indemnity. Payment to operate as a discharge, must be made at or At what time, after the maturity of the instrument.^ Payment by the drawee or acceptor before maturity operates as a mere purchase of the instrument, and, subject to sect. 61, he may, if the form of the bill permit, re-issue, and further negotiate it.* Premature payment, or any other premature discharge, is of course valid inter partes. Thus : — 1. Accepted bill payable three months after date. A month before it matures the holder indorses it for value to the acceptor. The next day the acceptor indorses it to D. D. can sue all parties to the biU.5 2. An accepted bill payable three months after date is held by C. A month before it matures the acceptor pays C, but 0. retains the bill. The next day 0. indorses it to D., who takes it for value and without notice of the payment. D. can sue the acceptor.^ 3. The acceptor of a bill settles with the drawer before the bill matures. It turns out that the bill was outstanding in the hands of a third party. The acceptor must pay the holder, but can re- cover the amount from the drawer as money paid to his use.' (2) Subject to the provisions hereinafter con- Payment by tained,^ when a bill is paid by the drawer or an indorser. indorser it is not discharged ; but 1 Cf. Bvlkeley v. BiMer (1824), 2 B. & C. at p. 441, per Bayley, J. 2 RobaHs V. Tucker (1851), 16 Q. B. at p. 578. 2 Bv/rbridge v. Manners (1812), 3 Camp, at p. 194 ; Beaumont v. Great- head (1846), 2 0. B. 494, note ; French Code, Arts. 144—146. * Morley v, Culverwell (1840), 7 M. & W. 174 ; see at p. 182, Parke, B. ; Attenharough v. Mackenzie (1856), 25 L. J. Ex. 244 ; cf. German Exchange Law, Art. 10. * Id. ^ Of. Dod V. Edwards (1827), 2 C. & P. 602 (premature release) ; French Code, Art. 144 ; Cri/pps v. Davis (1843), 12 M. & W. 159; Inghamv. Prim- rose (1869), 7 C. B. N. S. 82. 7 Hawley v. Beverley (1843), 6 M. & Or. 221. ' See sub-sect. (3) as to accommodation bills. 204 Bills of Exchange Act, 1882. §59. Payment by drawer or indorser. (a) Where a bill payable to, or to the order of, a third party is paid by the drawer, the drawer may enforce payment thereof against the acceptor, but may not re-issue the bill.^ (6) Where a bill is paid by an indorser, or where a bill payable to drawer's order is paid by the drawer, the party paying it is remitted to his former rights as regards the acceptor or antecedent parties, and he may, if he thinks fit, strike out his own and subsequent indorsements, and again negotiate the bill.^ Illustkations. 1. The acceptor of a bill, originally payable to drawer's order, dishonours it. The drawer pays the holder and gets the bill. He may either sue the acceptor himself, or he may strike out his own and the subsequent indorsements and again negotiate the bill away.^ 2. The acceptor of a bill becomes bankrupt. C, a holder of the bin, who had indorsed it away before the bankruptcy, takes it up after the bankruptcy. C. can set ofi the bill against any claim the acceptor's trustee may have against him.^ 3. The C. Bank discount a bill, which is accepted payable at their house, and then indorse it away. At maturity it is presented to the C. bank and paid. It is a question of fact whefiier they paid as the agents and bankers of the acceptor, or whether they took up the bill as indorsers. In the latter case it is not discharged, and they can sue the drawer, or if he be a customer, debit him with the amount of the biU..* 4. The indorser of a bUl writes to the drawer promising to "retire" it, and accordingly takes it up before maturity. The biU is not discharged.^ ' Cf. Williams v. James (1850), 15 Q. B. at p. 505. Aliter in America if payee had indorsed in Wank, Daniel, § 1240 ; Gardner v. Maynard (1863;, 89 Massachus. R. 456. 5 Jones V. Broadhurst (] 850), 9 C. B. 173 ; Kemp v. Balls (1854), 10 Exoh. 607 ; Woodward v. Pell (1868), L. R. 4 Q. B. 55. 3 CaUow T. Lawrence (1814), 3 M. & S. 95 ; Hubbard v. Jaokaon (1827), 4 Bing. 390 ; Ehworth v. Brew'r (1831), 28 Massachus. R. 315. ■• McKinnon v. Armstrong (18?7), 2 App. Gas. at p. 539, H. L. s Pollard V. Ogden (1853), 2 K. & B. 459. ' Elsam V. Denny (1854), 15 C. B. 87 ; see at p. 94, as to the meaning of "retire," but see a different construction put on the term, Ex parte Reed (1872), L. R. 14 Eq. at p. 593. Discharges. 205 The House of Lords has held that the drawer or indorser § 69. of a bill who pays it is a quasi-surety for the acceptor, and that the analogy is sufficiently close to entitle him to the benefit of any securities deposited by the acceptor with the holder, and retained by the holder at the time of the dis- honour of the bill.^ Suppose the drawer or indorser after payment again indorses the bill away. Would the indorsee be entitled to the benefit of the securities ? This raises a difficulty which was not adverted to in the case. When a bill is paid wholly or in part by the drawer or by an indorser, and the holder retains possession of the bill, he holds it as trustee for such drawer or indorser, as regards the amount received ;^ provided that, when the acceptor of a bill becomes bankrupt, any payment made by the drawer or an indorser to the holder must be deducted from the amount for which the holder is entitled to prove against the acceptor's estate. ^ The right of the holder to retain the bill when he has been paid by the drawer or an indorser depends on the arrangement between them.* In France and other coun- tries where the civil law is followed, payment by the drawer or an indorser discharges the bill. See Pothier, No. 106. (3) Where an accommodation bill is paid in Payment of 1 1 1 1 1 1 ii 1 -n • aocommoda- due course by the party accommodated the bill is tion bill. discharged. Illustration. A bill is accepted for tlie accommodation of the drawer. The drawer negotiates the bill, and then takes it up at maturity. Sub- sequently he re-issues it. The holder cannot sue the acceptor, for the bill is discharged.* 1 Dvmcan, Fox & Co. v. N. Sect. 60, and 16 & 17 Vict. c. 59, § 19, post, p. 336. 2 Martin v. Morgan (1819), 3 Moore, 635 ; Kendal v. Wood (1871), L. E. 6 Ex. 243. 3 See sect. 82, post, p. 259. < Cf. Ckcmiers v. MOUr (1862), 32 L. J. C. P. 30. « Price T. Neal (1762), 3 Burr. 1355. 6 Smith V. Mercer (1815), 6 Taunt. 76. ' Wahinson v. Johnson (1824), 3 B. & C. 428 ; but cf. Phillips v. m Thivm (1866), L. E. 1 C. P. 463. » MUnes r. Duncan (1827), 6 B. & C. 671 ; cf. Kelly v. Solari (1841), 9 M. & W. at p. 59. 208 Bills of Exchange Act, 1882. § 59. 6. C. is the holder of a bill purporting to be accepted by B., payable at his bankers. Ihe bankers pay the bill. _ Next day they discover that the acceptance was a forgery, and give notice to C. They cannot recover the money from C 7. A bill held by C, and purporting to be accepted by B., is presented to B. for payment. B. inspects and pays it. Subse- quently he discovers that his signature was forged. He cannot recover the money from C 8. A genuine bill fraudulently altered in amount from 101. to 100/. is subsequently accepted and paid. Four months afterwards the acceptor discovers the fraud and gives immediate notice to the holder he paid. He can (probably) recover the money.' 9. The acceptor of a bill held under a forged indorsement pays it on the 19th of August to a person who has taken it in good faith and for value. The forgery is discovered six weeks afterwards. The acceptor cannot recover the money so paid.* The reasons given for the decisions are very conflicting. Illustrations 2, 3, and (i might well he supported on the ground that the payor is bound to recognize the signature of his own correspondent or customer, this being matter peculiarly within his own knowledge ; but, apart from this; it seems on principle that a person presenting a bill for payment ought to warrant its genuineness and his right to receive payment, just as a transferor by delivery warrants genuineness and his right to transfer. There are dicta to this effect, but the point must be regarded as very doubtful.^ The above rules do not affect the right of the true owner to recover the proceeds from the person who has wrong- fully received them.^ 60. When a bill payable to order on demand ^ Banker pay- ing demand draft whereon ig drawn on a banker, and the banker on whom mdorsement is forged. — ' Cocks T. Mastei-man (1829), 9 B. & 0. 902. 2 Mather v. Maidstone (1856), 18 C. B. 273, at p. 295. ' White V. Cent. Nat. Bamk (1876), 64 New York E. 316 ; cf. BurcJifidd V. Moore (185i), 23 L. J. Q. B. 261. * London & River Plate Bank v. Bank of Liverpool, (1896) 1 Q. B. 7. * Cf. WilUnson v. Johnson (1824), 3 B. & C. at p. 437 ; Wopds- Cf. Griffin v. Weatlierhy (1868), L. E. 3 Q. B. at p. 760. 2 Sociiti G4nirale v. Metropolitan Bank (1873), 27 L. T. N. S. at p. 854. 3 Downes v. Churc/i (1839), 13 Peters, 205, per Story, J. ; 3 Kent, Com. 100. Bill in a Set. 237 them? There are dicta to this effect,^ but such a rule § 71 seems mconsistent with the rights given by sub-sect. (2). (4) The acceptance may be written on any part, and it must be written on one part only. If the drawee accepts more than one part, and such accepted parts get into the hands of different holders in due course, he is hable on every such part as if it were a separate bill.^ By German Exchange Law, Art. 68, the person who forwards one part of a set for acceptance ought to indicate on the other parts where such part will he found. The person to whom the part has been forwarded for accept- ance is bound to deliver it up to or according to the orders of the indorsee. This coincides with the practice in England. (5) When the acceptor of a bill drawn in a set pays it without requiring the part bearing his acceptance to be delivered up to him, and that part at maturity is outstanding in the hands of a holder in due course, he is hable to the holder thereof. See French Code, Art. 148, to same effect ; and see " holder in due course " defined by sect. 29, ante, p. 88. (6) Subject to the preceding rules, where any one part of a bill drawn in a set is discharged by payment or otherwise, the whole bill is dis- charged. ' Cf. Moldsworth v. Sunter (1830), 10 B. & C. 449, at pp. 450, 454. ' Cf . Salli T. DernnisUmn (1851), 6 Excb. at p. 496 ; German Exchange Law, Art. 67. 238 Bills of Exchange Act, 1882. §72. Eules where laws conflict. Requisites in form. Stamp. ConjUct of Laws. 72. Where a bill drawn in one country is nego- tiated, accepted or payable in another, the rights, duties and liabilities of the parties thereto are determined as follows : (1) The validity of a bill as regards requisites in form is determined by the law of the place of issue, and the validity as regards requisites in form of the supervening con- tracts, such as acceptance, or indorsement, or acceptance suprk protest, is determined by the law of the place where such contract was made.' Provided that — (a) Where a bill is issued out of the United Kingdom it is not invalid by reason only that it is not stamped in accordance with the law of the place of issue. ^ h) Where a bill, issued out of the United Kingdom, conforms, as regards requisites in form, to the law of the United King- dom, it may, for the purpose of enforcing payment thereof, be treated as valid as between all persons who negotiate, hold, 1 C£. Ouepratte v. Y(mng (1851), 4 De G. & S. 217, at p. 228 ; Story, §§ 131 — 137 ; Westlak^s International iaM),3rd ed. § 228 ; German Exchange Law, Art. 86 ; Nouguier, §§ 1417 — 1427. See "issue," "acceptance," and "indorsement" defined by sect. 2. 2 Of. Westlake, 3rd ed. § 209. Conflict of Laws. 239 or become parties to it in the United § 72. Kingdom. 1 Requisites in form. Illustrations. 1. By German law a bill need not express the value received. By French, law it must. A bill drawn in Germany, but payable in Paris, which does not express the value received, is vaM. 2. By the law of IlUnois a verbal acceptance is vaM. A biU drawn iu London on a town in Illinois is verbally accepted there. The acceptance is valid.' 3. A bill drawn and payable in France expresses no value re- ceived, and is therefore invalid according to French law. If it is indorsed in England the indorser could be sued here,' though the drawer could not. The coatract is made where the deliTery is effected, not where the signature is attached.* A few foreign writers, among them Savigny, are of opinion that the maxim Locus regit actum is always facultative, never disabling. German Exchange Law, Art. 85, and the provisoes to this sub- section, go a long way towards adopting that view, but do not accept it in its entirety. In order to establish that a bill is invalid according to the law of the place of issue, the foreign law in point must be proved as a question of fact. Before the Act, it had been held in some cases that Foreign English Courts were not concerned with the revenue laws stamp laws of foreign countries.' But the better opinion seemed to be that if a bill, for want of a stamp, was merely inadmis- sible in evidence according to the law of the place of its issue, it was admissible in evidence here if it conformed to the requirements of the English stamp laws relating to foreign bills; while, if the want of a stamp rendered it • See Re Marseilles Co. (1885), 30 Ch. D. 598. In that case, which arose on bills made before the Act, the bills were drawn in France by a Frenchman in French in English form (and indorsed in blank) on an English company who accepted them. Held, that as regarded the acceptor, they were to be treated as English bills, and that the French effect of an indorsement in blank was immaterial. 2 Cf. Scudder ». Union Bank (1875), 1 Otto, Sup. Ct. U. S. 406 ; which goes still further. 3 Cf. Wynne V. Jackson (1826), 2 Russ. 851 and 634. * Chapman r. Cottrell (1865), 34 L. J. Ex. 186. As to delivery, see sect. 21, and notes thereto. ' Wynne v. Jackson (1826), 2 Euss. 351 ; James r. Catherwood (1823), 3 D. & R. 190. tion, 240 Bills of Exchange Act, 1882. § 72. void at the place of issue, it was void everywhere.'^ The Act appears to negative the latter part of this principle, so far as it relates to bills which are negotiated or payable in a country different to that in which they were drawn. interpreta- (2) Subject to the provisions of this Act,^ the interpretation of the drawing, indorsement, acceptance, or acceptance suprk protest of a bill, is determined by the law of the place where such contract is made.^ Provided that where an inland bill is indorsed in a foreign country the indorsement shall as regards the payor be interpreted according to the law of the United Kingdom.* Illustrations. 1. An English note payable to bearer is negotiated by delivery in a country where this mode of transfer is not recognized. The title to the note passes by such delivery.* 2. Action in England on a bill drawn in Belgium, and indorsed in blank in France. The efleot of such indorsement is determined according to French law, i.e. it operates as a " procuration." ^ 3. A general acceptance given in Paris is to be interpreted according to French law.' 4. Note made and payable in Scotland in the form "Pay to C.,'' without adding the words " or order." Before the Act such a note was negotiable by Scotch law, though not by BngUsh law, but it could be negotiated by indorsement in England.* 1 Bristow V. Segueville (1850), 5 Exch. 275 ; of. Clegg v. Levy (1812), 3 Camp. 166 ; Stori/, § 137. ' For the provisions referred to, see tlie remaining subsections, and, perhaps, sects. 15 and 53. 5 AUen T. KemUe (1848), 6 Moore, P. C. 314 ; Story on Conflict of Laws, % 314 ; Home v. Rouquette (1878), 3 Q. B. D. at p. 520, per Brett, L. J. * Lehel v. Tucker (1867), L. R. 3 Q. B. 77. ' De to Chaumette v. Bank of England (1831), 2 B. & Ad. 385. « Trimbey y. Vignier (1834), 1 Bing. N. C. 161 ; Bradlamgh v. De Rin (1868), L. K. 3 C. P. 538, per Willes, J. These cases were overruled by Bradlaugh v. De Rin (1870), L. R. 5 0. P. 473, on the question of fact ■whether the indorsee could, according to French Law, sue the holder in his own name, but the principle that the iudor.iement must be interpreted by French Law was not questioned. 1 Of. Don V. Lippmann (1837), 5 01. & F. at pp. 12, 13, H. L. ; Story, § 147. * Robertson v. Burdekin (1843), 1 Ross, Scotch L. 0. 824. See, now, sect. 8 (1) and (4), ante, pp. 24, 26. Conflict of Laws. 241 The term "interpretation," in this sub-section, it is § 72. submitted, clearly includes the obligations of the parties as '— deduced from such interpretation.^ Stori/, § 154, points out the reasons of the rule adopted in this sub-section. " It has sometimes been suggested," he says, " that this doctrine is a departure from the rule that the law of the place of payment is to govern. But, correctly considered, it is entirely in conformity with that rule. The drawer and indorsers do not contract to pay the money in the foreign place on which the bill is drawn, but only to guarantee its acceptance and payment in that place by the drawee ; and in default of such payment, they agree upon due notice to reimburse the holder in principal and damages when they respectively entered into the contract." The case of a bill accepted in one country but payable in another gives rise to a difficulty. Suppose a bill is accepted in France, payable in England. Perhaps the maxim. Con- traxisse unusquisque in eo loco intelligitur in quo lit soheret se ohligamt, would apply. But if not then comes the question, what is the French law, not as to bills accepted and payable in France, but as to bills accepted in France payable in England? Probably the lex loci solutionis would be regarded: Cf. Nouguier, § 1419. The cases seem to regard the measure of damages on the Measure of breach of the contracts on a bill as resting on the same tlan^ages. principles as the interpretation of those contracts ; - but it may be questioned whether the measure of damages comes within the meaning of the word " interpretation " in its present context in the Act. The rule with respect to damages appears to be that " the place at which each party to a bill or note undertakes that he himself will pay it, determines with regard to him the lex loci contractus accord- ing to which his KabiKty is governed." ^ Thus, where a bill was drawn in California on "Washington, and was dis- honoured, it was held that damages against the drawer must be measured by Oalifornian law, and that as part of those damages he must pay interest at the Californian ^ Cf. Wesdahe's International Law, 3rd ed. § 229 ; Alcock v. Smith, (1892) 1 Ch. at p. 256 (interpretation = legal effect). ' See the language of Allen v. Kemile (1848), 6 Moore, P. C. at pp. 321, 322. ' Mayne on Damages, 4th ed. p. 234 ; Story on Conflict of Laws, § 315. C. R 242 Bills of Exchange Act, 1882. § 72. Discharge when laws conflict. rate ; ^ and it seems clear on principle that damages against an indorser should he measured by the law of the country where he indorsed the hill.^ Where a bill was accepted in Paris, payable in London, it was held that interest was payable according to the English and not according to the French rate.^ 8o, again, when laws conflict the validity and effect of a discharge is determined by the law of the place where the contract in question was made.* For example : — 1. Bill accepted at Legiom payable there. By the old law of Legtom an acceptor could procure the cancellation of his accept- ance if he had not at maturity received funds from, the drawer. An acceptor so discharged at Leghorn cannot be sued in England.' 2. Bill drawn in the United States (and issued there) on a person in England is dishonoured by non-acceptance. The drawer cannot be sued in England if he has been discharged in America under the bankruptcy law there in force.^ 3. Bill for 1001. drawn and issued in Demerara, but accepted and payable in England. At the time the bill matures the holder owes the acceptor 1001. According to Demerara law this operates as a discharge of the bill (by compensatio). The drawer is discharged.' 4. Accommodation bill drawn and issued in Austria, but accepted and payable in England, is dishonoured. The holder receives from the drawer in Austria a smaller sum in satisfaction of the bOl. This, according to Austrian law, is a valid discharge. A subse- quent indorsee cannot recover from the acceptor in England.^ 5. Bill drawn, accepted and payable in England. The acceptor is made bankrupt, and receives his discharge in Australia. He can be sued on the bill in England.' 1 Oibbs T. Fremont (1853), 9 Exoh. 25 ; of. Ex parte Meredith (1863), 32 L. J. Ch. 300. ' Mayne on Damages, 4th ed. p. 234 ; Story on Conflict of Laws, §§ 314, 315 ; but see the point regarded as open in Oibbs v. Fremont, supra, at p. 30. 3 Cooper V. Earl Waldegrave (1840), 2 Beav. 282. •• Cf. EUis v. M'Benry (1871), L. R. 6 C. P. at p. 234 ; St07'y, §§ 163— 165. 5 Burrows v. Jemino (1726), 2 Stra. 733 ; cf. Gibbt v. Sociiti des MitoAias (1890), 25 Q. B. D. at pp. 407, 408, C. A. * Potter Y. Brown (1804), 5 East, 124 ; cf. Symons v. May (1851), 6 Exch. 707. ' Allen V. Kemble (1848), 6 Moore, P. C. 315 ; cf. Wilkinson v. Simson (1838), 2 Moore, P. C. 275 ; Compensatio is recognized as a discharge in all countries where civil law prevails. See further on that subject, Nouguier, §§ 1053—1060 : French Code Civil, Arts. 289—299. * JtaUi T. Dennistoun (1851), 6 Exch. 483, 36th plea and judgment at p. 493. s Bartley v. ffodges (1861), 30 L. J. Q. B. 352 ; Story, § 165 ; cf. Oibbs V. SocUt6 des Mitaux (1890), 25 Q. B. D. 399, C. A. Conflict of Laws. 243 6. Action on a promissory note made in France. Plea that tie S 72 Bmt was barred by the French law of prescription, which was five -^ '- years. Held, that the French law in question was a law of pro- cedure, and that the action could only be barred by the English Statute of limitations.' (3) The duties of the holder with respect to Holder's presentment for acceptance or payment and ^''^^' the necessity for or sufficiency of a protest or notice of dishonour, or otherwise, are determined by the law of the place where the act is done or the bill is dishonoured.'* IliLtrSTEATIONS. 1. Defendant indorsed to plaintiff in England a biU payable in Paris. Plaintiff indorsed to a Frenchman, who on dishonour protested it, and transmitted notice of protest to defendant in accordance with French law. Held that plaintiff could recover from defendant, though he had not given him notice of dishonour according to English law.' 2. Bni drawn in England, payable in Spain, is indorsed in England by defendant to plaintiff. Plaintiff indorses it to D. in Spain. It is dishonoured by non-acceptance, and twelve days afterwards D. writes to give notice of this to plaintiff. Plaintiff at once gives notice to defendant. By Spanish law no notice of dis- honour by non-acceptance is required. Plaintiff can recover from defendant.* The sub-section is a further application of the maxim. Locus regit actum,} See to the like effect German Exchange Law, Art. 86. (4) Where a bill is drawn out of but payable in Amoimt the United Kingdom and the sum payable is ^foreign not expressed in the currency of the United """^"^y- Kingdom, the amount shall, in the absence of some express stipulation, be calculated according to the rate of exchange for sight ' Huler T. SUimer (1835), 2 Bing. N. C. 202. 2 SUyry, § 176 ; Pardeisus, Arts. 1496—1499 ; Poihier, No. 57. » Hi/rtehfidd v. SmUh (1866), L. E. 1 C. P. 340. * Borne, v. Mouqvette (1878), 3 Q. B. D. 514, C. A. * See a criticism on the language of the sub-section, Westlake's International Law, 3rd ed.|j§§ 231, 232. His suggestion that " act " includes " omission " is presumably correct. K 2 244 Bills of Exchange Act, 1882. § 72. drafts at the place of payment on the day the bill is payable.^ Illttstbation. Bill for 1,000 francs, payable three montlis after date, is drawn in France on London. The amount in English money the holder is entitled to receive is determined by the rate of exchange on the day the bill is payable. The amount of the bill for stamp purposes is necessarily calculated on a different principle : see Stamp Act, 1891, s. 6, post, p. 353. Due date. ^5^ Where a bill is drawn in one country and is payable in another, the due date thereof is determined according to the law of the place where it is payable. iLLTTSTRATIOJIfS. 1. By English law days of grace are allowed on bills payable after date. By French law they are not. A bill drawn in Paris on London is entitled to three days' grace, but a bill drawn in London on Paris is not entitled to grace.' 2. A bill is drawn in England payable in Pajis three months after date. After it is drawn, but before it is due, a "moratory " law is passed in France, in consequence of war, postponing the maturity of all current bills for one month. The maturity of this bUl is for all purposes to be determined by French law.' Where a bill is drawn on a country where the old style prevails, and is dated accordingly, it is conceived that the due date in England must be calculated according to the Gregorian Calendar. Russian bills payable after date in England usually bear both the eastern and western date, the maturity being calculated according to the western date. "When a question arises as to the law of a foreign country, it must be proved as a fact in the case by the evidence of lawyers or other experts belonging to the country in question.* > Cf. Hirschfidd v. Smith (1866), L. R. 1 C. P. at p. 353 ; Belgian Code, Art. 33. " Bouquette t. Overmamn (1875), L. R. 10 Q. B. 525, at pp. 535—538 ; see the effect of the Bank Holiday Acts, discussed at p. 538. ' Ibid. So held also in Italy and at Greneva ; see at p. 535. * Westlake's Priv. Int. Law, 3rd ed. p. 364 ; Conoha t. Munetta (1890), 40 Oh. D.-543, C. A. 245 § 73. defined. PAET III. Cheques on a Banker. 73. A cheque is a bill of exchange drawn on a cheque banker payable on demand. Except as otherwise provided in this part, the provisions of this Act applicable to a bill of ex- change payable on demand apply to a cheque. See "bill of exchange" defined by sect. 3, ante, p. 8. By sect. 10 a bill is payable on demand which is expressed to be payable on demand, or at sight, or on presentation, or in which no time for payment is expressed. See " banker" defined by sect. 2, ante, p. 3. The Act is declaratory in so far as it defines a cheque as a bill of exchange.^ It is no part of the definition that a cheque should be an inland bill, or that it should be drawn by a customer upon his banker. Formerly cheques were exempt from stamp duty, but they were required to be issued within fifteen miles of the bank on which they were drawn. The enactments requiring this to be done have long been repealed.^ See cheques compared with and distinguished from ordinary bills of exchange by Parke, B.,^ Erie, J., and Byles, J.,* Palles, C. B.,^ and the Supreme Court of the United States.^ All cheques are bills of exchange, but all bills of exchange are not cheques ; therefore an authority ' WLean t. Clydesdale Banh (1883), 9 App. Cas. 9.5, per Lord Black- bum. 2 Ihid. at p. 106. ^ Eamchwn MuUicTc v. Luchmeechund SadaJcissen (1854), 9 Moore, P. C. at p. 69. " Keane v. Beard (1860), 8 C. B. N. S. at pp. 380, 381, as modified by Eopkmson v. Forster (1874), L. R. 19 Eq. at p. 76, Jessel, M.R. 6 Lynn v. Bell (1876), 10 Ir. K. C. L. at p. 490. * Merchants' Bank v. State Bank (1870), 10 Wallace, at p. 647. 246 Bills of Exchange Act, 1882. § 73- to draw cheques does not necessarily include an authority to draw bills.^ Apart from statute, the distinctions between cheques and ordinary bills of exchange arise from the relationship of banker and customer subsisting between the drawer and drawee of a cheque. A cheque is intended for prompt presentment, while a note payable on demand is deemed to be a continuing security.^ A cheque is not intended to be accepted, but at common law there is no objection to the acceptance of a cheque, if the holder likes to take it in Keu of payment, but the Bank Charter Acts would in most cases render this illegal. As to post-dated cheques, see note to sect. 13 (2), ante, p. 34. As to when a cheque becomes stale, so as to be on the footing of an overdue bill, see sect. 36 (3), ante, p. 119. As to excuses for omitting to give notice of dishonour, see sect. 50 (2), especially clause (c), ante, p. 167. An affidavit under Order XIV., verifying the cause of action, need not specifically allege that notice of the dishonour of a cheque has been given, or that it is excused.^ As to cheques for less than twenty shillings in Scotland, see note to sect. 3, ante, p. 10. As to forged indorsements on cheques, see sect. 60, ante, p. 209. Marked cheques. — As between banker and banker, mark- ing a cheque probably amounts to a binding representation that it will be paid,* but it is clearly not an acceptance that the holder can take advantage of: see sect. 17 (2), ante, p. 43. As to certified cheques in the United -States, see Daniell, §§ 1601—1611. In France, cheques are regulated by the " Loi du 23 Mai, 1865," as modified by the " Loi du 19 Fevrier, lb74." See further Nouguier's treatise " Des Cheques." The French law defines a cheque, as " L'^crit qui sous la forme d'un mandat de paiement sert au tireur k efiectuer le retrait k son profit ou au profit d'un tiers de tout ou partie des fonds portes au credit de son compteet disponible." As to Italy, see Italian Com. Code, Arts. 339 — 344. 1 Forster v. Machreth (1867), L. R. 2 Ex. 163. " Brooks V. Mitchell (1841), 9 M. & W. at p. 18, Parke, B. ; Chartered Bank t. Dickson (1871), L. B. 3 P. C. at p. 579, Lord Cairns. 3 May V. Chidley, (1894) 1 Q. B. 451. * Cf. Boison V. Bennett (1810), 2 Taunt. 388 ; and see Pollard v. Bankof Engkmd (1871), L. R. 6 Q. B. 623 ; Goodwin v. Boharts (1876), L. R. 10 Ex. at pp. 351, 352. Cheques. 247 74. Subject to the provisions of this Act'— § 74. (1) Where a cheque is not presented for pay- Presentment ment within a reasonable time of its issue, plymelt! ^°' and the drawer or the person on whose account it is drawn had the right at the time of such presentment as between him and the banker to have the cheque paid and suffers actual damage through the delay, he is dis- charged to the extent of such damage, that is to say, to the extent to which such drawer or person is a creditor of such banker to a larger amount than he would have been had such cheque been paid. This section is new law. It was introduced in the Lords by Lord Bramwell to mitigate the rigour of the common law rule. At common law the mere omission to present a cheque for payment did not discharge the drawer, until at any rate six years had elapsed,^ and in this respect the common law appears to be unaltered. But if a cheque was not presented within a reasonable time, as defined by the cases, and the drawer suffered actual damage by the delay, e.g., by the failure of the bank, the drawer was absolutely discharged, even though ultimately the bank might pay (say) fifteen shillings in the pound : ^ see further sub-sect. (3), post, p. 249, as to the holder's position. By virtue of sect. 45 (2), ante, p. 142, the indorser of a cheque will be discharged, unless it is presented for payment within a reasonable time (after indorsement) as defined by the Act* ' See sect. 46, ante, p. 148, as to excuses for non-presentment and delay in presentment. 2 Laws T. Band (1857), 27 L. J. C. P. 76 ; Heywood y. Pickering (1874), L. R. 9 Q. B. at p. 432 ; Kinyon v. Stanton (1878), 28 Amer. E. 601. As a reason for the six year limit, see Pott v. Clegg (l847), 16 M. & W. 321. * Alexander v. Bwrchfield (1842), 7 M. & Grr. 1061 ; Robinson v. Hawks- /or(Z (1846), 9 Q. B. 52 ; Bailey v. Bodenham (1864), 33 L. J. C. P. 252. * Cf. Smith v. Jones (1838), 20 Wend. 192, New York. No English decision. 248 Bills of Exchange Act, 1882. § 74. (2) In determining what is a reasonable time Reasonable reffard shall be had to the nature of the in- time, strument, the usage of trade and of bankers, and the facts of the particular case. This sub-section, perhaps, introduces a new and less rigorous measure of reasonable time. The common law rule may be stated as follows : — A cheque is deemed to have been presented within a reasonable time when presented according to the following rules : — (1.) If the person who receives a cheque and the banker on whom it is drawn are in the same place the cheque must, in the absence of special circum- stances,^ be presented for payment on the day after it is received.^ (2.) If the person who receives a cheque and the banker on whom it is drawn are in different places, the cheque must, in the absence of special circum- stances, be forwarded for presentment on the day after it is received, and the agent to whom it is forwarded must, in like manner, present it or forward it on the day after he receives it.^ (3.) In computing time non-business days must be ex- cluded ; * and when a cheque is crossed, any delay caused by presenting the cheque pursuant to the crossing is probably excused.^ The result of the cases seems to be this. A party who receives a cheque has a clear day for presenting or forward- ing it. If, instead of presenting it himself, he forwards it to someone else to present, the question is, was he acting reasonably in so doing ? A principal, of course, is respon- sible to third parties for the act of his agents ; e.g., if a person forwards a cheque to an agent, and the agent, instead of presenting it himself, unreasonably forwards it to > Firth V. Brooks (1861), 4 L. T. N. S. 467. 2 Alexander v. Burchfield (1842), 7 M. & Gr. 1061. ' Hare v. Henty (1861), 30 L. J. C. P. 302 ; Prideaux v. Criddle (1869), L. E. 4 Q. B. 455 ; Beywood t. Pickering (1874), L. R. 9 Q. B. 428. * Cf. 34 & 35 Vict. c. 17 ; and see now sect. 92, post, p. 279. s Cf. Alexander v. Bwchfidd (1842), 7 M. & Gr. at p. 1067. Since this case the crossing of cheques has received legislative sanction. Cheques. 249 another agent, the loss as regards third parties falls on the § 74. principal, though he may have a remedy over against his agent. The question whether a cheque has been presented •within a reasonable time may arise between drawer and holder, or between indorser and indorsee, or between transferor by delivery and transferee,^ or between customer and banker.^ In each case it must be determined as between the particular parties. See a different standard of reason- able time as between vendor and vendee where the vendor of goods was paid by the cheque of the vendee's agent.^ (3) The holder of such cheque as to which RigWsof 11 .1.. nini holder when such drawer or person is discharged shall be drawer is a creditor, in lieu of such drawer or person, of '''^"''^''s®'^- such banker to the extent of such discharge, and entitled to recover the amount from him. The effect of this sub-section, read with sub-section (1), appears to be this : — A person draws a cheque for 100/. on his banker, which is not presented for payment within a reasonable time of its issue as defined by the Act. The banker fails, the drawer having at the time of the failure sufficient money to his credit to meet the cheque. The drawer is discharged, but the holder can prove for 100/. against the banker's estate. If, however, the drawer had no funds to his credit, but was authorized to overdraw, the drawer would still be discharged ; but the holder could not prove against the banker's estate. 75. The duty and authority of a banker to Rovooation of 1 1 I'll- J. banker's pay a cheque drawn on him by his customer are authority. determined by — (1) Countermand of payment :* (2) Notice of the customer's death. ^ • See, e.g., Moule t. Brown (1838), 4 Bing. N. C. 266. 2 See, e.g., Hare v. Henty (1861), 30 L. J. C. P. 302. 3 Bopkvns V. Ware (1869), L. K 4 Ex. 268. * Of. Oohm y. Hale (1878), 3 Q. B. D. 371 ; M'Lean v. Clydesdale Bank (1883), 9 App. Oas. 95. 5 Bogerson \. Ladbrohe (1822), 1 Bing. 93. 250 Bills of Exchange Act, 1882. § 75. When a firm of two partners has a banking account, and one dies, the authority of the surviving partner to draw cheques on the firm account is not determined.^ As to pay- ing a draft contrary to instructions, see Twibell v. London Suburban Bank? DonatiomoHis A cheque given by the drawer in contemplation of death camd. must be presented for payment by the donee before the drawer's death in order to entitle the donee to receive the amount out of the drawer's estate as a donatio mortis causd. For example : — 1. A. draws a cheque in favour of 0., and in contemplation of death hands it to him as a gift. After A.'s death it is presented and payment refused. 0. cannot claim for the amount against A.'s estate.-'* 2. A., in contemplation of death, draws a cheque and gives it to 0. After A.'s death 0. presents the cheque, and the bankers, in ignorance of A.'s death, pay it. 0. can (probably) retain the money as against A.'s representatives.^ 3. A., in contemplation of death, draws a cheque and gives it to 0. Before A.'s death C. presents it for pa3nment. The bankers refuse to pay it, because doubtful of A.'s signature. A. dies, and payment is subsequently refused on that ground. C, the donee, is entitled to receive the amount out of A.'s estate.* 4. A., in contemplation of death, draws a cheque and gives it to C. Before A.'s death C. negotiates the cheque for value. The holder can claim for the amount against A.'s estate.^ The position of the donee of a cheque is this : he cannot sue the drawer's executors on the instrument, because he is not a holder for value {ante, p. 95), and the banker's authority to pay is revoked by notice of the drawer's death. A cheque given for value, it is conceived, is on the same footing as an ordinary bill of exchange. But, assuming that, as between drawer and payee, it is a mere authority to receive the amount, still an authority coupled with an interest is not revoked by death.''' Of course, if the donor, instead of giving his own cheque, gives the cheque of a ' Backhouse v. Charlton (1878), 8 Ch. D. 444 ; see, too, Usherv. DoMncey (1814), 4 Camp. 97. 2 TwibeU v. London Suburban Bank, W. N. 1869, p. 127. 3 Bewitt V. Kaye (1868), L. K. 6 Eq. 198 ; Beak t. Beak (1872), L. R. 13 Eq. 489 ; cf. Jones v. Lock (1865), L. E. 1 Ch. 25. < Cf. Tate T. HUleH (1793), 2 Yes. jun. at p. 118. The bankers are justified in paying. 5 Bromley v. Brwnton (1868), L. R. 6 Eq. 275. « EoUs V. Pea/rce (1877), 5 Ch. D. 730. ? Cf. Hatch V. Searles (1854), 2 Sm. & G. at pp. 151, 155. Cheques. 251 §75. third person, which he holds, the gift is good, and the difficulty adverted to above does not arise.^ The banker's authority to pay his customer's cheque is Bankruptcy, further revoked by the fact that a receiving order in bank- ruptcy has been made against him, or by notice that he has committed an available act of bankruptcy.*^ A banker is under no obligation to honour his customer's Gamishee cheques if he is served with a garnishee order, even though °^^^^- the balance to the customer's credit exceeds the amount of the judgment. If the banker honoured cheques subsequent to notice of the order, he would do so at his own risk, for it might turn out, for instance, that " a portion of the money in the banker's hands might be, without the banker's knowledge, money of which the judgment debtor was trustee. That portion could not be ordered to be paid to the judgment creditor." ' The relations of banker and customer in respect of cheques Relations of may be summarized as follows : — customer" (1.) In the absence of special contract, the relations between a banker and his customer are those of debtor and creditor ; and in addition the customer is entitled to draw cheques on the banker to the extent of the sum for which he is a creditor.* (2.) Subject to the exceptions noted above, where a cheque is presented for payment and dishonoured, and the banker has in his hands at the time funds to the credit of his customer sufficient to meet it, the banker is liable to his customer in damages,^ unless the requisite funds were 1 Clement v. Cheeseman (1884), 27 Ch. D. 631, and ante, p. 130. ^ Banki-uptcy Act, 1883, ss. 9 and 49, and see available act of bankruptcy defined by sect. 168 ; cf. Vernon v. Sanlcey (1787), 2 T. R. 113 ; and Ex parU Sharp (1844), 3 M. D. & D. 490, under former Bankruptcy Acts. ' Sogers V. Whiteley (1889), 23 Q. B. D. 236, C. A. (affirmed, (1892) A. C. 118 H. L.), see at p. 238, per Lindley, L.J. As to arrestment in Scotland, see Bell's Principles, 9th ed. § 308. * Cf. Pott T. Clegg (1847), 16 M. & W. 321 ; Foley v. SiU (1848), 2 H. L. Ca. 28. See, too, Ee HalUtt's Estate (1880), 13 Ch. D. at pp. 727, 728, C. A. ; Re Ai/ra Bank (1866), 36 L. J. Ch. 151, banker is debtor to, not trustee for, his customer. ° Marzetti v. Williams (1830), 1 B. & Ad. 415 ; WUtaker v. Bamk of England (1835), 1 C. M. & E. 744 ; Oray v. Johnston (1868), L. E. 3 H. L. 1, see at p. 14, per Lord Westbury ; but see per Lord Cairns and Bodenham V. Hoskyns (1852), 2 De G. M. & G. 903 ; cf. Goodwin v. Moba/rts (1875), L. E. 10 Ex. at p. 351, Ex. Ch. As to the measure of damages, see ante, p. 182. As to banker claiming a lien, see Agra Bank v. Hoffnumn (1865), 34 1. J. Ch. 285. 252 Bills of Exchange Act, 1882. § 75. paid in so short a time before the dishonour of the cheque that the hanker could not with the exercise of reasonable diligence have ascertained the state of accounts between them.^ (3.) In the absence of special directions from the cus- tomer, it seems to be the duty of the banker to pay the cus- tomer's cheques in the order in which they are presented.^ (4.) As regards banks having several branches, where a customer has an account at one branch, the other branches at which he has no account are not bound to honour his cheques;^ but where a customer has accounts at two or more branches the bank is entitled to combine such accounts against him.* The combined accounts must be kept in the same right ; e.g., a personal and a trust account cannot be combined. See the whole status of branch banks in regard to bills discussed by the Privy Council.^ Duty as to Bills. — When a customer accepts a bill pay- able at his bankers, it is an authority to the banker to pay it ; ® but the banker is not bound to do so in the absence of special arrangement ? '' In the case of a cheque he is protected against the consequences of a forged in- dorsement (sect. 60) ; in the case of a bill he is not (sect. 24). In the absence of special agreement a banker is clearly under no obligation to accept his customers' bOls {ante, p. 181), nor it seems is he bound to pay a biU, other than a cheque, dravm on him by a customer {ante, p. 181) ; and it may be noted that a post-dated cheque, known to be such, is for some purposes regarded as a bill of exchange payable after date.^ Overdraft. — In the absence of special agreement, express 1 Whitaker v. Bank of England (1835), 1 C. M. & R. at pp. 749, 750, Parke, B. : cf. Bransiy v. Sast London Bank (1866), 14 L. T. N. S. 403. 2 KUsly V. WUliamii (1822), 5 B. & Aid. 819 ; cf. Boyd v. ' Bmmerson (1834), 2 A. & E. 184, at p. 202. 3 Woodland v. Fea/r (1857), 7 E. & B, 519. * Gamett v. M'Kewan (1872), L. B. 8 Ex. 10. " Prince y. Oriental Bank (1878), 3 App. Cas. 325. « Kymer v. Laurie (1849), 18 L. J. Q. B. 218. ? Cf. Bobarts v. Tucker (1851), 16 Q. B. at p. 579 ; Bank of England v. Vagliano, (1891) A. C. at p. 157, H. L. « Forster v. Maekreth (1867), L. B. 2 Ex, 163 ; cf. Emmanuel v. Roharts (1868), 9 B. & S. 121. Qu. as to the banker's obligation since the objection to post-dated cheques was removed by the Stamp Act, 1870 ? Cheques. 253 or implied, founded on consideration, a banker is of course § 75, under no obligation to let a customer overdraw.' A cheque on payment becomes the property of the Property in drawer,^ but the banker who pays it is entitled to keep it 1^"^ chectue. as a voucher until his account with his customer is settled.^ Entries made in customer's pass-book are prim& facie Pass-book, evidence against the bank.* ' Gumming v. Shand (1860), 29 L. J. Ex. at p. 132. As to implied agreement, see Armfield v. London and Westminster Bank {ISSS), 1 C. & E. 170 ; as to presumption, see Ritchie v. Clydesdale Bank (1886), 13 Sess. Cas. 114. As to the general duty of a bank not to disclose the state of a cus- tomer's account, except for good reasons, see Hardy v. Veasey (1868), L. K, 3 Ex. 107. 2 S. v. Watts (1850), 2 Den. 0. C. 15. 3 Cf. Charles v. Blackwell (1877), 2 C. P. D. at p. 162, 0. A. * Commercial Bank t. Rhind (1848), 1 Macq. H. L. 643 ; Camper's Trustees v. National Bank of Scotland (1889), 16 Sess. Cas. 412. As to appropriation of payment by entries in bank books not communicated to customer, see Simson t. Ingham (1823), 2 B. & 0. 65 ; and as to such entries in pass-book, see at p. 73. See, too, Sooper v. Keay (1875), L. R. 1 Q. B 178. 254 Bills of Exchange Act, 1882. § 76. Crossed Cheques. General and 76. (i) Where a chcQue bears across its face special cross- i i ^ • ings defined, an addition 01 (a) The words " and company " or any abbre- viation thereof between two parallel trans- verse lines, either with or without the words " not negotiable ; " or (&) Two parallel transverse lines simply, either with or without the words " not negotiable ; " that addition constitutes a crossing, and the cheque is crossed generally. (2) Where a cheque bears across its face an addition of the name of a banker, either with or without the words " not negotiable," that addition constitutes a crossing, and the cheque is crossed specially and to that banker. By sect. 2, "banker" includes a body of persons, whether incorporated or not, who carry on the business of banking. See the origin of crossing cheques explained by Parke, B.,^ and the common law effect of a crossing commented on by Lord Cairns.^ The first statute recognizing crossings was the 19 & 20 Vict. c. 25. This enactment was supplemented by the 21 & 22 Vict. c. 79, in consequence of a decision to the efPect that the crossing was not an integral part of the cheque, and that its fraudulent obliteration was not a forgery.' Then came the case of Smith v. Union Bank.* A cheque ' Bellamy v. Majoribanks (1852), 7 Exch. 389, at p. 402. The practice originated in the Clearing House, and was afterwards adopted outside. 2 Smith T. Union Sank (1876), 1 Q. B. D. at p. 33, 0. A. It operated as a mere cautioA to the banker. 3 Simmonds v. Taylor (1858), 27 L. J. 0. P. 248. < Smith T. Union Bank (1875), 1 Q. B. D. 31, 0. A. Crossed Cheques. 255 payable to bearer, and crossed to the London and County § 76. Bank, was stolen. It got into the hands of a holder in due course, who obtained payment through the London and Westminster Bank, notwithstanding the crossing. The Court held that the true owner had no remedy against the paying bankers, because the negotiability of the cheque was not affected by the crossing.^ To meet this difficulty, the Crossed Cheques Act, 1876 (39 & 40 Vict. c. 81), was passed. That enactment introduced the " not negotiable " crossing, and gave a remedy to the true owner of a crossed cheque if it was paid contrary to the crossing (see now sects. 79 (2) and 81). It also repealed the previous statutes. The present Act repeals the Act of 1876, and, by sects. 76 — 82, reproduced its provisions with some slight modifications. By sect. 95, the provisions of the Act as to crossed cheques apply to dividend warrants ; and by 46 & 47 Vict. c. 55, s. 17, post, p. 347, they are further applied to " any document issued by a customer of any banker, and intended to enable any person to obtain payment from such banker of the sum mentioned in such document." Where a cheque was drawn payable to C.'s order, and was crossed with the words " account of C, National Bank, Dublin," it was held that it was not thereby rendered non- transferable.^ 77. (1) A cheque may be crossed generally or Crossing by specially by the drawer. after issue. This is new, but declaratory. Sect. 4 of the Act of 1876 in terms only authorized the " lawful holder" to cross a cheque. See now " holder " defined by sect. 2, ante, p. 5. (2) Where a cheque is uncrossed, the holder may cross it generally or specially. (3) "Where a cheque is crossed generally, the holder may cross it specially. (4) Where a cheque is crossed generally or specially, the holder may add the words " not negotiable." 1 Smith y. Union Bmlc (1875), 1 Q. B. D. 31, C. A. 2 NaUoncd Bank v. ^Tce, (1890), Law Journal Notes, p. 157, C. A, 256 Bills of Exchange Act, 1882. § 77. Crossing a material part of cheque. Duties of banker as to crossed cheque. (5) Where a cheque is crossed specially, the banker to whom it is crossed may again cross it specially to another banker for collection. The words " to another banker for collection " have been substituted for the words " to another banker, his agent for collection." (6) Where an uncrossed cheque, or a cheque crossed generally is sent to a banker for collection, he may cross it specially to himself This is new. It may protect the banker from possible frauds by his clerks. 78. A crossing authorized by this Act is a material part of the cheque; it shall not be lawful for any person to obliterate, or, except as autho- rized by this Act, to add to or alter the crossing. As to the effect of material alterations generally, see sect. 64, ante, p. 213. If a crossing is fraudulently altered or obliterated it is a forgery : see 24 & 25 Vict. c. 98, ss. 25 and 39. The drawer of a cheque sometimes strikes out a crossing at the request of the payee, and writes " Pay cash " on it. The Act does not sanction this practice ; but it is difficult to see who in such case could have any effective remedy. In an unreported case it was held that where the indorser of a cheque crossed it, and at the request of the indorsee altered the crossing, the indorser could not set up that the cheque was avoided by the alteration. See also note to sect. 76. 79. (1) Where a cheque is crossed specially to more than one banker, except when crossed to an agent for collection being a banker, the banker on whom it is drawn shall refuse payment thereof (2) Where the banker on whom a cheque is drawn which is so crossed nevertheless pays the Crosskd Cheques. 257 same, or pays a cheque crossed generally otherwise § 79. than to a banker, or if crossed specially otherwise than to the banker to whom it is crossed, or his agent for collection being a banker, he is liable to the true owner of the cheque for any loss he may sustain owing to the cheque having been so paid. Provided that where a cheque is presented for payment which does not at the time of present- ment appear to be crossed, or to have had a crossing which has been obliterated, or to have been added to or altered otherwise than as autho- rized by this Act, the banker paying the cheque in good faith and without negligence shall not be responsible or incur any liability, nor shall the payment be questioned by reason of the cheque having been crossed, or of the crossing having been obliterated or having been added to or altered otherwise than as authorized by this Act, and of payment having been made otherwise than to a banker or to the banker to whom the cheque is or was crossed, or to • his agent for collection being a banker as the case may be. This section reproduces ss. 8, 10, and 11 of the Act of 1876. As there is no privity between the holder and drawee of a cheque, a banker incurs no liability to the holder by refusing to pay a crossed cheque. His only liability is to his customer, the drawer. In a case before the Act of 1876 a crossed cheque pay- able to order was stolen from the payee. His indorsement was forged, and the cheque was paid in contravention of the crossing to a person who gave value in good faith. The drawer gave the payee another cheque. On these facts it was held (1) that the banker had no right to debit the drawer's account with the cheque, (2) that the payee who lost the cheque might have recovered the amount from the c. s 258 Bills of Exchange Act, 1882. § 79. person who received the money for it, but (3) that the drawer, having allowed his account to be debited with the cheque, might himself recover the amount from the person who got the cash for it.^ The Act does not appear to affect this decision, but it gives an additional remedy against the bankers to the true owner, who, in the case • referred to, would have been the payee. If the cheque had been pay- able to bearer, or had been indorsed in blank by the payee before it was stolen, there would be no remedy apart from this section.^ Protection to QO. Where the banker, on whom a crossed banker and _ _ ' _ drawer where cheque is drawn, in good faith and without negli- crossed. gence pays it, if crossed generally, to a banker, and if crossed specially, to the banker to whom it is crossed, or his agent for collection being a banker, the banker paying the cheque, and, if the cheque has come into the hands of the payee, the drawer, shall respectively be entitled to the same rights and be placed in the same position as if payment of the cheque had been made to the true owner thereof. This reproduces sect. 9 of the Act of 1876. If the cheque were payable to order, and the indorsement has been forged, the drawer or, as the case may be, the payee can recover the amount from the person who received payment of the cheque, if he can find him.^ Effect of "not 81. Where a person takes a crossed cheque crossing on which bears on it the words "not negotiable," he shall not have and shall not be capable of giving a better title to the cheque than that which the person from whom he took it had. 1 Bollett T. Pmkett (1876), 1 Ex. D. 368, at p. 372. 2 Smith T. Union Bank (1875), 1 Q. B. D. 31, C. A., unless the cheque ■was crossed "not negotiable." » Ogden v. Benas (1874), L. R. 9 C. P. 513 ; cf. Patent Safety Gun Cotton Co. T. Wilson (1880), 42 L. J. C. P. 713, 0. A. holder. Crossed Cheques. 259 This reproduces the first part of sect. 12 of the Act of § 81. 1876. A cheque crossed " not negotiable " is still trans- ferable, but its negotiable quality is limited. It is put on much the same footing as an overdue bill. A holder who has a good title can stiU. transfer it, and the transferee is entitled to receive payment; but where the title of the transferor is defective a subsequent holder for value is deprived of the protection ordinarily afforded to a holder in due course. Suppose a cheque payable to bearer and crossed "not negotiable" is stolen. The thief gets a tradesman to cash it for him, and the tradesman gets the cheque paid on presentment through a banker. The banker who pays and the banker who receives the money for the tradesman are protected, but the tradesman would be liable to refund the money to the true owner, and, assuming payment of the cheque to have been stopped, he could not sue the drawer. So, too, where a cheque crossed "not negotiable " was drawn in favour of a firm, and one of the partners in fraud of his co-partner indorsed the cheque to the defendant, who cashed it, it was held that the other partner who, under the terms of the partnership agreement, was entitled to the cheque could recover the amount from the defendant.! 82. Where a banker in good faith and without Protection to T • XI" i. i^ oollectinEc negligence receives payment tor a customer oi a tanker, cheque crossed generally or specially to himself, and the customer has no title or a defective title thereto, the banker shall not incur any liability to the true owner of the cheque by reason only of having received such payment. Illttstbations. 1. A thief steals a crossed cheque payable to order, and inserts his own name ia the place of the iadorsee's. He then takes it to a Paris bank to collect for him, and they collect it through their London agents. The indorsee can recover the amount from the Paris bank.' 1 Fisher v. BobeHs (1890), Times L. K. p. 354, C. A. See the section incidentally discussed in National Bank t. Sithe (1891), 1 Q. B. 435, C. A. 2 Kleinwort r. Oomptoir d'Escompte (1894), 2 Q. B. 157. S 2 260 Bills of Exchange Act, 1882. § 83. 2, A bank ooUeots a cheque for a person who has no account there, and who has had no previous dealings with them. He is not a customer, and the bant is not protected.' This reproduces the proviso to sect. 12 of the Act of 1876. It was held in Mathiessen v. London and Cotmty Bank, that the proviso protected the collecting banker, whether the cheque was crossed with or without the words " not negoti- able," for the proviso was to be construed as an independent section.* The present Act, in affirmance of that decision, reproduces the proviso as an independent section. The fact that the cheque is indorsed by the customer " per pro." may put the collecting banker on inquiry, and if the banker makes no inquiry it may be negHgence within the meaning of the section.' • Matthews v. WilHamn dk Co. (1894), The Reports, p. 267. ' Mathiessen y. London and Comity Sank (1879), 5 C. P. T>. 7. » BisseU T. Fox & Co. (1884), 51 L. T. N. S. 663 ; affirmed witli variation on another point, 63 L. T. N. S. 193, C. A. 261 §83. PAET IV. Promissory Notes. 83. (1) A promissory note is an unconditionaP Piomiseory ... 11 , .in note defined. promise in writmg made by one person to another ^ signed by the maker/ engaging to pay, on de- mand * or at a fixed or determinable future time,^ a sum certain ® in money," to, or to the order of, a specified person ^ or to bearer. Illttsteations. 1. An I. 0. TJ. containing a promise to pay may constitute a note.' The following are invalid as notes : 2. " Borrowed of 0. lOOZ. to account for on behaK of the X. Club at months' notice, if required." (Signed) T. B.'" 3. " I. 0. U. 201. for value received." (Signed) W. B.» 4. " Nine years after date I promise to pay 0. 1007., provided X. shall not return to England, or his death be certified in the mean- time." (Signed) W. B.'2 Document providing for payment of certain money by instalments, with interest, the whole to become due on 1 Colehm v. Coohe (1742), Willes, 393, at pp. 396, 397. Cf. sect. 3 (1) and note thereto, ante, p. 8. 2 See Beeeham v. Smith (1858), E. B. & B. 442, and sub-sect. (2). ' As to signature by the hands of an agent, see sect. 91 (1), post, p. 274 ; and as to the seal of a corporation in lieu of signature, see sect. 91 (2), post, p. 278, * As to what instruments are, in legal effect, payable on demand, see sect. 10, ante, p. 29. " Cokhan v. Cooke (1742), Willes, 393, at pp. 396, 397 ; see sect. 11, and notes thereto, ante, p. 30. ' See sect. 9, and notes thereto, ante, p. 26. ' See sect. 3 (1), and note thereto, ante, p. 8. ^ See sect. 8, and notes thereto, amte, p. 24. 9 Brooki T. Elkim (1836), 2 M. & W. 74. >» White T. N(ni,h (1849), 3 Exoh. 689. " Govld V. Coombs (1845), 1 C. B. 543. >2 Um-gan v. Jones (1830), 1 C. & J. 162. 262 Bills of Exchange Act, 1882. §83. Form ol words. Note in alternative. default in payment of one instalment, and containing the foUowing proviso, "No time given to, or security taken from, or composition arrangements entered into with, either party hereto shall prejudice the rights of the holder to pro- ceed against any other party," held, not a promissory note.^ Comparing this section with the wider terms of sect. 33 of the Stamp Act, 1891, post, p. 355, it is clear that many instruments may require to be stamped as promissory notes which have not the mercantile incidents of notes as pre- scribed by the Act. A promissory note issued in the United Kingdom must be on an impressed stamp : see post, p. 357. An instrument invalid as a note may, of course, be valid as an agreement.^ See a promissory note com- pared with a bill of exchange by Lord Mansfield^ and Parke, B.* No form of words is essential to the validity of a note, provided the requirements of this section be fulfilled ; ^ but, on the other hand, a document might comply with the terms of the section and yet not be a promissory note. It must be such as to show the intention to make a note.* For instance, a banker's deposit note running, " Received of Mr. C. 150^. to be accounted for on demand," and signed, will not be treated as a promissory note.'' An instrument promisiog to do anything in addition to the payment of money is clearly not a note ; ^ but it has been held in the United States that a promissory note may give the holder the option between the payment of the sum specified and the performance of some other act by the makers, though as to the latter it is not a note.^ As the * Kwkivood T. Smith, W. N. 1896, p. 46 (16). 2 Cf. White V. North (1849), 3 Exch. 689 ; Drury v. Macwday (1846), 16 M. & "W. 146 ; Kirkwood v. Smith, W. N. 1896, 46 (16). ' Beylyn v. Adamson (1768), 2 Burr, at p. 676. * Gibb V. Mather (1832), 2 Cr. & J. at pp. 262, 263, Ex. Ch. * Hooper t. WUliams (1848), 2 Excb. at p. 20. See English and American Cases reviewed in Currier y. Lockwood (1873), 16 Amer. R. 40. So, too, an ambiguous instrument may be treated by holder either as a bill or a note at his option. Peto v. Reynolds (1854), 9 Exch. 410 ; affirmed, 11 Exch. 418, Ex. Ch. " Sibree t. Tripp (1846), 15 M. & W. at p. 29 ; cf. Jackson v. Slipper (1869), 19 L. T. N. S. 640. ? Hopkins v. Abbott (1875), L. E. 19 Eq. 222. 8 Sect. 3 (2) amte, p. 8 ; and Fottett v. Moore (1849), 4 Exch. 410, at p. 416 : cf. Cook t. Satterlee (1826), 6 Cowen, 108, New York. 9 Cf. Dinsmore t. Duncan (1874), 57 New York E. 573 ; New York Draft Code, § 1716. Promissory Notes. 263 holder can demand money, and no option is given to the § 83. maker, it is said there is no uncertainty in the instrument. Thus, in New York an instrument running, " I promise to pay C. or order 100 dollars or in goods on demand," was held to be a vaUd note.^ This question does not appear to have been raised here. In England a promissory note for less than 20/. payable Wote to to hearer on demand must, by 7 Geo. 4, c. 6, § 10, be made ^^^^""007 payable where issued, but may also be payable else- where. A promissory note for less than 5/. payable to bearer on Note to demand is, it seems, void in England. The legislation on I'eajer the subject is confused, but this seems to be the effect of it. The 48 Geo. 3, c. 88 (now repealed), made negotiable notes under twenty shillings void. The 17 Geo. 3, c. 30, required negotiable notes for more than twenty shillings and less than 51. (or on which less than bl. was unpaid), to specify the payee and to conform to other regulations. This Act was suspended by 26 & 27 Vict. c. 105, as to any note "not being a note payable to bearer on demand." The suspen- sion was continued annually tiU. 1882, when the Act was repealed by the Bills of -Exchange Act. The 7 Geo. 4, c. 6, §§ 3, 5, and 7, appear to prohibit the making or issue in England of any promissory note payable to bearer on demand for less than 51. The 9 Geo. 4, c. 65, prohibits the issue or negotiation in England of any note for less than 51. payable to bearer on demand which is made or issued, or purports to be made or issued, " in Scotland or Ireland, or elsewhere out of England." A bank note may be defined as a promissory note issued Bank notes] by a banker payable to bearer on demand. But a bank note differs from an ordinary note in various important respects. Among others it may be re-issued after payment. See further distinctions pointed outby Bramwell, B.* As to the restrictions on the issue in England of bank notes by bankers other than the Bank of England, see ante, p. 64. Bank of England notes form part of the ordinary purrency of the kingdom, and therefore stand on a peculiar footing.* ' Hostater v. WUion (1862), 31 Barb. 307. 2 Lichfield Union v. Greene (1857), 26 L. J. Ex, at p. 142. ^ See per Ld. Mansfield, in MiUer t. Sace (1758), 1 Burr. 452 ; and per Jessel, M.E., in Suffell t. Bank of England (1882), 9 Q. B. D. at p. 563, C. A. 264 Bills of Exchange Act, 1882. § 83. The statutory privileges of the Bank of England are expressly saved by sect. 97 (3), post, p. 283. Bank post As to the nature of a bank post bill, see Forbes v. I'iUs- Marshall} I. 0. U. An I. 0. U. is not a negotiable instrument, and requires no stamp. The production by the plaintiff of an I. 0. U. signed by the defendant, though not addressed to anyone by name, in evidence of an account stated between the parties, but not of money lent.^ As to Scotland, see Bell's Principles, 9thed.§310. Foreign laws. The French law as to notes (billets a ordre) is contained in Arts. 187, 188 of the Code de Commerce. Although the code is silent on the point, it seems that notes payable to bearer (billets au porteur) are to some degree recognized: Nouguier, §§ 1565 — 1578. German Exchange Law, Arts. 96 — 100, and Netherlands Code, Arts. 208, 209, deal with notes. The foreign codes, like this Act, apply to notes, mutatis mutandis, the provisions relating to bills of exchange. Note payable (2) An instrument in the form of a note pay- to maker s j ' , . . . order. able to makers order is not a note within the meaning of this section unless and until it is indorsed by the maker. Illustkations. 1. B. makes a note payable to his own order, and indorses it in blank. This is a valid note payable to bearer.^ 2. B. makes a note payable to his own order, and indorses it to 0. This is a valid note payable to C. or order.^ 3. B., C. and D. made a joint and several note payable to 0. and D. or order. This is a valid note. C. and D. may sue B. on his several liability.* 1 Forles v. Marshall (1835), 24 L. J. Ex. 305 ; cf. WiUis t. £anh of England (1835), 4 A. & E. 21. 2 Taylor on JSvidenee, § 124 ; Fesenmayer v. Adeock (18i7), 16 M. & W. 449. As to contradicting such evidence, see Lemere v. EUiott (1861), 30 L. J. Ex. 350. 3 Hooper v. Williams (1848), 2 Exch. 13 ; Masters v. BarOto (1849), 8 C. B. 433. " Gay V. Lander (1848), 17 L. J. C. P. 286. ' Beecham t. Smith (1858), E. B. & E. 442. Pbomissory Notes. 265 4. B. & Co. make a note payable to C. and Co. or order. X. is a § 83. partner in both firms. 0. & Co., perhaps, cannot sue B. & Co. on this note. But if C. & Co. indorse the note, the indorsee could sue.' See sect. 61, ante, p. 210, as to coincidence of right and liability at maturity. "An action," says Sir F. Pollock, "between a partner and the firm, or between two firms having a common member, was impossible at common law, and it has not yet been decided that it is possible since the Judicature Acte, but Lord Justice Lindley's opinion is in favour of such actions being now maintainable, and in the former case probably in the firm name." ^ (3) A note is not invalid by reason only that it Note contain- . ... mg pledge of contains also a pledge of collateral security with collateral authority to sell or dispose thereof.^ Would the right to the security pass with the instru- ment ? The question has been touched upon, but not decided.* In France the security follows the instrument : Nouguier, % 715. The Belgian Code de Commerce, § 26, expressly enacts the same as to bills. (4) A note which is, or on the face of it pur- ports to be, both made and payable within the British Islands is an inland note. Any other note is a foreign note. This reproduces with a modification the effect of the repealed 19 & 20 Yict. c. 97, § 7. See sect. 4, ante, p. 15, and note thereto, where the term " British Islands " is defined and the subject is discussed. By sect. 89 (4), post, p. 271, when a foreign note is dishonoured protest thereof is unnecessary. 84. A promissory note is inchoate and in- Delivery ■■■ '' necessary. » UnMey, 3rd ed. p. 219 ; cf. Neale v. Tm-ton (1827), 4 Bing. 149. 2 Pollock on Partnership, Sib ed. , p. 21, citing Zindley, 5th ed. pp. 265, 267. Tn Scotland a firm is recognised as an artificial person. > 3 Wise V. Charlton (1836), 4 A. & E. 786 : of. Towne v. Rice (1877), 122 Massachns. K. 67. * Storm V. Stirling (1854), 3 E. & B. 832. 266 Bills of Exchange Act, 1882, § 84. complete until delivery thereof to the payee or bearer.^ By sect. 2, delivery means transfer of possession, actual or constructive, from one person to another. As to the conditions of a valid delivery, see sect. 21, ante, p. 52. Joint and gS. (1) A promissorv noto may be made bv two several notes. i • or more makers, and they may be liable thereon jointly, or jointly and severally according to its tenour.^ The acceptors of a biU can only be liable jointly, not jointly and severally. A new maker cannot be added to a joint and several note after its issue,^ and there cannot be a series of makers liable severally, and not jointly and severally. Nor can two makers be liable in the alterna- tive.* A partner, as such, cannot bind his co-partners severally, but by a joint and several note he may bind the firm jointly ^ and himself severally.^ Judgment, without satisfaction, against one of the makers of a joint note is a bar to proceedings against the other maker ; '' not so if the note be joint and several.* Payment or satisfaction by one of the makers of a joint and several note discharges it,^ but where partners are jointly and severally liable on a note a composition in bankruptcy as regards the joint estate does not get rid of the several liability.^" (2) Where a note runs " I promise to pay " and 1 Chapman v. CoUrell (1865), 3 H. & C. 857 ; 34 L. J. Ex. 186. 2 Cf. Ex parte Honey (1871), L. R. 7 Ch. 178. 3 Gardner v. Walsh (1855), 6 E. & B. 83 * Ferris v. Bond (1821), 4 E. & Aid. 679. * Maelae v. Sutherland (1854), 3 E. & B. 1. « Penkiml t. Comiell (1850), 5 Exeh. 381. 7 Kinn T. Howre (1844), 13 M. & W. 494. 8 Ilid. ; and Re Davison (1884), 13 Q. B. D. at p. 63. ' Nicholson V. SeviU (1836), 4 A. & E. 675 ; Beaumont v. Oreathead (1846), 2 C. B. 494 ; Thorne v. Smith (1851), 20 L. J. 0. P. 71. 1" Simpson v. Henning (1875), L. E. 10 Q. B. 406. Pkomissory Notes. 267 is signed by two or more persons it is deemed to § 85. be their joint and several note.' Conversely a note which runs, "We promise to pay," and is signed by two or more persons, is deemed to be a joint note only.^ In a case where B., X., and Y. were partners, and B. made a note miming, "I promise to pay," but signed it " for X. and Y. — J. B.," it was held that this was the joint note of the firm.* Perhaps if a note runs, "I, John Brown, promise to pay," and it is signed by Smith as well as Brown, Smith would only be liable as an indorser under sect. 56, and not as a co-maker, 86. (l) Where a note payable on demand has Note payable . ' . 1 i/> , °^ demand. been mdorsed, it must be presented tor payment within a reasonable time of the indorsement. If it be not so presented the indorser is discharged.* By sect. 10, read with sect. 89, a note is payable on demand which is expressed to be payable on demand, or at sight, or on presentation, or in which no time for payment is expressed. (2) In determining what is a reasonable time, regard shall be had to the nature of the instru- ment, the usage of trade, and the facts of the particular ease. Reasonable time appears to be a mixed question of law and fact. Regard must be had to the nature of the instru- ment as a continuing security, e.g., ten months may not be an unreasonable time.^ (3) Where a note payable on demand is nego- ■ Monson v. Drakdey (1873), 16 Amer. R. 74 ; cf. Bidd v. Moggridge (1857), 2 H. & N. 568, dub. PoUock, C.B. 2 Pwrions on Bids, vol. 1, p. 247. 3 Ex pane Buckley (1845), 14 M. & W. 469. * Chartered Bamk v. Diekton (1871), L. K 3 P. C. 574 ; see at p. 579. ^ 5 Ibid., see at pp. 579 and 584. 268 Bills of Exchange Act, 1882. § 86. Presentment of note for payment to charge maker. tiated, it is not deemed to be overdue, for the purpose of affecting the holder with defects of title of which he had no notice, by reason that it appears that a reasonable time for presenting it for payment has elapsed since its issue.^ This sub-section negatives the application of sect. 36 (3), ante, p. 119, to promissory notes payable on demand which are in the nature of continuing securities. In the United States it appears to be settled that a note on demand is deemed overdue after the lapse of a reasonable time from its issue, regard being had to its nature as a continuing secu- rity, e.g., it has been held that where a note on demand was indorsed eight months after its date, the indorsee took it subject to all equities attaching to it. It is to be noted that all parties resided in the same place,^ 87. (1) Where a promissory note is in the body of it made payable at a particular place, it must be presented for payment at that place in order to render the maker liable.^ In any other case, presentment for payment is not necessary in order to render the maker liable.* Illtjstkations. 1. A note is made payable to C. or order on demand. The holder can sue the maker without proving any presentment or demand.* 2. B. makes a note payable to his own order and signs it. Below his bignature are the words "Payable at the Union Bank, London." 1 See BrooTcs v. Mitchell (18il), 9 M. & W. 15 ; Glasscock v. BaUi (1889), 24 Q. B. D. 13, C. A. 2 Hernck v. Wodverton (1870), 41 New York E. 581. 2 Spindler-7. Grellett (1847), 1 Exch. 384 (non-negotiable note) ; Sandsx. Clwrke (1849), 8 C. B. 751 ; Vander Doncht v. TheUusson (1849), 8 C. B. 812 ; RandaU v. Thtym Js Co., W. N. 1878, p. ISO, C. A. * Price V. Mitchell (1816), 4 Camp. 200 ; Sxon v. RusseU (1816), 4 M. & S. 507 ; WilUams v. Warimg (1829), 10 B. & C. 2 (place of payment indi- cated by way of memorandum). « Cf. Walton V. Mascall (1844), 13 M. & W. at pp. 455, 458 ; Bee, too, Norton v. Ellim, (1837), 2 M. & W. at p. 464 ; and Maitby v. Murrels (1860), 5 H. & N. at p. 823. Pkomissort Notes. 269 He then indorses the note in blank. The holder can sue the maker, S 87. B., without proying presentment.' — Compare sect. 52 (1) as to presentment to charge the acceptor of a bill. By virtue of sect. 52 (2), read with sect. 89, where a note is payable on a day certain, the maker will not be discharged, because the note is not pre- sented on that day.^ In the case of a note payable on demand the Statute of Limitations runs in favour of the maker from the date of the note.^ (2) Presentment for payment is necessary in To charge indoTser. order to render the indorser of a note liable.* (3) Where a note is in the body of it made payable at a particular place, presentment at that place is necessary in order to render an indorser liable ; * but when a place of payment is indicated by way of memorandum only, presentment at that place is sufficient to render the indorser liable/ but a presentment to the maker elsewhere, if sufficient in other respects, shall also suffice.'' By virtue of sect. 89 presentment for payment will be governed by the same rules as apply to bills, as to which see sect. 45, ante, p. 141. As to excuses for non-present- ment and delay, see sect. 46, ante, p. 148. 88. The maker of a promissory note by making Liability of . , maker. it (1) Engages that he will pay it according to its tenour ; ^ 1 Masters v. Baretto (1849), 8 C. B. 433. 2 See also Mamchum MuUick v. iMohmeechund Eadakissen (1854), 9 Moore, P. C. at p. 70. 3 Norton v. EOam (1837), 2 M. & W. 464. * Cf. Oibb V. Mather (1832), 2 Cr. & J. at pp. 262, 263 ; Britt v. Lawson (1878), 22 Hun. R. 123, New York, joint and several note. ' JRoche V. Campbell (1812), 3 Camp. 247. * SoMnderson t. Judge (1795), 2 H. Bl. 510. ' Bid. ; and see Masters v. Baretto (1849), 8 C. B. 433. 8 Story on Notes, § 118 ; Walton v. MascaU (1844), 13 M. & W. at p. 458, 270 Bills of Exchange Act, 1882. ^ § 88. (2) Is precluded from denying to a holder in due course^ the existence of the payee and his then capacity to indorse.'' The maker of a promissory note is the principal debtor on the instrument.® The maker is sometimes called the drawer, but the primary and absolute liability of the maker of a note must be distinguished from the secondary and conditional lia- bility of the drawer of a bill of exchange.* In general the maker of a note corresponds with the acceptor of a bill of exchange, and the same rules apply to both. A note indorsed by the payee resembles an accepted bill payable to drawer's order and indorsed by the drawer, the payee corresponding with the drawer.^ The distinctions that exist between maker and acceptor arise from this. The acceptor is not the creator of a bill, his contract is supple- mentary, while the maker of a note originates the instru- ment. Hence (a) a note cannot be made conditionally,* while a bill may be accepted conditionally ; (b) the pro- visions of sect. 19 (2), ante, p. 46, relating to bills accepted payable at a particular place, have no application to notes, which are therefore on the same footing as bills previous to the 1 & 2 Geo. 4, c. 78, which is reproduced in that section ; 7 (c) maker and payee are immediate parties in direct relation with each other, while acceptor and payee, except in the case of a bill payable to drawer's order, are remote parties.^ See also sect. 89. — Damages. The measure of damages against the maker of a note would in general be the same as against the acceptor of a bUl, as to which see sect. 57, ante, p. 190. Application 89. (1) Subject to the provisions in this part, of Part II. to notes. ' See " holder in due course " defined by sect. 29, ante, p. 88. 2 Drayton v. Saie (1823), 2 B. & C. 293, bankrupt payee ; Zone v. Krecile (1869), 22 Iowa R. 399 ; cf. sect. 54, acceptor's estoppels. 3 Cf. Cha/rtered Bwnk v. Dicksm (1871), L. R. 3 P. C. at p. 580. * Gmnnell v. fferbeH (1836), 6 N. & M. 723. ' Beylyn v. Adamson (1758), 2 Burr at p. 678, Ld. Mansfield ; and sect. 89 (2). ' See sect. 83, ante, p. 261. '' Cf. CKbb V. Mather (1832), 2 Cr. & J. at pp. 262, 263 ; Emblim v. DwrU ndl (1844), 12 M. & W. 830. 3 Cf. Bvi}u>p T. Young (1800), 2 B. & P. at p. 83, Ld. Eldon. Pkomissory Notes. 271 and except as by this section provided, the pro- § 89. visions of this Act relating to bills of exchange apply, with the necessary modifications to pro- missory notes. (2) In applying those provisions the maker of a note shall be deemed to correspond with the acceptor of a bill, and the first indorser of a note shall be deemed to correspond with the drawer of an accepted bill payable to drawer's order. ^ (3) The following provisions as to bills do not apply to notes ; namely, provisions relating to — (a) Presentment for acceptance ; (b) Acceptance ; (c) Acceptance supra protest ; (d) Bills in a set. By the statute 3 & 4 Anne, c. 9, § 1, promissory notes were made negotiable " in the same manner as inland bills of exchange are or may be by the custom of merchants." This Act, however, was, it seems, merely declaratory.^ (4) Where a foreign note is dishonoured, pro- Protest of , \ ,■, n ■ foreign note test thereoi is unnecessary. not required. Sub-sect. (4) is declaratory,^ but it may be advisable to protest a foreign note for the purpose of charging a foreign party in his own country. See sect. 51, ante, p. 170, as to foreign bills. As to conflict of laws, see sect. 72 (3), ante, p. 243. The sub-section appears to apply only to foreign notes dishonoured in the British Islands. ' See Heylyn t. Adamson (1758), 2 Burr, at p. 678, per Lord Mansfield. 2 See Goodwin \. Sobarts (1875),* L. il. 10 Ex. at p. 350, per Cockburn, C.J. 3 Bmar v. MitcheU (1850), 5 Exch. 415. 272 Bills or Exchange Act, 1882. § 90. PAET V. Supplementary. Good faith. 90. A thing is deemed to be done in good faith within the meaning of this Act, where it is in fact done honestly, whether it is done neghgently or not. See sect. 29, ante, p. 88, defining " holder in due course," and sect. 59, ante, p. 200, defining "payment in due course." Cf. also sects. 60, 79, and 82. The test of bona fides as regards bill transactions has varied greatly. Previous to 1820 the law was much as it now is under the Act. But under the influence of Lord Tenterden due care and caution was made the test,^ and this principle seems to be adopted by sect. 9 of the Indian Act. In 1834 the Court of King's Bench held that nothing short of gross negligence could defeat the title of a holder for value.^ Two years later Lord Denman states it as settled law that bad faith alone could prevent a holder for value from recovering. Gross negligence might be evidence of bad faith, but was not conclusive of it.* This principle has never since been shaken in England, and it seems now firmly established in the United States.* Byles, J., in a judgment where he is distinguishing deeds from negotiable instruments, says, referring to the latter, " Honest acquisition confers title. To this despotic but necessary principle the rules of the common law are made to bend. . . . Negligence in the maker of such an instrument makes no difference in his liability to an honest holder for value. The .instrument may be lost by ' Oai T. Cubitt (1824), 5 D. & E. 324. 2 Crook V. Jadis (1834), 5 B. & Ad. 909. ' Goodman v. ffarvey (1836), 4 A. & E. at p. 876 ; cf. Uther v. Bich (1839), 10 A. & E. 784. * Murray v. Lardner (1864), 2 Wallace, at p. 121, Sup. Ct. U. S. ; CJuw- man v. Hose (1874), 56 New York E. at p. 140. Good Faith. 273 the maker without his negligence or stolen from him, still § 90. he must pay ; the negligence of the holder, on the other „ „, hand, makes no difference in his title. However gross fides. the holder's negligence, if it stop short of fraud, he has a title." 1 The whole subject was fully discussed in a recent case in the Court of Appeal, when the question was whether the giving of a certain bill was a fraud by the drawer and acceptor on their creditors. Baggallay, L. J., in giving judgment, says, " I fully recognise the importance of main- taining the well-established principle that negligence or carelessness on the part of the holder of a bill is not of itself sufficient to deprive him of his remedies for procuring its payment. But negligence or carelessness, when con- sidered in connection with the surrounding circumstances, may be evidence of mala fides ; and the question in this case is whether the surrounding circumstances accompany- ing the negligence or carelessness of the holder was such as to affect him with notice of the fraudulent character of the transaction out of which these bills originated," ^ Every case must be determined on its own merits. Good faith or bad faith is a question of fact depending on the circum- stances of the individual case.^ It is for the tribunal, whether court or jury, that has to decide questions of fact, to determine whether a particular holder took a given bill bond fide or not. To this issue they must apply their common sense. As Lord Justice Brett observes in the same case, " If a jury has to consider facts they are entitled and bound to make use of their general knowledge of business, in order to appreciate the evidence which is before them ; and, if a court has to consider evidence, I think the judges are bound to use their own general knowledge of business, and of the ordinary moving motives of mankind, just as a jury would." Lord Blackburn, in the House of Lords, thus sums up the law on the subject : — "I consider it to be fully estab- lished that if value be given for a bill of exchange, it is not enough to show that there was carelessness, negligence, or foolishness in not suspecting that the bill was wrong, when there were circamstances that might have led a man 1 Swan V. North British Australasian Co. (1863)', 2 H. & C. 184. 2 Re Gomersall (1875), 1 Ch. D. at p. 146, C. A. = Peacock v. Shades (1781), 2 Doug. 633, per Lord Mansfield. C. T 274 Bills of Exchakge Act, 1882. § 90. to suspect that. All these are matters which tend to show that there was dishonesty in not doing it but they do not in themselves make a defence to an action upon a bill of exchange. I take it that in order to make such a defence, whether in the case of a party who is solvent and sui juris or when the bill is sought to be proved against the estate of a bankrupt, it is necessary to show that the person who gave value for the bill, whether the value be great or small, was affected with notice that there was something wrong about it when he took it. I do not think it is necessary that he should have notice of what the particular wrong was. If a man, knowing that a bill was in the hands of a person who had no right to it, should happen to think that perhaps the man had stolen it, when if he had known the real truth, he would have found, not that the man had stolen it, but that he had obtained it by false pretences, I think that would not have made any difference if he knew there was something wrong about it and took it. If he take it in that way he takes it at his peril. But then, I think, such evidence of carelessness or blindness as I have referred to may, wiih other evidence, be good evidence upon the question, whether he did know there was something wrong in it. If he was (if I may use the phrase) honestly blundering and careless, and so took a bill of exchange or a bank note when he ought not to have taken it, still he is entitled to recover. But if the facts and circum- stances are such that the jury, or whoever has to try the question, comes to the conclusion that he was not honestly blundering, but that he must have had a suspicion that there was something wrong, and that he refrained from asking questions not because he was an honest blunderer, but because he thought in his own secret mind — I suspect there is something wrong, and, if I make further inquiry, it will be no longer my suspecting it, but my knowing it, and then I shall not be able to recover, — I think that is dis- honesty." ^ Signature. 91. (l) Where, by this Act, any instrument or writing is required to be signed by any person, it is not necessary that he should sign it with his ' Jones T. Gordon (1877), 2 :\pp. Cas. at p. 629, H. L. Signatures. 275 own hand, but it is sufficient if his signature is § 91- written thereon by some other person by or under signature by his authority. Illustrations. 1. Bill payable to C.'s order, and indorsed in His name. It is proved that C.'s wife had authority to indorse bills for him, and that in this case C.'s indorsement was written by his daughter in the presence and by the direction of his wife. This is sufficient.' 2. Bin addressed to B., and accepted in his name. It is shown that X., who wrote the acceptance, is in the habit of accepting bills in B.'s name, and that B. is aware of it, and duly honours such bills. This is evidence from which an authority to X. to accept bills for B. may be implied.^ 3. C, the holder of a bill payable to order, transfers it for value to D. without indorsing it. This is not an authority to D. to in- dorse it ia C.'s name.' 4. It is shown that X. has an express authority to draw bills in A.'s name. This of itself is not sufficient to show that he has authority to indorse bills for A.'' 0. An express authority to an agent to receive payment from B., by drawing on him, does not authorize the agent to draw a bill payable to his own order.* 6. An authority to a partner in a non-trading firm to draw cheques does not authorize drawing post-dated cheques, which for m.ost purposes are equivalent to bills payable after date." See further sect. 23, signature in assumed name, or firm name ; sect. 24, forged or unauthorised signature ; sect. 25, procuration signature ; sect. 26, signature by agent or re- presentative. The cases above cited seem to show that it is immaterial by what hand the signature is attached if there be authority to sign, express or implied ; but that where the authority is express it must be strictly construed. In Lord v. Hall (lUust. 1) '' Maule, J., says : " The ques- tion is whether upon the evidence the wife was not acting in the strict exercise of the authority conferred on her by her husband in doing what she did, namely, in requesting a third person to do it in her presence. There was evidence 1 Lord v. Hall (1849), 8 C. B. 627 ; of. Undus v. Bradwdl (1848), 5 C. B. at p. 591. 2 Cf. Morris v. Bethell (1869), L. R. 5 C. P. at p. 51. 3 Harrop r. Fisher (1861), 30 L. J. C. P. 283. "^ Cf. Prescott v. Flimn (1832), 9 Bing. at p. 22 ; and Indian Act, s. 27. » Hogarth v. Wherley (1875), L. R. 10 C. P. 630 ; and Indian Act, s. 27. « Forster v. Maclcreth (1867), L. R. 2 Ex. 163 (firm of sohcitors). "i Lord V. HaU (1849), 8 0. B. at p. 630. T 2 276 Bills of Exchange Act, 1882. § 91. What a suiBcient signature. that the wife had the general management of her husband's business. And when he authorised her to draw, accept, and indorse bills in his name, that may fairly be extended to authorizing her to select some person, pro hac vice, to write the name of her husband for her. It may be that this may lead to some inconvenience. ... I find a case of Ex parte Sutton (2 Cox, Ch. C. 84), which may be worth considering with reference to this subject. It was there held that an authority given to A. to draw bills in the name of B. may be exercised by the clerks of A. The way in which that case seems to me to apply to the present is this : the Lord Chancellor treats the extent of the authority as a matter of fact to be inferred from the evidence." " Signature " may perhaps be defined as the writing of a person's name on a bill or note in order to authenticate and give effect to some contract thereon. A pencil signa- ture to a bill has been held sufficient ; ^ and it has been suggested that a lithographed or stamped signature might be sufficient.** A signature made by another person, but attested by mark, is sufficient.^ Where a note ran, " I, "William Smith, promise to pay, &c." instead of "I pro- mise to pay," with the signature appended, it was held sufficiently signed.* Where a statute requires an ordinary contract or document to be signed, a mere mark,^ or initials,® or a stamp,'' if intended as signatures, are sufficient ; and it is immaterial in what part of the document the name is introduced, provided it govern the whole. But legal analogies must be applied with caution to bills which are the creation of custom, and where it is of the utmost importance that a clear title should appear on the face of the instrument. In America the rule is lax. A person who signed by initials was held liable as indorser of a cheque,^ and the same was held as to a person who indorsed by mark, viz., by writing the figures, 1, 2, 3.^ By German 1 Oeary v. Physic (1826), 5 B. & C. 234. 2 See Ex parte Birmingham Bank (1868), L. E. 3 Ch. Ap. at pp. 653, 654. ' George t. SvA-rey (1830), M. & M. 516. " Taylor v. Dobbins (1719), 1 Stra. 399 ; cf. Buffr. Webb (1794), 1 Esp. 129. 5 Baker v. Dening (1838), 8 A. & B. 94. « Caton V. Vaton (1867), L. R. 2 H. L. 143. ' Saunderson v. Jackaon (1800), 2 B. & P. 238. » Merchants' Bank r. Spicer (1831), 6 Wend. 443. 9 Brown v. Butchers' Bank (1844), 6 Hill. 443. SlG>-ATURES. 277 Exchange Law, Art. 94, signature by mark is insufficient § 91. unless made before a notary. The object of a signature is to authenticate a document. Signature Where, then, a person is induced by fraud to sign a bill or o^^^^})! note under the belief that he is signing a wholly different nature of instrument, his siguature is null and void, provided that in document, so signing he acted without negligence. Thus : — 1. D., an old man with enfeebled sight, is induced to sign his name on the back of a bill, by beine told that it is a railway guarantee which he had promised to sign. The biU is negotiated to a holder in due course. D. is not liable as an indorser.' 2. B. is induced by fraud to sign a negotiable note as maker, believing it to be a non-negotiable note for a less sum. Negligence is negatived. If the note is negotiated to a holder in due course, he (probably) cannot recover from B.^ In Foster v. Mackinnon (Illustration 1), the only English case on the point, Byles, J., says : — " The defendant, according to the finding of the jury, never intended to indorse a bill of exchange at all, but intended to sign a contract of an entirely different nature. It was not his design, and, if he were guilty of no negligence, it was not even his fault that the instrument turned out to be a bill of exchange. It was as if he had written his name on a .sheet of paper for the purpose of franking a letter, or in a lady's album, or on an order for admission to the Temple Church, or on the fly-leaf of a book, and there had already been without his knowledge a bill of exchange or promis- sory note payable to order inscribed on the other side of the paper. To make the case clearer, suppose the bill or note on the other side of the paper in each of these cases to be written at a time subsequent to the signature, then the fraudulent misapplication of that genuine signature to a different purpose would have been a counterfeit alteration of a writing with intent to defraud, and would therefore have amounted to a forgery. In that case the signer would not have been bound by his signature, for two reasons — first, that he never in fact signed the writing declared on, and, secondly, that he never intended to sign any such contract."* Frauds of this nature are more frequent in the United States than in England, owipg to 1 Foster V. Mackinnon (1869), L. R. 4 C. P. 704. 2 Griffiths T. Kellog (1876), 20 Amer. R. 48. 2 Foster v. Mackinnon (1869), L. R. 4 C. P. 704, see at p. 712. 278 Bills of Exchange Act, 1882. § 91. Seal of cor- poration as signature. Signature of corporation or company. the absence of stamp laws. A man's signature is obtained for some pretended purpose, and then a promissory note is over- written. (2) In tiie case of a corporation, wliere, by this Act, any instrument or writing ' is required to be signed, it is sufficient if the instrument or writing be sealed with the corporate seal. But nothing in this section shall be construed as requiring the bill or note of a corporation to be under seal. Before this enactment it was very doubtful whether a bill or note issued by a corporation under its seal consti- tuted a negotiable instrument.^ It was never doubted that a corporation (otherwise competent) could be bound by a bill or note duly signed on its behalf; and this was one of the recognised exceptions to the rule that a corporation can only contract under seal.^ It had further been held that a note made by the directors of a company, which was binding on them personally, was not affected by the addition of the corporate seal.^ In New York it is held that a pro- missory note under seal is not negotiable unless issued by government.* The usual form of signature for a corporation is a pro- curation signature. As regards companies under the Com- panies Acts, 1862 to 1879, the form in which a bill or note must be drawn, made, indorsed, or accepted so as to bind the company is regulated by s. 47 of the Companies Act, 1862. See that section set out in Appendix, pod, p. 341, and cases thereon. In order to determine whether a com- pany or other corporation is liable on a bill, three questions must be asked : 1. Has the company the requisite capacity to bind itself by a bill ? 2. Is the signature on the bill sufiEcient in form to bind the company ? 3. "Was the sign- ture placed there by a person having authority to sign bills for the company ? It is immaterial that a person who acts 1 Crouch v. Cridit Fancier (1873), L. K. 8 Q. B. at pp. 382, 383. ^ Grant on Corporations, p. 61. 3 Dutlon T. Marsh (1871), L. E. 6 Q. B. 361. * Merritt v. CoU (1876), 9 Hun. B. 98. Signatures. 279 ■within the scope of his authority in signing bills exceeds or § 91. contravenes private instructions.' See further, sect. 22, and "' notes thereon, ante, p. 60. When a company, under the Companies Acts, is in Liquidators. liquidation, and two or more liquidators are appointed, a bill must be signed by at least two liquidators in order to bind the company.^ 92. Where, by this Act, the time hmited for Compatation doing any act or thing is less than three days, in reckoning time, non-business days are exchided. " Non-business days " for the purposes of this Act mean — (a) Sunday, Good Friday, Christmas Day : (6) A bank holiday under the Bank Holidays Act, 1878, or Acts amending it : (c) A day appointed by Royal proclamation as a public fast or thanksgiving day. Any other day is a business day. See sect. 42 as to leaving bills for acceptance ; sect. 49 (12) as to notice of dishonour, and sect. fi7 (2) as to pre- sentment to the acceptor for honour. See the Bank Holidays Act, 1871 (34 & 35 Vict. c. 17), as amended by the Act of 1875 (38 Vict. c. 13), in the Appendix, fost, p. 346. 93. For the purposes of this Act, where a. bill when noting , . '1,1 1 1 1 • n • . equivalent to or note is required to be protested within a speci- protest. fied time or before some further proceeding is taken, it is sufficient that the bill has been noted for protest before the expiration of the specified time or the taking of the proceeding ; and the 1 Re Land Credit Co. (1869), L. E. 4 Ch. 460. As to the powers of de /acta directors, of. Mahonyr. East Holy ford Mining Co. (1875), L. E. 7 H. L. 869. As to the authority of a manager in a foreign country, see Be Cunning- ham be crossed. cheques shall apply to a warrant tor payment oi dividend. For the provisions as to crossed cheques, see sects. 76 — 82, ante, p. 254. The corresponding provision of the Crossed Cheques Act, 1876, sect. 3, applied only to the 1 Geralopulo v. Wieler (1851), 20 L. J. 0. P. 105 ; of. Lefdey v. MUls (1791), 4 T. K. at p. 175. 2 Selwyn, N. P., 11th ed. p. 381. Dividend Warrants. 281 dividend warrants of the Bank of England and Bank of § 95. Ireland. The present enactment applies to all dividend warrants. 96. The enactments mentioned in the second Repeal. schedule to this Act are hereby repealed as from the commencement of this Act to the extent in that schedule mentioned. Provided that such repeal shall not affect any- thing done or suffered, or any right, title, or interest acquired or accrued before the commence- ment of this Act, or any legal proceeding or remedy in respect of any such thing, right, title, or interest. 97. (1) The rules in bankruptcy relating to Savings. bills of exchange, promissory notes, and cheques, shall continue to apply thereto, notwithstanding anything in this Act contained. This provision seems intended to preserve such rules as Bankruptcy, the rule against double proof,i the rule as to proof in ^*^' respect of bills not yet due,^ or the rule that when a bill is pledged for less than its amount, the holder may prove for the full amount, though he cannot receive dividend for more than the sum advanced.' (2) The rules of common law including the law Common law. merchant, save in so far as they are inconsistent with the express provisions of this Act, shall con- tinue to apply to bills of exchange, promissory notes, and cheques. 1 Banco de Portugal v. WaddeU (1880), 5 App. Gas. 165. 2 Wood V. De Mattes (1865), L. R. 1 Ex. 91. ' Ex parte Newton, Re Bunyard (1880), 16 Ch. D. 330, C. A. 282 Bills or Exchange Act, 1882. § 97. This provision preserves a foreign drawer's right to prove for re-exchange against an English acceptor.' Custom of Questions relating to bills, when not concluded by autho- trade. j.j^y^ jjjus^ a^g heretofore be determined by the usage* of trade, if such there be.^ The existence, nature, and scope of a given usage is a question of fact.* A general usage once incorporated into a judicial decision becomes part of the law merchant, and evidence of custom to contradict it is inadmissible.* Thus: — 1. Bill indorsed "Pay C," omitting the words "or order." The Court of King's Bench having decided that such bills are still negotiable by indorsement, evidence that by custom they are not negotiable was held inadmissible.' 2. If a foreign bill be dishonoured, the indorser is by the law merchant liable for the re-exchange. Evidence that by local custom the holder is entitled either to the re-exchange or to the amount he gave for the bill, at his option, is inadmissible.^ 3. Action by customer against banker for not honouring a cheque. The banker may show that the cheque was marked " post dated," and that it is the custom of bankers in the City of London not to honour cheques which are marked " post dated." ' Goodwin v. Eoharts,^ is important as showing that the novelty of a general usage is no objection to its being incorporated into the law merchant, thereby to some extent overruling Crouch v. Credit Fonder (1873), L. li. 8 Q. B. at p. 386. A particular or local usage must be proved de novo each time, until it becomes so notorious that the Courts will take judicial notice of it. It is diffi- cult to say when this notoriety is acquired.' When both authority and custom are silent, foreign law is usually resorted to as a guide. After referring to the cosmopolitan 1 Ex parte Rdbarts, Re GUlespie (1886), 16 Q. B. D. 702 ; affirmed, 18 Q. B. D. 286, C. A. 2 GoodwiMy. RobaHs (1875), L. E. 10 Ex. 337, Ex. Ch. 3 Ibid. * Ibid, at p. 357 ; and of. Brandao v. Barnett (1846), 3 C. B. at p. 530, H. L. ' Edic V. East India Co. (1761), 2 Burr. 1216. See now sect. 8, ante, p. 24. « Suae T. rompe (1860), 30 h. J. C. P. 76. 7 Emanuel v. Robarts (1868), 9 B. & S. 121. Qu. since the Stamp Act, 1870, if cheque be not presented before its nominal date. 8 Goodwins. Robarts (1875), L. K. 10 Ex. 337. See at p. 354, where the practice of a particular trade is distinguished from a general custom. Affirmed by House of Lords, 1 App. Gas. 476. 8 Cf. Ex parte Turquand (1885), 14 Q. B. D. 636, at p. 646, C. A. Savings. 283 character of the law merchant in reference to bills, Lord § 97. Blackburn says : — " There are in some cases differences and peculiarities which by the municipal law of each country are grafted on it, but the general rules of the law merchant are the same in all countries. . . . We con- tinually, in the English Courts, upon the question what is the general law, cite Pothier, and we cite Scotch cases when they happen to be in point ; and so in a Scotch case you would cite English decisions, and cite Pothier or any foreign jurist, provided they bore upon the point." ^ When the terms of a bill are ambiguous, the construction Ambiguous most favourable to the full validity of the instrument must instruments. be followed.^ Thus — 1. An acceptance will, if possible, be construed as absolute, not qualified, and a mere memorandum, inconsistent with. such, con- struction, is to be rejected as being no part of the acceptance.' 2. The address to the drawee will be read in with the acceptance, ut res magis vaJeat.* 3. Note in the form " I promise not to pay." The word " not " will be rejected.^ (3) Nothing in this Act or in any repeal Savings. effected thereby shall affect — (a) The provisions of the Stamp Act, 1870, or 33&.34Vict. Acts amending it, or any law or enactment for the time being in force relating to the revenue : See the material provisions of the Stamp Act, 1891, set out^o'?^, p. 362. (b) The provisions of the Companies Act, 1862, 25&26Viot or Acts amending it, or any Act relating to joint stock banks or companies ; ' M'Lean v. Clydesdale Bank (1883), 9 App. Cas. at p. 105. Cf. Seara- manga v. Stamp (1880), 5 C. P. D. at p. 303, as to American decisions. 2 Mare v. Charles (1856). 5 E. & B. at p. 98], Ld. Campbell » Fanshawe v. Feet (1857), 26 L. J. Ex. 314 ; and cf. Stone t. Metcalfe (1815), 4 Camp. 217 ; FUch v. Jones (1855), 5 E. &. B. at p. 246 ; Decroix V. Meyer (1890), 25 Q. B. D. 343, C. A. 4 Mare v. CharUs (1856), 6 E. & B. 978. ^ Mussel V. Zangstaffe, cited Bayley on Bills, 6 ; and Simpson v. Vaughan (1739), 2 Atkyns, 30. c. 97. c. 89. 284 Bills of Exchange Act, 1882. § 97. Bank of England or Ireland. Dividend warrants. Saving of summary diligence in Scotland. Construction with other Acts, &c. See sects. 41, 42, and 47 of the Companies Act, 1862, set out ^os^, pp. 340, 341. (c) The provisions of any Act relating to or confirming the privileges of the Bank of England or the Bank of Ireland respectively: See restrictions on issue of bank notes, ante, p. 64. {d) The validity of any usage relating to divi- dend warrants, or the indorsement thereof. This provision was introduced in committee. It appears that when a dividend warrant is payable to the order of two or more persons, the practice is to pay it on the indorsement of any one of them. As to ordinary bills and notes, see sect. 32 (8), ante, p. 107. See further as to divi- dend warrants, post, p. 322. 98. Nothing in this Act or in any repeal effected thereby shall extend or restrict, or in any way alter or affect the law and practice in Scotland in regard to summary diligence. Summary diligence in Scotland is founded on a protest for non-acceptance or non-payment which must be regis- tered within six months. It is only competent where the instrument is regular on the face of it. For details of the practice, see Thomson on Bills, 2nd ed. p. 410 ; Thorhurn's Bills of Exchange Act, p. 214. A summary procedure to enforce bills, notes and cheques was provided for England by the Summary Procedure on Bills of Exchange Act, 1855 (18 & 19 Vict. c. 67), com- monly known as Keating's Act. This enactment has been superseded, as regards the High Court, by Order XIV. : but it is still in force with modifications in some inferior courts, e.g., the County Courts. 99. Where any Act or document refers to any enactment repealed by this Act, the Act or docu- ment shall be construed, and shall operate, as if Parole Evidence. 285 it referred to the corresponding provisions of this § 99. Act. 100. In any judicial proceeding in Scotland, Parole evi- [> , 1 , • , i-nni 1 11 dence allowed any tact relating to a bill ot exchange, bank in certain cheque, or promissory note, which is relevant to ceedingsTn' any question of liability thereon, may be proved s<=°*iii"'i- by parole evidence : Provided that this enactment shall not in any way affect the existing law and practice whereby the party who is, according to the tenour of any bill of exchange, bank cheque, or promissory note, debtor to the holder in the amount thereof, may be required, as a condition of obtaining a sist of diligence, or suspension of a charge, or threatened charge, to make such con- signation, or to find such caution as the court or judge before whom the cause is depending may require. This section shall not apply to any case where the bill of exchange, bank cheque, or promissory note has undergone the sesennial prescription. This section was added in committee. Its object was to remove certain technicalities from the Scotch law of evi- dence which had frequently been adversely commented upon by the courts. In many cases relevant facts could only be proved by writ or oath. See Thorburn, p. 218, and Bell's Principles, 9th ed. § 333 b. The sesennial prescription, which is the prescription applicable to bills and notes, runs from the time when payment is demandable.^ After that time the holder can only establish his claim by the writ or oath of the debtor, unless the statute has been interrupted by judicial demand or executed diligence. '^ 1 BeWs Princ. 9th ed. § 349 ; 12 Geo. 3, c. 72, ss. 37, 39. 2 BeWs Princ. 9tli ed. §§ 598, 599. 286 Bills of Exchange Act, 1882. SCHEDULES. First Schedule. Section 94. Form of protest which may be used when the services of a notary cannot be obtained. Know all men that I, A. B. [householder], of in the county of , in the United Kingdom, at the request of C. D., there being no notary public available, did on the day of 18 , at demand payment [or acceptance] of the bill of exchange hereunder written, from E. F., to which demand he made answer [state answer, if any] wherefore T now, in the presence of G. H. and J. K., do protest the said bill of exchange. (Signed) A B. G. H. J -jT- (-Witnesses. N. B. — The bill itself should be annexed, or a copy of the bill and all that is -written thereon should be underwritten. See sect. 94, ante, p. 280, as to this form. Repeals. 287 Second Schedule. Enoxtments Repealed. Session and Chapter. Title of Act and extent of Ee;.eal. An Act for the better payment of Inland Bills of Exchange. An Act for giving like remedy upon Pro- I missory Notes as is now used upon Bills I of Exchange, and for the better payment , of Inland Bills of Exchange. An Act for further restraining the negotia- tion of promissory notes and inland bills ■ of exchange vmder a limited sum within that part of Great Britain called England. 39 & 40 Geo. 3, c. 42 An Act for the better observance of Good Eriday in certain cases therein mentioned. 9 WiU. 3, c. 17 3 & 4 Anne, c. S 17 Geo. 3, c. 30 4S Geo. 3, c. 88 1 & 2 Geo. 4, c. 78 7 & 8 Geo. 4, c. 15 9 Geo. 4, c. 24 2 & 3 Will. 4, c. 98 An Act to restrain the Negotiation of Pro- missory Xotes and Inland Bills of Ex- change under a limited sum in England. An Act to regulate Acceptances of Bills of Exchange. An Act for declaring the law in relation to Bills of Exchange and Promissory Xotes becoming payable on Good Friday or Christmas Day. An Act to repeal certain Acts, and to con- solidate and amend the laws relating to bills of exchange and promissory notes in Ireland, in part ; that is to say. Section two, four, seven, eight, nine, ten, eleven. An Act for regulating the protesting for non-payment of Bills of Exchange drawn payable at a place not being the place oi the residence of the drawee or drawees of the same. 288 Bills of Exchange Act, 1882. Session and Chapter. 6 & 7 Will. 4, c. 58 8 & 9 Vict. c. 37 in part. 19 & 20 Vict. c. 97 in part. 23 & 24 Vict. c. Ill in part. 34 & 35 Vict. c. 74 39 & 40 Vict. 0. 81 41 & 42 Vict. c. 13 Title of Act and extent of Kepeal. An Act for declaring the law as to tlie day on -wliicli it is requisite to present for payment to Acceptor, or Acceptors supra protest for honour, or to the Eeferee or Eeferees in case of need, Bills of Ex- change which have been dishonoured. An Act to regulate the issue of bank notes in Ireland, and to regulate the repayment of certain sums advanced by the Governor and Company of the Bank of Ireland for. the public service, in part ; that is to say. Section twenty-four. The Mercantile Law Amendment Act, 1856, in part ; that is to say. Sections slk and seven. An Act for granting to Her Majesty certain duties of stamps, and to amend the law relating to the stamp duties, in part ; that is to say. Section nineteen. An Act to abolish days of grace in the case of biUs of exchange and promissory notes payable at sight or on presentation. The Crossed Cheques Act, 1876. The Bills of Exchange Act, 1878. Enactment repealed as to Scotland. 19 & 20 Vict. c. 60 . The Mercantile Law (Scotland) Amendment in part. Act, 1856, in part ; that is to say. Sections ten, eleven, twelve. thirteen, fourteen, fifteen, and sixteen. 289 LIMITATIONS. Statute of Limitations. Rule 1. Subject to the case provided for by sect. 48 (1) Limitation, of the Act and rule 5, no action on a bill can be main- lio^v com- tained against any party thereto after the expiration of six thelevS"^* years from the time when a cause of action first accrued to parties, the then holder against such party.^ Illustkation. 0. is the holder of a dishonoured bill. Three years after the dis- honour he indorses the bill to D. D. must sue the acceptor within the next three years, though he (presumably) has six years withiii which he may sue C. Note. — Sect. 48 (1), ante, p. 153, saves the rights of a holder in due course who takes a bill dishonoured by non-acceptance without notice of that fact. By 21 Jac. 1, c. 16, s. 3, all actions of account and upon the case and all actions of debt grounded upon any lending or contract with- out specialty shall be commenced and sued within six years next after the cause of such actions and not after. Under this enact- ment, it was held that any acknowledgment of the debt after it was due was equivalent to a fresh promise to pay it, defeating the statute, and causing it to run only from the date of the acknow- ledgment.^ This doctrine has been considerably narrowed by sub- sequent legislation. See note to Eule 5, post, p. 292. It is to be noted that the 3 & 4 Anne, c. 8, which put promissory notes on the same footing as biUs of exchange, has been repealed.* Sect. 4 of that Act applied the provisions of 21 Jac. 1, c. 16, to pro- missory notes, but the whole Act was repealed as unnecessary, when a legislative definition was given of promissory notes (as is done by sect. 83) which clearly brought them within the general words of the statute of James. ■ Cf. .lac. 1, c. 16 ; Whitehead v. Walker (1842), 9 M. & W. 506 ; Wood- rufY. Moore (1850), 8 Barb. 171, New York. 2 Re River Steamer Co. (1871), L. R. 6 Ch. App. 822, at p. 828. ' In Euffhead'g edition of statutes the Act appeared as 3 & 4 Anne, c. 9, and the sections were numbered differently. 290.. BILLS OF EXCHANGE. The repeal of the statute of Anne may, however, have an im- portant bearing on notes made under the seal of a corporation as provided for by sect. 91 (2) ante, p. 278. Such notes might be held to come under the 3 & 4 WHl. 4, c. 42, s. 3, which enacts that all actions of covenant or debt upon any bond or other specialty shall be commenced and sued within twenty years after the cause of such actions and not after. There is sometimes a difficulty in proving the fact which sets the statute running. For instance, if a note be payable three months after demand, the statute cannot begin to run till three months after demand be made. If the maker be dead it may be impossible to prove the demand on him. In such cases after the lapse of a considerable time, a presumption of payment seems to arise inde- pendent of the statute.' Acceptor Rule 2. As regards the acceptor, time begins to run or maker. from the maturity of the bill, unless — (1.) Presentment for payment is necessary in order to charge the acceptor, in which case time (probably) runs from the date of such presentment ; '" or (2.) The bill is accepted after its maturity, in which case time (probably) runs from the date of acceptance.^ Illustrations. 1. Bin payable in futuro, e.g. three months afterdate or sight. Time runs in favour of the acceptor from the day the bill is pay- able, not from the day the acceptance is given.* 2. B. in 1840 gives a blank acceptance to C. In 1850 it is filled up as a bUl payable three months after date, and negotiated to a bond fide holder. Tune runs in favour of B. from the day the bill was payable.* 3. Note payable on demand (with or without interest), and issued on the day it bears date. Time runs in favour of the maker from the date of the note, and not from the date of demand.^ 4. Note payable on demand, dated January 1, is not issued till July 1. Time runs in favour of the maker from July 1, the day of ' iJe Rutherford, (1880), 14 Ch. D. 687, at p. 691, C. A., where twenty years had elapsed. 2 Cf. sect. 52 (2), ante, p. 177. 3 Cf. sect. 10 (2), ante, p. 30. < Holmei V. Kerrhon (1810), 2 Taunt. 323 ; cf. Fryer v. Roe (1852), 12 C. B. 437. See sect. 14, ante, p. 34, computation of time of payment. » Montague v. Perltms (1853), 22 L. J. C. P. 187 ; cf. sect. 20. « NoHon V. Ellam (1837), 2 M. & W. 461 ; cf. Jackaon v. Ogg (1859), Johns, at p. 400 ; Wheeler v. Warner (1872), 47 New York R. 519. ^ Savage v. Aldren (1817), 2 Stark. 232; cf. Richards v. Richardi {1S31), 2 B. & Ad. 447 ; Watkins v. Figg (1863), 11 W. E. 258. STATUTE OF LIMITATIONS. 291 5. Note payable three months after demand. Time runs in favour of the maker from the day the bill is payable.' Rule 3. As regards the drawer or an indorser, time Drawer or (generally) begins to run from date when notice of dis- iii'i'>''''er. honour is received.^ Illustkations. 1. Bill payable ninety days after sight is dishonoured by non- acceptance. As regards the drawer time runs against the holder from the dishonour by non-acceptance and notice thereof. If the bin is presented for payment and again dishonoured, no fresh cause of action arises.^ 2. A bin drawn on B. C. indorses it for A.'s accommodation. The bUl is dishonoured, and five years aiter the dishonour, C, aj indorser, is obliged to pay the holder. Two years later [i.e., seven years after the dishonour), C. sues A. on the bUl. The action is barred. Aliter if C. sued A. on the implied contract of indemnity.^ 3. C. is the indorser of a bUl or note payable on demand. Time in ordinary cases does not begin to run in favour of C. until demand has been made and notice given.^ See sect. 47. In England it has been held that the holder's right of action against the drawer or an indorser is complete when notice of dis- honour is received ; * when then does the cause of action arise when the notice is delayed or lost in the post ? Perhaps from the time when it ought to have been received. In America the balance of authority favours the view that the cause of action is complete when notice of dishonour is sent.' In cases where notice of dis- honour is unnecessary probably the cause of action arises on dishonour. A difficulty arises in the case of a bill payable on demand when presentment for payment is excused, and presentment is not made in fact. On principle, it would seem that time should run in favour of the drawer or indorser from the date when the holder was en- titled to treat the biU as dishonoured (see sects. 46 (2) and 47), but the cases are conflicting.^ Hule 4. When an action is brought against a party to Collateral a bUl, to enforce an obligation collateral to the bill, though obligations. » TJiorp V. Coombe (1826), 8 D. & R. 347 ; cf. Way r. JBassett (1845), 5 Hare, 55 ; £r(mn v. Rutkerfurd (1880), 14 Ch. D. 687, C. A. 2 Cf. Castrique v. Bernabo (1844),6Q. B. 498 ; and sect. 43, ante, p. 139. 3 Whitehead v. Walker (1842), 9 M. & W. 506. * Webster y. Kirk (1852), 17 Q. B. 944 ; cf. Woodruff v. Moore (1850), 8 Barb. 171, New York. » Cf. Re Brown's Bstate, (1893) 2 Ch. at pp. 304, 305. « Castrique r. Bernabo (1844), 6 Q. B. 498. ' Daniel, § 1212 ; Shed v. Brett (1823), 18 Maasachas. E. 401. 8 Cf. Re BetheU (1887), 34 Ch. D. 561, Stirling, J. ; but see contrd Re Boyse (1886), 33 Ch. D. 612. U 2 292 BILLS OF EXCHAKGE. arising out of tlie bill transaction, the nature of the par- ticular transaction determines the period from which time begins to run. Illustbations. 1. B. accepts a bill to accommodate the drawer. It is dis- honoured, and two years afterwards B. is compelled to pay the holder. B. sues the drawer on the implied agreement to indemnify. Time runs from the date B. was compelled to pay, and not from the maturity of the bill.' 2. B. authorizes A., an agent abroad, to draw upon him for the price of goods to be shipped to B. B. dishonours a draft so drawn, and A. is compelled to take it up. A. can sue B. on an impHed contract to indemnify. Time runs from the date when A. was compelled to pay.^ 3. A., intending to lend 0. 501., draws a cheque in O.'s favour for that sum. A. sues 0. to recover the loan. Time runs from the date when the cheque was cashed.' See note, ante, p. 199, distinguishing a right of action on a bill from a right of action which a party to a bUl may have avising out of the bill transaction but independent of the instrument. Foreign laws. Foreign laws and conflict of laws. — In France the period of limi- tations is five years, and the time, it seems, begins to run against acceptor, drawer, and indorsers from the day of protest.^ By German Exchange Law, Art. 77, the limitation as regards the ac- ceptor is three years, starting from the maturity of the bill ; but as regards the drawer or indorsers, it is three months, starting from the day of protest, if the drawer or indorser live and the bill be payable in Europe. Where laws conflict as to time of limitation, and the limitation, as in England, merely bars the remedy, the lex fori governs.* Aliter probably when lapse of time operates as a discharge. Statute, how Rule 5. Any circumstance which postpones or defeats defeated. the operation of the Statute of Limitations in the case of an ordinary contract postpones or defeats it in like manner in the case of a bill. No indorsement or memorandum of any payment written or made upon a bill by or on behalf of the party to whom such payment is made is sufl&cient to defeat the operation of the statute * 1 Reynolds v. Doyle (1840), 1 M. & Gr, 75-3 ; Angrove v. Tippett (1865), 11 L. T. N. S. 708 ; but of. Ooppin r. Gray (1842), 11 L. J. Ch. 105, as to a premature payment ; see Dailies v. Humphreys (1840), 6 M. & W. 153, contribution among co-makers. 2 Huntley v. Sanderson (1833), 1 Cr. & M. 467. 3 Garden v. Bruce (1868), L. K. 3 C. P. 300. ' French Code, Art. 189 ; Nouguier, § 1605. 5 Don V. Zlppmann (1837), 5 01. & F. 1, H. L. " 9 Geo. 4, c. 14, s. 3. STATUTE OF LIMITATIONS. 293 Illusteations.. 1. The holder of an accepted bill dies intestate before its ma- turity. The statute does not begia to run untO. an administrator is appointed.' 2. The holder of a bUl at the time of its dishonour is a minor or a lunatic. The statute does not begin to run against such holder imtil the disability ceases.' 3. Note payable on demand, no mention of interest being made in it. Proof that interest has been paid takes the note out of the statute.' 4. Note payable on demand with interest. Four years after its issue the holder sues the maker for interest, and recovers. Three yeai's later (i.e., seven years after issue of note) the holder sues the maker on the note. The action is barred.'' Aliter if the payment of interest had been voluntary. 5. Note payable three months after demand. Interest is paid on it, as appears from indorsements on the back of the note. This is evidence of a demand, and the statute begins to run from the first payment of interest.' 6. An acknowledgment in writing signed by the party sought to be charged defeats the operation of the statute, e.g., the maker of a note twenty years after its maturity signs his name on the back, and adds the date. The holder can sue the maker within six years after this acknowledgment.' 7. A note is indorsed away by the payee for value. Subse- quently the maker, not knowing of the indorsement, makes a pay- ment on account to the payee. This payment does not take the case out of the statute.'' A debt may be taken out of the Statute of Limitations in two ways, (1) by a written acknowledgment of the debt after it has become due, and (2) by a payment on account of principal or interest. Before Lord Tenterden's Act (9 Geo. 4, c. 14), a bare verbal acknowledgment was sufficient. But now by sect. 1 of that Act, as amended by sect. 13 of the Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97), the acknowledgment must be in writing, and signed by the debtor or his authorized agent, and must be in 1 Murray v. East India Co. (1821), 5 B. & Aid. 204 ; see conversely Maxwell v. Tuhill (1878), 1 Ir. L. K. Ch. D. 250, death of acceptor intestate. 2 Cf. 21 Jac. 1, c. 16 ; Scarpdlini v. Atcheson (1845), 7 Q. B. 864. 3 Bamfield v. Twpper (1851), 7 Exch. 27. * Moryan v. Rowlands (1872), L. E. 7 Q. B. 493 ; see also Harding v. Edgecunibe (1859), 28 L. J. Ex. 313, payment by agent. * Brown T. Rutherford (1880), 14 Ch. D. 687, C. A. ' Bourdin v. Oreenwood (18?1), L. E. 13 Eq. 281. See as to acknow- ledgments, Re River Steamer Co. (1871), L. R. 6 Ch. at p. 828, Hellish, L.J.; Chasemore v. Turner (1875), L. R. 10 Q. B. 500, Ex. Ch. 7 Stamford Banking Co. v. Smith, (1892) 1 Q. B. 765, C. A. 294 BILLS or EXCHANGE. such terms as to indicate a promise to pay. " To tate the case out of the statute," says Mellish, L.J., " either there must be an acknowledgment of the debt from which a promise to pay is to be implied; or, secondly, there must be an unconditional promise to pay the debt; or, thirdly, there must be a conditional promise to pay the debt, and evidence that the condition has been per- formed." ' Lord Tenterden's Act, which reqtiired the acknowledgment to he in writing, expressly provided that nothing therein contained should ," alter or take away, or lessen the effect of any payment of any principal or interest made by any person whatsoever." (9 Geo. 4, c. 14, s. 1.) "The principle," says Blackburn, J., "laid down as to an acknowledgment, has been applied in all cases upon part pay- ment, namely, that it must be such that a promise [to pay] may he inferred in fact, not merely implied in law." " By 9 Geo. 4, o. 14, s. 1, as amended by 19 & 20 Vict. o. 97, s. 14, an acknowledgment or part payment by one co-debtor or co-con- tractor does not prevent the statute from running in favour of the other or others, and by sect. 10 of the latter Act, the absence of the plaintiff beyond the seas, or his imprisonment, does not prevent the statute from beginning to run. When the statute begins to run, no supervening disability stops it. It is clear then that if a dishonoured bill be indorsed to an infant the time stiU. runs on.^ On the other hand, if the holder ot a bill at the time of dishonour be an infant, and he subsequently indorse it while still an infant to an adult, it is conceived that the statute runs from the indorsement. It seems that an acknowledg- ment to the holder enures for the benefit of a subsequent holder ; •* but an acknowledgment to a previous indorser, who at the time does not hold the bill, is ineffectual.* 1 Re River Steamer Co. {MitchelVs Claim) (1871), L. S. 6 Ch. App. 822, at p. 828 ; ci the test proposed by Bowen, L.J., in Green v. Humphreys (1884), 26 Ch. D. 474, at p. 479, 0. A. 2 Morgan v. Rowlands (1872), L. R. 7 Q. B. 493, at p. 498 ; cf. Davies v. Edwards (18.^1), 7 Exch. 22, at p. 25, per Parke, B. 3 Rhodes v. Smethurst (1840), 6 M. & W. 351, Ex. Ch. * Byles, 12th ed. p. 359 ; cf. Cripps r. Davis (1843), 12 M. & W. 159. 5 Stamford Banking Co. v. Smith, (1892) 1 Q. B. 7B5. 295 SECURITIES FOR BILLS OF EXCHANGE. Bights of Drawer. Rule 1. Apart from special contract, (1.) Where goods Drawer's lien are sold, to be paid for by buyer's acceptance of seller's *^ mpaid draft, and tbe acceptor fails or dishonours the bill, the lien of the drawer as unpaid vendor thereupon revives, if he has not parted with the possession of the goods or can stop them in transitu ; and it is immaterial that the drawer has negotiated the bill.^ (2.) Where an agent buys goods for his principal, and draws on the principal for the price, his rights, in this respect, are the same as those of an ordinary vendor.^ It is essential to distinguisli between the sale of goods to the acceptor, where the property in them vests absolutely in him, sub- ject only to the vendor's Ken until they reach his possession, and the case of goods which are sent to the acceptor as cover for the bni, where there is a kind of mixed property in the goods, both drawer and acceptor having a defeasible interest therein.^ The rights and duties of a commission merchant who buys for a foreign principal are explained by Lord Blackburn in Ireland v. Livingston.* Rule 2. Where the drawer of a bill remits goods or securities to the drawee as cover for the bill, and in con- sequence of the drawee's failure is obliged to take up the bill, he is entitled to the return of any such goods or secu- rities as the drawee may hold unrealized at the time of his failure." 1 Gunn V. Bolckmo, Vaughan & Co. (1875), L. E. 10 Ch. 491 ; cf. Ex parte Chalmers (1873), L. K. 8 Ch. at p. 292 ; Ex parte Lamhtan (1875), L. K. 10 Ch. at p. 415. 2 Ex parte Banner (1876), 2 Ch. D. at p. 287, C. A. ; cf. Ex parte Gomez (1875), L. K. 10 Ch. at p. 645. 3 Id. See, too, Ex parte lambton (1875), L. E. 10 Ch. at p. 416. 4 Ireland v. Livingston (1872), L. R. 5 H. L. at p. 408. " Cf. Be Broad, Ex parte Neck (1884), 13 Q. B. D. 740, C. A. ; Ex paHe Lever (No. 2) (1885), 14 Q. B. D. 611, at p. 624, per Cotton, L.J., C. A. ; and see Rule 4. 296 BILLS OF EXCHANGE. Rights of Drawee or Acceptor. Eight or lien Uule 3. Where the drawer of a bill of exchange remits of acceptor. goods or securities to the drawee as cover for it, and the drawee accepts, he thereby acquires a lien upon or right to the goods or securities.^ If the drawee do not accept he has no right to or lien upon the goods and securities.^ Effect of acceptor's failure. Illustbations. 1. A. consigns goods to B., and draws on Um for the price. A. sends the bill of lading and bill of exchange to Ms own agent who forwards them to B., requesting bim to accept the bill. If B. do not accept the bill of exchange he cannot retain tbe bill of lading.^ 2. A., the principal, sends goods to B., his agent, on the terms that B. is to sell the goods, receiving a commission, and -to accept A.'s drafts in proportion to tbe goods sent, and if the proceeds of the goods do not cover the acceptances in full, A. is to remit the difference. B. accepts for 200Z. Before the bill matures A., the drawer, fails. B. has a lien on the goods to the extent of 200Z.'' 3. A. consigns goods to B. for sale, draws on him for the price, and negotiates the bill of exchange with bill of lading attached. B. accepts the bill, payable on deKvery of bill of lading. This operates as a pledge of B.'s interest in the goods to the holder, who becomes as regards B., a secured creditor.* Lord Cairns points out in Banner v. Johnston,^ that where a bill is only allowed to be drawn against shipments or against bills of lading, the stipulation is for the assurance and protection of the drawee, and not for the benefit of the holder. In France, it seems, the property in the goods would pass with the bill. See Nouguier, § 715, and Belgian Code, Art. 26. Rule 4. If _the acceptor fails during the currency of the bill or dishonours it at maturity, his lien upon or right to ' Ex parte Brett (1871), L. R. 6 Oh. at p. 841 ; Ex parte Oriental Bank Corporation (187i), 30 L. T. 803, L.JJ. ; Re Pam/'s Patent Fabric Co. (1876), 1 Ch. D. 631 ; Lutsoker y. Comptoir d'Ese.ompte (1876), 1 Q. B. D. 709 ; cf. Expajrte Banner (1876), 2 Ch. D. at p. 287, C. A. ; see, too, Steele V. Stucurt (1866), L. K. 2 Eq. 84. 2 Shepherd t. Harrison (1871), L. R. 5 H. L. 116 ; see, at p. 133, per Ld. Cairns, and the comment on this case in Ex parte Banner (1876), 2 Ch. D. at p. 288, 0. A. ; see, too, Torrance v. Bank of British America (1873), L. K. 5 P. C. 246. 3 Shepherd t. Harrison (1871), L. B. 5 H. L. 116. • Be Pavy's Patent Fabric Co. (1876), 1 Ch. D. 631 ; see passim Ex parte Dickin (1878), 8 Ch. D. 377. 5 ExpaHe Brett (1871), L. R. 6 Ch. at p. 841. « Banner f. Johnston (1871), L. R. 5 H. L. at p. 174. SECURITIES FOR BILLS OF EXCHANGE. 297 the goods or securities is thereby determined, and he holds them at the disposition of the drawer.^ Illustrations. 1 . A. draws on B., and remits to B. bills of other parties wiich he holds to provide B. with funds. B. accepts, fails before his accept- ances mature, and compounds, paying the bill-holders os. ia the pound. If B. realizes the biUs sent him as cover, A. is entitled to the balance of the proceeds of such bills as were in specie at the time of the failure, after deducting the actual amount paid by B. on his acceptances.^ 2. An agent buys goods for his principal, remits them to him, and draws on hinn for the price. The principal accepts the bill, but fails before it matures. The property in the goods does not re-vest in the drawer, for the goods are the principal's absolutely.^ 3. A bill for 400Z. is accepted to accommodate the drawer. The drawer forwards to the acceptor the bill of a third party for 400Z. to provide for the acceptance. The acceptor discoTints the remitted bill, being entitled to do so by the course of deaUng, and fails before his acceptance matures. The drawer is not entitled to the proceeds of the remitted bill."' 4. A., in America, consigns cheese to a factor in England, and draws on bim a bill running : — "Pay to the order of Hx parte Carrich (1858), 2 De G. & J. 208. ' See sect. 53, ante, p. 180 ; and Shamd t. Du Suisson (187i), L. R. 18 Eq. 283, bill ; Hopkinson v. Fortter (1874), L. R. 19 Eq. 74, cheque ; Schroeder v. Central Bank (1876), 34 L. T. N. S. 735, cheque. ' Thomson v. Simpson (1870), L. R. 5 Ch. 659 ; Citizens' Bank of Louisiana v. New Orleans Bank (1873), L. R. 6 H. L. 352 ; see at pp. 360 and 366. * Shand v. Du Buisson (1874), L. R. 18 Eq. 283. ' Oitizem' Bank of Louisiana v. New Orleans Bank (1873), h. R. 6 H. L. 352. SECURITIES FOR BILLS OF EXCHANGE. 299 obtain thereby any charge upon the goods or securities if the bill be dishonoured.^ Such charge can only be created by agreement collateral to the bill, and in favour of the person with whom the agreement is made.' IlXTTSTBATIONS. 1. Under a credit, No. 20, a consignor of cotton is entitled to draw on tte consignee ' ' against cotton purchased according to instructions." The consignee accepts a draft expressed to be drawn " against credit. No. 20," receives the cotton, but fails before the bill matures, and dishonours it. The holder has no charge on the cotton.' 2. A. consigns by ship Acacia a cargo to B., and draws a bill on B. running, "Pay to my order lOOZ., which place to account cargo per Acacia." B. promises A. to protect the draft. An indorsee has no charge on the cargo if B. refuses to accept the biU.^ 3. A. in India sells and ships cotton to B. in England, and draws for the price a bill running, "Pay 0. or order 1,000Z., and place the same to account cotton shipments as advised." B. promises the drawer to protect the biU, accepts it, and gets the biUs of lading. Before the bill matures, B. fails, and A.'s English house takes it up. The English house has no charge on the cotton.' 4. Bills are drawn imder a credit against specific consignments. By the tenns of the credit, which is shown to the holder, the bUls are to be accompanied by biQs of lading which are to be surren- dered to the drawee on acceptance. If the acceptor fails, the bUl- holder has no claim on the consignments or their proceeds.^ See further, Illustration 4 to Eule 4, at the end of that rule. ante, p. 297, and the note Rule 7. Where the estates of two insolvent^ parties, Double both liable to the holders of bills of exchange,^ are adminis- insolvency tered under the control of a court of justice,^ and one of u^ble'^^' 1 Inman v. Clare (1858), Jolins. E. at p. 776 ; Eobey v. OUier (1872), L. R. 7 Ch. 695, at p. 698. 2 Ibid. ; see Ex parte InibeH (1857), 1 De G. & J. 152 ; Ex parte Carrick (1858), 2 De G. & J. 208 ; Ranken r. Alfaro (1877), 5 Ch. D. 786, C. A., where the holder's charge has been upheld ; and Latham v. Chartered Bank (1874), L. R. 17 Eq. 205, for the construction of a letter of hypothecation. ' Banner v. Johnston (1871), h. E. 5 H. L. 157. ■• Bohey t. Oilier (1872), L. R. 7 Ch. 695. 5 Ex parte Arbuthnot (1876), 3 Ch. D. 477, C. A. s Ex parte Dever, Re Suse (1884), 13 Q. B. D. 766, C. tion is for benefit of drawee, not holder. ^ Hickie's Case (1867), L. R. 4 Eq. 226. 8 Vaughan v. HaUiday (1874), L. R. 9 Oh. Ap. 561. 9 Powlei T. Hargreaves (1853), 23 L. J. Ch. 1. A. The appropria- 300 BILLS OF EXCHANGE. Doutle insol- vency, or rule in Ex parte Waring. those parties holds goods or securities of the other's ^ as cover for the bills,^ the holders are entitled to have the proceeds of those goods and securities applied in payment of the bill,^ provided that the goods or securities remained unrealised at the time of the failure of the party holding them.* If the proceeds of the goods and securities do not equal the amount of the bill, the holders are entitled to prove as creditors for the balance.^ Illusteations. 1 . The drawer and acceptor of a bill both become bankrupt. Tlie acceptor bolds short bills belonging to the drawer as cover for his acceptance. The holder is entitled to the proceeds of these bills when realized.^ 2. The drawer of a bill becomes bankrupt. The acceptor dies ' insolvent. By agreement with the acceptor the drawer holds cer- tain goods as security for the amount of the bill. The holder is entitled to the proceeds of these goods.' 3. The drawer and acceptor of a bill become bankrupt. The acceptor accepted under a guarantee from a bank that the drawer should provide funds to meet the bill and keep him out of cash advance. The holder is not entitled to the benefit of the gua- rantee.^ 4. The drawer and acceptor of a bill become bankrupt. The acceptor holds securities which were deposited by the drawer as security for his current account, before the bill was drawn, and without reference to it. The holder is not entitled to the benefit of those securities.' ' Ex parte Lambton (1876), L. E. 10 Oh. Ap. 405, see at pp. 416, 417 ; Ex pa/rte Banner (1876), 2 Ch. D. at p. 287, C. A. ; and see Banner t. Johnston (1871), L. R. 5 H. L. at p. 174. ^ Levi *> 1893.] his executor or administrator, and convicted thereof, iu such case the property shall be restored to the owner or his repre- sentative ; and in every case in this seqtion aforesaid the Court before whom any person shall be tried for any such felony or misdemeanour shall have power to award from time to time writs of restitution for the said property or to order the resti- tution thereof in a summary manner : Provided, that if it shall Saving for appear before any award or order made that any valuable ^^ruments security shall have been bond fide paid or discharged by some person or body corporate, liable to the payment thereof, or being a negotiable instrument shall have been bond fide taken or received by transfer or delivery, by some person or body corporate, for a just and valuable consideration, without any notice or without any reasonable cause to suspect that the same had by any felony or misdemeanour been stolen, taken, obtained, extorted, embezzled, converted, or disposed of, in such case the Court shall not award or order the restitution of such security : Provided also, that nothing in this section contained shall apply to the case of any prosecution of any trustee, banker, merchant, attorney, factor, broker, or other agent intrusted with the possession of goods or documents of title to goods for any misdemeanour against this Act. Note. — The proviso not only takes away the summary remedy, but is an answer to an action for the recovery of the instrument. Chichester v. Bill (1882), 52 L. J. Q,. B. 160. z 2 340 APPENDIX 11. Name of company to be on all bills, notes, &c. Liability of officers of company on bills anj notes. THE COMPANIES ACT, 1862. (25 & 26 Vict. c. 89.) Sec. 41. — Every limited company under this Act, whether limited by shares or by guarantee, shall paint or affix, and shall keep painted or affixed, its name on the outside of every office or place in which the business of the company is carried on, in a conspicuous position, in letters easily legible, and shall have its name engraven in legible characters on its seal, and shall have its name mentioned in legible characters in all notices, advertisements, and other official publications of such company, and in all bills of exchange, promissory notes, in- dorsements, cheques, and orders for money or goods purporting to be signed by or on behalf of such company, and in all bills of parcels, invoices, receipts, and letters of credit of the company. Sec. 42. — If any limited company under this Act does not paint or affix, and keep painted or affixed, its name in manner directed by this Act, it shall be liable to a penalty not exceed- ing £b for not so painting or affixing its name, and for every day during which such name is not so kept painted or affixed, and every director and manager of the company who shall knowingly and wilfully authorize or permit such default shall be liable to the like penalty ; and if any director, manager, or officer of such company, or any person on its behalf, iises, or authorizes the use, of any seal purporting to be a seal of the company whereon its name is not so engraven as aforesaid, or issues, or authorizes the issue, of any notice, advertisement, or other official publication of such company, or signs, or authorizes to be signed, on behalf of such company, any bill of exchange, promissory note, indorsement, cheque, order for money or goods, or issues, or authorizes to be issued, any bill of parcels, invoice, receipt, or letter of credit of the company, wherein its name is not mentioned in manner aforesaid, he shall be liable to a penalty of £50, and shall further be per- sonally liable to the holder of any such biU of exchange, promissory note, cheque, or order for money or goods, for the amount thereof, unless the same is duly paid by the company. Note. — Under the corresponding terms of sec. 31 of the 19 & 20 STATUTES. 341 Vict. c. 47, a bill was addressed to "The Saltash Steam Packet Co." 25 & 26 Vicfc The proper name was " The Saltash Steam Packet Co., Limited." c. 89. The secretary accepted the biU, signing it, " J. M., secretary to the said company." He was held personally liable on this acceptance.^ Sec. 47. — A promissory note or biU of exchange shall be Promissory deemed to have been made, accepted or indorsed on behalf of ^mro™*^ any company under this Act, if made, accepted, or indorsed exchange, in the name of the company by any person acting under the authority of the company, or if made, accepted, or indorsed by or on behalf, or on account of the company, by any person acting under the authority of the company. Note. — ^This section now applies to the bills and notes of all com- panies under the Companies Acts, 1862 to 1879, including limited banks imder the Act ol 1879. See some general remarks on this section in Ex parte Overend (1869), L. E. 4 Ch. App. 460, at pp. 472, 473 ; and cf. Be Barber & Go. (1870), L. E. 9 Eq. 732, 735. Compare the language of the present enactment, quoted above, with sec. 43 of the previous Companies Act, 19 & 20 Vict. c. 47. The words "by or on behalf, or in the name of the company," are new. Sec. 47 does not confer capacity on all companies imder the Coinpanies Acts to issue bills and notes. It merely prescribes the mode in which such companies as have the requisite capacity are to exercise it.^ In order to establish the HabiLity of a company on a bill or note it must be shown (1) that the company can contract by biU or note ; (2) that the company's signature was attached by some one having authority to do so. As to the authority of a manager abroad, see Be Cumingham & Co., Limited, (1887), 36 Ch. D. 532. (3) That the signature of the company is attached in such form as to bind it under the Act. The following cases illustrate this section : — 1. Note iu the form, "We jointly promise to pay on account of theX. Company, Limited (signed) T. B., J. S., Directors." Held to be the note oi the company.' 2. Note in the form, " We, the Directors of the X. Company, Limited, promise to pay,'' &c. (signed) "J. B., T. S." In the comer is the seal of the company. The directors are personally liable on this note.^ 1 Pmwou V. MaHyr (1858), E. B. & E. 499. See, to like effect, Atkins f. Wwrdle (1889), 58 L. J. Q. B. 377, where the words of the company's name were transposed. 2 Be Permian Railways Co. (1867), L. R. 2 Ch. 617. ' lAndias v. MArose (1858), 3 H. & N. 177, Ex. Ch. ; approved Button v. Mmh (1871), L. E. 6 Q. B. 364 ; cf. Alexander v. Sizer (1869), L. B. 4 Ex. 102. * Dutton V. Marsh (1871), L. R. 6 Q. B. 361 ; see, too, Gray v. Baper (1866), L. B. 1 C. P. 694 ; CourtavM v. Sanders (1867), 15 W. B. 906. 342 APPENDIX II. 25 & 26 Vict. 3. Note running, "I promise to pay, &c.," and signed "For g- 89. Misthy Railway Co., J. B., secretary." The secretary is not per- sonally liable on this note.' Eor further iUustrations, see notes to sees. 17 and 26 of the Bills of Exchange Act, ante, pp. 40 and 77 ; and Buckley's Companies Acts, 5th ed., p. 165. As to novation where a note was signed by partners in a firm which afterwards became a limited company, see Ex parte Gibson (1869), L. E. 4 Ch. App. 662. THE COINAGE ACT, 1870. (33 Vict. o. 10.) [4th April, 1870. Legal tender. Sec. 4. — A tender of payment of money, if made in coins which have been issued by the Mint in accordance with the provisions of this Act, and have not been called in by any proclamation made in pursuance of this Act, and have not become diminished in weight, by wear or otherwise, so as to be of less weight than the current weight, that is to say, than the weight (if any) specified as the least current weight in the first schedule to this Act, or less than such weight as may be declared by any proclamation made in pursuance of this Act, shall be a legal tender, — In the case of gold coins, for a payment of any amount : In the case of silver coins, for a payment of an amount not exceeding forty shillings, but for no greater amount : In the case of bronze coins, for a payment of an amount not exceeding one shilling, but for no greater amount. Nothing in this Act shall prevent any paper currency, which under any Act or otherwise is a legal tender, from being a legal tender. Prohibition of Sec. 5. — No piece of gold, silver, copper, or bronze, or of a^^tolcens ^^J metal or mixed metal, of any value whatever, shall be made or issued, except by the Mint, as a coin or a token for money, or as purporting that the holder thereof is entitled to demand any value denoted thereon. Every person who acts 1 Alexander v. Sizer (1869), L. E. 4 Ex. 102. Not a company under the Act of 1862. m currency. STATUTES. 343 in contravention of this section shall be liable on summary 33 Vict. c. 10. conviction to a penalty not exceeding twenty pounds. Sec. 6. — Every contract, sale, payment, biU, note, instru- Contracts, &c. ment, and security for money, and every transaction, dealing, *° ^^ ™*'^® matter and thing whatever relating to money, or involving the payment of or the liability to pay any money, which is made, executed, or entered into, done or had, shall be made, executed, entered into, done and had according to the coins which are current and legal tender in pursuance of this Act, and not otherwise, unless the same be made, executed, entered into, done or had according to the currency of some British possession or some foreign state. Note. — See note to sec. 3, ante, p. 10. THE BANK HOLIDAYS ACT, 1871. (34 Vict. c. 17.) An Act to make provision for Bank Holidays, and respecting obligations to make payments and do other acts on such Bank Holidays. [25th May, 1871. Whereas it is expedient to make provision for rendering the day after Christmas Day, and also certain other days, bank holidays, and for enabling bank holidays to be appointed by royal proclamation : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Tem- poral, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : Sec. 1. — ^After the passing of this Act, the several days in Bills due on the schedule to this Act mentioned (and which days are in this ^^^^ nl^ahle Act hereinafter referred to as bank holidays) shall be kept as on the follow- close holidays in all banks in England and Ireland and Scot- ^"^ ■^' land respectively, and all bills of exchange and promissory notes which are due and payable on any such bank holiday shall be payable, and in case of non-payment may be noted and protested, on the next following day, and not on such ,344 APPENDIX II. 34 Vict. c. 17. Provision as to notice of dishonour and presentation for honour. As to any on hank holidays. Appointment of special bank holidays by royal pro- clamation. Day ap- pointed for bank holiday may be altered by Order in Council. bank holiday; and any such noting or protest shall be as valid as if made on the day on which the bill or note was made due and payable ; and for all the purposes of this Act the day next following a bank holiday shall mean the next following day on which a bill of exchange may be lawfully noted or protested. Sec. 2. — When the day on which any notice of dishonour of an unpaid bill of exchange or promissory note should be given, or when the day on which a bill of exchange or promissory note should be presented or received for acceptance, or accepted or forwarded to any referee or referees, is a bank holiday, such notice of dishonour shall be given and such bill of exchange or promissory note shall be presented or forwarded on the day next following such bank holiday. Sec. 3. — No person shall be compellable to make any payment or to do any act upon such bank holidays which he would not be compellable to do or make on Christmas Day or Good Friday ; and the obligation to make such payment and do such act shall apply to the day following such bank holiday ; and the making of such payment and doing such act on such fol- lowing day shall be equivalent to payment of the money or performance of the act on the holiday. Sec. 4. — It shall be lawful for her Majesty, from time to time, as to her Majesty may seem fit, by proclamation, in the manner in which solemn fasts or days of public thanksgiving may be appointed, to appoint a special day to be observed as a bank holiday, either throughout the United Kingdom or in any part thereof, or in any county, city, borough, or district therein, and any day so appointed shall be kept as a close holiday in all banks within the locality mentioned in such proclamation, and shall, as regards bills of exchange and pro- missory notes payable in such locality, be deemed to be a bank holiday for all the purposes of this Act. Sec. 6. — It shall be lawful for her Majesty in like manner, from time to time, when it is made to appear to her Majesty in Council in any special case that in any year it is inexpedient that a day by this Act appointed for a bank holiday should be STATUTES. 345 a bank holiday, to declare that such day shall not in such year 34 Vict. ^i. 17. be a bank holiday, and to appoint such other day as to her Majesty in Council may seem fit to be a bank holiday instead of such day, and thereupon the day so appointed shall in such year be substituted for the day so appointed by this Act. Sec. 6. — The powers conferred by sections three and four of Exercise of this Act on her Majesty may be exercised in Ireland, so far as ^erreTbv'"' relates to that part of the United Kingdom, by the Lord sections 4 and Lieutenant of Ireland in Council. by Lord''°*^ Sec. 7.— This Act may be cited for all purposes as " The ^i^^*^"""*- Bank Holidays Act, 1871." ^^°'^ *"^'- Schedule. Bank Holidays in England and Ireland. Easter Monday. The Monday in Whitsun week. The first Monday in August. The twenty-sixth day of December, if a week day. Bank Holidays in Scotland. New Yeai*'s Day. Christmas Day. If either of the above days falls on a Sunday the next fol- lowing Monday shall be a bank holiday. Good Friday. The first Monday of May. The first Monday of August. 346 APPENDIX II. Days men- tioned in schedule to be holidays. 26th Decem- ber falling on Sunday. Exercise of powers by Lord Lieu- tenant of Ireland. HOLIDAYS EXTENSION ACT, 1875. (38 Vict. o. 13.) Whbrbas it is expedient to amend " The Bank Holidays Act, 1871 " (in this Act referred to as the Holidays Act of 1871), and to extend certain of the holidays named therein to the customs, bonding warehouses, and docks, and to amend the Acts relating to holidays in the inland revenue offices in England and Ireland : Be it therefore enacted, &c. Sec. 1. — From and after the passing of this Act, the several days and each and every of them in the schedule to this Act mentioned, being holidays under the Holidays Act of 1871, shall be kept as public holidays in the customs, inland revenue offices, and bonding warehouses in England and Ireland re- spectively ; and it shall be lawful for the directors or govern- ing body (by whatever name known) of any dock or docks in England and Ireland respectively to cause the said days or any of them to be kept as holidays in such dock or docks, any restraining clause in any Act of Parliament notwithstanding : Provided that such directors or governing body shall give notice thereof by inserting an advertisement to that effect in some newspaper circulating in the locality of such dock or docks, and by affixing to the principal gates of the said dock or docks, or to some conspicuous place in the immediate neighbourhood, a notice to the same effect for at least a week immediately preceding any day which it is intended to observe as a holiday under this Apt ; and the anniversary of the corona- tion of her Majesty and her successors, and the birthday of the Prince of Wales, shall no longer be kept as holidays in any inland revenue office in England or Ireland. Sec. 2. — Whenever the 26th day of December shall fall on a Sunday, the Monday immediately next following, that is to say, the 27th day of December, shall be a holiday under this Act, and also under the Holidays Act of 1871. Sec. 3. — The powers conferred on her Majesty by sections 4 and 5 of the Holidays Act of 1871, may be exercised in Ireland as far as relates to that part of the United Kingdom, by the STATUTES. 347 Lord Lieutenant in Council, and section 6 of that Act is 38 Vict. o. 13. hereby repealed ; and those powers of her Majesty and of the Lord Lieutenant in Council shall extend to holidays under this Act. Sec. L — This Act may be cited for all purposes as " The Short title. Holidays Extension Act, 1876." SoHEDtJLK. Easter Monday. Monday in Whitsun week. The first Monday in August. The 26th of December (if a week day). THE EEVENUE ACT, 1883. (46 & 47 VioT. c, 55.) [25th August, 1883. Sec. 17.— Sections seventy-six to eighty-two, both inclusive, Extension of of the Bills of Exchange Act, 1882, and section twenty-five of ^5 & 46 Viot. the Act of the session of the twenty-fourth and twenty-fifth to 82* and 24 years of the reign of her present Majesty, chapter ninety-eight, ^ ^^ ^''^*' intituled, " An Act to consolidate and amend the Statute Law ' ' ' ' of England and Ireland relating to Indictable Offences by Forgery," shall extend to any document issued by a customer of any banker, and intended to enable any person or body corporate to obtain payment from such banker of the sum mentioned in such document, and shall so extend in like manner as if the said document were a cheque. Provided that nothing in this Act shall be deemed to render any such document a negotiable instrument. For the purpose of this section, her Majesty's Paymaster- General, and the Queen's and Lord Treasurer's Eemembrancer in Scotland shall be deemed to be bankers, and the public officers drawing on them shall be deemed customers. Note. — See ante, p. 255. 348 APPENDIX II. THE BANKEUPTCY ACT, 1883. (46 & 47 Vict. c. 52.) Schedule I., E. 11. Voting by bill 11. A creditor shall not vote in respect of any debt on or secured by a current bill of exchange or promissory note held by him, unless he is willing to treat the liability to him thereon of every person who is liable thereon antecedently to the debtor, and against whom a receiving order has not been made, as a security in his hands, and to estimate the value thereof, and for the purposes of voting, but not for the purposes of dividend, to deduct it from his proof Note. — This rule substantially follows a clause in Sir J. Holker's Bill of 1880. Before the Act, a bill holder was held to be merely a guaranteed and not a secured creditor. He was treated as holding the guarantee of third persons, and not a security on the property of the debtor. As a general rule he might vote as an unsecured creditor, and prove for the full amount of the hill against aU parties liable on it until he received in the whole twenty shillings in the pound. If, however, before proof, he had received or been declared entitled to a dividend from one or other of the estates he could onlyprove for the balance. See e.g., Ex parte Newton (1880), 16 Ch. D. 330, 0. A.; Ex parte Schofield (1879), 12 Oh. D. 337, 0. A. (hills indorsed and advances made pending discount). The present rule deals only with his right to vote, not with his right to divi- dends. As to when a bill must be valued as a security for all purposes, see Ex parte Schofield, supra, at p. 347, per James, L.J. It seems this is only necessary when bills are deposited unindorsed, or indorsed under such circumstances that the indorser is not liable to the depositee on the indorsement. Schedule II., E. 18. Proof in respect of Distinct Contracts. Two or more 18. If a debtor was at the date of the receiving order liable farms, so. jjj respect of distinct contracts as a member of two or more distinct firms, or as a sole contractor, and also as member of a firm, the circumstance that the firms are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof in respect of the contracts against the properties respectively liable on the contracts. Note. — ^This rule is taken from s. 37 of the Act of 1869, which generalised s. 152 of the Act of 1861, which only applied to hiUs STATUTES. 349 and notes. See the history and policy of the enactment discussed 46 & 47 Vict. hy Lord Blackburn in Banco de Portugal v. Waddell (1880), 5 App. o. 52. Gas. at p. 171. The object of the enactment is to over-ride the rule forbidding Foreign double proof where there are two firms with a common partner. It bankruptcy does not apply to the case of the same firm carrying on business in and double two places under different names (Ibid.). If in such case the foreign pi'0"f- estate of the firm is administered abroad, the ordinary rule applies, namely, that " a person who, after having proved under a foreign bankruptcy, claims to prove in a bankruptcy of the same debtors in England, may do so ; but he must do so upon the terms of bringing in for the purpose of dividend the sum which he has received abroad" (per Lord Cairns at p. 167). See further as to this rule. Ex parte Honey (1871), L. E. 7 Oh. 178; Ex parte Stone (1873), L. E. 8 Ch. 914. By Eule 221 of the Bankruptcy Eules, 1886, it is provided Production that, " Where a creditor seeks to prove in respect of a bill of ° ^^ exchange, promissory note, or other negotiable instrument or security on which the debtor is liable, such bill of exchange, note, instrument, or security must, subject to any special order of the Court made to the contrary, be produced to the official receiver, chairman of a meeting, or trustee, as the case may be, before the proof can be admitted either for voting or for dividend." By Eule 233 of the Bankruptcy Eules, 1886, it is provided Production that, " Subject to the provisions of section 70 of the Bills of ^°^ ^i^^end Exchange Act, 1882, and subject to the power of the Court in any other case on special grounds to order production to be dispensed with, every biU of exchange, promissory note, or other negotiable instrument or security, upon which proof has been made, shall be exhibited to the trustee before payment of dividend thereon, and the amount of dividend paid shall be indorsed on the instrument." 350 APPENDIX II. Execution or indorsement of iustrument by order of Court. SUPEEME COURT OF JUDICATURE ACT, 1884. (47 & 48 Vict. o. 61.) Sec. 14. — Where any person neglects or refuses to comply with a judgment or order, directing him to execute any con- veyance, contract, or other document, or to indorse any nego- tiable instrument, the Court may, on such terms and conditions (if any) as may be just, order that such conveyance, contract, or other document shall be executed, or that such negotiable instrument shall be indorsed by such person as the Court may nominate for that purpose ; and in such case the conveyance, contract, document, or instrument so executed or indorsed shall operate, and be for aU purposes available as if it had been executed or indorsed by the person originally directed to execute or indorse it. What goods may be taken in execution. Securities seized to be held by high bailiff. THE COUNTY COURTS ACT, 1888. (51 & 52 Vict. c. 43.) [lath August, 1888. Sec. 147. — ^Every bailiff or officer executing any process of execution issuing out of the Court against the goods and chattels of any person may by virtue thereof seize and take any of the goods and chattels of such person (excepting the wearing apparel and bedding of such person or his family, and the tools and implements of his trade, to the value of £5, which shall to that extent be protected from such seizure), and may also seize and take any money or bank notes (whether of the Bank of England or of any other bank) and any cheques, bills of exchange, promissory notes, bonds, specialties or securi- ties for money, belonging to any such person against whom any such execution shall have issued as aforesaid. Sec. 148. — The high bailiff shall hold any cheques, bills of exchange, promissory notes, bonds, specialties, or other securi- ties for money which shall have been seized or taken under the last preceding section, as a security for the amount directed STATUTES. 351 to be levied by such execution, or so much thereof as shall not 51 & 52 Vict. have been otherwise levied or raised, for the benefit of the ''•^^- plaintiff J and the plaintiff may sue in the name of the defen- dant, or in the name of any person in whose name the de- fendant might have sued, for the recovery of the sum or sums secured or made payable thereby when the time of payment thereof shall have arrived. PAETNERSHIP ACT, 1890. (53 & U Vict. o. 39.) An Act to declare and amend the Law of Partnership. [14th August, 1890. Relations of Pa/rtners to Persona dealing with them. Sec. 5. — Every partner is an agent of the firm and his other Power of partners for the purpose of the business of the partnership ; bind the*" and the acts of every partner who does any act for carrying firm, on in the usual way business of the kind carried on by the firm of which he is a member bind the firm and his partners, unless the partner so acting has in fact no authority to act for the firm in the particular matter, and the person with whom he is dealing either knows that he has no authority, or does not know or believe him to be a partner. Sec. 6. — An act or instrument relating to the business of the Partner firm and done or executed in the firm name, or in any other ag^^n^ manner showing an intention to bind the firm, by any person behalf of thereto authorized, whether a partner or not, is binding on the firm and all the partners. Provided that this section shall not affect any general rule of law relating to the execution of deeds or negotiable instru- ments. Sec, 7. — Where one partner pledges the credit of the firm Partner using for a purpose apparently not connected with the firm's ordinary fg^ Brivato course of business, the firm is not bound, unless he is in fact purposes. specially authorized by the other partners; but this section does not affect any personal liability incurred by an individual partner. 352 APPENDIX II. 53 & 54 Vict. c. 39. Effect of notice that firm will not be bound by acts of partner. Liability of partners. Sec. 8. — If it has been agreed between the partners that any restriction shall be placed on the power of any one or more of them to bind the firm, no act done in contravention of the agreement is binding on the firm with respect to persons having notice of the agreement.. Sec. 9. — Every partner in a firm is liable jointly with the other partners, and in Scotland severally also, for all debts and obligations of the firm incurred while he is a partner; and after his death his estate is also severally liable in a due course of administration for such debts and obligations, so far as they remain unsatisfied, but subject in England or Ireland to the prior payment of his separate debts. AH duties to be paid according to of Act. Facts and circumstances affecting duty to be set forth in instruments. [Act of 1870, s. 10.] STAMP ACT, 1891. (54 & 55 Vict. c. 39.) Sec. 2. — All stamp duties for the time being chargeable by law upon any instrument are to be paid and denoted according to the regulations in this Act contained, and except where express provision is made to the contrary are to be denoted by impressed stamps only. Sec. 5. — All the facts and circumstances aifecting the lia- bility of any instrument to duty, or the amount of the duty with which any instrument is chargeable, are to be fully and truly set forth in the instrument, and every person who with intent to defraud her Majesty — (a.) Executes any instrument in which all the said facts and circumstances are not fully and truly set forth ; or (b.) Being employed or concerned in or about the preparar tion of any instrument, neglects or omits fully and truly to set forth therein all the said facts and circumstances, shall incur a fine of £10. Note. — A post-dated cheque is valid,' but it is conceived that the person who issues it may possibly incur a penalty under this section. 1 Oatty V. Fry (1877), 2 Ex. D. 265 ; Royal Bank of Scotland t. Totten- ham, (1894) 2 Q. B. 715, C. A. STATUTES. 353 Sec. 6. — (1.) When an instrument is chargeable with ad 54 & 55 "Vict. valorem, duty in respect of (a) any money in any foreign or "' ^^' colonial currency, or (b) any stock or marketable security, duty M°de of shall be calculated on the value on the day of the date of the ad valorem instrument, of the money in British currency according to the •I'^ty ">■ '^^^- current rate of exchange, or of the stock or security according to the average price thereof. 1870, s. 11.] (2.) Where an instrument contains a statement of current rate of exchange, or average price, as the case may require, and is stamped in accordance with that statement, it is, so far as regards the subject-matter of the statement, to be deemed duly stamped, unless or until it is shown that the statement is untrue, and that the instrument is in fact insufficiently stamped. Note. — The sum receivable by the holder at maturity is calcu- lated according to a different rule. See sec. 72 (4), ante, p. 243. Sec. 8. — (1.) An instrument, the duty upon which is re- General quired or permitted by law to be denoted by an adhesive ^s'^tothe^ stamp, is not to be deemed duly stamped ' with an adhesive cancellation stamp unless the person required by law to cancel the adhesive gtanm^^^^* stamp cancels the same by writing on or across the stamp his r^^^ of 1370 name or initials, or the name or initials of his iirm, together s. 24.] with the true date of his so writing, or otherwise effectually cancels the stamp, and renders the same incapable of being used for any other instrument, or for any postal purpose, or unless it is otherwise proved that the stamp appearing on the instrument was affixed thereto at the proper time. (2.) Where two or more adhesive stamps are used to denote the stamp duty upon an instrument, each or every stamp is to be cancelled in the manner aforesaid. (3.) Every person who, being required by law to cancel an adhesive stamp, neglects or refuses duly and effectually to do so in the manner aforesaid shall ijcur a fine of £10. Note. — The provisoes to sec. 35 must be read in with this section. It has been ruled that cancellation made with a stamp or die is sufficient, and it seems that the cancellation may be made at any time before verdict, provided it can be made by the proper person.^ > Cf. Mare v. Eouy (1874), 31 L. T. N. S. 372. 5 Viale V. Michael (1874), 30 L. T. N. S. 453. A A 354 APPENDIX II. 54 & 56 Vict. 0.39. Meaning of "banker" and "bank note." [Cf. Act of 1870, s. 45.] Bank notes may be le-issued. [Act of 1870, 3. 46.] Penalties for issuing or receiving an unstamped bank note. [Act of 1870, 3. 47.] Meaning of "bill of exchange." [Cf. Act of 1870, s. 48.] of bank Bank Notes, Bills of Exchaiige and Promissory Notes. See. 29.— For the purposes of this Act the expression "banker" means any person carrying on the business banking in the United Kingdom, and the expression note" includes — (a) Any bill of exchange or promissory note issued by any banker, other than the Bank of England, for the pay- ment of money not exceeding one hundred pounds to the bearer on demand ; and (b) Any bill of exchange or promissory note so issued which entitles or is intended to entitle the bearer or holder thereof, without indorsement or without any further or other indorsement than may be thereon at the time of the issuing thereof, to the payment of money not ex- ceeding one hundred pounds on demand, whether the same be so expressed or not and in whatever form, and by whomsoever the bill or note is drawn or made. Sec. 30. — A bank note issued duly stamped, or issued un- stamped by a banker duly licensed or otherwise authorised to issue unstamped bank notes, may be from time to time re- issued without being liable to any stamp duty by reason of the re-issuing. Sec. 31. — (1.) If any banker, not being duly licensed or otherwise authorized to issue unstamped bank notes, issues, or permits to be issued, any bank note not being duly stamped, he shall incur a fine of £50. (2.) If any person receives or takes in payment or as a security any bank note issued unstamped contrary to law, knowing the same to have been so issued, he shall incur a fine of £20. Sec. 32. — For the purposes of this Act the expression " bill of exchange " includes draft, order, cheque, and letter of credit, and any document or writing (except a bank note) entitling or purporting to entitle any person, whether named therein or not, to payment by any other person of, or to draw upon any other person for, any sum of money ; and the expression " bill of exchange payable on demand " includes — STATUTES. 365 (a) An order for the payment of any sum of money by a 54 & 55 Viet. bill of exchange or promissory note, or for the delivery - '. of any bill of exchange or promissory note in satisfac- tion of any sum of money, or for the payment of any sum of money out of any particular fund which may or may not be available, or upon any condition or con- tingency which may or may not be performed or happen; and (b) An order for the payment of any sum of money weekly, monthly, or at any other stated periods, and also an order for the payment by any person at any time after the date thereof of any sum of money, and sent or delivered by the person making the same to the person by whom the payment is to be made, and not to the person to whom the payment is to be made, or to any person on his behalf Note. — A reference to sec. 3 of the Bills of Exchange Act, ante, p. 8, shows that many documents require to be stamped as bills of exchange which have none of the other incidents of bills, and which are clearly not negotiable instruments. See this section discussed mBuck V. Bobson, (1878) 3 Q. B. D. 686, where Ex parte Shellard, (1873) L. R. 17 Bq. 109, was disapproved ; and see, too, Fisher v. Calvert, (1879) 27 W. E. 301, M. E. Stamp duties were first im- posed on bills and notes by an Act of 1781, the 22 Geo. 3, c. 33. It apphed only to inland instruments. Bills and notes drawn abroad were not subjected to stamp duty till 1854. The Stamp Act of that year, the 17 & 18 Vict. c. 83, which introduced adhesive stamps, first imposed the duty on the latter class of instruments. Sec. 33. — (1.) For the purposes of this Act the expression Meaning of " promissory note '' includes any document or writing (except uo^™™^^^*"^ a bank note) containing a promise to pay any sum of money. ^^^^ ^f j^gyo, (2.) A note promising the payment of any sum of money a- 49-] out of any particular fund which may or may not be available, or upon any condition or contingency which may or may not be performed or happen, is to be deemed a promissory note for that sum of money. Note.— As to "bank note," see sec. 29. A reference to sec. 83 of the Bills of Exchange Act, ante, p. 261, shows that many instru- ments require to be stamped as promissory notes which have none of the other incidents of promissory notes. See this section examined in British India Steam Navigation Co. T. Mamd Bevenue (1881), 7 Q. B. D. 165, where an instrument A A 2 356 APPENDIX II. 54 & 55 Vict, c. 39. Provisions for use of adhesive stamps on bills and notes. [Act of 1870, s. 50.] [Act of 1870, s. 51.] Provisions as to stamping foreign bills and notes. [Act of 1870, s. 51.] pTirporting to be a debenture, though coming within the terms o this section, was held to be properly stamped as a debenture, anc not to require a note stamp. As to instruments intended to operate as agreements and not as notes, see Mortgage Insurance Oorporatior V. Inland Revenue (1888), 21 Q,. B. D. 352, 0. A., where it was heic that a document promising to pay money, but containing othei stipulations, did not require a promissory note stamp.' In Browr, & Co. T. Inland Revenue, (1895) 2 Q,. B. 598, 0. A., it was held thai promissory notes issued by an Ajnerican Eailway, which contained a pledge of collateral security, required to be stamped as " market- able securities " and not as promissory notes. iS'ec. 34. — (1.) The fixed duty of one penny on a bill of ex- change payable on demand or at sight or on presentation may be denoted by an adhesive stamp, which, where the bill is drawn in the United Kingdom, is to be cancelled by the person by whom the bill is signed before he delivers it out of his hands, custody, or power. (2.) The ad valorem duties upon bills of exchange and pro- missory notes drawn or made out of the United Kingdom are to be denoted by adhesive stamps. Note. — ^The proviso to sec. 38, enabling the person to whom a hill on demand is presented for payment to stamp it, must be read in with the present section. In Hohhs v. Cathie (1890), 6 Times Law Eep. 292, it was held that a cheque which was stamped by an inter- mediate holder, not the drawer, was improperly stamped. Sec. 35. — (1.) Every person into whose hands any bill of exchange or promissory note drawn or made out of the United Kingdom, comes in the United Kingdom before it is stamped, shall, before he presents for payment, or indorses, transfers, or in any manner negotiates ' or pays the bill or note, affix thereto a proper adhesive stamp, or proper adhesive stamps of sufficient amount, and cancel every stamp so affixed thereto. (2.) Provided as follows — (a) If at the time when any such bill or note comes into the hands of any bond fide holder there is affixed thereto an adhesive stamp effectually cancelled, the stamp shall, so far as relates to the holder, be deemed to be duly cancelled, although it may not appear to have been affixed or cancelled by the proper person ; 1 And see Kirkwood v. Smith, W. N. 1896, p. 46 (16). 2 Cf. Griffin V. Weatfierby (1868), L. E. 3 Q. B. at p. 760. STATUTES. 357 (b) If at the time when any such bill or note comes into 54 & 65 Vict. c. 39. the hands of any bond fide holdeT there is affixed thereto an adhesive stamp not duly cancelled, it shall be com- petent for the holder to cancel the stamp as if he were the person by whom it was affixed, and upon his so doing the bill or note shall be deemed duly stamped and as valid and available as if the stamp had been cancelled by the person by whom it was affixed. (3.) But neither of the foregoing provisoes is to relieve any person from any fine or penalty incurred by him for not can- celling an adhesive stamp. Note. — The result of the Act is this : 1. Bills of exchange payable Otter bills on demand, whether inland or foreign, may be stamped with either and notes, impressed or adhesive stamps, though of course a foreign bill would how stamped, not be Kkely to be on an impressed stamp (sees. 2 and 34 \ 2. Foreign notes of all kinds and foreign bills of exchange payable otherwise than on demand must be stamped with adhesive stamps (sec. 35). 3. Inland notes of all kinds and inland bills payable otherwise than on demand must be drawn on impressed stamps (sec. 2). By sec. 72 (1) of the BiUs of Exchange Act, ante, p. 238, Foreign it is provided that where a bill or note is issued out of the United stamp laws. Kingdom it is not invalid by reason only that it is not stamped in accordance with the law of the place of issue, and this seems right, as the present Stamp Act requires bills issued abroad to be stamped here, and makes no allowance for the foreign stamp. Sec. 36. — A biU of exchange or promissory note which pur- As to bills ports to be drawn or made out of the United Kingdom is, for purporting the purpose of determining the mode in which the stamp duty to be drawn thereon is to be denoted, to be deemed to have been so drawn ^„„ , " „ ,,,,.. , , , , [Cf. Act of or made, although it may m act have been drawn or made i87o, s. 52.] within the United Kingdom. Note. — Compare sec. 4 of the BiUs of Exchange Act, ante, p. 15, as to other purposes. Sec. 37. — (1.) Where a bill of exchange or promissory note Terms upon has been written on material bearing an impressed stamp of ^^"notes ^ sufficient amount but of improper denomination, it may be may be stamped with the proper stamp on payment of the duty, and a eiecSion* ^^ penalty of forty shillings if the bill or note be not then payable r^gt gf jgyg accordmg to its tenor, or of ten pounds if the same be so s. 53.] payable. (2.) Except as aforesaid, no bill of exchange or promissory 358 APPENDIX II. 54 & 55 Yict. c. 39. Penalty for issuing, &c., any un- stamped bill or note. [Act of 1870, s. 54.] Effect where bill or note not properly stamped. note shall be stamped with an impressed stamp after the execu- tion thereof. Sec. 38. — Every person who issues, indorses, transfers, nego- tiates, presents for payment, or pays any bill of exchange or promissory note liable to duty and not being duly stamped, shall incur a fine of ten pounds, and the person who takes or receives from any other person any such bill or note' either in payment or as a security, or by purchase or otherwise, shall not be entitled to recover thereon, or to make the same avail- able for any purpose whatever. (2.) Provided that if any bill of exchange payable on demand, or at sight, or on presentation, is presented for payment un- stamped, the person to whom it is presented may affix thereto an adhesive stamp of one penny, and cancel the same, as if he had been the drawer of the bill, and may thereupon pay the sum in the bill mentioned, and charge the duty in account against the person by whom the bill was drawn, or deduct the duty from the said sum, and the bill is, as far as respects the duty, to be deemed valid and available. (3.) But the foregoing proviso is not to relieve any person from any fine or penalty incurred by him in relation to such bill. Note. — As to the proviso, see note to sec. 34, ante, p. 356. In a Scotch case, a note made abroad was presented for payment unstamped, but was stamped before action brought. It was held that the action was maintainable.^ An imstamped bill or note is admissible in criminal proceedings (see sec. 14 of the Stamp Act), and probably as heretofore it would be admissible for the purpose of proving some purely, collateral fact, such as fraud.^ The holder of a biR or note which is void for want of a stamp may, nevertheless, bring an action on the consideration against the party to whom he gave the consideration,^ though he cannot use the instrunaent as evidence.^ As the bill is void the omission to present or give notice of dishonour is immaterial.^ 1 Cf. Marc v. Rouy (1874), 31 L. T. N. S. 372. 2 Sroddelius v. GrUchotti (1887), 24 So. L. R. 386. ' Gregory v. JFraser (1813), 3 Camp. 453 (maker drunk) ; cf. Sutton v. Toomer (1827), 7 B. & C. 416 ; Tilsley's Stamp Laws, p. 104. * Brown v. Watts (1808), 1 Taunt. 353 ; cf. Sutton v. Toomer, supra; Plimley v. WesUey (1835), 2 Bing. N. C. 249 ; and Gompertz v. Bwrtlett (1863), 2 E. & B. 849. * Sweeting v. Salse (1829), 9 B. & C. 365 ; Jardine v. Payne (1831), 1 B. & Ad. 663, at p. 670. 6 Oundyy. Marriott (1831), 1 B. & Ad. 696. STATUTES. 359 Possibly a person who indorses a bill, or transfers it by delivery, 54 & 55 Vict, undertakes that it is not void under the stamp laws when trans- o. 39. ferred.' An iinstamped bUl or note is admissible for the purpose of show- ing that it is not properly stamped, e.g., to negative defence of payment by a bill,^ but is not admissible to prove the receipt of money.' A witness may also refresh his memory by referring to an unstamped note, Birchall v. BuUough, (1896) 1 Q. B. 325. No appeal lies from the decision of a judge wrongly admitting an unstamped document, Bleivitt v. Tritton, (1892) 2 Q. B. 327, 0. A. Sec. 39. — When a bill of exchange is drawn in a set accord- One bill only Or ft. Kfi^ TlPPfi ing to the custom of merchants, and one of the set is duly ^^ stamped, stamped, the other or others of the set shall, unless issued or [^ct of i870, in some manner negotiated * apart from the stamped bill, be ». 55.] exempt from duty ; and upon proof of the loss or destruction of a duly stamped bill forming one of a set, any other bill of the set which has not been issued or in any manner negotiated apart from the lost or destroyed bill may, although unstamped, be admitted in evidence to prove the contents of the lost or destroyed bUl. Amount of Duty as per Schedule. £ s. d. BUI of exchange payable on demand, or at sight, or Amount of on presentation . . . . . . .001 "^"^y- And see sections 32, 34, and 38. Bill of exchange of any other kind whatsoever, and promissory note of any kind whatsoever drawn or expressed to be payable, or actually paid or in- dorsed, or in any manner negotiated in the United Kingdom where the amount or value (cf. sec. 6) of the money for which the bill or note is drawn or made does not exceed £5 . . . Exceeds £5 and does not exceed £10 „ 10 „ 25 . . „ 25 „ 50 . . ' See sec. 55, amte, p. 186 ; sec. 58 (3), ante, p. 195 ; and Oompertz v. BarOett (1853), 23 L. J. Q. B. 65. 2 Smart v. JVokes (1844), 6 M. & dr. 911. 3 Ashling v. Boon, (1891) 1 Ch. 568. * Cf. Griffin y.Wcatherby (1868), L. R. 3 Q. B. at p. 760. 1 2 3 6 360 APPENDIX II. 54 & 55 Vict. c. 39. Bill payable with interest. Exemptions, Exceeds £50 and does not exceed £75 . . .0 75 „ 100 ... „ 100- For every £100, and also for any fractional part of £100 of such amount or value . ... d. 9 1 Note. — The fact that a bill is payable with interest does not affect the stamp,' e.g., a note for £oO payable with interest at 5 per cent, requires only a Gd. stamp. Exemptions. (1.) Bill or note issued by the Bank of England or Bank of Ireland. (2.) Draft or order drawn by any banker in the United Kingdom upon any other banker in the United King- dom, not payable to bearer or to order, and used solely for the purpose of settling or clearing any account between such bankers. (3.) Letter written by a banker in the United Kingdom to any other banker in the United Kingdom directing the payment of any sum of money, the same not being payable to bearer or to order, and such letter not being sent or delivered to the person to whom payment is to be made, or to any person on his behalf (4.) Letter of credit granted in the United Kingdom author- izing drafts to be drawn out of the United Kingdom payable in the United Kingdom. (5.) Draft or order drawn by the Paymaster-General on behalf of the Court of Chancery in England, or by the Accountant-General of the Supreme Court of Judica- ture in Ireland. (6.) Warrant or order for the payment of any annuity granted by the National Debt Commissioners, or for the pay- ment of any dividend or interest on any share in the government or parliamentary stocks or funds. (7.) Bill drawn by any person under the authority of the Admiralty upon and payable by the Accountant-General of the Navy. ' Pruessing v. Ing (1821), 4 B. & Aid. 204. STATUTES. 361 (8.) Bill drawn (according to a form prescribed by her 64 & 56 Viet. Majesty's orders by any person duly authorized to '. — '■ draw the same) upon and payable out of any public account for any pay or allowance of the army or auxil- iary forces, or for any other expenditure connected therewith. (9.) Draft or order drawn upon any banker in the United Kingdom by an officer of a public department of the State for the payment of money out of a public account. (10.) Bill drawn in the United Kingdom for the sole pur- pose of remitting money to be placed to any account of public revenue. (This exemption applies only to bills drawn for the sole purpose of remitting and placing to its proper account money which is already public money.') (11.) Coupon or warrant for interest attached to and issued with any security, or with an agi-eement or memoran- dum for the renewal or extension of time for payment of a security. And see sections 32, 33, 34, 35, 36, 37, 38 and 39. Notarial Acts. Sec. 90. — The duty upon a notarial act and upon the protest Duly may by a notary public of a bill of exchange or promissory note ^^ adhesive may be denoted by an adhesive stamp, which is to be cancelled stamp, by the notary. t-^-ot of 1870, Where the duty on a bill or note does not exceed Is., the »u,o„ji4. duty on the protest is the same as on the bill or note. In any other case the duty is Is., and the duty on any notarial act other than a protest is Is. See Sched. Beceipts. Sec. 101. — (1.) For the purposes of this Act the expression Provisions as "receipt" means and includes any note, memorandum, or receipte. writing whereby any money amounting to two pounds or up- [Act of 1870, ^__ s. 120.] ' The Committee of London Clewring Banker! v. The Commissioners of Irdand Revenue, (1896) 1 Q. B. 222, 542, C. A. 362 APPENDIX n. 54 & 55 Vict, c. 39. [Act of 1870, s. 121.] Terms upon which receipts may be stamped after execution. [Act of 1870, s. 122.] Penalty for offences in reference to receipts. [Act of 1870, B. 123.] wards, or any bill of exchange- or .promissory note for money amounting to two pounds or upwards, is acknowledged or ex- pressed to have been received or deposited or paid, or whereby any debt or demand, or any part of a debt or demand,- of the amount of two pounds or upwards, is acknowledged to have been settled, satisfied, or discharged, or which signifies or imports any such acknowledgment;- and whether the same is or is not signed with the name of any person. (2.) The duty upon a receipt may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the receipt is given before he delivers it out of his hands. Sec. 102.^ — A receipt given without being stamped may be stamped with an impressed stamp upon the terms following, that is to say, (1.) Within fourteen days after it has been given, on pay- ment of the duty and a penalty of five pounds ; (2.) After fourteen days, but within one month, after it has been given, on payment of the duty and a penalty of ten pounds ; and shall not in any other case be stamped with an impressed stamp. Sec. 103. — If any person — (1.) Gives a receipt liable to duty and not duly stamped ; or (2.) In any case where a receipt would be liable to duty re- fuses to give a receipt duly stamped ; or (3.) Upon a payment to the amount of two pounds or up- wards gives a receipt for a sum not amounting to two pounds, or separates or divides the amount paid with intent to evade the duty ; he shall incur a fine of ten pounds. KECEIPT given for, or upon the payment of, money amounting to two pounds or upwards, one penny. Exemptions. (1.) Keceipt given for money deposited in any bank, or with any banker, to be accounted for and expressed STATUTES. 363 to be received of the person to whom the same is. to 54 & 55 Vict, be accounted for. "" '. (2.) Acknowledgment by any banker of the receipt of any bill of exchange or promissory note for the purpose of being presented for acceptance or payment. (3.) Eeceipt given for or upon the payment of any parlia- mentary taxes or duties, or of money to or for the use of her Majesty. (4.) Eeceipt given by an officer of a public department of the State for money paid by way of imprest or advance, or in adjustment of an account, where he derives no personal benefit therefrom. (5.) Receipt given by any agent for money imprested to him on account of the pay of the army. (6.) Receipt given by any officer, seaman, marine or soldier, or his representatives, for or on account of any wages, pay or pension, due from the Admiralty or Army Pay Office. (7.) Receipt given for any principal money or interest due on an exchequer bill. (8.) Beceipt written upon a hill of exchange or promissory note [Repealed duly stamped, or upon a hill drawn hy any person under ^8 Vict. c. 16, the authority of the Admiralty, upon and payable hy the Accountant-General of the Navy. (9.) Receipt given upon any bill or note of the Bank of England or the Bank of Ireland. (10.) Receipt given for the consideration money for the pur- chase of any share in any of the Government or Parlia- mentary stocks or funds, or in the stocks and funds of the Secretary of State in Council of India, or of the Bank of England, or of the Bank of Ireland, or for any dividend paid on any share of the said stocks or funds respectively. (11.) Receipt indorsed or otherwise written upon or con- tained in any instrument liable to stamp duty, and duly stamped, acknowledging the receipt of the con- sideration money therein expressed, or the receipt of any principal money, interest, or annuity thereby secured or therein mentioned. 364 APPENDIX II. 54 & 55 Vict, (12.) Eeceipt given for any allowance by way of drawback or c. 39, otherwise upon the exportation of any goods or mer- chandise from the United Kingdom. (13.) Keceipt given for the return of any duty of customs upon a certificate of over entry. And see sections 101, 102, and 103. INDEX. ACOEPTAITOE, defined, 3, 8, 40 delivery or notification to complete, S2, 63. See Delivery. cancellation of, by holder, 212 revocation of, by drawee, 52, 53, 54 what it admits, 183 — 185 must be signed, and on bill, 43 requisites in form, 43 form and interpretation when laws conflict, 238, 239 bill in a set, 237 place on bill, 43 not promising payment of money, 43, 47 date, when necessary, and how supplied, 32, 45 proper date after previous refusal to accept, 45 Time of: before bill complete in point of form, 45, 49 — 51 after maturity, 30, 45 after dishonour, 45 presumption as to time when undated, 45 By whom : in general by drawee, 40 by person other than drawee, 41, 340 by one of several drawees, 48. See Qitalified Accerptance. by two or more drawees, 19. See Joint Parties. by drawee in assumed name, 65, 66 by fictitious person, 17, 137, 150, 167, 168. See Fictitious Parties. capacity to accept in general, 60 by infant, 62 by married woman, 61 by company or corporation, 63, 340, 341 by banker, 64 authority to accept in general, 276 by partner, 67 — 71. Qee Partner. by agent, 75 — 79. See Principal and Agent. 366 INDEX. Acceptance — continued. forged or unauthorized, 71 — 74 construed with, address to drawee, 41, 42, 78 blank signature filled up as, 49 — 52 payable at bankers, 47, 48, 72, 145. See Banker. material alteration in, 215, 217 cross-acceptance as consideration, 80 of cheque or demand draft, 136, 246 presentment for, 131 — 140. See Presentment for Acceptance. obligation to accept, 181, 182 General or Qualified : what general, 46 what qualified, 46 effect of qualified, 46—48, 140, 141 holder's option to take qualified, 140 holder's duty after taking qualified, 140 See Acceptor — Drawee — Signature. Acceptance for Honour Supra Protest, what bills may be so accepted, 226 who may accept, 226 for whose honour bill may be accepted, 226 presumption when party not named, 227 holder's option to refuse, 226, 227 time for, 226 mode of accepting, 227 form, 227 act of honour on, 227 for part of amount of bill, 227 effect on holder's right of action, 139 Acc^tor supra protest : contract with holder, 228 estoppels which bind, 229 presentment for payment to, 229 excuses for non-presentment and delay, 230 rights and duties on payment, 230, 231 Acceptor, defined, 8 accommodation acceptor, 87, 196, 197. See Accommodation Party. who liable as, 41, 42, 65 signature of, 65 bankruptcy of. See Bankruptcy INDEX. 367 ACOEPTOB — continued. death of. See Death. contract with holder, 183, 184 liability contrasted with drawer's, 183, Ibi. how far drawer or indorser is surety for, 184 compared with maker of note, 11, 270 relations inter se of joint, 199, 201, 210. See Joint Parties. estoppels which bind, 184, 185 measure of damages against, 190 — 193 damages when laws conflict, 241 payment by, as a discharge, 199 e&ct when he is holder of bill at maturity, 210 giving time to, or compounding with, 218 — 223 presentment for payment to charge, 176, 177. See Preserd- ment for Payment. notice of dishonour to, or protest, 169. See Notice of Dis- honour. Statute of Limitations, as to, 290 rights of, to securities for bill, 296 How Liability of Acceptor negatived : conditional acceptance and condition unperformed, 46, 47 intention to sign a different document, 277 forgery, &c., 71 — 15 capacity negatived, 60 — 64 consideration negatived (including fraud or illegality), 93 transfer of property to holder negatived, 66, 57 jus tertii, 55, 56, 99, 101 discharge of bill or discharge inter partes, 200 — ^225 Accommodation Bill, defined, 87 term used in different senses, 87, 88 value subsequently given for, 83 pledge of, 85 when deemed to be issued, 215 presumption as to biU not being, 93, 168 negotiated by payee after bankruptcy, 129 damages for refusing to accept, 181 bankruptcy of drawer, when acceptor has security, 197 costs of defending action on, 197 negotiation after maturity, 117 368 INDEX. Accommodation Bill — continued. presentment for paymeot, when excused, 150, 151 notice of dishonour, when excused, 167, 169 payment by acceptor or maker as discharge, 199, 201 payment by person accommodated as discharge, 205, 206 discharge of surety by dealings with principal, 218 — 223 foreign discharge of, 242 proof on, 8 ft Statute of Limitations, 292 securities for, 222, 303 Accommodation Party : defined, 87, 88 liability to holder for value, 88, 96 special defences available to, 88 liability to person accommodated, 96 considered as surety, 88, 197 rights on becoming a party, 198 rights when compelled to pay, 197, 198, 292 voluntary payment by, 197 rights of contribution inter se, 198, 199 Accord and Satisfaction, discharge of biU by, 200 discharge by accord without satisfaction, 212 Acknowledgment, to defeat Statute of Limitations, 293 Act of Honour, on acceptance supra protest, 226 on payment supra protest, 230 stamp on, 361 Action, includes counter-claim and set-off, 3 holder may bring, in his own name, 121 in whose name when bill payable specially, 123 in whose name when bill payable to bearer, 124 defences against holder suing as agent or trustee, 123 defences available to accommodation party, 88, 96 lost biU or note, 233, 234 compared with proof, 125 when husband and wife must join in, 126 against married woman on bill, 61, 62 INDEX. 369 Action — continued. costs of defending on accommodation bill, 197 proceeding for costs against parties sued concurrently, 200 transfer of bill after action brought, 116 Statute of Limitations, 289 — 294. See Limitations. Bight of: on, and collateral to, instrument distinguisbed, 196, 197, 199, 292 on bill, and on consideration, distinguished, 67, 195, 217, 358 giving bill suspends, 305 effect of renewing bill, 224, 225 when complete against drawer and indorser, 140, 1 52 on non-acceptance, 140 Acts. See Bills of Exchange Act — Statute. Addbess, sufficiency of, when notice sent by post and lost, 156, 163 of drawer or indorser of dishonoured bill not known, 164 to drawee in bill, 18, 19 Adhesiye Stamp, when to be used, 352, 356, 357, 358 cancellation of, 353, 356, 358 Administratoe, when bin held by deceased vests in, 23, 24, 127 personal liability on bill signed as, 77 — 79 may indorse without personal liability, 105 not agent of deceased, 55 effect when acceptor becomes the holder's, 210 effect when holder becomes the acceptor's, 210 Statute of Limitations, as to, 293 See Death — Donatio mortis causd — Executor. Advice [Letter of), 11, 182 Aftek Pate (Bill pay nble), omission of date, 32, 33 new and old style, date in, 13 entitled to days of grace, 35 calculation of maturity, 3b, 37 presentment for acceptance, when necessary, 131 extension of time if bill comes forward late, 132 C. B B 370 INDEX. Afteb Date [Bill payable) — continued. acceptance after maturity, 30 duty of agent to present with diligence, 132 presumed time of undated acceptance, 45 post-dated cheque resembles, 34 usances, 37 AriEE Sight {Bill payable), entitled to days of grace, 34, 35 computation of maturity, 37 omission of date in acceptance, 32 proper date for acceptance, 38 date, after previous refusal to accept, 45 presentment for acceptance required, 131 when presentment is excused, 137 time for presentment, 1 33 meaning of term in note, 37, 38 death or bankruptcy of drawee, 136 duty of agent to present with diligence, 132 maturity of, if accepted for honour, 38, 227 Agent. See Principal and Agent. Allonge, 105, 106 Alteeation, what material, 215, 216, 217 what immaterial, 316 effect of material on bill, 213, 214 effect of stamp laws, 214 effect on right to sue for consideration, 217 onus probandi as to, 218 payment in ignorance of, 206 — 208 Alternative, drawee, 19 payee, 20 maker of note, 19, 262 place of payment, 15, 145 mode of payment, 10, 262 Ambiguotts Instbtjments, 9, 283 American Law, weight of, and reference to, Introd., pp. xlviii., xlix. INDEX. 371 Amount, bills and notes under 204., 10 notes to bearer under £5 . . 263 notes to bearer under £20 . . 262 See Sum Payable. Antecedent Debt, as consideration for bill, 80, 81 paid by bill wliicli is dishonoured, 170, 195 paid by forged bill, 195, 196, 217, 327 Ante-dated Instextments, 33, 34 Assignmemt, transfer of bill or note by, 129 distinguished from negotiation, 102, 104 See Equitable Assignment — Transfer. Atj Besoin, 39 Atjthokity, distinguished from capacity, 60, 68 general rule as to, 275, 276 to sign bills, how given, 275 to sign bills, how constmed, 275, 276 to draw no authority to endorse, 275 to draw cheque no authority to draw bill, 275 to fill up blanks, 49 — 52 to fill up date, 32, 49 of partner in trading firm, 68. See Partner. of partner in non-trading firm, 69, 70, 275. See Partner. of agent. See Principal and Agent. when revoked by death, 50, 249. See also Cheque. false representation of, 76, 77 Aval, 189, 190 Bank and Baneeii, banker defined, 3, 354 restrictions on acceptance or issue of bills or notes by, 64, 65 effect given to usage among, 282 " marginal notes " or receipts of, 84 Ken on customer's bill, 86 when holder for value of customer's bUIs, 83, 85, 86, 128 retractation of payment by, 200 B B 2 372 INDEX. Bank and Banker — contimied. olearing-house recognised at law, 145, 200 right to retain paid cheque against customer, 253 obligation to honour customer's cheques, 182, 183, 252 effect of garnishee order, 251 custom in London as to post-dated cheques, 282 when customer may over-draw, 252, 253 effect of customer's death or bankruptcy, 249 — 253 relations with holder of cheque, 1Y9, 250, 257 obligation to pay customer's bills, 252 paying forged cheque or bill, 72, 73, 258 how if payee be fictitious, 21, 22 paying cheque held under forged indorsement, 209, 257, 258 paying altered cheque, 207 — 209 duty when cheque crossed to more than one, 256 receiving payment of crossed cheque for-customer, 259 payment of crossed cheque by, 258 duty as collecting agents, 132, 144, 158, 162, 163, 259 banking hours recognized, 135, 144 Branch Banks : general status as to bills, 252 notice of dishonour sent through, 163 right to combine accounts against customer, 252 duty to pay cheques drawn on another branch, 252 Bill accepted payable at Bank : duty to customer to pay, 252 no duty to holder, 180 when a qualified acceptance, 47, 48 presentment for payment of, 145, 146, 177 payment when indorsement forged, 72 payment when payee is fictitious, 21, 22, 72 changing banker's name a material alteration, 215, 216 adding banker's name to ordinary acceptance, 216, 216 Bank Ohabter Acts, 10, 64, 65, 284 Bank Holiday, bin falling due on, 35. See Payment. when excluded in computing time, 279 Acts relating to, 343—347 Bank Note, defined, 263, 337 negotiability of, 313 INDEX. 373 Bank Note — contintied. distinguished from ordinary note, 263 re-issue of, 263, 354 restrictions on issue, 64, 65, 335, 337 efiect of payment by country notes, 10, 309 halves sent by post, 53, 54 stamp on, 354 circular notes, 318 Bank Post Bill, 263 Bank of Enoland, exclusive privileges of issue, 64, 65, 335, 337 notes as legal tender, 10 saving for privileges of, 284 Bankrupt, defined, 4 Bankruptct, holder's right of proof, 125 accommodation bill held as security, 85 rule as to double proof, 18, 125, 348, 349 creditor holding security, 125, 223 of acceptor supra protest before maturity, 226 effect of foreign discharge, 242 double insolvency, rule in Ex parte Waring, 300 production for proof or dividend, 349 voting in bankruptcy by bill holder, 348 0/ Holder: when bill vests in trustee, 127, 128 reputed ownership, 129 accommodation bill for holder's benefit, 128, 129 negotiation after, 128 payment after, 128 when bankrupt may sue, 128 Of Drawee or Acceptor : presentment for acceptance after, 136 presentment for payment after, 149 notice of dishonour to drawer or indorser after, 165 protest for better security, 173 effect of taking composition from acceptor, 219 effect of part-payment by drawer or indorser, 205 of drawee as breach of contract with drawer, 182 374 INDEX. BANKBTTPTCfY — continued. Of Drawer or Tndorser : to ■whom notice of dishonour to be given, 160 of drawer as revoking drawee's authority to accept, 182 of drawer of accommodation bill, 197 of drawer of cheque, 251. See also Securities for Bills of Exchange. £EAR£B, defined, 4 included in term " holder," 5 Bill payable to : defined, 24 bill is, when payee fictitious, 21, 22 bill indorsed in blank is, 24, 102 negotiated by delivery, 102 effect of indorsing, 194, 193 who may sue on, 124, 125 issued or accepted by banker payable on demand, 64, 65 note under £20 payable on demand, 26 5 note under £o payable on demand, 263 Belgian Code de Commeecb, Introd., p. 1. Besoin OB EEOOMMANDATAntE, 38, 39, See Case of Need. Bbtteb Secueitt, protest for, 173 Bill Beokee, lien of, 86 guaranteeing discounted bills, 106 Bill of Exchange, definition, 8 definition for stamp purposes, 354 compared with cheque, 245 compared with promissory note, 11, 12, 269, 270 when it may be treated as a note, 9, 17 inland and foreign, 13 origin and history, Introd., p. liii. sources of foreign law as to, Introd., p. xlviii. different theories in England and France, Introd. p. Ivi. conflict of laws as to. See Conflict of Laws. Form and Interpretation, 8 — 59 INDEX 375 Bill oi' Exchange — continued. Capacity of Parties, 60 — 65. See Capacity. Authority of Parties, 60, 65 — 79. See Partner— Principal and Agent. Forgery, 71 — 75. See Forgery. Consideration for , 80 — 101. See Consideration. Transfer, 102—130. See Transfer. Actions on and Proof, 121 — 125. See Action — Proof. Duties of Solder, 131—178 Contracts arising out of, drawer and drawee, 181. See also Cheque. drawee and holder, 179 acceptor and holder, 183, 184 drawer or indorser and holder, 185, 186, 187 transferor by delivery and transferee, 194 — 196 acceptor supra protest and holder, 228 accommodation party and person accommodated, 196 — 198 Discharges, 199 — 225. See Discharges. Limitations of Actions, 289 — 294. See Limitations. Stamp Laws, 352 — 364. See Stamp. Securities for Bills, 295 — 303. See Securities for Bills. BlTJi^F, NUNDINALES, 32 Bills of Exchange Act, 1882, Parliamentary history of, Introd,, p. xlvi. local extent of, 1 commencement of, 2 how far declaratory, 2 changes in law effected by, 2 not retrospective, 2 applies only to bills, notes, and cheques, 3 savings, 281—284 acts repealed by, 281, 287, 288 See also Scotch Law. Blank, oe Blank Signatueb, blank signatures, 49 authority to fill up, in bill, 49 — 52 effect if not filled up, 9, 18, 28 fraudulently filled up, 49—52, 206 filling up date, 32, 33 376 INDEX. Blank, or Blank Signature — continued. Indorsement in hlank : definition, 110 effect, 110 oonTersion into special, 111, 112 followed by special, 25, 111 action on bill indorsed in blank, 123, 124 Bona Fides, bond fide holder, 90 test of, in holder, 272—274 presumption of, in holder, 93, 94 test of, in payor, 200, 272—274 of person without title receiving payment, 207 Bonds to Beaeer, negotiability of, 314, 315 non-liability of foreign government on, 317, 318 assignable Scotch bond, 102 debentures, 318 Branch Banks, 163, 252. See Bank. Business Days, what are, or are not, 279 Cancellation, of bill or signature by holder, 212 if by mistake, 213 of bill by order of court, 74 of acceptance by drawee, 52 — 54 of indorsement by indorser, 53, 54 of adhesive stamp, 353, 356, 358 Capacity, . distinguished from authority, 60, 68 capacity to incur liability, 60 capacity to transfer, 60, 63, 64 general rule, 60 effect of incapacity of one party on liability of others, 61 conflict of laws, 61 clergyman, 61 felon, 61 lunatic or drunkard, 62 INDEX. 377 Capaoitt — continued. infant's liability on bUl, 62 infant's power to transfer bill, 60, 62 married women's liability, 61 power to transfer, 61, 62 divorced woman, 62 company or corporation's liability, 63, 64 power to transfer, 64 trading and non-trading companies, 63 statutory disabilities of bankers, 64, 65 Case of Need, meaning of term, 38 designated by indorser, 38, 39 cannot accept without protest, 38, 226 option of holder to present to, 38, 39 Cases, list of overruled or doubted, p. xxxi. Cause of Action. See Action. Ceetamttt {Requisite in Bill or Note), fact of payment, 11, 261 time of payment, 30, 261 designation of drawee, 18 of payee or indorsee, 19, 20, 111 sum payable, 26 — 29 defined, 245, 345 provisions as to bUls, bow far applicable to, 245 distinguished from ordinary bill of exchange, 245 note payable on demand, 246 sum for which it may be drawn, 246 acceptance of cheque by banker, 246. See Banker. marked cheque, 246 certified cheque in America, 246 time for presenting in general, 247 — 249 to charge drawer, 247 to charge indorser, 142, 143, 247 notice of dishonour, when required, 246 when deemed overdue or stale, 119 relations between banker and holder, 179, 180 378 INDEX. Cheqttb — continued. rights of holder when drawer discharged, 249 banker's duty to customer to honour cheque, 183, 184, 249 — 252 over-drafts, 252 effect of customer's death or bankruptcy, 249 — 251 dcmatio mortis causd, 250 effect of garnishee order, 251 payment by banker when held under forged indorsement, 209 right to duplicate, when lost, 233 action on lost cheque, 233, 234 property in paid cheque, 253 construction of authority to draw, 70, 275 liability of non-trading corporation on, 64 stamped as bills on demand, 354, 358 mode of stamping in general, 355, 356 stamping after issue, 336, 357 French law, 246 is not an assignment of funds in England, 180, 181, 298 an assignment in Scotland, 179, 180 effect of as payment, 304 Post-dated : validity and effect of, 33 authority to draw, 275 custom of London bankers not to pay, 282 Crossed : delay in presentment caused by crossing, 248 general and special crossings, 254 who may cross, 255 two or more special crossings, 256 effect of crossing as regards the drawer, 257 — 259 as regards holder and agent for collec- tion, 257, 258 as regards (drawee) banker, 256 — 259 meaning and effect of "not negotiable," 258, 259 invisible crossing or obliteration, 257 alteration of crossing, 256 See Banker — Bill of Exchange. Chose in Action, bill assignable as, 129. See Transfer. INDEX. 379 Oheistmas Day, bill falling due on, 35 — 36 when excluded in computing time, 279 CrROTJiAB Notes, 318 CiiEAEmQ House, presentment of bill through, 145 CUEEGTMAN, capacity to contract by bill, 61 COEEOION, 92, 93, 99 Coincidence of Eight and Liability, 210 nOT.I ATTT.TiAT. SECUEITY, e'vidence to show bill is, 56, 87 effect when bill held as, 86 note containing pledge of, 265 See Securities for Bills. Collection (Indorsement for), in express terms, 112, 113. See Bestrictive Indorsement. revocation by indorser, 112, 114 misappropriation by indorsee, 56, 89, 93 rights of indorsee, 89, 123, 124 duties of collecting agents, 132, 144 Company and Cobpoeation (in general), trading and non-trading, 63, 64 capacity to incur liability, 63 power to transfer bills, 64 seal or signature of, 278 tests of liability, 278, 279 bin drawn on, accepted by officer in his own name, 41, 42 officer accepted in name of company, 41, 42 bill payable to, indorsed by officer in his own name, 109 liability of director drawing bill or signing note for, 78 Company tjndee Act of 1862, full name must appear on bills and notes, 340 personal liability of officer signing, if it does not, 41, 42, 340 what sufficient signature to charge, 341 bill payable to iUegal, or its agent, 100 380 INDEX. COMPENSATIO, 242, n. Composition, effect of taking, from acceptor, 219, 222 COMPBOMISB OF OlAIM, as consideration for bill, 80 Computation, time of payment, 34—38, 227, 244 sum payable, 26 — 28, 243. And see Stamp. damages on dishonour. See Damages. CONDITIONAI,, biU or note, 8, 11, 31, 32, 261 acceptance, 46, 140, 177. See Qualified Acceptance. indorsement, 109, 110, 111 delivery of bill absolute in form, 55, 56 payment by bill or note, 305 Conflict of Laws, capacity of parties, 61 requisites in form, 238 interpretation and obligations of parties, 240 old and new style date, 13, 244 w'» major and ex post facto legislation, 27, 148, 149, 244 duty to present to case of need, 38, 39 effect of dishonour by non-acceptance, 140, 243 depreciated currency in place of payment, 27 sum expressed in foreign currency, 243 computation of time of payment, 244 notice of dishonour, 243 protest, 243 foreign discharge, 242 damages against acceptor, 241 drawer or indorser, 241 Statutes of Limitation, 292 stamps and stamp laws, 238, 239 negotiability of foreign securities, 313, 315, 326 cohftjsio, 211 Consideration, what constitutes, 80 antecedent debt or liability, 80, 81 adequacy of, 82 INDEX. 381 OOWSIDEEATION — continued. by -whom furnislied and when, 83 for original bill in case of renewal, 224 pro tanto in case of pledge or lien, 85 want of, creating privity between remote parties, 95 presumption of, 93 what evidence shifts onus prohandi as to, 93 holder for value, 83, 84 holder in due course, 89 holder claiming under holder in due course, 92 accommodation parties, 81, 88 Defences arising out of : when it may be inquired into, 14, 57, 94 — 101 absence of, 96 partial absence, 96 failure of, 97 partial failure, 98 fraud or duress, 99 illegality total or partial in, 100 unconscionable bargains, 83 accommodation bills, 87, 88, 96, 197 Expression of: not essential, 13 how expressed, 14 evidence to negative, when expressed, 14, 57, 58 effect if expressed to be executory, 11 LiaMlity on : distinguished from liability on instrument, 67, 199 warranty of genuineness, 196 discharged by holder's laches, 131, 141, 153 presentment for payment to charge person liable on, 152 notice of dishonour to person liable on, 170 effect of alteration on, 217 want of stamp, 358 Consignments, bill drawn against, 299. See Securities for Bills, CONSTEUOTION, bills and notes in general, 57, 58 address to drawee and acceptance read together, 42 evidence of usage, when admissible, 282 irregular bills ut res magis valeat, 9, 42, 283 382 INDEX. CoNSTErcTlON — continued. signature as principal's or agent's, 78, 79 authority to sign bills, 275 agreements to renew, 224 notice of dishonour, 157 — 159 of the Act as a code, 2 of the Act as not retrospective, 2 See Interpretation of Terms. CONSTETTCTIVE POSSESSION, what it is, 4, 5 delivery effected by change in, 6 giving right of action on bill payable to bearer, 124 Contingency, bill or note expressed to be payable on, 11, 12, 31, 32, 261 CONTRIBTJTION, on payment by joint acceptor, 199, 201 among co-sureties generally, 197 — 199 Co-owner. See Joiiii Parties. Copt, foreign '■ copy" distinguished from set, 105, 107, 235 indorsement on foreign "copy," 105 protest on copy of lost bill, 175 CoEPOEATlON. See Company and Corporation. Costs, defending action on accommodation bill, 197 proceeding for, after payment, when parties sued concur- rently, 200 lien on bill for, 178, n. Co-sueeties, right to contribution, 198 evidence to show that parties are, 219, 220 successive indorsers may be, 219, 220 discharge of one, 222 Coupons, negotiability of, 315 CovEE FOE Bill, 296—302. See Securities for Bills. INDEX. 383 Cbedit, letter of, 180, 181 stamp on, 354, 360 Ckoss-Acoeptanob, 80 Oeossed Cheque or Dootjmekt. See Cheque. what instrumenta may be crossed, 255 diflereat kinds of crossing, 254 origin and history of crossing, 254, 255 who may cross, 255, 256 crossing a material part, 256 crossing to two bankers, 256, 257 duty of banker to obey crossing, 256, 257 remedy to true owner, 257 obliterated crossing, 257 protection to paying banker and drawer, 258 not negotiable crossing, 259 protection to collecting banker, 259 crossing for account does not prohibit transfer, 24 Crown, cannot be guilty of laches, 131 Custom of Teade, law of bills founded on, Introd., p. liv. evidence of, when admissible, 282 novelty of, when immaterial, 282 judicial decision overrides, 282 saving for, in Act, 281, 282 Cttstomee and Banker. See Bank. Damages {Measure of), action by drawer against drawee for not accepting, 182, 183 holder against acceptor or maker, 190, 191 holder against drawer or indorser, 190, 191 customer against banker dishonouring cheque, 182 accommodation party on contract of indemnity, 197 conflict of laws, 242 Date, insertion of, proper, but not essential, 13 required by foreign codes, 13 384 INDEX. Date — continued. presumed to be true date, 33 confirmation of, in bankruptcy, 33 ante-dating and post-dating, 33, 34 dating on Sunday, 33, 34 new and old style, 13, 36 alteration of, material, 13, 215, 217 interest to be calculated from, 29 interest if biU undated, 29 power to holder to fill in, 32, 49 when Statute of Limitations runs from, 291 presumption if indorsement undated, 119 if acceptance undated, 45 See After Date — After SigJit. Days or Geace, 35, 36, 244 Death, Of Solder: title to bUl, 127 inchoate bill, 50 bill drawn payable to deceased person, 23 Statute of Limitations when intestate, 293 delay in presentment or notice of dishonour, 148 acceptor becoming executor or administrator, 210 Of Drawer : drawee's duty to accept bill, 182 banker's authority to pay cheques, 249, 250 notice of dishonour, 160 Of Indorser : notice of dishonour, 160 before delivery of bill to indorsee, 53, 55 Of Drawee, or Acceptor, or Maker : presentment for acceptance, 136 payment, 146, 147 notice of dishonour, 165, 169 holder becoming executor or administrator, 210 indorser becoming executor, 210 See Administrator — Executor — Donatio mortis causd, Debehttjres, what they are, 318 how far negotiable instruments, 319, 321 how stamped, 355 INDEX. 385 Debt, antecedent or pre-existing, as consideration, 80, 81 when bUl is conditional or absolute payment of, 131, 305— 309 Declabatiok- of Teust, 97, 129 Deed, transfer of bill by, 129 Ueftnitions, 3 — 7. See Interpretation. Deliveet, deHnition of, 4 necessity for, to complete contract, 52 what amounts to, 53, 54 by whom it must be made, 54, 55 conditional, or for special purpose, 54- -56 obtained by fraud, 55 — 57 presumption as to valid, 55 non-delivery by drawee, 138 protest for non-delivery, 138 negotiation of bill payable to bearer by, 102 bOl payable to order without indorsement, 103, 104 liability of transferor by, 195, 196 Demand {BUI or Note payable on). See Presentment for Payment. expressed to be so payable, 29 payable at sight or on presentation, 29 no time for payment expressed, 29 biU accepted or indorsed after maturity is, 30 cheque is, 29. See Cheque. when deemed overdue, 119, 267 transfer of, when overdue, 118, 267 presentment to charge maker, 268 drawer or indorser, 268, 269 Statute of Limitations on, 291 interest by way of damages on, 195 banker paying when indorsement forged, 208, 209 acceptance of, 136 Dbsteuction oe Bill. See Lost Bill. payment, when proved, 234 notice of dishonour, 165 protest, 175 not equivalent to acceptance, 139 C. C c 386 INDEX. Detention of Bill, by drawee, 139, 175 Diligence (due or reasonable), 131, 132, 137, 143, 149 DiEECTOBS, ■when personally liable on bills signed for company, 41, 77, 78 See Company — Principal and Agent. DlSCHAEGES, discharge defined, 199 effects of discharge, 199 discharge of bill and of party distinguished, 199 discharge inter partes, 199 discharge when laws conflict, 242 Different hinds : payment in due course, 199, 200 satisfaction other than money payment, 200 payment for honour supra protest, 230 — 232 coincidence of right and liability, 210 confusio, 211 waiver or cancellation, 211, 212 alterations, 213—218 renewal, 224, 225 novatio, 225 discharge of surety by dealings with principal, 218 — 223 compensatio, 242, n. foreign subscription, 292 discharge under bankruptcy laws, 218, 219 part payment as pro tanto discharge, 201 , 205 Discount oe Bill, 86, 106 DisHONOtri!, By non-acceptance : defined, 139 consequences of, 139, 140 re-presentment after, 45 omission to give notice of, 153 negotiability and status of bill after, 120 subsequent acceptance, 45 measure of damages against drawer or indorser, 190, 191 INDEX. 387 DiSHONOUfi — continued. By non-acceptance — continued. Statute of Limitations, 291 as breach of contract with drawer, 182, 183 rights of holder against drawee, 179, 180 effect on securities held as cover for bill, 296 By non-payment : defined, 151 consequences, 151, 152 effect on securities held, as cover, 296 — 302 By Acceptor supra protest, 228, 230 DiSTANTiA Loci, foreign rule of, 1 5 DrVrDEND WAEEAifT, may be crossed as cheque, 280 indorsement of, 108 saving for usages as to, 284 as a negotiable instrument, 322 DrvoECED Woman, 62 DoCTJMENTAET BiLL, 47, 141. See Securities for Bills. Domiciled Bill, what is, 15 presentment for acceptance required, 131 how if it comes forward late, 132 presentment for payment, 145, 146 protest for non-payment of, 174 domicile does not make acceptance qualified, 47 when addition of domicile avoids bUl, 216 Donatio Mortis CaxtsA, bill or note drawn by third party held by donor, 130 donor, 130 cheque drawn by donor, 250 Double Insoltency, 299 — 302. See Securities for Bills. Deaft, bill frequently called, 8 c c 2 388 INDEX. Drawee, defined, 8 same person or firm as drawer, 17, 18 as payee, 17 fictitious, 17, 137, 150, 167, 168. See Fictitious Parties. person not having capacity to contract, 17, 137, 167, 168 designation in bill, 8, 17 certainty required in address to, 18, 41, 42 alternative, 19 joint, 19, 48, 136, 146. See Joint Parties. address to, construed with, acceptance, 41, 77 requisites of the order to, 9 — 15. See Order to Drawee. acceptance by, 40 — 43 acceptance by person who is not, 40, 41, 42 one of several, 41, 48 bill left for acceptance with, 138, 139 revocation of acceptance by, 52 — 54 obligation to accept or pay, 181, 182, 251 damages against, for non-acceptance, 182, 183 privity with holder, 179, 180, 249 holder's right to funds or goods in hands of, 179 remedy of holder of cheque against, when drawer discharged, 249 when agent of holder to give notice of dishonour, 154, loo death of, 137, 146, 147, 165, 169. See Death. bankruptcy of, 137, 149, 182, 295. See Bankruptcy. payment by, as a discharge, 199 presentment for acceptance to, 131 — 141. See Preserdment for Acceptance. payment to, 141 — 152. See Presentment for Payment. See Acceptor — Banker — Cheque — Payment — Dishonour — Securities for Bills. Deawee in case of need, 38 Dbawer, defined, 8 distinguished from maker of note, 269, 270 of bni and cheque distinguished, 245, 246 same person or firm as payee, 17 drawee, 17 joint drawers, 107, 160. See Joint Parties. signature of, 9, 49 — 52. See Signoctwre. INDEX. 389 Drawer — contin tied. deliveiy of bill to payee, 62 — 56 fictitious person, 122, 23, 50. See Fiditions Parties. forged or unauthorized signature of, 71 — 76. See Forgery. right to draw, and relations with drawee, 181, 182, 251—26;! death of. See Death. bankruptcy of. See Baiikriipti:i/. accommodation drawer, 87, 196, 197, 205. See Accomvwda- tiau Party, capacity of, 60 — 05. See Capaciti/. authority of. See Parfmr — l^n'iicipal and Agent. how far a surety as regards acceptor, 184, 222, 223, 303. See Principal and Siirdi/. relation to indorsers, 185, 186, 218, 219 payment by, as a discharge, 20-i, 205 taking up bill in a set, 236 re-transfer to, 120 re-issue by, 120, 204 duty to give duplicate in case of loss, 233 obligation to give a set, 235 contract with holder, 185, 186 interpretation of contract when laws conflict, 240. See Conflict of Laws. estoppels which bind as such, 186 measure of damages against, 190 — 194 Statute of Limitations as to, 291 lien of, as unpaid vendor, 295. And see Siraritiesfor Bills. How Liahiliti/ Nei/ativtd : intention to sign different document, 277 forgery, 71 — 75 consideration negatived (including fraud, illegality), 93 —101 transfer of property to holder negatived, 52 — 56 capacity to contract negatived, 60 — 65 non-performance of holder's duties, 131 — 178 jua tertii, 55, 99, 101 discharge of bill or discharge inter partes, 199 — 226 Drumken ILVN, 62 DtTE Date, how determined in general, 34 — 37 conflict of laws, 244 390 INDEX. Duplicate, right to, -when bill lost, 233 light to have bill drawn in a set, 235 "copy" of foreign bill, 105, 107 DuBBSS, 92, 93, 99 Eqititable Assignment, order amounting to distinguished from bill,' 9, 10, 12, 13 negotiation of bill distinguished from, 102, 103, 104 bills as subject of, 129. See Transfer. bill or cheque does not operate as, in England, 179, 180, 298 Scotch rule, 179, 180 EauiTY {Court of). See Injimction — Mistake. Equity attaching to Bul, 117 EUASUBB, effect of, 212, 213 onus prolandi, as to, 213, 218 EscEO-w, bill delivered as, 56 Estoppel, by negligence, 74, 206 distinguished from ratification, 74 person disputing his own signature, 73, 207 authority to fill blanks, 49 — 52 authority of partner in trading firia, 68 infant representing himself of age, 63 Arising on Bill : from drawing, 186 from accepting, 184, 185 from indorsing, 187 from accepting ev^a protest, 21, 229 from making note, 269 Evidence, of usage or custom, 282, 315 to show oral discharge, 57, 212 to vary or contradict terms of bill, 57 — 59 contemporaneous or collateral writing?, 59 INDEX. 391 EviDENOE — continued. to contradict the date, 33, 34 date of bill in bankruptcy procoediugs, 33 to stow delivery -was conditional, 55, 56 to supply blanks, 20, 28, 33 to identify payee when misdescribed, 20 to negative consideration, 57. See Consideration. of notice of dishonour by admission of liability, 166 of waiver of notice of dishonour, 166, 167 to show relationship of principal and surety, 58, 59, 218, 220 to show co-suretyship, 198, 223 to charge undisclosed principal, 67 how far bill or note evidence of debt, 310 estoppels. See Estoppel. onus probandi. See Onus prohandi. amendment of Scotch law, 285 EXCHANGSB, contract of, underlying bill, Introd., p. Iviii. rate fixed by indorsement, 26, 27 unauthorized indorsement of a rate of, 27, 216 See Re-exchange, Exchequer Bills, 323 Execution, bill taken in, 127, 334, 350 of instrument by order of Court, 350 BXECUTOE, when bill held by testator vests in, 126 authority to fill up inchoate bill, 49, 50 presentment for acceptance to, 136 presentment for payment to, 146, 147 personal liability on bill signed as, 77, 78 delivering bill made or indorsed by testator, 53, 55 not testator's agent, 55 efi'ect when acceptor becomes holder's, 210 effect when holder becomes acceptor's, 210 may indorse without personal liability, 105 See Administrator — Death — Donatio mortis causa. EXECUTOEY, consideration expressed on bill, 11 contract of indorser, 60, 61, 189 392 INDEX. Ex-PABTNERS, 70 FATL-tTBE OF CONSIDEEATION, 97, 98 Fast-DAT {puhlic), bill falling due on, 35, 36. See Non-business Bay. Felon, party to bill, 61. See also Forgery — Stolen Bill. Fictitious Name oe Paety, real person using fictitious name, 65, 66 Fictitious Drawer : title through, 21, 50 acceptor's estoppels, 184 — 185 acceptor supra protest's estoppels, 229 indorser's estoppels, 187 Fictitious Drawee, Acceptor, or Maker : instrument, biU, or note, 17 presentment for acceptance, 137 payment, 150 notice of dishonour, 167, 168 Fictitious Payee and Indorser : title through, 21, 50, 185—187 acceptor's estoppels, 185 drawer's estoppels, 186 indorser's estoppels, 187 maker of note's estoppels, 269 Fi. Fa., ■writ extends to bills, 127, 334 Firm. See Partner. Fluctuating Balance, as consideration for bill, 87 Force and Fbae, 92, 93, 94 FoEEiGN Bill oe Note, defined, 15, 16 how stamped, 356 protest of, 171. See Conflict of Laws. damages when dishonoured, 192, 193 FoEBiGN Bonds to Beaeee oe Sceip, negotiability of, 314, 324 foreign government not liable on, 317, 318 INDEX. 393 FoKEiGN Codes and Laws, references to, Introd., p. 1. See Gonflict of Laws. FOBEIGN OraEENOY, computation of sum payable, 27, 28, 243. See Sum payable. computation for stamp purposes, 353 Foreign Dischaegb, 242. See Discharge. FOBGERT, negotiation restrained by injunction, 74 cancellation of biU. by order of court, 74 recovery of money paid, 206 — 208 ante-dating to defraud, 34 renewal of forged bill by mistake, 94 - bill drawn against forged bill of lading, 97 Forged or Unauthorized Signature : no liability on, 71—74 no title made tbrough, 71 — 74 ratification, 71, 74 pajrment in general, 71 cbeque beld under forged indorsement, 209 wife's indorsement forged by husband, 74 party estopped from disputing his own, 73, 74, 208 estoppels arising on bill. See Estoppel. agent signing "per proc," 75, 76, 209 foreign laws, 74 Fraudulent Alteration : general effect, 213 acceptance after, 214, 216 negotiation after, 214 — 216 payment after, 206—208 See also Fictitious Party. FoEM OF Bill, conflict of laws as to, 238 See Bill of Exchange. FOEMS, inland bill, 329 foreign bills, 329 French bill, 330 notices of dishonour, 330 promissory note, 330 protest by householder, 286 394 INDEX. Forms — continued. protest for non-accoptance, 331 act of tonour, 332 French protest, 332 Fkatjd, affecting current bill, 92, 93, 94, 99, 100 overdue bill, 116, 117 original bill in case of renewal, 94, 224 property in bill obtained by, 99 injunction to restrain negotiation, 99 evidence to shift onus prohandi as to value, 93 Special Cases of Fraud : ante-dating to defraud creditor, 34 cheque in favour of third party obtained by fraud, 55, 94, 95 partner giving firm bill for private debt, 69, 72, 92, 94 indorsee for special purpose misappropriating bill, 55 blanks fraudulently filled up, 49 — 52 personation of payee, 71, 91, 202 bill accepted on faith of forged security, 97 agent signing for principal without authority, 76, 77 bill drawn and accepted to defraud third party, 273 See Forgery — Fictitious Party. Feench Law {of Bills), French Code, what and how cited, Introd., p. xlix. weight given to, in England, Introd., p. 1. theory of, compared with English, Introd., p. Ivii. summary of points of difference, Introd., p. Ivii. law of 1865 as to cheques, 246 notes and billets a porteur, 264 And numerous citations. Gtaenishee Okdee, effect of service on banker, 251 General Acceptance, 46, 47. See Acceptance General Indorsement, 110 German Excuange Lav, Introd., pp. 1., li., and numerous citations. INDEX. 395 Gift, as consideration for bill, 85, 87 of bill made by third partj', 96 liability of donor on bill, 96, 250 In contemplation of Death : bill held by donor drawn by third party, 130 bUl drawn by donor, 130 cheque drawn by donor, 250 GiviNQ Time, when surety on bill discharged by, 220, 221 Good Faith, test and definition of, 272 in holder, 89, 91, 94 in payor, 200, 272 Good Feiday, bill falling due on, 35, 36. See Non-business Day. Grace, Days of, 35 — 38 Guaeantoe, presentment for payment to charge, 152 notice of dishonour to, 169, 170 See Principal and Surety. History, of negotiable instruments, Introd., p. liii. case law and code law compared, Introd., p. Ivi. of the Bills of Exchange Act, Introd., p. xliv. HOLDEE, defined, 5 holder for value, 8;J, 84 pledgee or holder having a lien, 85, 86 holder in due course, 88 holder for value without notice, 89 holder claiming under holder in due course, 92 relations with drawee of unaccepted bill, 179 — 181 acceptor or maker becoming, at maturity, 210 marriage of, when a woman, 126. See Husland and Wife. death of, 127. See Death. bankruptcy of, 127, 128. See Bankruptcy. laches of, 131 396 INDEX. EOLDEB — amtimied. Duties : presentment for acceptance, 131 — 140 payment, 141 — 151 after taking qualified acceptance, 140, 141 protest of bill, 171—176 presentment when reference in need, 38, 39 to acceptor supra protest, 229 notice of dishonour, 152 — 171 as regards drawee or acceptor, 176 — 178 on receipt of payment, 178 transfer of bill in a set, 236 to justify identity to payor, 202, 203 warranty of title to receive payment, 208 to keep bill intact, 212, 216 effect of conflict of laws, 243 Bights : further negotiation ofbiU, 102, 121, 122 with defective title to give good title, 121, 122 no rights under forged indorsement, 71 — 74 to duplicate of lost bill, 233 to have bill drawn in a set, 235 option to take acceptance supra protest, 226 return of bUl left for acceptance in twenty-four hours, 138, 139 option as to qualifled acceptance, 140, 141 of one part of a set, 236 of action and proof, 121 — 125, 140. See Action. to funds in hands of drawee, 179 — 181, 249 to securities for bill, 298—302 Holiday {Bank), bin falling due on, 35, 36. See Non-business Bay. HONOTJB., act of, 227, 231 See Acceptance for Honour — Payment for Honour. HoTlES {BeasonaUe), 135, 136 Husband and Wife, Hushand : when bill payable to wife, formerly vested in, 126 indorsing bill payable to wife, 74, 126 ixDEx. 397 Htjsbaxd axd Wife — continued. Huiband — contianed. action by, on bill payable to wife, 126 notice of dishononr given to wife, 158, 159 bill addressed to, but accepted by wife in her own name, 41,42 Wife: capacity to incnr liability, 61, 62 power to transfer bill, 61, 62 indoisement forged by bnsband, 74 light of survivorship in bUl, 126 when formerly joined with husband in action, 126 divorced woman, 62 Idehtity, payment to wrong person of same name as payee, 71 duty of person demanding payment to prove, 202, 203 personation of holder, 91 misdescription of holder, 20, 108 Illegal CoKsmESAXion', current bill, 92, 93, 99—101 overdue bill, 116, 117 renewed bill, 224 illegal association, 100 TvifRTi TATR AITD Eemote Paeties, 54, 95 IkCHOATE OE IlfCOlIELETB BiLI. OB NOTE, 49 — 52 llTDEkUi iTY, on obtaining duplicate of lost bill, 233 action on lost bill, 233, 234 right of accommodation party to, 198, 292, 303 Ihdiajt Code, Introd., p. li. IWDOBSZB, defined, 6 included in term " holder," 5 certainty required as to, 108, 111 rights under conditional indorsement, 109, 110 restrictive indorsement, 113, 114 398 INDEX. Inboesement, defined, 6 delivery requisite to complete, 52 — 54. See Delivery. revocation of, by indorser, 52, 53 distinguislied from other modes of transfer, 102, 104 tow far a new drawing, 187, 188 consists of two distinct contracts, 60 transfer of bill payable to order without, 101 bill payable specially, 102 bill already payable to bearer, 188 overdue or dishonoured bill, 116 — 118 non-negotiable bill, 188 requisites in form, 105, 238 place on bill, 106 by separate writing, 105, 106, 129 on " copj' " of foreign, bill, 105 bill in a set, 236, 237 allonge, 105 striking out, 112, 204. See also Cancellation. interpretation when laws conflict, 238 authorities to indorse, 274, 275 forged or unauthorized, 71, 219 procuration signature, 75, 76 presumption as to time when undated, 119 presumption as to order, 109 indorsement for part amount, 107 general or in blank, 110, 123 special or full. 111, 123 conversion of blank into special, 111 blank followed by special, 24, 111 several payees or indorsees, 107 qualified, or without recourse, 39, 105 facultative, e.g., waiving notice, 40 giving reference in need, 38, 39 conditional, 109 restrictive, 112 for special purpose, 55, 96, 97 for collection, 112. See Gollection. dividend warrants, 108 by holder, 102 by person not the holder, 189 by person to whom bill is transmitted by act of law, 127 by holder when misdescribed, 108 iM)Kx. 399 Indorsement — continued. by holder under dififerent name, 108, 109 by agent. See Principal and Agent. by person in representative capacity, 77, 105 conflict of laws, 238—241 by partner. See Partner. by bankrupt. See Bankrupt. to party liable on bill, 120, 210 to prior bolder, 121, 204 ■when court will compel, 104 restrain, 74, 98, 99 Indorsee, defined, 6, 188—190 quasi-indorser, or giver of " aval," 190 revocation of indorsement by, 52 contract of, severable from transfer, 60, 188. 189 same person or firm as payor, 169 capacity of. See Capacity. fictitious. See Fictitious Party. death of. See Death. who liable as, 18S contract with holder, 186 estoppels which bind, 187 measure of damages against, 190 — 192, 242 effect of payment by, 204 how far surety for drawer and acceptor, 184, 303 relations of successive, inter se, 186, 187, 198, 218 right to securities for bill, when compelled to pay, 303 rights of accommodation indorser, 197, 198, 218, 303 How Liahility Negatived : by express terms, 39, 105 conditional iudorsement, and condition unfulfilled, 109, 110 restrictive indorsement, 113, 115 re- transfer to prior party, 120, 121 holder not claiming through, 104 intention to sign a different document, 277 forgery, 71 — 75 consideration negatived (including fraud, illegality), 93 —101 transfer of property to holder negatived, 52 — 56 capacity to contract negatived, 60 — 65 non-performance of holder's duties, 131 — 178 400 INDEX. Indorsee — continued. How Liability Negatived — ^oontmued. jus tertii, 55 — 57, 99, 101 discharge of bill or discharge inter partes, 199—225. See Discharges. IlTFAUT, capacity to incur liability, 60, 62 transfer, 60, 63 agent, 63 Intobmal Bill, incomplete or inchoate, 49 — 52 ambiguous, may he treated as note, 9 rule of construction, 9, 283 when valid as equitable assignment, 13 agreement, 9, 10 Initiais, sufficiency of signature by, 276 iNJUNCTIOIf, to restrain negotiation, 74, 98, 99 for bill to be given up and cancelled, 74, 99 to compel indorsement, 104 IlTLAin) BlLI,, defined, 15 presumption that bill is, 16, 357 interpretation ■whpn indorsed abroad, 240 noting or protest of, 170, 171 damages on, 190 — 192. See Damages. inland note, 265 InSTAIjMENTS, bin payable by, 26 days of grace on bill payable by, 35 Interest, Interest Proper : on what bills, 26, 27 from what date it runs, 29 effect of altering or inserting a rate, 216 excluded for stamp purposes, 360 how computed against acceptor or maker, 190, 191 drawer or indorser, 190, 191 INDEX. 401 ItfTEEEST — continued. As Damages — continued. production of bill at trial wten claimed, 191 ■when withheld, 194 conflict of laws as to, 241 ISTERPHETATIOIf, of bin. as contract in writing, 57 of bill by law merchant, 282. See Construction. of bill when laws conflict, 238 — 244 Particular Terms : "acceptance,"' 3, 40 " accommodation bill and party," 87, 88 " action," 3 " after sight." 37, 38 " at sight," 29 " aval," 189, 190 " banker," 3, 354 " bank note," 263, 354 "bankrupt," 4 " bearer," 4 " bill" or " bill of exchange," 4, 8 " British Islands," 15, 16 "buying" a bill, 84 "cheque," 245 " consideration," 80—82 "deliTery,"4 "discount," 86 " dishonour," 139 to " domicile " a bill, 15 " equity attachingto bill," 117 " escrow," 56 "holder," 6 "holder for value," 83, 85 " holder in due course," 88 "immediate parties," 95 "indorsee," 6 " indorsement," 6, 187, 1S8 "indorser," 6 " issue," 6 "laches," 131 "lien," 86 "month," 37 C. " " 402 INDEX. Intbrpbetation — continued. Particular Terms — continued. " on presentation," 29 " payment," 200 " pay ■without acceptance,'' 132 "payO.,"25, 26, 111 " pay 0. only," 25, 112 " pay to order of 0.," 26, 111 " pay to order of indorser," 20 " person," 7 " promissory note," 261 "re-draft," 193 "re-exchange," 192, 193, 194 " remitter," 84 " remote parties," 95 to "retire" a bill, 204 " retour sans frais," 40 " sale " of bill, 84 " sans recours," 39 " third account," 8, 226 " transferor by delivery," 194 "usance " or " half-usance," 37 " value," 7, 80 " value received," 14 " value in account with X.," 11? " without grace," 35 " without recourse," 39 I U, nature and effect of, 264 Ieelamd, Act applies to, 1 Ibbegtjlabitt, patent on bill, 90, 212, 218. See also Informal Bill. in indorsement, 108 in presentment, 137, 138, 144, 147 Issue, when bill deemed to be issued, 6 alteration before or after, 214, 215 presumed to coincide with date of bill, 32 of bm on Sunday, 33 Italian Code of 1882, Introd., p. 1. INDEX. 40-'? Joint and Sevebai, Note, 265, 266. See Promissori/ Note. Joint Parties, Joint Acceptor or Maker : payment by, 201 contribution among, 199, 210, n. acceptance must be joint, 19 wben note construed as joint, 266 Joint Drawee. : presentment for acceptance to, 136 presentment for payment to, 146 acceptance by one, 48. See Qualified Acceptance. notice of acceptance by one, 141 Joint Drawer or Indorser : indorsement by, 107, 108 notice of dishonour to, 160 Joint Holder or Owner : bow to indorse, 107, 108 action on bill payable specially, 123, 124 to bearer, 124 indorsement by one co-owner to another, 96, 97 Joint Stock Company. See Company. Jus Teetii, right of party liable to set up, 55, 99, 101 ■when payor bound to set up, 202 Knowledge, how far equivalent to notice, 89 not in case of notice of dishonour, 154 Laches, 131 IiANGrAGE, bill may be in any, 9 Law Mebchant, authority of. In trod., pp. Hv., Iv. bills intei-preted by, 282 saving in Act for, 281, 282 Legal Eepeesentative, liability if he signs bill, 77—79 may indorse without recourse, 105 vesting of bill in, 127—129 D D 2 404 INDEX. Legal Tender, 10, 342 Lbttbb, of advice, 11, 182 of credit, 180, 181, 354 sufficiency of address containing notice of dishonour, 155, 156 Lex, domicilii, 61 loci contractus, 240, 241 loci solutionis, 241 fori, 292 See Conflict of Laws. Lien, as consideration for bill, 85, 86 rights and duties of holder having, 85, 86 of banker or bill broker, 86 bankruptcy of holder having, 128 on bill for costs, 200, 205, n. on bill paid by drawer or indorser, 205 of banker on paid cheque till account settled, 253 Limitations {Statute of), general rule in action on bill, 289 how time computed as to acceptor or maker, 290 drawer or indorser, 291 causes of action collateral to bill, 291 how statute defeated, 292 — 294 foreign laws, 292 conflict of laws, 243, 292 debt barred by, as consideration, 80 Liquidation op Company, powers of directors cease, 64 signature of liquidators, 279 Locus eegit Actum, 239, 243 Lost Bill, right to duplicate, 233 protest on copy, 176 presentment for payment of copy, 143, 179 notice of dishonour, 165 INDEX. 405 Lost Bili, — cmtinued. payment where destruction proved, 234 action on, 233, 234 title of, or through, finder, 5, 92, 93, 122, 123 Ltotatic, 62 Maker [of Note), defined, 261, 269 signature of, 261. See Signature. distinguished from drawer of bill, 270 compared and contrasted with acceptor, 270 contract with holder, 269 provisions of Act as to acceptor apply to, 270, 271 alternative maker, 266 estoppels which bind, 269 pa3rment by, 201 damages against, 190 Statute of Limitations, as to, 289, 290 signing as surety for co-maker, 219 — 223 same person or firm as payee, 264 when drawer of bill may be treated as, 9, 17, 18 presentment for payment to charge, 268 notice of dishonour to, 169, 177 See Promissory Note — Accerptor. Maegdtal Notes or Eeceipts {of Banher), 84 Mare, sufficiency of signature by, 276 Marked Cheque, 246 Married Woman, 61, 74, 126. See Husband and Wife. Mattjrity, of biU how computed, 34—38, 244 acceptance after, 30 negotiation after, 30, 115, 116. See Overdue Bill. payment by acceptor before, 203 action on bill before, 140 Measitre of Damages, 190. See Damages. Merger, 116, 266. Minor, 60, 62. See Infant. 406 INDEX. Misdescription or Misspelling, of bill in notice of dishonour, 158, 159 in payee's name, 19, 20, 108 in indorsement, 70, 108 in designation of drawee, 18, 40 Mistake, corrected after issue of bill, 214 power of court to rectify instrument, 189 cancellation of signature by, 213 Recovery by Payor of Money paid by mistake : from person who received it maid fide, 207, 208 bond fide, 207, 208 from correspondent or customer, 206, 207 Recovery by True Owner, 72, 257, 258 Money, instruments not payable in, 10, 261, 343 acceptance to pay otherwise than in, 43, 47 note giving option to holder, 262 See Sum Payable. Month, interpretation of, 37 Need (Case of), 38, 39. See Case of Need. Negligence, estoppel by, 74, 206 compatible with bona fides in taking bill, 272 delay in presentment or notice caused by, 146, 163 recovery of money paid by, 206 — 208 liability of collecting agent for, 132, 144 principal responsible for agent's, 144, 248 bailee or pledgee responsible for, 144 of banker in paying cheque, 209, 256 — 258 responsibility of agent for sub-agent, 144 Negotiability, what bills originally negotiable, 24, 25 to what extent bill negotiable, 115 restrained by indorsement, 112, 114 conferred by custom, Introd., pp. liv., Iv., 2, 3, 103, 312 by statute, 313, 314, 322, 323 conflict of laws, 240, 315, 326 INDEX. 407 Negotiable Instsuments oe Seotjeities, origin and history of, Introd., p. liii. action on lost, 234 Other than Bills, Notes or Cheques, 312—327 tests of negotiability, 312, 313 bank notes, 313 foreign bonds to bearer, 314 — 317 non-liability of foreign government or its agents, 317 circular notes, 318 debentures, 318—322 dividend warrants, 322 exchequer bills, 322, 323 letter of credit, 182 post office orders, 323, 324 scrip for bonds or shares, 324 share certificates and transfers, 324 — 326 warranty of title and genuineness, 326 Negotiation, defined, 102 distinguished from other modes of transfer, 103, 104 what bills negotiable, 24, 25, 115 modes of negotiation, 102 by whom bill may be negotiated, 102, 113, 114, 121, 122 to whom bill may be negotiated, 107 re-transfer to party liable, 120 time of negotiation, 115 — ^118 rights acquired by, 121 — -130 when restrained by injunction, 74, 98, 99 See Indorsement — Delivery, Netherlands Code, Introd., p. lii., and numerous citations. New Style oe Geegorian Calendar, 13, 244 No Effects, as excusing presentment, 150 as excusing notice of dishonour, 165, 168 Non-acceptance, 138, 139. See Dishonour— Notice of Dishonour NoN-BirsiNESS Day, what is, or is not, 279 bUl falling due on, 35, 36 when excluded in computing time, 279 Bank Holiday Acts, 343—347 408 INDEX. Non-negotiable Bill, 24, 25, 188. See Promissory Note. Non-payment. See Dishonour — Notice of Dishonour. "Not Negotiable," cheque may be specially so crossed, 254 effect of crossing cheque with words, 259 Notabial Act, 227, 231 NoTABT Public, when intervention necessary, 171, 175, 227, 231 when solicitor may act as, 175 seal of, 175 responsibility of collecting agent who employs, 144 notice of dishonour given by clerk of, 159 presentment of bill by clerk of, 175 protest by householder when notary not accessible, 280, 286 Note, 4. See Promissory Note — Barih Note. Notice (of Fraud or Illegality affecting Bill), what constitutes, 90, 272 effect of, to principal, 90 effect of, to agent, 90 effect when good title intervenes, 92, 116 onus prohandi as to, 93, 94 creating privity between remote parties, 96, 9!i Notice of Dishonour, To charge Drawer or Indorsers, 151 — 169 defined, 154 why knowledge not equivalent to, 154 when necessary, 152, .153 consequence of omission to give, 153, 154 by whom given, 154, 155 in what manner, 155, 157, 158 for whose benefit notice enures, 156, 157 within what time by holder, 160, 161 by party receiving notice, 163 to remote parties, 162, 163 time for transmitting through agents, 162 to whom given in general, 159 how, if party to be charged is dead or bankrupt, 160 several drawers or indorsers, 160 verbal or written, 157 INDEX. 409 Notice of Dishonotjk — continued. To charge Drawer or Indorsers — continued. return of dishonoured bill, 158 requisites in form, 157, 1 58 misdescription in, 158, 159 construction of written, 157, 158 miscarriage of post, 163, 164, 165 excuses for non-notice, 163 — 169 delay, 163 bill dishonoiu'ed by non-acceptance and negotiated, 153 cheque, 246 non-negotiable bill, 188 bill indorsed when overdue, 30 admission of liability as evidence of, 165, 166 subrogation of payor supra protest for holder, 163 conflict of laws, 243 To charge other Parties : acceptor or maker, 169, 177 guarantor, 169 person, not party to bill, but liable on consideration, 170 Notice of Protest, 154, 162 Notice of QtrAXiriED Acceptah^ce, 141 Noting, defined, 171 how effected, and objects of, 171 for what purposes equivalent to protest, 172, 279, 280 expenses of, when recoverable, 171 protest relates back to, 279, 280 NOUGTJIER, work of, on bills, Introd., pp. li., lii. Novatio, 225 Old Style, in what countries used, and effect, 13, 244 Onus Peobandi and PEESTrMPTioNS, bill inland or foreign, 15, 16, 57 correctness of date, 32 of effective delivery, 55 value and hona fides, 93, 94 holder is holder in due course, 93 410 INDEX. Onus Peobajjdi and Presumptions — continued. time of negotiation, 119 order of indorsements, 109 time of undated acceptance, 45 alteration or erasure, 214, 218 lost notice of dishonour, 155 value when bill payable at drawer's house, 167 relationship of principal and surety, 218 authority to fill blanks, 49, 50 authority of partner in trading firm, 68 in noa-trading firm, 69, 70 cancellation of adhesive stamp, 356, 358 bill alleged to be collateral security, 87 Oral Evidence. See Evidence. Order {Bill payable to), what bills are, 24, 25 effect of omitting words "or order," 25, 111, 113 how negotiated, 102 transfer without endorsement, 104, 105 action on, 123 Order to Drawee, 8 — 15 form of words, 10, 11 conditional or contingent, 11, 12 imperative or precative, 11 requiring payment out of particular fund, 12 requiring something beyond payment of money, 10 Origin, of negotiable instruments, Introd., p, liii. Overdraft, when customer may overdraw, 252, 253 Oterdue Bill, negotiability of, 116 — 119 equities which attach to, 116, 117 liability of indorser of, 30 notice of dishonour to indorser of, 30 acceptance of, 30, 45 status of bin dishonoured by non-acceptance, 120, 153 presumption as to time of transfer, 119 INDEX. 411 OvEEDtTE BiLli — continued. When deemed overdue : biU payable on demand, 118 note payable on demand, 119 cheque, 119 other bills and notes, 117, 118 OVEERULED CASES, list of, p. xxxi. Owner (True), distinguished from holder, 5 right of, if cheque paid contrary to crossing, 256, 257, 258 right to follow proceeds of biU, 72, 258 Paeol Bvidencb, 57. See Uvidence — Construction. Past ob, Paetial, absence of consideration, 96, 97, 98 acceptance, 47. See Qualified Acceptance. acceptance for honour, 227 failure of consideration, 98 indorsement, 107 ownership or interest, 97. See Joint Parties. payment by acceptor, 201 by drawer or indorser, 205 Paeticitlae Pund, bill payable out of, 12 Parties, necessary to bill of exchange, 8 promissory note, 261, 264 capacity of, 60 — 65. See Capacity. authority of. See Partner — Principal and Agent. Paetnee and Partnership, " person " includes " firm," 7 trading and non-trading firms, 68, 69 what, if drawer and drawee same firm, 17, 18 material provisions of the Act of 1890... 351 Authority of Partner : to bind co-partners by bUl, 67, 68 to transfer firm bills, 68 bill after firm dissolved, 70 to draw post-dated cheque, 276 412 INDEX. Paetnee and PABTNEBsnrp — continued. Liability of Firm : firm signature essential to liability, 60 firm style varied without consent, 66, 70 by consent, 66 firm having different names, 66, 67 no firm style, 66, n. bill addressed to firm accepted in partner's private name, 41 bill addressed to one partner accepted in firm name, 41 in -wrong style accepted in right, 42 two firms of same name with common partner, 68, 348 firm, and one partner having same name, 68 partner giving bUl for private debt, 69, 73, 92, 94 bill payable to firm under wrong style and so indorsed, 70, 108 two bills accepted for same debt, 69 unaccepted bill drawn by partner on firm, 66, 67 Liahility of Individual Partner : what firm signature includes, 66, 67 dormant or secret, 67 person holding himself out as partner, 67, 68 retired partner, 68 ex -partner when firm dissolved, 70 varying firm style without co-partner's consent, 66 bill addressed to firm accepted in partner's individual name, 41, 43 one partner, acceptedin firm name, 41 Parts of a Set, 235. See Set. Pass Book, 253 Patent Ibbegtjlakity {on Bill), 90, 117, 218 Payee, defined, 8 included in term "holder," 5 same person or firm as drawer, 17 drawee, 17 maker, 264 when necessary to designate, 19, 261 certainty required in designation, 19, 20 blank for name of, 20, 49 — 52 fictitious, 21. See Fictitiov^ Parties. INDEX. 41 J Payee — continued. alternative, 20 holder of office for time being, 20 several payees, 20, 107 misdescription of, 20, 108 deceased person, 23, 127 when payee must indorse, 102 indorsement by, where misdescribed, 108 See Holder — Indorsement — Payment. Payment (by Bill), general rule as to payment, 304 bill or note held as collateral security, 304 usual operation of bill or note as conditional payment, 305 how if creditor holds some higher security, 306 bill given for rent, 307 effect of holder's laches, 308 when bill or note is absolute payment, 308 bill or note for less sum than the debt, 309 cheque sent in settlement, but received on account, 309 bill or note as evidence of debt, 310 Payment {of Bill), meaning of term, 200 when deemed complete, 200 in due course, what and effect, 199, 200. See Discharge. presumption pf, after twenty years, 201 as a fraudulent preference, 219 part payment, 201, 205 accommodation bill, 205, 206 bill in a set, 237 crossed cheques, 256 — 259 forged biU or note, 71—75, 206—208 cheque or other demand draft held under forged indorse- ment, 208, 209 presentment for. See Presentment for Payment — Money. sum payable, 26 — 29. See Sum Payable. non-payment. See Dishonour. By whom : drawee, acceptor, or maker, 199, 201 drawer or indorser, 204, 205 person not party to bill, 201, 202 accommodation biU by person accommodated, 205, 206 414 INDEX. Payment {of Bill) — continued. Time : before maturity, 203 at or after maturity, 199, 203 computation of time, 34 — 38, 244 To whom : holder, 199, 200 holder with defective title, 202 wrong person of same name as payee, 202 person claiming under a forgery, 7 1 — 75, 206 — 20& bankrupt or trustee, 128, 129 to sheriff under an execution, 127 executor or administrator, 126, 127 duty of payee to prove identity, 202, 203 Recovery of Money paid by Mistake : from person who received it malA fide, 207, 208 bond fide, 207, 208 from correspondent or customer, 206 Payment foe Honotje stjpeA Peotest, 230—232 what bills, 230 effect on bill, 230, 232 requisite formalities, 231 who may pay, 230, 231 holder's obligation to receive, 232 rights and duties of payor, 231, 232 Penalty, clergymen trading, 61 issue of unstamped bank-note, 354 refusing receipt, 362 not cancelling adhesive stamp, 353 not truly setting out facts aSeoting stamp, 352 negotiating or paying bill not duly stamped, 358 issuing bin or note under 20s. in Scotland, 10 not inserting proper signature of limited company, 340 Pencil Signatuee, 276 Pbesonation of Payee, 91, 202, 203, 208 Place, Of Drawing or Making : indication of, 13, 14 note under £20 payable to bearer, 262, 263 INDEX. 415 Place — continued. Of Payment : indication of, 13, 15 alternative, 15 alteration or insertion of, without authority, 215, 216 due date determined by law of, 244 acceptance restricted as to, 47, 48. See Qualified Acceptance. note under £20 payable to bearer, 262, 263 indicated in body of note, 268, 269 indicated by memorandum on note, 269 presentment for payment of bill, where none indicated, 145, 146 rule of distantia loci, 15 Pledge, as consideration for bill, 85, 86 rights and duties of pledgee, 86, 144 Possession, actual and constructive, 4, 5 what change of constitutes delivery, 4, 52, 53 necessity for holder having, 6, 124, 125 bearer or holder and mere possessor distinguished, 5, 6, 103 —105 what sufficient to support action on bill payable to bearer, 124 Post-dating, bill, cheque, or note, 33, 275 See Cheque. Post Office, agent of sender or recipient, 53 propertj' hi half-note sent through, 53 notice of dishonour sent through, 155, 164, 165 presentment for acceptance through, 137 payment through, 147 miscaiTiage of, 163, 165 Post Office Obdee, not a negotiable instrument, 323, 324 POTHIER, authority of, in England, Introd. , p. 1. 416 IMJBX. PBE-ExiSTn^a Debt or Liability, as consideration for bill, 80, 81 Pkematttee, presentment for payment, I42, n. payment or other discharge, 203 Presobiption, foreign laws as to, 243, 292. See Limitations. Presentment tor Acceptanoe, when necessary, 131, 132 when optional, 131 consequence of omission when necessary,' 131 — 133 object of, when optional, 132 duty of agent, 132 time for, when bill payable after sight, 133 domiciled bill coming forward late, 132, 133 time in other oases, 136 by whom to be made, 135 to whom and when, 135, 136 day and hour, 135 several drawees, 136 if drawee dead or bankrupt, 137 when through post oflSce, 137 how long drawee may take to consider, 138 excuses lor non-presentment, 137 informality, when excused, 137, 138 dishonour, and its consequences, 139 compared with presentment for payment, 137 when merged in presentment for payment, 1 ;J(i re -presentment after dishonour, 45 conflict of laws, 243 Pkesentment for Payment, whether person presenting bound to prove identity, 202, 203 whether person presenting warrants title, 208 duty of collecting agent, 144 protection to banker presenting crossed cheque for customer, 259 foreign law, and conflict of laws, 243 To charge Drawer or Indorsers, 141 — 152 consequence of omission, 141, 142, 247, 249 contrasted with presentment for acceptance, 137 INDEX. 417 Pbesentment fob, Payment — continued. To charge Drawer or Indorsers — continued. at what time bill payable on demand, 142, 143 note payable on demand, 267 cheque, 142, 246 other bills and notes, 142 on what days, 143, 144 at what hours, 143, 144 by whom, 143 production of bill, 178 at what place, 145, 146, 147 to whom, 144 several payors, 146 payor dead, 146, 147 through post office, 147 excuses for non-presentment, 149 — 151 excuses for delay, 148 dishonour and its consequences, 151. See JDiahonow. duty of collecting agent, 144, 248, 249 To charge other Parties : acceptor, 176, 177 maker of note, 177, 178, 268 guarantor, 152 person not party to bill, but liable on consideration, 152 To Acceptor for Honour or Case of Need, 229 — 232 consequence of omission, 2iL'0 * time and mode, 229, 230 non-payment, 230 Crossed cheques, 256 — 269 Peestimptions. See Onus probandi — Estoppel. PEiNcrPAii AND Agent, Liability of Principal to Holder : on instrument when un-named, 65 on consideration when un-named, 67 trading in name of agent, 67 name signed by agent, 67 procuration signature, 75, 76 draft on principal accepted by agent in his own name, 41,42 bill addressed to agent accepted by principal, 41, 42 construction of signature, 42, 77 forged signature, 71 — 75 C. E E 418 INDEX. PRINCrPAl AND Agent — cmtinued. Liability of Principal to Holder — continued. ratification of forged or unauthorized signature, 72 — 74 estopped from disputing agent's authority, 67, 72—75 Lialility of Agent to Holder : agent known to be such signing his own name, 65, 66 procuration signature, 75 non-existing principal, 76 effect of representation of authority, 77 signature as agent or representatiTe, 77, 78 bill drawn on principal accepted by agent in his own name, 41, 42 agent accepted for principal, 41, 42 Liability of Principal to Agent : indemnity to agent signing in his own name, 292 part owner indorsing to co-owner for collection, 56 Liability of Agent to Principal : indorsing bill to principal, 96, 97 collecting agent for negligence, 132, 144 employment of sub-agent, 144 authority to take cheque or bill in payment, 304, n. Existence and Effect of Agency : infant agent, 63 wife indorsing as husband's agent, 61 evidence of agency, 275, 276 « effect of notice to principal or agent, 90 bill held by bankrupt agent, 128 indorsee under restrictive indorsement, an agent, 113, 114, 115 drawer or indorser paying bill as acceptor's agent, 201, 204 • drawee agent of holder to give notice of dishonour, 154 notice of dishonour given by agent in his own name, 154 agents to receive notice of dishonour, 159, 160 time for transmitting notice of dishonour through agent, 162 when holder deemed agent of previous holder, 96 executor not agent of testator, 55. See Authority — Branch Bank. PRiNCiPAii AND Surety, ' discharge of surety by certain dealings with principal, 218 —223 INDEX. 419 PeincipAL AlfD SUBETY — continued. prima facie relationsHp of parties to bill inter se, 218 evidence to show real relationship, 57, 58, 59, 218 history of law of, as to bills, 220 principal subsequently becoming surety, 220 what amounts to giving time, 220, 221 reservation of rights when time given, 218, 219, 221 what amounts to discharge of principal, 222 discharge of co-surety, 222 severable contract of suretyship, 223 eflfect of renewal of bill, 218, 224 rights of surety compelled to pay to indemnity, 197, 198 to securities, 222, 223, 302 Petvity, between holder and drawee, 180, 249, 298, 299 how created between remote parties, 95 Pbocueation, eflfect of signature " per proc," 75 — 77 Pkoduction, of bill when payment demanded, 178 at trial when interest claimed, 191 for proof or dividend in bankruptcy, 349 Peomissosy Note, defined, 261 defined for stamp purposes, 355 how far provisions as to " bills " apply to, 270, 271 compared with bill of exchange, 270 when bill of exchange may be treated as, 9, 17, 18 distinguished from bank-note, 263 inland or foreign, 265 foreign law, 264 necessary parties, 261, 264 maker and payee same person, 264 delivery to payee to give eflfect to, 265, 266. See Delivery. form of words, 261, 262 conditional or contingent, 261 containing pledge of security, 265 expressed in alternative, 262 under £20... 263 under £5... 283 under 20s, in Scotland, 10 E E 2 420 INDEX. Peomissoet Note — continued. of corporation, under seal wittout signature, 278, 290 of company under Companies Acts, 278 construction when signed by agent, 77 meaning of "after sight" in, 37, 38 negotiable by statute, 271 presentment to charge maker, 268 indorser, 269 notice of dishonour to maker unnecessary, 169 protest of, unnecessary, 271 expenses of noting, 191 payment supra protest, 230 maker's contract with holder, 269, 270 estoppels which bind maker, 270 Payable on demand : when so deemed, 29 effect as continuing security, 267 presentment to charge maker of, 268 time for presenting to charge indorser, 267 when deemed overdue, 267 damages against maker, 177, 191, 192 Statute of Limitations as to maker, 290 restrictions on issue by banker, 64, 65 Joint and Several Note : when construed as, 266 authority of partner to bind co-partners by, 266, 267 maker added to, after issue, 216, 266 alteration by erasing maker's name, 216 converting joint note into, 216 maker, who is payee, suing co-maker, 264 payment by one maker as a discharge, 202, 266 giving time to maker when co-maker a surety, 219 Non-negotiable Note : when so deemed, 24, 25 days of grace on, 35 giving up on receipt of payment, 178 liability of indorser, 189, 190 See Maker — Bill of Exchange. Peoof, holder's right of, 125 right of, compared with right of action, 125 rule against double, 125, 205, 349 INDEX. 421 PEOOr — continued. foreign bankruptcy, and double proof, 18, 125, 343 creditor holding security, 125 rule in Ex p. Waring, 299, 302 on accommodation bill, 85 bill broker giving guarantee, 106 on contingent liability, by drawer or indorser, 125 by drawer for re-exchange, 1 93 production of bill for, 349 Pbopbrty {in Bill), when indorsement transfers, 102, 104 when mere delivery transfers, 102 test as to when it passes, 52 — 56 See Transfer — Delivery — Securities for Bills. Pbotest, what it is, 171 founded on noting, 171, 279, 280 may be extended from noting at any time, 172, 279, 280 notice of, 154, 162 foreign bill must be protested, 171 consequence of not protesting, 171, 172 of inland bill in Scotland, 172 of foreign note not generally required, 265 at what time to be made, 172 at what place generally, 173, 174 if bill presented through post, 173 for non-payment of domiciled bill, 174 requisites in form, 174 stamp on, 361 by householder, if no notary available, 280, 286 of lost bill, or for non-delivery, 175 forms, 286, 331, 333 recovery of expenses of, 191, 193 excuses for non-protest and delay, 175, 176 not necessary to charge acceptor, 177 for non-payment to charge acceptor for honour, 228, 229 on dishonour by acceptor for honour, 230 for better security, 173 in case of qualified acceptance, 141 foreign law and conflict of laws, 243 See Acceptance supra Protest— Noting— Paymewl supra Protest. 422 INDEX. Public HoLroAT. See Non-husiness Day. Public Polict i^ConMeration contravening), 99, 100 Qualified, Acceptance, what acoeptanoes are, 46 — 49 eflFect on prior or subsequent parties, 140, 141 holder's option to take, 140 notice to prior parties, 141 protest, 141 presentment to charge acceptor, 177 indorsement, 39, 112, 113 delivery, 54 — 57 Eailwat Company, capacity to contract by bill, 63 EATrpicATioir, of forged or unauthorized signature, 71 — 74 by infant, 62 action brought in name of principal, 124 Eeasonable Diligence, 131, 132, 137, 164, 165 Eeasostable Hours, 135 Eeasonable Time, presentment lor acceptance, 132, 133 payment, 142, 143, 247, 267 notice of dishonour, 160 — 162 filling up blank signature, 49 Eeceipt, holder's duty to give, 26, 362 unstamped, on bill, 363 indorsement by way of, 26 Eecoyeet of Monet Paid, 206 — 208. See Mistake— Warranty, Ke-dkaft, 193 EE-EXCHAlfGE, what and how computed, 193, 194 fixed sum in lieu of, 193 term used in different senses, 193 bill dishonoured by non-acceptance, 194 INDEX. 4l>3 Ee-exchange — continued. Liability for : drawee to drawer, 183 acceptor to holder, drawer, or indorser, 192, 193 drawer or indorser to holder, 192, 193, 194 Eeferee IX Case of Need, 38, 39, 229. See dse of yeed. Ee-Issxte, by acceptor or maker, 120, 121, 204 by drawer or indorser, 120, 204 bank note, 263 Eeiease {Verbal), of bUl or party, 211. See Discharge. EEillTTEK, 84 Eemote Pasties, notice of dishonour to, 161, 162 Eemote ajnt) Immediate Partbes, consideration between, 54 — 56, 95 — 97 EENEWAIi, effect of, 224 consideration for original bill as affecting, 224 agreements to renew, 224, 225 "R.TJNT, effect of giving bill for, 307 Eepeals, 281, 287, 288 EEPKESE^■TAT^rE, personal liability of person signing as, 77, 105 vesting of bUl in, 126, 127 Eepdted Ow^-ership, 129 EESTMcrrvx Indoesemestt, 112 — 115 what indorsements are, 112 rights and duties of indorsee, 114, 115 rights of indorser, 114, 115 position of payor, 114 •' Eetire," 204 424 INDEX. Eeteaotation of Payment, 200 ■Re-tbansfek, 120, 121, 204 Eevocation, acceptance by drawee, 52 — 54 indorsement by indorser, 52, 53 of delivery, 52, 53 of authority by death, 50, 52, 249 by bankruptcy, 251 of cheque by drawer's death, 250 Sale of Bill, different meanings of term, 84 liability of transferor by delivery, 195, 196 duty of transferee, 196 warranty on, 195, 196 "Sans Feais," ob "Sans Protet," 40 " Sans Eecotjes," 39 Satisfaction {other than money payment), 200, 211 Savings undee the Act, rules in bankruptcy, 281 common law and law merchant, 281, 282 stamp laws, 283 Companies Acts, 283 rights of banks of England and Ireland, 284 usages as to dividend warrants, 284 summary diligence in Scotland, 284 Scotland {Scotch law), Act applies to, 1 bills and notes under 20«., 10 rule as to negotiability adopted, 25 Christmas Day and Good Friday, 35, 36 bank holidays, 35, 36 minors, 60 force and fear, 92, 93 estoppels, 74 bill as assignment of funds, 180 saving for summary diligence, 284 amendment of law of evidence, 285 rule of Ex p. Waring does not apply to, 301 sesennial prescription, 2S5 INDEX. 425 SCEIP, negotiable scrip, 3, 324 Seal, sufficiency as signature, 278 unsigned note under, 278 added to signature, 278 of notary on protest, 175 Secukities Foa Bills of Exchange, right of drawer as unpaid vendor, 295 right of drawee on acceptance, 296, 297 right of holder to cover for bill, 298, 299 bill drawn against specific goods, 299 double insolvency, rule in Ex p. Waring, 299 — 302 right of drawer or indorser compelled to pay, 222, 302, 303 right of surety compelled to pay, 222, 303 Sectjeitt, bill as collateral, 85, 86. See Collateral Security. protest for better, 173 Separate Estate, bill of married woman who has, 61, 62 Set {Bill drawn in), 235—237 how drawn, 235 distinguished from "copy," 235 whole set one bill, 235 obligation of drawer to give, 235 duties of holder as to, 236 rights of holder of one part, 236, 237 acceptance, 237 indorsement, 237 payment, 237 taken up by drawer or indorser, 236 stamp laws as to, 235, 359 Set-off, whether an equity which attaches to bill, 116, 117, 121, 123 against holder suing as agent or trustee, 125 surety sued by holder, 88 compenaatio, 242 426 INDEX. Shake Ceetipicates and Tuansfees, how far similar to negotiable instruments, 324 — 327 efieots of blanks in, 324, 325 when transfers of, regulated by foreign law, 326 Sight, " at sight " means "on demand," 29. See Demand Bill. See After Sight. SiGNATUBE, defined, 276 delivery to give effect to, 62, 265 immaterial by what hand, if authorised, 274, 275 what sufficient in point of form, 276 of corporation, 278 of joint-stock company, 278 of liquidators, 279 intended for different document, 277 blank, 49 — 52. See Blank Signature. of drawer, 8, 9 of indorser, 105, 188 of acceptor, 43 of acceptor supra protest, 227 of maker, 261 essential to liability on bill, 65 firm signatures, 66, 67 fictitious. See Fictitious Party. real person signing in assumed name, 66, 67 efleot of "per proc," 75, 76 liability of person signing as agent or representative, 77 forged or unauthorised, 71 — 75. See Forgery, Estoppel. cancelled by mistake, 213 authorities to sign for another, 275, 276 to notice of dishonour, 158 Special Indoksement, definition, 111 effect, 111 distinguished from restrictive, 113 certainty required as to indorsee in. 111 indorsement in blank converted into, 111 following indorsement in blank, 25, 111 action on bill so indorsed, 123 INDEX. 427 Stake-holder, delivery of bill to, 53 Stale Oheqitb, 119 Stamp or Die, sufficiency as signature, 276 cancellation of adhesive stamp by, 353 Stamp and Stamp Act, bank note defined, 354 bill of exchange defined, 354 includes cheque, 354 promissory note defined, 355 when adhesive or impress stamp to bemused, 352,' 356 adhesive stamp, how cancelled, 353 when adhesive stamp to be cancelled, 353, 356 facts afiecting duty not truly set^forth, 352 post-dated cheques, 352 cheque or bill on demand, how stamped in general, 356, 358 stamped after issue, 357 foreign note and foreign bill not payable on demand, 356 other bills and notes, how stamped, 357 bill purporting to be drawn abroad deemed so, 357 foreign stamps and conflict of laws, 240, 357 impressed stamp of improper denomination, 357 bill in a set, 359 effect of bill not being duly stamped, 358, 359 amount of duty, 369 sum payable expressed in foreign currency, 353 bill expressed to bear interest, 360 exemptions, 360, 361, 363 protest and other notarial acts, 361 re-stamping after alteration, 215 notice of dishonour on bill void for want of, 358 Statute of Peaxjds, 58 Statute of Limitations, 289 — 294. See Limitations. Statutes {in Appendix), 1 & 2 Vict. c. 110, 8. 12 (H. fa. against bills), 334 7 & 8 Vict. c. 32, ss. 10—12 (bank-notes), 335 16 & 17 Vict. c. 59, s. 19 (forged indorsements), 336 428 INDEX. Statutes {in Appendix) — continued. 17 & 18 Vict. c. 83, s. 11 (bank-aotes), 337 17 & 18 Vict. 0. 125,. s. 87 (lost instruments), 338 24 & 25 Vict. 0. 96, s. 100 (restitution of stolen property), 339 25 & 26 Vict. c. 89, ss. 41, 42, 47 (bill or note of company), 340 33 Vict. c. 10, Bs. 4 — 6 (coinage and legal tender), 342 34 Vict. c. 17 (Bank Holidays), 343 38 Vict. c. 13 (Bank HoUdays), 346 46 & 47 Vict. c. 62 (voting and proof on bills), 348 46 & 47 Vict. c. 55, s. 17 (crossing instruments), 347 47 & 48 Vict. c. 61, s. 14 (execution of instruments by order of Court), 350 51 & 52 Vict. c. 43, ss. 147, 148 (county court executions), 350 53 & 54 Vict. 0. 39, ss. 5—9 (partners), 352 54 & 55 Vict. c. 39 (stamps and stamp duty), 352 Stolen Bbql, title of bond fide holder to, 6, 50, 53, 55, 72, 94 ornis prohandi as to value, 93 payment to thief, when a discharge, 202 inchoate or incomplete biU, 49, 50 Steawgeb, to Bell, indorsem.ent by, 188 — 190 acceptance suprd protest by, 226 payment by, 202 payment sy^A protest by, 230, 231 rights of, as equity attaching to bill, 117 acceptance for accommodation of, 87 action on bill payable to bearer by, 124 alteration by, 213, 214 presentment for payment to charge, 152 notice of dishonour to, 'when necessary, 169 given by, 155 Stbiking out Indoesement, 112, 204 SuMMAET Diligence, saving for Scotch law of, 284 Sum Payable, insertion of, 8 must be expressed in money, 8, 10 IXDEX. no SCTM PayJlBI^ — cordinued. TniTiiTnTiTn Hj^t for bill, 10 note, 10 certainty required in statement, 26, 27, 23 discrepar^cy between words and figures, 2 ■> effect when left blank, 2'i, 49 authority to fill blank, 49—52 blank for, fraudulently filled up, 43 — -52 H(/w Ctrmpitted: bill paTiLle ia foreign currency, 10, 2'j, 27, 21-3 depreciated CTirrency, 27 bill expressed to bear interest, 26, 29 bill payable according to exchange, 26, 27 Alteration of: material, 215, 216 effect of, 213, 214 acceptance in ignorance after, 213, 214 negotiation in ignorance after, 213, 214 recovery of raoiiev paid in igaoranea, 206 — ^208 Sun Ezcovi:i'A2LZ, 190, 191. ^lae Damages. Sttsdat, bfll falling due on, 35 — 36 bill issued on, 33 when excluded in computing tirae, 279 Stjeety. See Principal and Surtiy. STJSPETSIOJr {of BigU of Action), renewalofbiU, 224, 225 acceptance supra protest, 139 bill given in payment, 224, 225 Tattptg up BrLL, by drawer or indorser, 204 Thasksgiyxstg Dat [PuUk], bill felling due on, 33, 36. See yon-l'Mness Day. Thied Accoujrr, 226, 230 Time {in general). See Biosowj-lle Tirm — Non^lwiness Day. 430 INDEX. Time of Payment. certainty required as to, 8, 30 quaKfied by acceptance, 48. See Qualified Acceptance. effect of alteration in, 215, 216 effect of pre-payment, 203 no time expressed, 29 bill payable at " sight " or "on presentation," 29 accepted after maturity, 30 indorsed after maturity, 30 payable by instalments, 25, 26 after sight, 37, 45 days of grace, 35, 36 dies non, 35, 36 usance, 37 conflict of laws, 244 TeABE A3SD TeADEE, terms " trade" and "business " not co-extensiye, 70 trading and non-trading company or corporation, 68, 69, 70 partnership, 67, 68, 69 married woman sole trader in London, 61 penalty on clergyman trading, 61 capacity to trade, 61 reputed ownership of trader, 129 Teanspee, {A) By Act of Law : marriage, 126 death. 127 execution, 127 bankruptcy, 127 reputed ownership, 129 {E) By Assignment according to General Law : equitable assignment or deed, 129 bill payable to order transferred without indorsement, 104 donatio mortis causa, 130, 250 (C) By negotiation according to Law Merchant : negotiation defined, 102 what biUs negotiable, 24, 25, 115 In what manner : mode determined by form, 102 bill payable to bearer by delivery, 102 order by indorsement, 102, 104 INDEX. 431 Tbansfeb. — continued. In what manner — continued. indorsement defined, 6, 102 indorsement as containing two contracts, 60, 110 formal requisites of indorsement, 105 — 107 place for indorsement, 106 partial indorsement, 107 indorsement in blank, 110 special indorsement, 111 conversion of blank into special indorsement. 111 blank indorsement followed by special, 24, 111 qualified indorsement, e.g., without recourse, 39 facultative indorsement, e.g. , waiving protest, 40 indorsement with, reference in need, 38, 39 conditional indorsement, 109, 110 restrictive or agency indorsement, 112 By whom : by holder, 102 by person not holder, 104, 187. And see Forgery. several payees or indorsees, 107 To whom : certainty required as to indorsee, 111 re-transfer and re-issue, 120 At what time : when bill ceases to be negotiable, 115 transfer before completion, 49 — 52 negotiation before issue by maker, 53, 55 presumption as to time, 119 when bill deemed overdue, 118, 119 negotiation after maturity, 116, 117 dishonour by non-acceptance, 119, 120 action brought, 116 discharge, 118 Eights resulting : general rights of holder, 121 light of holder with defective title, 122 irregularity patent on bill, 90, 91 title through fictitious payee or indorser, 21, 22 to duplicate of lost bill, 233 holder's right of action, 121, 122 in whose name action on bill payable special! j-, 123 to bearer, 124 432 INDEX. iRAyaFER— continued. Bights resulting — continued. action on lost bill, 238, 234 right of proof in bankruptcy, 123, 281 See also Securities for Bills of Eo/xhange. Teanspeeoe Br Deliveet, defined, 194 non-liability on bill, 195 liability on consideration, 195 warranty of, 195, 196 Trust, declaration of, as to bill, 97, 129 Teustee, meaning of term as applied to bills, 115 indorsee under restrictive indorsement as, 115 holder paid in part by drawer or indorser deemed, 123 bankruptcy of person holding bill as, 127, 128 pledgee regarded as, for balance, 85, 86, 144 position of holder suing as, 123 banker is debtor to, not trustee for, customer, 251 Teustee in Bankruptcy, ■when biU vests in, 127, 128, 129 payment to, 129 notice of dishonour to, 160 presentment for acceptance to, 136 Uneegisteeed Association, bill payable to officer of, 100 Usage, when evidence of, admissible, 282 how proved, 282 TTsANCE, 37 UsuET Laws, 27, 101 Value, defined, 7, 80. See Consideration. need not be specified, 14 INDEX. 433 "Vaitje Received," construction of the term, 14 Varying Acceptance, 46—49. See Qualified Acceptance. Vendob, lien of drawer, as unpaid, 295 Via Majob, 148 Void Bill, •when by statute, 100 transfer of, by mere delivery, 195, 196 when valid as equitable assignment, 9, 13 agreement, 9, 13 notice of dishonour of, 169, 188 See also Stamp. Voting in Bankextptct, right of bill holder, 348 Wagee, as consideration for bill, 93 Waiver, of bill, by holder, 211 of liabilities of parties by holder, 211 of presentment for payment, 151 of protest, 40, 175, 176 of notice of dishonour, 166, 167 distinguished from admission of due notice, 166 Want of Consideration, current bill, 86, 87, 96, 97 overdue bill, 117. See Accommodation Bill. Wabing, Ex parte, rule or doctrine of, 299—302 does not apply to Scotland, 301 Waeeantt. of indorser, 187 of transferor by delivery, 195 of genuineness distinguished from liability on consideration, 196 of title to bill by person demanding payment, 208 See Estoppels. C. F F 434 INDEX. WiDOV, right of suryivorship in bills, 126 wife representing herself as, 61, n. Wife, 61. See Husband and Wife. " Without Grace," 34, 35 " Without Eecoubse," 39 Words or Phrases. See Interpretation. Wkiting, contracts arising on bills are contracts in writing, 57, 110 THE END. BRASBUBV, AUNEW, & CO, LX>., FRIHTERS, LONDON AND TONBRIDOB. TELEGRAPHIC ADDRESS- May, 1897. " RHODRONS, LONDON." OP LAW WORKS FtJBLISHKD BT STBYBNS MB SONS, In. 119 & 120, Chancery Lane, London. (And at 14, Bell Taxd, Lincoln's Inn.) A Catalogue of Modern Law Works, together with a complete Chronohgical List of all the English, Irish, and Scotch Reports, an Alphabetical Table of Abbrevia- tions used in reference to Law Reports and Text Books, and an Index of Subjects. Demy 8w. 1897 (120 pp), limp binding, post free, Qd. Acts of Parliament. — Public and Local Acts from an early date may be had of the Publishers of this Catalogue, who have also on sale the largest collection of Private Acts, relating to Estates, Enclosures, Railways, Roads, ^c, SfC. ADMIRALTY.— Roscoe's Admiralty Practice,— Third Edition. By E. S. RosooB, Assistant Registrar, Admiralty Court, and T. Lambeet MbaeS, Esqrs., Barrister-at-Law. [In preparation. ADULTERATION.— Bartley's Adulteration of Food.— Statutes and Cases dealing with Coffee, Tea, Bread, Seeds, Food and Drugs, Margarine, Fertilisers and Feeding Stuffs, &o., &o. By Douei-AS C. Babtley, Esq., Barrister-at-Law. Eoy. 12ino. 1895. 6». Cripps-Day's Adulteration (Agricultural Fertilisers and Feeding Stuffs).— By Fbancis H. Cbipps-Dat, Esq., Barrister-at-Law. Royal 12mo. 1894. 5«. ADVOCACY.— Harris' Hints on Advocacy.— Conduct of Cases^vil and Criminal. Classes of Witnesses and Suggestions for Cross- examining them, &o. , &o. By Riohaed Haeeis, one of her Majesty s Counsel. Eleventh Edition, with an Introduction. Royal 12mo. 1897 '*• "Fnll of good sense and just observation. A very complete Manual of the Advocate's art in Trial by Jviy."—8aKeitori' Journal. "Deserves to be oarefoUy read by the yotmg hamster whose career is yet before him." — Law Magtvdnt. AFFILIATION.— Bott's Manual of the Law and Practice in Affiliation Proceedings, with Statutes and Forms, Table of tfesta- tion. Forms of Agreement, &c. By W. HoiiOWAY Bora, Sobcitor. Demy 12mo. 1894. °'- All atondard Law Works are kept in Stock, in law calf and other bindinga. * • STEVENS AST) SONS, LIMITED, AGRICULTURAL LAW.— Dixon.— Ftife "Farm." Forster's Manual of the Law relating to Small Agricultural Holdings, with the Small Holdings Act, 1892. By Chaei.es D. FoBSTEE, Solicitor. Demy 12mo. 1892. Mt, is. 6d. Spencer's Small Holdings Act, 1892.— With Notes. By Aubbbt J. Spenobe, Esq., Bamster-at-Law, Editor of "Dixon's Law of the Farm." Demy 8to. 1892. Ket, 2«. 6d. ALLOTM ENTS.— Hall's Allotments Acts,1887,withtheEegulatione, Notes, and Forms. By T. Hall Hail, Esq., Barrister-at-Law. Author of " The Law of Allotments." Boyall2mo. 1888. 7«. 6«?. ANGLO-INDIAN CODES,— Stokes's Anglo-Indian Codes.— By ■Whitlet Stokes, LL.D. 2 Vols. Demy 8vo. 1887-88. SI. 6». First and Second Supplements to the above. 1891. 6». 6d. ANNUAL COUNTY COURT PRACTICE.— The Annual County Court Practice, 1897,- By His Honour Judge Smtlt, Q.O. 2 vols. Demy 8to. 25». ANNUAL DIGEST.— Mews'.— Ftife "Digest." ANNUAL LIBRARY (LAWYER'S).— (1) The Annual Practice.— Snow, Bueitet, and Stedtoee. (2) The Annual Digest. — Mews. (3) The Annual Statutes,— Lblt. (4) The Annual County Court Practice. — Smtlt. The Complete Series, as ahove, delivered on the day of publication, net, 21. Nos. 1, 2, and 3 only, net, 11. 10«. Nos. 2, 3, and 4 only, net, 11. lOi. (Carriage extra, 2».) 1^" Stibseryitions, payable on or before August Zlst in each year. Full prospectus forwarded on application. ANNUAL PRACTICE (THE).— The Annual Practice. 1897. Edited by Thomas Snow, Barrister-at-Law ; Chables Bxtbuet, a Master of the Supreme Court, Editor of "Daniell's Chancery Forms"; and F. A. SirEiNOEB, of the Central Office. 2 vols. 8vo. 25«. " A book -which every practisiiig English lawyer must have." — Law Quarterly. " Part of the equipment of every practicing lawyer." — Law Journal. " It is only by tiie help of this established book of practice that a practitioner can carry on his business." — Law Times. " Every member of the bar, in practice, and every London solicitor, ^t all events, finds the last edition of the ATinnal Piactice a necessity." — Solicitorr 'Jowrnal. ANNUAL STATUTES.— Leiy.—Fwfo "Statutes." ARBITRATION,— Russell's Treatise on the Power and Duty of an Arbitrator, and the Law of Submissions and Awards; with an Appendix of Forms, and of the Statutes relating to Arbitration. By I^ANOis KiTSSELL. Seventh Edition. By the Author and Hebbeet Etjsbbll, Esq., Barrister-at-Law. Royal 8vo. 1891. 30». ARCH ITECTS,— rirfc " Civil Engineers." AVERAGE,— Hopkins' Hand-Book of Average,— Fourth Edition. By Mauley Hopkins, Esq. Demy 8vo. 1884. 11. Is. Lowndes' Law of General Average. — English and Foreign. Fourth Edition. By Bichabd Lowndes, Average Adjuster. Autmor of "The Law of Marine Insurance," &o. Royal 8vo. 1888. ll.V>t. " The most complete store of materials relating to the subject in every par- ticular." — Law Quarterly Review. AUCTIONEERS, — Hart's Law relatingto Auctioneers,— By Hebee Habt, Esq., LL.D., Barrister-at-Law. Demy 8vo. 1895. Ts. 6d. BALLOT. — Fitzgerald's Ballot Act.— With an Introduction. Forming a Guide to the Procedure at Parliamentary and Municipal Elections. Second Edition. By Geeald A. K. Fitzobeald, Esq., Barrister- at-Law. Foap. 8vo. 1876. 6s. 6d. %* All standard Law Works are kept m Stock, in lawealfand other bindings. 119 & 120, OHANOERT LANE, LONDON, W.O. 3 BANKING.— Walker's Treatise on Banking Law,— Second Edition. By J. D. Waikeb, Esq., Q.C. Demy 8vo. 1885. 15s. BANKRUPTCY.— Lawrance's Precedents of Deeds of Arrange- ment between Debtors and theirCreditors i including Perms of Resolutions for Compositions and Schemes of Arrangement under the Bankruptcy Acts, 1883 and 1890, with Introductory Chapters, also the Deeds of Arrangement Acts, 1887 and 1890, with Notes. FouithEd. By H. Akthuk Smith, Esq., Barrister-at-Law. 8vo. 1892. 7s. 6d. " Concise, practical, and reliable." — Law Times. Williams' Law and Practice in Bankruptcy. — Comprising the Bankruptcy Acts, 1883 to 1890, the Bankruptcy Rules and Forms, 1886, 1890, the Debtors Acts, 1869, 1878, the Bankruptcy (Discharge and Closure) Act, 1887, the Deeds pf Arrangement Act, 1887, and the Rules thereunder. By the Hon. Sir Rolamd L. Vatjohaii "Wn.TTAivrs, a Justice of the High Court. Sixth Edition. By Edwabd Wm. Hansell, Esq., Barrister-at-Law. Roy. 8to. 1894. 25s. " This book mil now, if possible, since the appointment of its diBtinj^Bbed author as Bankruptcy Judge, taie higher rank as an authority than before."— Law Journal, BASTARDY.— Bott.—Fi& "AfBHation." BILLS OF EXCHANGE.— Chalmers' Digest of the Law of Bills of Exchange, Promissory Notes, Cheques and Negotiable Securities. Fifth Edition. By His Honour Judge Chauhees, Draughtsman of the BOls of Exchange Act. Demy 8vo. 1896. 18s. " The leading book on bills of exchange j it is well known, widely iised, and highly appreciated." — Law Journal. ** Each section having appended to it illustrations in the nature of short statements of decided cases. These are prepared with that skilful conciseness of which the learned Judge is a master. — Law Times. BILLS OF LADING.— Leggett's Treatise on the Law of Bills of Lading, — Second Edition. By Eitoenb Lehuett, Solicitor and Notary PubKo. Demy 8to. 1893. 30s. Pollock's Bill of Lading Exceptions.— By Henbt E. Pollock. Second Edition. Demy 8vo. 1896. Mt 10s. 6(1. BOOK-KEEPING.— Matthew Hale's System of Book-keeping for Solicitors, containing a List of all Books necessary, with a compre- hensive description of their objects and uses for the purpose of Drawing BUls of Costs and the rendering of Cash Accounts to clients ; also showing how to ascertain Profits derived from the business ; with an Appendix. Demy 8vo. 1884. 5s. 6d. " The most sensible, useful, practical little work on solicitors' book-keepmg that we have seen."— Law Students' Journal. BRACTON. Bracton's Note Book. A Collection of Cases decided in the King's Courts during the reign of Henry the Third, annotated by a Lawyer of that time, seemingly by Henry of Bratton. Edited byE.W.MAirLAHD, Esq., Bar.-at-Law. 3 vols. 8vo. 1887. JVet 3l.3s. BUILDING SOCIETIES.— Craies' Building Societies Act, 1894, with Introduction and Lidex.— By W. F. Ceaibs, Esq., Bamster- at-Law. Royal 8vo. 1894. t.'^I-^''- Wurtzburg on Building Societies.— The Law relatmg to Bmldmg Societies, with Appendices containing the Statutes, Regulations, Act of Sederunt, and Precedents of Rules and Assurances. Third Edition. By E. A. Wxjbtzbtoo, Esq., Bamster-at-Law. Demy C 1 RC^ LOSm ^"■■Will be"of use not only to lawyers but also to secretaries and directois of building societies. It is a carefully arranged and carefully written book.' - Law Times. • * AU itmdard law Works are kept in iStock, in law calf and other bindings. • A 2 STEVENS AND SONS, LIMITED, CANALS,— Webster's Law Relating to Canals.— By Eobbbt Gr. Webstee, Esq., Barrister-at-Law. Demy 8vo. 1885. 11. Is. CARDINAL RULES.— -See " Legal Interpretation." CARRIERS.— Carver's Treatise on the Law relating to the Car- riage of Goods by Sea. — Second Edition. By THOMAa G-ilbbet Caetee, Esq., Barrister-at-La-vr. Royal 8vo. 1891. 11. 12». " A recognized authority." — Solicitora* Journal. " A careful and accurate treatise." — Law Quwrterly Beuieia. Macnamara's Digest of the Law of Carriers of Goods and Pas- sengers by Land and Internal Navigation. — By WAiiiEE Henet Maonamaea, Esq., Bairister-at-Law, Registrar to the Railway Commission. Royal 8vo. 1888. 11. 8«. " A complete epitome of the law relating to carriers of every class." — BaUway CHAMBER PRACTICE.— Archibald's Practice at Judges' Cham- bers and in the District Registries! 'with Forms of Summonses and Orders. Second Edition. By W. P. A. Aechibaij), Esq., Bar- rister-at-Law, and P. E. Vizaed, of the Summons and Order De- partment. Royal 12mo. 1886. 15». CHANCERY, (md Fiffo "Equity." Daniell's Chancery Practice. — ^The Practice of the Chancery Division of the High Court of Justice and on appeal therefrom. Sixth Edit. By L. Field, E. C. Dttnn, and T. Eibton, assisted by W. H. Upjohn, Eaqrs.,Barri8ters-at-Law. 2 vols, in 3 parts. 8to. 1882-84. 61. 6s. Daniell's Forms and Precedents of Proceedings in the Chancery Division of the High Court of Justice and on Appeal there- from, Fourth Edition. With Summaries of the Rules of the Supreme Court, Practical Notes and References to the Sixth Edition of "Daniell's Chancery Practice." By Chakles BtJENET, B.A. Oxon., a Master of the Supreme Court. Royal 8to. 1885. 21, lbs. CHARITABLE TRUSTS,— Mitoheson's Charitable Trusts.— The Jurisdiction of the Charity Conamission. By Riohabd Edmund Mrr- CHESON, Esq., Barrister-at-Law. Demy 8to. 1887. 18*. CHARTER PARTIES.— Carver,— FJ All standard Late Works are kepi in Stock, in law calf and other bindings. 14 STEVENS AMD SONS, LIMITED, EVIDENCE ON COMMISSION,— Hume-Williams and Macklin's Taking of Evidence on Commission: including therein Special Examinations, Letters of Request, Mandamus and Examinations before an Examiner of the Court. By "W. E. Hume-Williams and A. EoMEE Maoklin, Barristers-at-Law. Demy 8vo. 1895. 12«. 6d. EXAMINATION GUIDES.— Bar Examination Guide. By H. D. "WooDoooK, andG. H. B. Keneick, Esqrs., Barristers-at-Law. Pub- lished after each Examination. Net 2s. 6d. Bar Examination Guide— Lecture Supplement, 1896. Set2s. Haynes and Nelham's Honours Examination Digest. By John E. Haynes, LL.D., and Thomas A. Nblham, SoUoitor. Demy 8to. 18'83. 15s. Napier & Stephenson's Digest of the Subjects of Probate, Divorce, Bankruptcy, Admiralty, Ecclesiastical and Criminal Law necessary to be known for the Einal Examination, done into Questions and Answers. By T. Bateman Napiee and Riohakd M. Stephenson, Esqrs., Barristers-at-Law. Demy 8vo. 1888. 12*. Napier & Stephenson's Digest of the Leading Points in the Sub- ject of Criminal Law. Done into Questions and Answers. ByT. Bateman Napibb and Eiohaed M. Stephenson, Esqrs., Banisters- at-Law. Demy8T0. 1888. 5s. Shearwood's Guide for Candidates for the Professions of Barrister and Solicitor. — Second Edition. By Joseph A. Sheae- WOOD, Esq., Barrister-at-Law. Demy 8to. 1887. 6*. Uttley's How to Become a Solicitor; or, Hints for Articled Clerks. By T. F. Uttlet, Solicitor. Royal 12mo. 1894. 5«. EXECUTIONS. — Edwards' Law of Execution upon Judgments and Orders of the Chancery and Queen's Bench Divisions of the High Court of Justice. — By C. Johnston Edwaeds, Esq., Barrister-at-Law. Demy 8vo. 1888. 16». EXECUTORS, — Macaskie's Treatise on the Law of Executors and Administrators, and of the Administration of the Estates of Deceased Persons. With an Appendix of Statutes and Eorms. By S. 0. Maoaskie, Esq., Barrister-at-Law. 8vo. 1881. 10». 6d. Williams' Law of Executors and Administrators. — Ninth Edition. By the Hon. Sir Roland Vatjohan Williams, a, Justice of the High Court. 2 vols. Roy. 8vo. 1893. 31. 16s. " "We can conscientiously say that the present edition "will not only sustain, but enhance the high reputation which the book has always enjoyed. The want of a new edition has been distinctly felt for some time, and in this work, and in this work only, will the practitioner now find the entire law relating to executors and administrators treated in an exhaustive and authoritative fashion, and thoroughly brought down to the present date." — Law Journal. EXTRADITION. — Kirch ner's L'Extradition. — Recueil Renf ermant in Extenso tons les Trait^s conolus jusqu'au ler Janvier, 1883, entre les Nations civilisees, et donnant la solution precise des difficultes qui peuvent surgir dans leur application. Aveo une Preface de M" G-EOEOBS Laohaud, Avocat a la Cour d'Appel de Paris. Publie sous les auspices de M. C. E. Howaed Vincent, Direoteur des Affaires Criminelles de la Police M^tropolitaine de Londres. Par F. J. KiECHNEE, Attache a la Direction des Affaires Criminelles. In 1 ToL (1150 pp.). Royal 8vo. 1883. 2?. 2s. *,* All atanda/rd Law Works are kept in Stock, irt la/w calf and other bindings. 119 & 120, CHANCERY LAUE, LONDON, Vi.O. IS FARM, LAW OF. — Dixon's Law of the Farm: including the Cases and Statutes relating to the subject ; and the Agricultural Customs of Eagland tind Wales. Fifth Edition. By Atjbbet J. Spbnckb, Esq., Barrister-at-Law. Demy 8vo. 1892. 26«. ** The book is well and carefnlly edited." — Law Journal. " A complete modem compendium on a^cnltnral matters." — Law Times, FINANCE ACT.— F«fe" Death Duties." FIXTURES. — Amos and Ferard on the Law of Fixtures and other Property partaking both of a Beal and Personal Nature. Third Edition. By C. A. Fkeai!d and W. 'H.owlaxd Bobeets, Esqrs., Bar- risters-at-Law. Demy Svo. 1883. 18». FORMS.— Archibald.— Fiife " Chamber Practice." Bullen and Leake. — F«rk of reference, "ot also i or those who can afford to give special time to the study of ttie subject with which it deals." — Law Student^s Journal. Weaver's Precedents of Wills, — A Collection of Concise Precedents of Wills, with Introduction, Notes, and an Appendix of Statutes. By Chaeibs Weavee, B.A. Post Svo. 1882. 5s. WINDING U P. — Palmer's Company Precedents, — For use in rela^ tion to Companies, subject to the Companies Acts, 1862 — 1890. Part II. Wnronfa-TJp Foems and Peaotice. Arranged as follows : — Compulsory Winding-TJp, Voluntary Winding- Up, Winding-Up under Supervision, Arrangements and Compromises, with a Chapter on Debentures, and copious Notes, and an Appendix of Acts and Rules. Seventh Edition. By Peanoib Bbattfoet Palmee, assisted by Feane Evans, Esqrs., Barristers-at-Law. Royal Svo. {Nearly ready .) " Palmer's * Company Precedents ' is the book par excellence for practitioners. It is needless to recommend Mr. Palmer's hook to the profession, for it is already known and appreciated. 'We advise those who have any doubts to con- sult it, and they will be in agreement with us." — Law Joumai, March 7, 1896. " Simply invaluable, not only to company lawyers, but to everybody con- nected with companies." — Financial, News. WRECK INQUIRIES, — Murton's Law and Practice relating to Formal Investigations in the United Kingdom, British Posses- sions and before Naval Courts into Shipping Casualties and the Incompetency and Misconduct of Ships' Officers. With an Introduction; By Waltbe Mxjeton, SoUeitor to the Board of Trade. Demy Svo. 1884. 1?. 4s. WRONGS,— Addison, Ball, Pollock, Shearwood,—Fi(;« "Torts." STEVENS AND SONS, Ld., 119 & 120, CHANCERY LANE, LONDON. NEW WORKS AND NEW EDITIONS FREPAltlNG FOR FUBLICATION. Browne and Powles' Law and Practice in Divorce and Matri- monial Causes. — Sixth Edition. By L. D. Potpibs, Esq., Bar- rister-at Law. {ifem-h) ready.') Campbell's Ruling Cases. — Arranged, Annotated and Edited by KoBEET Campbeu., Esq. , Barrister-at-Law ; with American Notes by lEViNa Bbownb, Esq. Vol. XI. : Estoppel to Execution. . (Nearly ready.) Vol. XII. ; Executor to Indemnity. [In the press.) To he completed in about 25 Volumes. Prospectus on application. Chitty's Forms of Practical Proceedings in the Queen's Bench division. Thirteenth Edition. By T. W. Chixtt and Hseeeet Chitty, Eaqrs., Barristers-at-Law. [In preparation.) Greenwood's Manual of the Practice of Conveyancing. — Ninth Edition. By Haebt Gbebnwood, LL.D., Esq., Barrister-at-Law. [Nea/rVy ready.) Lowndes' Practical Treatise on the Law of Marine Insurance. — Third Edition. By Walteb Lowndes, Esq. [In preparation^! Maodonell's Law of Master and Servant, — SecondEd. By John Mac- DONELL, LL.D., Esq., a Master of the Supreme Court. [In preparation.) Marsden's Treatise on the Law of Collisions at Sea. — Fourth Edition. By Reginald G. Mabsden, Esq., Barrister-at-Law. [In the press.) Mews' Complete Common Law and Equity Digest of all the Reported Decisions in the English Courts from 1756 to the Date of Publication.— Consolidating Fishee's Common Law Digest and Chittt's Equity Index. By John Mews, Esq., Barrister-at-Law, Editor of " The Law Journal Beports," assisted by other members of the Bar. [In preparation.) Odgers' Principles of Pleading, Practice, and Procedure in Civil Actions in the High Court of Justice, — Third Edition. By W. Blake Odgees, Esq., Q.C, LL.D. [In thepress.) Palmer's Company Precedents. — Part II. Winding Up Forms and Practice. Seventh Edition. By Eeauois B. Palmeb and Feank Evans, Esqrs., Barristers-at-Law. [Nearly ready.) Pollock's Law of Torts ; a Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law. Fifth Edition. By Sir Feedeeiok Pollock, Bart. , Barrister-at-Law. [In the Press.) Robbins' Treatise on the Law of Mortgage, — By L. G. Goedon Eobbins, Esq., Barrister-at-Law. (Founded on Coote's "Law of Mortgage.") [In the press.) Rogers' Law and Practice of Elections. — Vol. I. Kegisteation, including the Practice in Registration Appeals ; Parliamentary, Municipal, and Local Government ; with Appendices of Statutes, Orders in Council, and Forms. Sixteenth Edition. By Maueioe Powell, Esq., Barrister-at-Law. [In the pi-ess.) Roscoe's Admiralty Practice, — Third Edition. By E. S. Roscob, Assistant Registrar, Admiralty Court, and T. Lambeet Mbaes, Esqrs., Barrister-at-Law. [In preparation.) Smith's Manual of Common Law. — ^For Practitioners and Students. Comprising the Fundamental Principles, with useful Practical Rules and Decisions. By Josiah W. Smith, B.C.L., Q.C. Eleventh Edition. By C. Spubling, Esq., Barrister-at-Law. [In preparation.) STEVENS AND SONS, Ld., 119 & 120, CHANCERY LANE, LONDON. ^iki^ii :: ■.